8-K
Sinclair, Inc. (SBGI)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
February 10, 2025
Date of Report (Date of earliest event reported)
Sinclair, Inc.
(Exact name of registrant as specified in its charter)
| Maryland | 333-271072 | 92-1076143 |
|---|---|---|
| (State or other jurisdiction<br><br>of incorporation) | (Commission<br><br>File Number) | (I.R.S. Employer<br><br>Identification Number) |
Sinclair Broadcast Group, LLC
(Exact name of registrant as specified in its charter)
| Maryland | 000-26076 | 52-1494660 |
|---|---|---|
| (State or other jurisdiction<br><br>of incorporation) | (Commission<br><br>File Number) | (I.R.S. Employer<br><br>Identification Number) |
10706 Beaver Dam Road Hunt Valley, MD 21030
(Address of principal executive offices and zip code)
(410) 568-1500
(Registrants’ telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|---|---|
| ☐ | Soliciting material pursuant to Rule <br>14a-12<br> under the Exchange Act (17 CFR <br>240.14a-12) |
| --- | --- |
| ☐ | Pre-commencement<br> communications pursuant to Rule <br>14d-2(b)<br> under the Exchange Act (17 CFR <br>240.14d-2(b)) |
| --- | --- |
| ☐ | Pre-commencement<br> communications pursuant to Rule <br>13e-4(c)<br> under the Exchange Act (17 CFR <br>240.13e-4(c)) |
| --- | --- |
Securities registered pursuant to Section 12(b) of the Act:
Sinclair, Inc.
| Title of each class | Trading<br> Symbol | Name of each exchange<br><br>on which registered |
|---|---|---|
| Class A Common Stock, par value $ 0.01 per share | SBGI | The NASDAQ Stock Market LLC |
Sinclair Broadcast Group, LLC
| Title of each class | Trading<br><br>Symbol | Name of each exchange<br><br>on which registered |
|---|---|---|
| None | N/A | N/A |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2). Sinclair, Inc. ☐ Sinclair Broadcast Group, LLC ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. Sinclair, Inc. ☐ Sinclair Broadcast Group, LLC ☐
| Item 1.01 | Entry into a Material Definitive Agreement. |
|---|
As previously disclosed by Sinclair, Inc. (the “Company”), on January 12, 2025, Sinclair Television Group, Inc. (“STG”) and certain affiliated entities, including its direct parent, Sinclair Broadcast Group, LLC (“SBG”), entered into a Transaction Support Agreement (including the attached term sheet and other attachments thereto, the “Transaction Support Agreement”) with certain of STG’s secured creditors, including lenders holding term loans under STG’s existing credit facilities governed by STG’s existing bank credit agreement (the “Existing Credit Agreement”) and various holders of STG’s outstanding 4.125% Senior Secured Notes due 2030 (the “Existing 2030 Notes”), on the principal terms of new money financings and a debt recapitalization to strengthen the Company’s balance sheet and better position it for long-term growth.
In connection with the Transaction Support Agreement, STG consummated the following transactions (the “Transactions”):
First-Out First Lien Notes Offering and Indenture
On February 12, 2025, STG issued $1,430 million aggregate principal amount of 8.125% First-Out First Lien Secured Notes due 2033 (the “New First-Out Notes”), which mature on February 15, 2033, pursuant to an indenture, dated as of February 12, 2025 (the “First-Out Notes Indenture”) by and among STG and the other guarantors identified therein and U.S. Bank Trust Company, National Association, as trustee and collateral trustee for the New First-Out Notes.
The net proceeds from the private placement of the New First-Out Notes, plus cash on hand were, or will be, used to repay $1,175 million aggregate principal amount of outstanding term loans B-2 under the Existing Credit Agreement, to consummate the AHG Notes Repurchase (as defined below), and to pay related fees and expenses related to the Transactions.
The New First-Out Notes were priced at 100.0% of their principal value and bear interest at a rate of 8.125% per annum payable semi-annually on February 15 and August 15, commencing August 15, 2025. Prior to February 15, 2028, STG may redeem the New First-Out Notes, in whole or in part, at any time or from time to time at a price equal to 100% of the principal amount of the New First-Out Notes, plus accrued and unpaid interest, if any, to the redemption date, plus a “make-whole” premium as set forth in the First-Out Notes Indenture. On or prior to February 15, 2028, STG may redeem up to 40% of the aggregate principal amount of the New First-Out Notes (including the aggregate principal amount of any additional New First-Out Notes issued after the original issue date of the New First-Out Notes) at a price equal to 108.125% of the principal amount of the New First-Out Notes, plus accrued and unpaid interest, if any, to, but not including, the date of redemption using the proceeds of certain equity offerings. In addition, prior to February 15, 2028, STG may redeem the New First-Out Notes, in whole but not in part, at a redemption price equal to 108.125% of the principal amount of the New First-Out Notes, plus accrued and unpaid interest, if any, to, but not including, the redemption date upon certain change of control transactions or certain significant acquisitions.
STG’s obligations under the New First-Out Notes, as set forth in the First-Out Notes Indenture, are secured on a first priority basis by substantially all tangible and intangible personal property of STG and the guarantors securing STG’s and each such guarantor’s obligations under the New Credit Agreement (as defined below) (which security interest, in the case of the grant by SBG, is limited to its right, title and interest in the equity interests of STG and each designated SBG subsidiary, if any) and on a pari passu basis with all of STG’s and such guarantors’ existing and future indebtedness that is secured by a first priority lien on the collateral securing the New First-Out Notes, including, the Exchange Second-Out Notes (as defined below) and the indebtedness under the New Credit Agreement, subject to permitted liens and certain
other exceptions, provided that the New First-Out Notes are effectively senior to all existing and future “second-out” priority indebtedness to the extent of the value of the collateral securing the New First-Out Notes and the payment priorities provided under a collateral trust agreement.
The First-Out Notes Indenture contains certain restrictive covenants including, but not limited to, restrictions on indebtedness, liens, restricted payments, investments, mergers, consolidations, sales and other dispositions of assets and affiliate transactions. These covenants are subject to a number of exceptions and limitations as described in the First-Out Notes Indenture. The First-Out Notes Indenture also includes events of default, including certain cross-default and cross-acceleration provisions with other debt of STG, customary for an agreement of its type.
The New First-Out Notes have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), or any state securities law. Absent registration, the New First-Out Notes currently may be sold only pursuant to an applicable exemption from the requirements for registration. The offering of the New First-Out Notes was made only to “qualified institutional buyers” (as defined in Rule 144A under the Securities Act) and, outside the United States, to non-U.S. persons in compliance with Regulation S under the Securities Act. There are no registration rights associated with the New First-Out Notes.
The foregoing summary of the First-Out Notes Indenture does not purport to be complete and is qualified in its entirety by reference to the First-Out Notes Indenture, which is attached hereto as Exhibit 4.1 and is incorporated herein by reference.
Seventh Amendment to Seventh Amended and Restated Credit Agreement
In connection with the Transactions, STG and SBG entered into a Seventh Amendment, dated February 12, 2025, to its Existing Credit Agreement, with the guarantors party thereto, the lenders party thereto, JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, CSC Delaware Trust Company, as successor administrative agent and collateral agent, and JPMorgan Chase Bank, N.A. (as successor to Chase Lincoln First Commercial Corporation), as swingline lender and each of lenders from time to time party thereto, providing for, among other things, the subordination of liens held by lenders under the Existing Credit Agreement who did not participate in or consent to the Term Loan Exchanges (as defined below) or the RCF Exchange (as defined below) to third lien obligations, and the elimination of substantially all covenants, certain of the events of default and related definitions contained therein (as amended, the “Amended Credit Agreement”).
The foregoing summary of the Amended Credit Agreement does not purport to be complete and is qualified in its entirety by reference to the text of the Amended Credit Agreement, a copy of which is attached hereto as Exhibit 10.2 and which is incorporated herein by reference.
New Credit Agreement and First Lien Credit Facilities
On February 12, 2025, STG and SBG entered into an up to $575.0 million aggregate principal amount first-out first lien revolving credit facility, including a letter of credit sub-facility and a swing-line sub-facility (the “First-Out Revolving Credit Facility”) pursuant to the terms of a new credit agreement with the issuing banks and lenders party thereto, JPMorgan Chase Bank, N.A., as administrative agent, and U.S. Bank Trust Company, National Association, solely as collateral trustee (the “New Credit Agreement”).
In connection with the Transactions, STG provided all eligible lenders of revolving loans and commitments outstanding under the Existing Revolving Credit Facility (as defined below) the opportunity to participate in or consent to the First-Out Revolving Credit Facility (the “RCF Exchange”). Lenders of $75.0 million aggregate principal amount of revolving loans and commitments outstanding under the Existing Credit Agreement (the “Existing Revolving Credit Facility”) did not participate in or consent to the RCF Exchange. As a result, such obligations are ranked as third lien obligations under the Amended Credit Agreement.
In addition, STG provided the lenders of outstanding term loans B-3 (the “TLB-3 Term Loans”) and outstanding term loans B-4 (the “TLB-4 Term Loans”) under the Existing Credit Agreement the opportunity to refinance and/or exchange such TLB-3 Term Loans into second-out first lien term loans B-6 (the “TLB-6 Term Loans”) maturing December 31, 2029 (the “TLB-3 Exchange”) and such TLB-4 Term Loans into second-out first lien term loans B-7 (the “TLB-7 Term Loans”) maturing December 31, 2030 (the “TLB-4 Exchange”, and together with the TLB-3 Exchange, the “Term Loan Exchanges”), in each case under the New Credit Agreement on a dollar-for-dollar basis, with accrued and unpaid interest on the TLB-3 Term Loans and the TLB-4 Term Loans paid in cash.
On February 12, 2025, lenders of approximately $711.4 million and $731.3 million aggregate principal amount of outstanding TLB-3 Term Loans and TLB-4 Term Loans, respectively, under the Existing Credit Agreement elected to refinance and/or exchange such term loans into TLB-6 Term Loans and TLB-7 Term Loans, respectively, under the New Credit Agreement (the “Second-Out Term Loan Facility”), consisting of (i) approximately $711.4 million aggregate principal amount of TLB-6 Term Loans and (ii) approximately $731.3 million aggregate principal amount of TLB-7 Term Loans. The remaining approximately $2.7 million of TLB-3 Term Loans held by lenders that did not participate in or consent to the exchange into TLB-6 Term Loans are ranked as third lien obligations under the Amended Credit Agreement.
The First-Out Revolving Credit Facility and the Second-Out Term Loan Facility under the New Credit Agreement are collectively referred to as the “First Lien Credit Facilities.”
Borrowings under the First Lien Credit Facilities bear interest at a rate per annum equal to, at STG’s option, either (i) a base rate, which is subject to an interest rate floor of, in the case of TLB-6 Term Loans and TLB-7 Term Loans, 0.00% per annum, and in the case of the First-Out Revolving Credit Facility, 1.00% per annum, plus a margin of, 2.30% (in the case of the TLB-6 Term Loans), 3.10% (in the case of the TLB-7 Term Loans), or 1.00% (in the case of the First-Out Revolving Credit Facility) or (ii) a SOFR (or successor) rate, which is subject to an interest rate floor of 0.00% per annum, plus a margin of, 3.30% (in the case of the TLB-6 Term Loans), 4.10% (in the case of the TLB-7 Term Loans), or 2.00% (in the case of the First-Out Revolving Credit Facility).
STG’s obligations under the First-Out Revolving Credit Facility are secured on a first priority basis by substantially all tangible and intangible personal property of STG, the designated SBG subsidiaries, and each wholly-owned material restricted subsidiary of STG that is directly held by STG or a subsidiary guarantor (which security interest, in the case of the grant by SBG, is limited to its right, title and interest in the equity interests of STG and each designated SBG subsidiary, if any) and on a pari passu basis with all of STG’s and such guarantors’ existing and future indebtedness that is secured by a first priority lien on the collateral securing the First-Out Revolving Credit Facility, including, the New First-Out Notes, the Second-Out Term Loan Facility and the Exchange Second-Out Notes, subject to permitted liens and certain other exceptions, provided that the First-Out Revolving Credit Facility is effectively senior to all existing and future “second-out” priority indebtedness to the extent of the value of the collateral securing the First-Out Revolving Credit Facility and the payment priorities provided under a collateral trust agreement.
STG’s obligations under Second-Out Term Loan Facility, are secured on a first priority, “second-out” basis by substantially all tangible and intangible personal property of STG, the designated SBG subsidiaries, and each wholly-owned material restricted subsidiary of STG that is directly held by STG or a subsidiary guarantor (which security interest, in the case of the grant by SBG, is limited to its right, title and interest in the equity interests of STG and each designated SBG subsidiary, if any) and on a pari passu basis with all of STG’s and such guarantors’ existing and future indebtedness that is secured by a first priority lien on the collateral securing the Second-Out Term Loan Facility, including, the New First-Out Notes, the First-Out Revolving Credit Facility and the Exchange Second-Out Notes, subject to permitted liens and certain other exceptions, provided that the Second-Out Term Loan Facility is effectively subordinated to all existing and future “first-out” priority indebtedness, and the payment priorities as provided under a collateral trust agreement.
The First Lien Credit Facilities contain customary affirmative covenants including, among others: delivery of annual audited and quarterly unaudited financial statements; delivery of notices of defaults, material litigation and material ERISA events; submission to certain inspections; maintenance of property and customary insurance; payment of taxes; and compliance with laws and regulations. The First Lien Credit Facilities also contain customary negative covenants that, subject to certain exceptions, qualifications and “baskets,” generally limit the ability of STG and its restricted subsidiaries to incur debt, create liens, make fundamental changes, enter into asset sales, make certain investments, pay dividends or distribute or redeem certain equity interests and prepay or redeem certain debt.
The First-Out Revolving Credit Facility includes a financial maintenance covenant, which requires the first-out first lien leverage ratio not to exceed 3.5x, measured as of the end of each fiscal quarter, which is only applicable if more than 35% of the capacity (as a percentage of total commitments) under the First-Out Revolving Credit Facility, measured as of the last day of each fiscal quarter, is utilized as of such date.
The foregoing summary of the First Lien Credit Facilities does not purport to be complete and is qualified in its entirety by reference to the text of the New Credit Agreement, a copy of which is attached hereto as Exhibit 10.1 and which is incorporated herein by reference.
Exchange Offer and Consent Solicitation; Supplemental Indenture to Existing 2030 Notes; Exchange Second-Out Notes and Indenture
As previously announced, on January 27, 2025, STG commenced (i) an exchange offer (the “Exchange Offer”) of new 4.375% Second-Out First Lien Secured Notes due 2032 (the “Exchange Second-Out Notes”) for any and all of STG’s outstanding Existing 2030 Notes and (ii) a consent solicitation (the “Consent Solicitation”) with respect to the Amendments (as defined below) on the terms and subject to the conditions set forth in a Confidential Offering Memorandum, Offer to Exchange and Consent Solicitation Statement, as amended and supplemented by Supplement No. 1 dated January 30, 2025 (as amended and supplemented, the “Statement”).
Prior to the launch of the Exchange Offer and Consent Solicitation, STG obtained commitments to consent to the Amendments from the holders of over two-thirds (66 2/3%) in aggregate principal amount of outstanding Existing 2030 Notes not owned by STG or any of its affiliates (the “Requisite Consents”) required to adopt the Amendments with respect to the Existing 2030 Notes. The Existing 2030 Notes were issued pursuant to an indenture, dated as of December 4, 2020, among STG, the guarantors listed therein, and U.S. Bank Trust Company, National Association (formerly known as U.S. Bank National Association), as trustee and collateral agent (as amended and supplemented by a Supplemental Indenture No. 1 dated as of March 15, 2021, a Supplemental Indenture No. 2 dated as of June 16, 2022 and a Supplemental Indenture No. 3 dated as of May 30, 2024, the “Existing 2030 Indenture”).
Pursuant to the Exchange Offer and Consent Solicitation, STG obtained the Requisite Consents to adopt the proposed Amendments with respect to the Existing 2030 Notes. On February 10, 2025, STG and the guarantors party thereto entered into a Supplemental Indenture No. 4 (the “Supplemental Indenture”) to the Existing 2030 Indenture providing for certain amendments (the “Amendments”) to the Existing 2030 Indenture. The Amendments, among other things, (i) eliminate substantially all of the restrictive covenants and certain of the events of default and related definitions contained in the Existing 2030 Indenture, (ii) permit STG to consummate the Transactions and (iii) provide for the release and termination of the liens on the collateral securing the Existing 2030 Notes that remain outstanding following completion of the Exchange Offer. Holders of Existing 2030 Notes who do not tender prior to the expiration time of the Exchange Offer, which is expected to occur at 11:59 pm, New York City time, on March 7, 2025, will continue to hold Existing 2030 Notes under the Existing 2030 Indenture, as amended and supplement by the Supplemental Indenture. As amended and supplemented, such Existing 2030 Notes will become unsecured obligations of STG.
The Supplemental Indenture was effective immediately upon execution thereof, and the Amendments became operative on February 12, 2025, the date when the Existing 2030 Notes that have been validly tendered (and not validly withdrawn) prior to the Early Tender Time (as defined in the Statement) were accepted for exchange in accordance with the terms of the Statement.
On February 12, 2025, STG issued approximately $267.2 million aggregate principal amount of Exchange Second-Out Notes pursuant to an indenture, dated as of February 12, 2025 (the “Second-Out Notes Indenture”) by and among STG and the other guarantors identified therein and U.S. Bank Trust Company, National Association, as trustee and collateral trustee for the Exchange Second-Out Notes. A cash payment was made to holders of Existing 2030 Notes accepted for exchange in connection with accrued interest on such Existing 2030 Notes.
The Exchange Second-Out Notes bear interest at a rate of 4.375% per annum, payable semi-annually on June 1 and December 1 of each year, beginning on June 1, 2025. The Exchange Second-Out Notes mature on December 31, 2032. Prior to December 1, 2025, STG may redeem the Exchange Second-Out Notes, in whole or in part, at any time or from time to time, at a price equal to 100.0% of the principal amount of the Exchange Second-Out Notes plus accrued and unpaid interest, if any, to the date of redemption, plus a ‘‘make-whole’’ premium as set forth in the Second-Out Notes Indenture. In addition, beginning on December 1, 2025, STG may redeem some or all of the Exchange Second-Out Notes at any time or from time to time at the redemption prices set forth in the Second-Out Notes Indenture, plus accrued and unpaid interest, if any, to, but not including, the redemption date. Upon the sale of certain of STG’s assets or certain changes of control, STG may be required to offer to repurchase some or all of the Exchange Second-Out Notes.
STG’s obligations under the Exchange Second-Out Notes, as set forth in the Second-Out Notes Indenture, are secured on a first priority, “second-out” basis by substantially all tangible and intangible personal property of STG and the guarantors securing STG’s and each such guarantor’s obligations under the New Credit Agreement which security interest, in the case of the grant by SBG, is limited to its right, title and interest in the equity interests of STG and each designated SBG subsidiary, if any) and on a pari passu basis with all of STG’s and such guarantors’ existing and future indebtedness that is secured by a first priority lien on the collateral securing the Exchange Second-Out Notes, including, the New First-Out Notes and the indebtedness under the New Credit Agreement, subject to permitted liens and certain other exceptions, provided that the Exchange Second-Out Notes are effectively subordinated to all existing and future “first-out” priority indebtedness, and the payment priorities as provided under a collateral trust agreement.
The Second-Out Notes Indenture contains certain restrictive covenants including, but not limited to, restrictions on indebtedness, liens, payments, investments, mergers, consolidations, liquidations and dissolutions, acquisitions, sales and other dispositions of assets and affiliate transactions. These covenants are subject to a number of exceptions and limitations as described in the Second-Out Notes Indenture. The Second-Out Notes Indenture also includes events of default, including certain cross-default and cross-acceleration provisions with other debt of STG, customary for agreements of this type.
The Exchange Second-Out Notes have not been registered under the Securities Act or any state securities law. Absent registration, the Exchange Second-Out Notes currently may be sold only pursuant to an applicable exemption from the requirements for registration. The offering of the Exchange Second-Out Notes was made only to “qualified institutional buyers” (as defined in Rule 144A under the Securities Act) and, outside the United States, to non-U.S. persons in compliance with Regulation S under the Securities Act. There are no registration rights associated with the Exchange Second-Out Notes.
The foregoing descriptions of the Supplemental Indenture and Second-Out Notes Indenture do not purport to be complete and are qualified in their entirety by reference to the Supplemental Indenture and Second-Out Notes Indenture, which are attached hereto as Exhibits 4.2 and 4.3, respectively, and are incorporated herein by reference.
Private Debt Repurchase
In connection with the Transactions, STG agreed to repurchase or redeem for cash approximately $63.6 million aggregate principal amount of Existing 2030 Notes at 84% of the principal amount thereof and approximately $104.0 million aggregate principal amount of STG’s 5.125% Senior Unsecured Notes due 2027 at 97% of the principal amount thereof (the “AHG Notes Repurchase”), each together with any accrued and unpaid interest, held by certain parties to the Transaction Support Agreement. Certain of these repurchases occurred on February 12, 2025. The repurchases that remain are expected to occur as soon as practicable following the closing of the Transactions.
Private Exchange Offer; New Second Lien Notes and Indenture
STG agreed to issue to certain holders of the Existing 2030 Notes party to the Transaction Support Agreement $432 million aggregate principal amount of STG’s 9.750% Senior Secured Second Lien Notes due 2033 (“New Second Lien Notes”) in exchange for $432 million aggregate principal amount of Existing 2030 Notes, with accrued and unpaid interest on the exchanged amount of Existing 2030 Notes paid in cash. Certain of these exchanges occurred on February 12, 2025. The remaining exchanges are expected to occur over the next three weeks, as previously agreed with such holders.
The New Second Lien Notes were issued pursuant to an indenture, dated as of February 12, 2025 (the “Second Lien Notes Indenture”) by and among STG and the other guarantors identified therein and U.S. Bank Trust Company, National Association, as trustee and collateral trustee for the New Second Lien Notes.
The New Second Lien Notes bear interest at a rate of 9.750% per annum, payable semi-annually on February 15 and August 15 of each year, beginning on August 15, 2025. The New Second Lien Notes mature on February 15, 2033. Prior to February 15, 2027, STG may redeem the New Second Lien Notes, in whole or in part, at any time or from time to time at a price equal to 100% of the principal amount of the New Second Lien Notes, plus accrued and unpaid interest, if any, to the redemption date, plus a “make-whole” premium as set forth in the Second Lien Notes Indenture. On or prior to February 15, 2027, STG may redeem up to 40% of the aggregate principal amount of the New Second Lien Notes (including the aggregate principal amount of any additional New Second Lien Notes issued after the original issue date of the New Second Lien Notes) at a price equal to 109.750% of the principal amount of the New Second Lien Notes, plus
accrued and unpaid interest, if any, to, but not including, the date of redemption using the proceeds of certain equity offerings. In addition, prior to February 15, 2027, STG may redeem the New Second Lien Notes, in whole but not in part, at a redemption price equal to 109.750% of the principal amount of the New Second Lien Notes, plus accrued and unpaid interest, if any, to, but not including, the redemption date upon certain change of control transactions or certain significant acquisitions.
STG’s obligations under the New Second Lien Notes, as set forth in the Second Lien Notes Indenture, are secured on a second priority basis by substantially all tangible and intangible personal property of STG and the guarantors securing STG’s and each such guarantor’s obligations under the New Credit Agreement which security interest, in the case of the grant by SBG, is limited to its right, title and interest in the equity interests of STG and each designated SBG subsidiary, if any) and on a pari passu basis with all of STG’s and such guarantors’ future indebtedness that is secured by a second priority lien on the collateral securing the New Second Lien Notes (if any), subject to permitted liens and certain other exceptions, provided that the New Second Lien Notes are effectively subordinated to all existing and future first priority indebtedness (including the New First-Out Notes, the First-Out Revolving Credit Facility, the Second-Out Term Loan Facility and the Exchange Second-Out Notes).
The Second Lien Notes Indenture contains certain restrictive covenants including, but not limited to, restrictions on indebtedness, liens, payments, investments, mergers, consolidations, liquidations and dissolutions, acquisitions, sales and other dispositions of assets and affiliate transactions. These covenants are subject to a number of exceptions and limitations as described in the Second Lien Notes Indenture. The Second Lien Notes Indenture also includes events of default, including certain cross-default and cross-acceleration provisions with other debt of STG, customary for agreements of this type.
The New Second Lien Notes have not been registered under the Securities Act or any state securities law. Absent registration, the New Second Lien Notes currently may be sold only pursuant to an applicable exemption from the requirements for registration. The offering of the New Second Lien Notes was made only to “qualified institutional buyers” (as defined in Rule 144A under the Securities Act) and, outside the United States, to non-U.S. persons in compliance with Regulation S under the Securities Act. There are no registration rights associated with the New Second Lien Notes.
The foregoing description of the Second Lien Notes Indenture does not purport to be complete and is qualified in its entirety by reference to the Second Lien Notes Indenture, which is attached hereto as Exhibit 4.4 and is incorporated herein by reference.
This Current Report on Form 8-K does not constitute an offer to sell or the solicitation of an offer to buy any securities, nor a solicitation of consents from any holders of securities, nor shall there be any sale of securities or solicitation of consents in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such jurisdiction. Any solicitation or offer will only be made pursuant to a separate disclosure statement distributed to the relevant holders of securities.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an <br>Off-Balance<br> Sheet Arrangement of a Registrant. |
|---|
The disclosure required by this Item 2.03 is included in Item 1.01 above and is incorporated herein by reference.
| Item 9.01 | Financial Statements and Exhibits. |
|---|
(d) Exhibits
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
SINCLAIR, INC.
SINCLAIR BROADCAST GROUP, LLC
| By: | /s/ David R. Bochenek |
|---|---|
| Name: | David R. Bochenek |
| Title: | Senior Vice President / Chief Accounting Officer |
| Dated: February 13, 2025 | |
| --- |
EX-4.1
Exhibit 4.1
Execution Version
INDENTURE
Dated as of February 12, 2025
Among
SINCLAIR TELEVISION GROUP, INC.,
as Issuer,
THE GUARANTORS FROM TIME TO TIME PARTY HERETO
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee and Collateral Trustee
8.125% FIRST-OUT FIRST LIEN SECURED NOTES DUE 2033
TABLE OF CONTENTS
| Page | |||
|---|---|---|---|
| ARTICLE 1 | |||
| DEFINITIONS AND INCORPORATION BY REFERENCE | |||
| SECTION 1.01. | Definitions | 1 | |
| SECTION 1.02. | Other Definitions | 59 | |
| SECTION 1.03. | Incorporation by Reference of Trust Indenture Act | 60 | |
| SECTION 1.04. | Rules of Construction | 61 | |
| SECTION 1.05. | Acts of Holders | 61 | |
| SECTION 1.06. | Calculations | 62 | |
| ARTICLE 2 | |||
| THE NOTES | |||
| SECTION 2.01. | Form and Dating; Terms | 64 | |
| SECTION 2.02. | Execution and Authentication | 65 | |
| SECTION 2.03. | Registrar and Paying Agent | 66 | |
| SECTION 2.04. | Paying Agent to Hold Money in Trust | 66 | |
| SECTION 2.05. | Holder Lists | 66 | |
| SECTION 2.06. | Transfer and Exchange | 67 | |
| SECTION 2.07. | Replacement Notes | 77 | |
| SECTION 2.08. | Outstanding Notes | 78 | |
| SECTION 2.09. | Treasury Notes | 78 | |
| SECTION 2.10. | Temporary Notes | 78 | |
| SECTION 2.11. | Cancellation | 79 | |
| SECTION 2.12. | Defaulted Interest | 79 | |
| SECTION 2.13. | CUSIP Numbers | 79 | |
| ARTICLE 3 | |||
| REDEMPTION | |||
| SECTION 3.01. | Notices to Trustee | 80 | |
| SECTION 3.02. | Selection of Notes to Be Redeemed or Purchased | 80 | |
| SECTION 3.03. | Notice of Redemption | 80 | |
| SECTION 3.04. | Effect of Notice of Redemption or Purchase | 82 | |
| SECTION 3.05. | Deposit of Redemption or Purchase Price | 82 | |
| SECTION 3.06. | Notes Redeemed or Purchased in Part | 82 | |
| SECTION 3.07. | Optional Redemption | 82 | |
| SECTION 3.08. | Mandatory Redemption | 84 | |
| SECTION 3.09. | Offers to Repurchase by Application of Excess Proceeds | 84 |
i
| ARTICLE 4 | ||
|---|---|---|
| COVENANTS | ||
| SECTION 4.01. | Payment of Notes | 86 |
| SECTION 4.02. | Maintenance of Office or Agency | 86 |
| SECTION 4.03. | Reports and Other Information | 87 |
| SECTION 4.04. | Compliance Certificate | 88 |
| SECTION 4.05. | Taxes | 89 |
| SECTION 4.06. | Stay, Extension and Usury Laws | 89 |
| SECTION 4.07. | Limitation on Restricted Payments | 89 |
| SECTION 4.08. | Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries | 100 |
| SECTION 4.09. | Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock | 103 |
| SECTION 4.10. | Asset Sales | 113 |
| SECTION 4.11. | Transactions with Affiliates | 117 |
| SECTION 4.12. | Liens | 120 |
| SECTION 4.13. | Corporate Existence | 120 |
| SECTION 4.14. | Change of Control Triggering Event | 121 |
| SECTION 4.15. | Additional Note Guarantees | 123 |
| SECTION 4.16. | Covenant Suspension | 123 |
| SECTION 4.17. | Limitation on Priming Financing/ Liability Management Transactions | 125 |
| SECTION 4.18. | [Reserved] | 125 |
| SECTION 4.19. | After-Acquired Property | 125 |
| ARTICLE 5 | ||
| SUCCESSORS | ||
| SECTION 5.01. | Merger, Consolidation, Amalgamation or Sale of All or Substantially All Assets | 125 |
| SECTION 5.02. | Successor Corporation Substituted | 128 |
| ARTICLE 6 | ||
| DEFAULTS AND REMEDIES | ||
| SECTION 6.01. | Events of Default | 129 |
| SECTION 6.02. | Acceleration | 131 |
| SECTION 6.03. | Other Remedies | 133 |
| SECTION 6.04. | Waiver of Past Defaults | 133 |
| SECTION 6.05. | Control by Majority | 133 |
| SECTION 6.06. | Limitation on Suits | 133 |
| SECTION 6.07. | Rights of Holders of Notes to Receive Payment | 134 |
| SECTION 6.08. | Collection Suit by Trustee | 134 |
| SECTION 6.09. | Restoration of Rights and Remedies | 134 |
| SECTION 6.10. | Rights and Remedies Cumulative | 134 |
| SECTION 6.11. | Delay or Omission Not Waiver | 135 |
| SECTION 6.12. | Trustee May File Proofs of Claim | 135 |
| SECTION 6.13. | Priorities | 135 |
| SECTION 6.14. | Undertaking for Costs | 136 |
ii
| ARTICLE 7 | ||
|---|---|---|
| TRUSTEE | ||
| SECTION 7.01. | Duties of Trustee | 136 |
| SECTION 7.02. | Rights of Trustee | 137 |
| SECTION 7.03. | Individual Rights of Trustee | 138 |
| SECTION 7.04. | Trustee’s Disclaimer | 138 |
| SECTION 7.05. | Notice of Defaults | 138 |
| SECTION 7.06. | [Reserved] | 138 |
| SECTION 7.07. | Compensation and Indemnity | 138 |
| SECTION 7.08. | Replacement of Trustee | 139 |
| SECTION 7.09. | Successor Trustee by Merger, Etc. | 140 |
| SECTION 7.10. | Eligibility; Disqualification | 140 |
| SECTION 7.11. | Preferential Collection of Claims Against Issuer | 140 |
| SECTION 7.12. | [Reserved] | 141 |
| SECTION 7.13. | Security Documents; Intercreditor Agreements | 141 |
| ARTICLE 8 | ||
| LEGAL DEFEASANCE AND COVENANT DEFEASANCE | ||
| SECTION 8.01. | Option to Effect Legal Defeasance or Covenant Defeasance | 141 |
| SECTION 8.02. | Legal Defeasance and Discharge | 141 |
| SECTION 8.03. | Covenant Defeasance | 142 |
| SECTION 8.04. | Conditions to Legal or Covenant Defeasance | 142 |
| SECTION 8.05. | Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions | 143 |
| SECTION 8.06. | Repayment to Issuer | 144 |
| SECTION 8.07. | Reinstatement | 144 |
| ARTICLE 9 | ||
| AMENDMENT, SUPPLEMENT AND WAIVER | ||
| SECTION 9.01. | Without Consent of Holders of Notes | 144 |
| SECTION 9.02. | With Consent of Holders of Notes | 147 |
| SECTION 9.03. | [Reserved] | 149 |
| SECTION 9.04. | Revocation and Effect of Consents | 149 |
| SECTION 9.05. | Notation on or Exchange of Notes | 149 |
| SECTION 9.06. | Trustee and Collateral Trustee to Sign Amendments, Etc. | 150 |
| ARTICLE 10 | ||
| NOTE GUARANTEES | ||
| SECTION 10.01. | Note Guarantee | 150 |
| SECTION 10.02. | Limitation on Guarantor Liability | 152 |
| SECTION 10.03. | Execution and Delivery | 152 |
| SECTION 10.04. | Subrogation | 152 |
| SECTION 10.05. | Benefits Acknowledged | 153 |
| SECTION 10.06. | Release of Note Guarantees | 153 |
iii
| ARTICLE 11 | ||
|---|---|---|
| SATISFACTION AND DISCHARGE | ||
| SECTION 11.01. | Satisfaction and Discharge of Indenture | 154 |
| SECTION 11.02. | Application of Trust Money | 155 |
| ARTICLE 12 | ||
| COLLATERAL | ||
| SECTION 12.01. | Security Documents | 156 |
| SECTION 12.02. | Release of Collateral | 157 |
| SECTION 12.03. | Suits to Protect the Collateral | 158 |
| SECTION 12.04. | Authorization of Receipt of Funds by the Trustee Under the Security Documents | 158 |
| SECTION 12.05. | Purchaser Protected | 159 |
| SECTION 12.06. | Powers Exercisable by Receiver or Trustee | 159 |
| SECTION 12.07. | Release Upon Termination of the Issuer’s Obligations | 159 |
| SECTION 12.08. | Collateral Trustee | 159 |
| SECTION 12.09. | Other Limitations | 166 |
| ARTICLE 13 | ||
| MISCELLANEOUS | ||
| SECTION 13.01. | [Reserved] | 166 |
| SECTION 13.02. | Notices | 166 |
| SECTION 13.03. | Communication by Holders of Notes with Other Holders of Notes | 168 |
| SECTION 13.04. | Certificate and Opinion as to Conditions Precedent | 168 |
| SECTION 13.05. | Statements Required in Certificate or Opinion | 168 |
| SECTION 13.06. | Rules by Trustee and Agents | 169 |
| SECTION 13.07. | No Personal Liability of Directors, Managers, Officers, Employees and Stockholders | 169 |
| SECTION 13.08. | Governing Law; Submission to Jurisdiction | 169 |
| SECTION 13.09. | Waiver of Jury Trial | 169 |
| SECTION 13.10. | Force Majeure | 169 |
| SECTION 13.11. | Foreign Account Tax Compliance Act (FATCA) | 170 |
| SECTION 13.12. | No Adverse Interpretation of Other Agreements | 170 |
| SECTION 13.13. | Successors | 170 |
| SECTION 13.14. | Severability | 170 |
| SECTION 13.15. | Counterpart Originals | 170 |
| SECTION 13.16. | Table of Contents, Headings, Etc. | 170 |
| SECTION 13.17. | No Adverse Interpretation of Other Agreement | 171 |
| SECTION 13.18. | Intercreditor Agreements | 171 |
iv
| EXHIBITS | |
|---|---|
| Exhibit A | Form of Note |
| Exhibit B | Form of Certificate of Transfer |
| Exhibit C | Form of Certificate of Exchange |
| Exhibit D | Form of Supplemental Indenture |
| Exhibit E | Form of Security Agreement |
| Exhibit F | Form of Collateral Trust Agreement |
| Exhibit G | Form of First/Second/Third Lien Intercreditor Agreement |
| Exhibit H | Form of Certificate from Acquiring Institutional Accredited Investor |
i
INDENTURE, dated as of February 12, 2025, among Sinclair Television Group, Inc., a corporation organized under the laws of the State of Maryland (the “Issuer”), the Guarantors (as defined herein) from time to time party hereto, and U.S. Bank Trust Company, National Association, as trustee (in such capacity, the “Trustee”) and as collateral trustee (in such capacity, the “Collateral Trustee”).
W I T N E S S E T H
WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance of $1,430,000,000 aggregate principal amount of the Issuer’s 8.125% First-Out First Lien Secured Notes due 2033 (the “Notes”); and
WHEREAS, all things necessary to make this Indenture a valid and legally binding agreement of the Issuer, in accordance with its terms, have been done.
NOW, THEREFORE, the Issuer and the Trustee and the Collateral Trustee agree as follows for the benefit of each other and, except as provided herein, for the equal and ratable benefit of the Holders of the Notes:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
“144A Global Note” means a Global Note substantially in the form of Exhibit A hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or not prohibited by this Indenture, bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.
“4.125% Unsecured Notes” means such Existing Secured Notes which, upon consummation of the Exchange Offer, the indenture related to which will be amended to release all collateral securing such notes and eliminate substantially all covenants, events of default and related definitions.
“5.125% Senior Unsecured Notes” means each series of 5.125% Senior Unsecured Notes due 2027 governed by the 5.125% Senior Unsecured Notes Indenture.
“5.125% Senior Unsecured Notes Indenture” means the indenture, dated as of August 30, 2016 (as in effect immediately prior to giving effect to any AHG Notes Repurchase), among the Issuer, the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee, as amended or supplemented from time to time.
“5.500% Senior Unsecured Notes” means each series of 5.500% Senior Unsecured Notes due 2030 governed by the 5.500% Senior Unsecured Notes Indenture.
“5.500% Senior Unsecured Notes Indenture” means the indenture, dated as of November 27, 2019 (as in effect immediately prior to the Issue Date), among the Issuer, the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee, as amended or supplemented from time to time.
1
“Accounting Change” has the meaning assigned to it in the definition of “GAAP”.
“Acquired Indebtedness” means, with respect to any specified Person,
(1) Indebtedness of any other Person existing at the time such other Person is merged, consolidated or amalgamated with or into or became a Restricted Subsidiary of such specified Person, including Indebtedness incurred or assumed in connection with, or in contemplation of, such other Person merging, consolidating or amalgamating with or into or becoming a Restricted Subsidiary of such specified Person, and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
“Acquisition Transaction” means any Investment by the Issuer or any of its Restricted Subsidiaries in a Person that is engaged in a Similar Business if as a result of such Investment, (a) such Person becomes a Restricted Subsidiary or (b) such Person, in one transaction or a series of related transactions, is merged, consolidated, or amalgamated with or into, or transfers or conveys all or substantially all of its assets (or all or substantially all the assets constituting a business unit, division, product line or line of business) to, or is liquidated into, the Issuer or a Restricted Subsidiary, and, in each case, any Investment held by such Person (including, for the avoidance of doubt, any TV/Radio Acquisition).
“Additional Assets” means (1) any property or other assets (other than current assets, except for current assets invested in acquired property, businesses or assets) used or useful in a Similar Business, (2) the Capital Stock of a Person that becomes a Restricted Subsidiary of the Issuer as a result of the acquisition of such Capital Stock by the Issuer or another Restricted Subsidiary or (3) Capital Stock constituting a minority interest in any Person that at such time is a Restricted Subsidiary of the Issuer; provided, however, that any Restricted Subsidiary described in clause (2) or (3) above is engaged in a Similar Business.
“Additional Notes” means additional Notes issued pursuant to the terms of any supplemental indenture (other than the Notes, any additional Notes issued pursuant to Sections 2.06, 2.07, 2.10 or 9.05 of this Indenture).
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
“Agent” means any Registrar or Paying Agent.
“AHG Notes Repurchase” has the meaning set forth under the “Summary—Recent developments—Transaction Support Agreement” section of the Offering Memorandum.
“Amended Credit Agreement” means the Existing Credit Agreement, as amended by the amendment to the Existing Credit Agreement dated as of the Issue Date, among Parent, as guarantor, the Issuer, as borrower, the lenders from time to time party thereto, certain other parties party thereto from time to time and JPMorgan Chase Bank, N.A. (or any successor thereto), as administrative agent, issuing bank and swingline lender, including any related notes, guarantees, security documents, instruments and
2
agreements executed in connection therewith, and as such agreement, in whole or in part, in one or more instances, may be further amended, restated, renewed, extended, substituted, refinanced, restructured, replaced (whether or not upon termination, and whether with the original lenders or otherwise), supplemented or otherwise modified from time to time (including, in each case, by means of one or more credit agreements, note purchase agreements or sales of debt securities to institutional investors whether with the original agents and lenders or otherwise and including, without limitation, any successive renewals, extensions, substitutions, refinancings, restructurings, replacements, supplementations or other modifications of the foregoing) and including, without limitation, to increase the amount of available borrowings thereunder or to add Restricted Subsidiaries as additional borrowers or guarantors or otherwise, which Amended Credit Agreement shall provide for, as of the Issue Date, a junior lien revolving credit facility (the “Junior Lien Revolving Credit Facility”), the term loan B-3 facility (the “Junior Lien Term Loan B-3 Facility”), the term loan B-4 facility (the “Junior Lien Term Loan B-4 Facility” and, together with the Junior Lien Term Loan B-3 Facility, the “Junior Lien Term Loan Facilities” and, together with the Junior Lien Revolving Credit Facility, the “Junior Lien Credit Facilities”).
“Applicable Calculation Date” means the applicable date of determination for (i) Consolidated First Lien Secured Debt Ratio, (ii) Consolidated First-Out First Lien Secured Debt Ratio, (iii) Consolidated Secured Debt Ratio, (iv) Consolidated Total Debt Ratio, (v) Fixed Charge Coverage Ratio, (vi) Consolidated EBITDA or (vii) Total Assets.
“Applicable Measurement Period” means the most recently completed eight consecutive fiscal quarters of the Issuer immediately preceding the Applicable Calculation Date for which internal financial statements are available. When used in reference to (x) a measurement of Consolidated EBITDA, the Consolidated EBITDA for such Applicable Measurement Period shall be measured as the Consolidated EBITDA for such eight consecutive fiscal quarters, divided by two and (y) a measurement of the Consolidated First Lien Secured Debt Ratio, the Consolidated First-Out First Lien Secured Debt Ratio, the Consolidated Secured Debt Ratio, the Consolidated Total Debt Ratio or the Fixed Charge Coverage Ratio, the applicable ratio shall be calculated using the Consolidated EBITDA (in the numerator or the denominator, as applicable) for such eight consecutive fiscal quarters, divided by two.
“Applicable Premium” means, with respect to any Note on any Redemption Date, the greater of:
(1) 1.0% of the principal amount of such Note; and
(2) the excess, if any, of (a) the present value at such Redemption Date of (i) the redemption price of such Note at February 15, 2028 (such redemption price being set forth in the table appearing in Section 3.07(b)) plus (ii) all required interest payments due on such Note through February 15, 2028 (excluding accrued but unpaid interest to the Redemption Date), computed by the Issuer on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) using a discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points; over (b) the principal amount of such Note.
Calculation of the Applicable Premium will be made by the Issuer; provided that such calculation or the correctness thereof shall not be a duty or obligation of the Trustee.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and/or Clearstream that apply to such transfer or exchange.
3
“Asset Sale” means:
(1) the sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of property or assets (including by way of a Sale and Lease-Back Transaction) of the Issuer or any of its Restricted Subsidiaries; or
(2) the issuance or sale of Equity Interests of any Restricted Subsidiary (other than Preferred Stock or Disqualified Stock of Restricted Subsidiaries issued in compliance with Section 4.09), whether in a single transaction or a series of related transactions,
(each of the foregoing clauses (1) and (2) referred to in this definition as a “disposition”),
in each case, other than:
(a) any disposition of Cash Equivalents or Investment Grade Securities or obsolete, non-core, surplus, damaged, unnecessary, unsuitable or worn out property or equipment, inventory or other assets, in each case, in the ordinary course of business or consistent with industry or past practice or any disposition of inventory, immaterial assets or goods (or other assets), property or equipment held for sale or no longer used or useful, or economically practicable to maintain, in the conduct of the business of the Issuer and any of its Subsidiaries;
(b) the disposition of all or substantially all of the assets of the Issuer or any Restricted Subsidiary in a manner permitted pursuant to Section 5.01 or any disposition that constitutes a Change of Control pursuant to this Indenture;
(c) any disposition in connection with the making of any Restricted Payment that is permitted to be made under Section 4.07 or any Permitted Investment;
(d) any disposition of property or assets, or issuance or sale of Equity Interests of any Restricted Subsidiary, in any single transaction or series of related transactions with an aggregate fair market value not to exceed $75.0 million (such greater amounts, the “Specified Threshold”); provided that if the aggregate amount of all such individual dispositions or related series of dispositions that are less than or equal to the Specified Threshold in any fiscal year exceeds $150.0 million^^in the aggregate during such fiscal year, then the foregoing Specified Threshold shall refer to the purchase price of all such dispositions in such fiscal year in excess of the Specified Threshold;
(e) any disposition of property or assets or issuance of securities by a Restricted Subsidiary to the Issuer or by the Issuer or a Restricted Subsidiary to another Restricted Subsidiary (including any sale, transfer or other disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC so long as upon formation of such Delaware Divided LLC, such Delaware Divided LLC shall be a Restricted Subsidiary);
(f) any disposition of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property, (ii) an amount equal to the Net Proceeds of such disposition are promptly applied to the purchase price of similar replacement property or (iii) to the extent allowable under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment, sublease, license or sublicense of any real or personal property (including the provision of software under an open source license) in the ordinary course of business or consistent with past practice;
4
(h) any issuance, disposition or pledge of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary (or a Restricted Subsidiary which owns an Unrestricted Subsidiary so long as such Restricted Subsidiary owns no assets other than the Equity Interests of such Unrestricted Subsidiary);
(i) foreclosures, condemnation, expropriation, forced dispositions, eminent domain or any similar action (whether by deed in lieu of condemnation or otherwise) with respect to any property, assets, Equity Interests or Indebtedness, the granting of Liens permitted or not prohibited by this Indenture, and transfers of any property, asset, Equity Interests or Indebtedness that have been subject to a casualty to the respective insurer of such property, asset, Equity Interests or Indebtedness as part of an insurance settlement or upon receipt of the net proceeds of such casualty event;
(j) dispositions or discounts without recourse (including by way of assignment or participation) of (i) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (ii) receivables and related assets pursuant to any Permitted Receivables Financing or any participation therein;
(k) any financing transaction with respect to property built or acquired by the Issuer or any Restricted Subsidiary after the Issue Date, including Sale and Lease-Back Transactions and assets securitizations permitted or not prohibited by this Indenture;
(l) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business or consistent with industry or past practice;
(m) the sale, discount or other disposition, lease, assignment, license, sublease or discount of inventory, equipment, accounts receivable, notes receivable, equipment or other property, assets, Equity Interests or Indebtedness in the ordinary course of business or consistent with industry or past practice, and the conversion of accounts receivable or notes receivable or other dispositions of accounts receivable or notes receivable in connection with the collection or compromise thereof;
(n) the licensing, sub-licensing or cross-licensing of intellectual property or other general intangibles in the ordinary course of business or consistent with industry or past practice or that is immaterial;
(o) the unwinding or termination of any Hedging Obligations or Cash Management Obligations;
(p) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in binding joint venture or similar agreements or arrangements;
(q) the lapse, abandonment or invalidation of intellectual property rights that are not material to the conduct of the business of the Issuer and its Restricted Subsidiaries, taken as a whole, or that are no longer used or useful or no longer economically practicable or commercially reasonable to maintain, in each case as reasonably determined by the Issuer;
(r) the issuance of directors’ qualifying shares and shares issued to foreign nationals or other third parties as required by applicable law;
5
(s) the disposition of any property, assets, Equity Interests or Indebtedness (i) acquired in a transaction that are not used or useful in the core or principal business of the Issuer and its Restricted Subsidiaries as reasonably determined by the Issuer, or (ii) made in connection with the approval of any applicable antitrust authority or any other governmental authority or otherwise necessary or advisable to consummate any acquisition after the Issue Date, as determined by the Issuer;
(t) any disposition of property, assets, Equity Interests or Indebtedness of a Foreign Subsidiary the Net Proceeds of which the Issuer has reasonably determined that the repatriation of such Net Proceeds (i) is prohibited or subject to limitations under applicable law, orders, decrees or determinations of any arbitrator, court or governmental authority or (ii) would have a material adverse tax consequence; provided that when the Issuer determines that repatriation of any of such Net Proceeds (i) is no longer prohibited or subject to limitations under such applicable law, orders, decrees or determinations of any arbitrator, court or governmental authority or (ii) would no longer have a material adverse tax consequence, such amount at such time shall be considered the Net Proceeds in respect of an Asset Sale; and
(u) any disposition of property, assets, Equity Interests or Indebtedness that were acquired with Excluded Contributions if the proceeds of such disposition are used to make a Restricted Payment pursuant to clause (9)(b) of Section 4.07(b).
In the event that a transaction (or any portion thereof) meets the criteria of a permitted Asset Sale and would also be a permitted Restricted Payment or Permitted Investment, the Issuer, in its sole discretion, will be entitled to divide and classify such transaction (or a portion thereof) as an Asset Sale and/or one or more of the types of permitted Restricted Payments or Permitted Investments.
“Bankruptcy Code” means Title 11 of the United States Code, as amended.
“Bankruptcy Law” means the Bankruptcy Code and any similar federal, state or foreign law for the relief of debtors.
“Board” with respect to a Person means the board of directors (or similar body) of such Person or any committee thereof duly authorized to act on behalf of such board of directors (or similar body).
“Broadcast Licenses” means (a) the licenses, permits, authorizations or certificates to construct, own or operate the Stations granted by the FCC, and all extensions, additions and renewals thereto or thereof, and (b) the licenses, permits, authorizations or certificates which are necessary to construct, own or operate the Stations granted by administrative law courts or any state, county, city, town, village or other local governmental authority, and all extensions, additions and renewals thereto or thereof.
“Business Day” means each day which is not a Legal Holiday.
“Capital Stock” means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
6
(3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
“Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by a Person and its Restricted Subsidiaries during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of a Person and its Restricted Subsidiaries.
“Cash Equivalents” means:
(1) United States dollars;
(2) (a) Canadian dollars, euro, pound sterling or any national currency of any participating member state of the EMU; or
(b) other currencies held by the Issuer and its Restricted Subsidiaries from time to time in the ordinary course of business;
(3) securities issued or directly and fully and unconditionally guaranteed or insured by the U.S. government or any agency or instrumentality thereof as a full faith and credit obligation of the U.S. government, with average maturities of 24 months or less from the date of acquisition;
(4) certificates of deposit, time deposits and eurodollar time deposits with average maturities of one year or less from the date of acquisition, demand deposits, bankers’ acceptances with average maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank having capital and surplus of not less than $100.0 million in the case of U.S. banks or other U.S. financial institutions and $100.0 million (or the U.S. dollar equivalent as of the date of determination) in the case of non-U.S. banks or other non-U.S. financial institutions;
(5) repurchase obligations for underlying securities of the types described in clauses (3), (4) and (10) entered into with any financial institution meeting the qualifications specified in clause (4) above;
(6) commercial paper rated at least P-2 by Moody’s, at least A-2 by S&P or at least F2 by Fitch (or, if at any time, none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another Rating Agency) and variable or fixed rate notes issued by any financial institution meeting the qualifications specified in clause (4) above, in each case, with average maturities of 36 months after the date of creation thereof;
(7) marketable short-term money market and similar securities having a rating of at least P-2, A-2 or F2 from either Moody’s, S&P or Fitch, respectively (or, if at any time none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another Rating Agency);
(8) investment funds investing at least 90% of their assets in securities of the types described in clauses (1) through (7) above and (9) through (12) below;
7
(9) securities issued or directly and fully and unconditionally guaranteed by any state, commonwealth or territory of the United States of America or any political subdivision or taxing authority of any such state, commonwealth or territory or any public instrumentality thereof having average maturities of not more than 36 months from the date of acquisition thereof;
(10) readily marketable direct obligations issued or directly and fully and unconditionally guaranteed by any foreign government or any political subdivision or public instrumentality thereof, in each case (other than in the case of such securities issued or guaranteed by any participating member state of the EMU) having an Investment Grade Rating from any of Moody’s, S&P or Fitch (or, if at any time none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another Rating Agency) with average maturities of 36 months or less from the date of acquisition;
(11) Indebtedness or Preferred Stock issued by Persons with a rating of A or higher from S&P, A2 or higher from Moody’s or F1 or higher from Fitch (or, if at any time none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another Rating Agency) with average maturities of 36 months or less from the date of acquisition;
(12) Investments with average maturities of 36 months or less from the date of acquisition in money market funds rated A or better by S&P, A2 or better by Moody’s or F1 or better by Fitch (or, if at any time none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another Rating Agency);
(13) in the case of investments by any Foreign Subsidiary of the Issuer, investments for cash management purposes of comparable tenor and credit quality to those described in the foregoing clauses (1) through (12) customarily utilized in countries in which such Foreign Subsidiary operates; and
(14) investments, classified in accordance with GAAP as current assets, in money market investment programs that are registered under the Investment Company Act of 1940 or that are administered by financial institutions meeting the qualifications specified in clause (4) above, and, in either case, the portfolios of which are limited such that substantially all of such investments are of the character, quality and maturity described in clauses (1) through (13) of this definition.
Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (1) and (2) above; provided that such amounts are converted into any currency listed in clauses (1) and (2) as promptly as practicable and in any event within ten Business Days following the receipt of such amounts.
For the avoidance of doubt, any items identified as Cash Equivalents under this definition will be deemed to be Cash Equivalents under this Indenture regardless of the treatment of such items under GAAP.
“Cash Management Obligations” means (1) obligations of the Issuer or any of its Restricted Subsidiaries in respect of any overdraft and related liabilities arising from treasury, depository, cash pooling arrangements and cash management or treasury services or any automated clearing house transfers of funds, (2) other obligations in respect of netting services, employee credit or purchase card programs and similar arrangements and (3) obligations in respect of any other services related, ancillary or complementary to the foregoing (including any overdraft and related liabilities arising from treasury, depository, cash pooling arrangements and cash management services, corporate credit and purchasing cards and related programs or any automated clearing house transfers of funds).
8
“Change of Control” means the occurrence of one or more of the following events after the Issue Date:
(1) the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the assets of the Issuer and its Subsidiaries, taken as a whole, to any Person other than any Permitted Holders; or
(2) the Issuer becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), including any group acting for the purpose of acquiring, holding or disposing of Equity Interests of the Issuer or Parent (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than any Permitted Holder or Permitted Holders, in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase, of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of more than 50% of the total voting power of the Voting Stock entitled to vote for the election of directors of the Issuer or Parent, as applicable, having a majority of the aggregate votes on the Board of the Issuer or Parent, as applicable, unless any Permitted Holder or Permitted Holders have the right (pursuant to contract, proxy or otherwise), directly or indirectly, to designate, nominate or appoint directors or other governing body of the Issuer or Parent, as applicable, having a majority of the aggregate votes on the Board of the Issuer or Parent or other governing body, as applicable.
Notwithstanding the preceding or any provision of Section 13d-3 of the Exchange Act, (i) a Person or group shall not for purposes of this definition beneficially own Voting Stock subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the Voting Stock in connection with the transactions contemplated by such agreement sufficient to otherwise be a Change of Control, (ii) if any group includes one or more Permitted Holders, the issued and outstanding Voting Stock of the Issuer or Parent, as applicable, owned, directly or indirectly, by any Permitted Holder or Permitted Holders that are part of such group shall not for purposes of this definition be beneficially owned by such group or any other member of such group for purposes of determining whether a Change of Control has occurred and (iii) a Person or group shall not for purposes of this definition beneficially own the Voting Stock of another Person as a result of its ownership of Voting Stock or other securities of such other Person’s Parent Entity (or related contractual rights) unless it owns more than 50% of the total voting power of the Voting Stock entitled to vote for the election of directors or other governing members of such Parent Entity. Notwithstanding anything to the contrary, if any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), including any group acting for the purpose of acquiring, holding or disposing of Equity Interests of the Issuer or Parent (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) that are not Permitted Holders has the right (directly or indirectly) to appoint or nominate (in the aggregate) the members of the Board of the Issuer or Parent (including through having voting rights over Voting Stock of Parent or the Issuer), in each case, having the right to vote a majority of the aggregate votes of the members on the Board of the Issuer or the Parent, a Change of Control will be deemed to have occurred.
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Rating Decline with respect to the Notes.
“Channel Sharing Agreement” means an agreement governing the shared use of a television channel or other similar contractual arrangement that constitutes a channel sharing agreement within the meaning of 47 C.F.R. § 73.3700(a)(5).
9
“Clearstream” means Clearstream Banking, Société Anonyme, or any successor securities clearance agency.
“Code” means the Internal Revenue Code of 1986, as amended, or any successor thereto.
“Collateral” means all of the assets and property (whether real or personal) of the Issuer or any Guarantor now owned or hereafter acquired securing or purporting to secure the Notes Obligations pursuant to the Security Documents.
“Collateral Trust Agreement” means the Collateral Trust Agreement, dated as of the Issue Date, among the Collateral Trustee, as collateral trustee for itself, the Holders, the Trustee and the other First Lien Secured Parties (as defined therein), JPMorgan Chase Bank, N.A., as administrative agent under the New Credit Agreement, the Trustee, U.S. Bank Trust Company, National Association, as trustee under the Exchange Second-Out Indenture, the Issuer and the Guarantors, substantially in the form of Exhibit F, as it may be amended or otherwise modified from time to time in accordance with the terms thereof and this Indenture.
“Collateral Trustee” means U.S. Bank Trust Company, National Association until a successor replaces it and, thereafter, means any such successor.
“Consolidated EBITDA” means, as of any Applicable Calculation Date, with respect to any Person for any period, the Consolidated Net Income of such Person for such period, plus:
(1) without duplication and to the extent already deducted (and not added back) in arriving at such Consolidated Net Income for such period, the sum of the following amounts for such period:
(a) Fixed Charges of such Person for such period and, to the extent not reflected in Fixed Charges, any losses on Hedging Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, net of interest income and gains on such Hedging Obligations or such derivative instruments, and bank and letter of credit fees and costs of surety bonds in connection with financing activities, plus items excluded from the definition of “Consolidated Interest Expense” pursuant to clauses (n) through (z) thereof,
(b) provision for taxes based on income, profits, revenue or capital, including federal, foreign and state income, franchise, excise, value added and similar taxes based on income, profits, revenue or capital, and foreign withholding taxes of such Person paid or accrued during such period (including in respect of repatriated funds), including any penalties and interest relating to such taxes or arising from any tax examinations, and (without duplication) any payments actually made to a Parent Entity pursuant to clause (13) of Section 4.07(b) in respect of such taxes,
(c) the total amount of depreciation and amortization expense (including amortization of deferred financing fees or costs, internal labor costs, debt issuance costs, commissions, fees and expenses, capitalized expenditures (including Capitalized Software Expenditures), customer acquisition costs and incentive payments, content (including film) and sports rights amortization, conversion costs and contract acquisition costs) of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP,
10
(d) any other non-cash charges, expenses or losses, including any write offs, write downs, expenses, losses or items (each, a “non-cash charge”), except that if any non-cash charge represents an accrual or reserve for potential cash items in any future period (A) such Person may elect not to add back such non-cash charge in such period and (B) to the extent such Person elects to add back such non-cash charge (other than amortization of a prepaid cash item that was paid in a prior period) in such period, the cash payment in respect thereof in any future period shall be subtracted from Consolidated EBITDA,
(e) (i) the amount of any non-controlling interest or minority interest expense consisting of income attributable to non-controlling or minority equity interests of third parties (other than the Issuer or any of its Subsidiaries) in any non-Wholly-Owned Subsidiary deducted (and not added back) in such period to Consolidated Net Income, and (ii) the amount of dividends or distributions or other payments to the Issuer or any of its Restricted Subsidiaries that are actually paid in cash or Cash Equivalents (or if not paid in cash or Cash Equivalents, but later converted into cash or Cash Equivalents, upon such conversion) by any Person during such period, in the case of each of clause (i) and (ii), without duplication of cash distributions in respect thereof which are included in Consolidated Net Income for such period,
(f) the amount of fees, expenses and indemnities paid to directors, including of the Issuer or any Parent Entity thereof,
(g) losses or discounts on sales or dispositions of receivables and related assets in connection with any Permitted Receivables Financing,
(h) cash receipts (or any netting arrangements resulting in reduced cash expenditures) not included in the calculation of Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to clause (4) below for any previous period and not added back,
(i) any costs or expenses incurred by such Person or any Restricted Subsidiary pursuant to any management equity plan or stock option plan or phantom equity plan or any other management or employee benefit plan or agreement, any severance agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are non-cash or otherwise funded with cash proceeds contributed to the capital of such Person or Net Proceeds of an issuance of Equity Interests of such Person (other than Disqualified Stock),
(j) any net pension or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at the date of initial application of FASB Accounting Standards Codification Topic 715—Compensation—Retirement Benefits, and any other items of a similar nature, plus
(k) adjustments used in connection with the calculation of “Adjusted EBITDA” as set forth in the reconciliation of net income to adjusted EBITDA of the Issuer, set forth in the section “Summary Consolidated Financial Information—Non-GAAP Financial Measures” of the Offering Memorandum, to the extent such adjustments continue to be applicable during the period in which Consolidated EBITDA is being calculated and other adjustments of a similar nature to the foregoing, in each case applied in good faith by the Issuer; plus
11
(2) without duplication, the amount reasonably projected by such Person of “run rate” cost savings, expenses, operating expense reductions, synergies and contractual retransmission revenue (including from increased pricing, if any, determined on an aggregate basis across all existing customer contracts) and charges (including restructuring and integration charges) to be realized by such Person as a result of actions (including actions taken or initiated before, on or after the Issue Date) that have been taken or initiated or are expected to be taken or initiated in connection with, pursuant to or as contemplated by the Transactions, any Specified Event or any joint venture or other arrangement of such Person or any of its Restricted Subsidiaries (even if not accounted for on the financial statements of any such joint venture or such Person) occurring on or prior to the date that is 12 full months after the date of final consummation of any investment, disposition of assets, property, Capital Stock or Indebtedness, incurrence, prepayment or repayment of Indebtedness, Restricted Payment, Subsidiary designation, restructuring, cost saving initiative or other initiative (including any Acquisition Transactions) (each such investment, disposition, incurrence, prepayment, repayment, Restricted Payment and Subsidiary designation, a “Specified Event”). Such cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) 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 from such actions if such cost savings are reasonably identifiable and factually supportable; provided, that any such amounts attributable to actions taken or initiated after the Issue Date (other than such amounts that are already included in Consolidated EBITDA calculations for periods prior to the Issue Date and/or attributable to specifically identifiable and measurable contractual retransmission revenue from contracts acquired in connection with Acquisition Transactions and Investments in the broadcast industry but including any such cost savings, expenses, operating expense reductions, synergies, contractual retransmission revenue and charges that are otherwise included in the calculation of Consolidated EBITDA due to add-backs and exceptions specified in the definition of “Consolidated Net Income” and in other components of “Consolidated EBITDA”) shall not constitute more than twenty percent (20%) of Consolidated EBITDA for such period (before giving effect to add-backs pursuant to this clause (2)). No cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) shall be added pursuant to this clause (2) to the extent duplicative of any cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) that are included in clause (1) above (it being understood and agreed that “run rate” shall mean the full recurring cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) that are associated with any action taken) and the share of any such cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) with respect to a joint venture that are to be allocated to such Person shall not exceed the total amount thereof proportionate to such Person’s economic interest in such joint venture for the relevant Applicable Measurement Period; plus
(3) any Designated Parent Contribution; less
(4) without duplication and to the extent included in arriving at such Consolidated Net Income, the sum of the following amounts for such period:
(a) non-cash gains (excluding any non-cash gain to the extent it represents the reversal of an accrual or reserve for a potential cash item that reduced Consolidated Net Income or Consolidated EBITDA in any prior period),
(b) the amount of any non-controlling interest consisting of loss attributable to non-controlling interests of third parties in any non-Wholly-Owned Subsidiary added (and not deducted) in such period from Consolidated Net Income, and
(c) Film Cash Payments made during such period (and not deducted in such period from Consolidated Net Income),
12
in each case, as determined on a consolidated basis for such Person and its Restricted Subsidiaries; provided that there shall be excluded from Consolidated EBITDA any management fees paid by or on behalf of Diamond Sports Group, LLC to the Issuer or any of its Restricted Subsidiaries prior to the Issue Date pursuant to the management services agreement between Diamond Sports Group, LLC and the Issuer dated August 23, 2019.
For purposes of testing the covenants under this Indenture in connection with any transaction, the Consolidated EBITDA of such Person and its Restricted Subsidiaries shall be adjusted to reflect such pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio (other than as set forth in the third sentence of the first paragraph of such definition).
In addition, to the extent not already included in the Consolidated EBITDA of such Person and its Restricted Subsidiaries in any period, notwithstanding anything to the contrary in the foregoing, Consolidated EBITDA shall include additional adjustments evidenced by or contained in a due diligence or quality of earnings report prepared with respect to any Investment permitted under this Indenture that has been consummated (or, solely for purposes of determining the permissibility of any Investment that constitutes a Limited Condition Transaction, a definitive agreement or other binding obligation with respect to which has been entered into) and made available to the Trustee by an Independent Financial Advisor.
“Consolidated First Lien Secured Debt Ratio” means, as of any Applicable Calculation Date, with respect to any Person and its Restricted Subsidiaries, the ratio of (1) Consolidated Total Indebtedness of such Person and its Restricted Subsidiaries for borrowed money, unreimbursed drawings under letters of credit, Obligations in respect of Financing Lease Obligations, debt obligations evidenced by promissory notes and similar instruments that constitute First Lien Obligations, computed as of the end of the most recent fiscal quarter for which internal financial statements are available immediately preceding the Applicable Calculation Date to (2) such Person’s Consolidated EBITDA for the Applicable Measurement Period, in each case with such pro forma adjustments to Consolidated Total Indebtedness and Consolidated EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio (other than as set forth in the third sentence of the first paragraph of such definition); provided that, for purposes of the calculation of Consolidated First Lien Secured Debt Ratio, in connection with (x) the Incurrence of any Indebtedness pursuant to Section 4.09 or (y) the Incurrence of any Lien pursuant to clause (34) of the definition of “Permitted Liens,” such Person may elect, pursuant to an Officer’s Certificate delivered to the Trustee, to treat all or any portion of the commitment (such amount elected until revoked as described below, the “Elected Amount”) under any Indebtedness which is to be Incurred (or any commitment in respect thereof) or secured by such Lien, as the case may be, as being Incurred or secured, as the case may be, as of the Applicable Calculation Date and (i) any Incurrence of such Indebtedness under such commitment after such Applicable Calculation Date (so long as the total amount under such Indebtedness does not exceed the Elected Amount) shall not be for purposes of this calculation an Incurrence of additional Indebtedness or an additional Lien at any time, (ii) such Person may revoke an election of an Elected Amount pursuant to an Officer’s Certificate delivered to the Trustee and (iii) for purposes of calculations of the Consolidated First Lien Secured Debt Ratio, the Elected Amount (if any) shall be deemed to be outstanding, whether or not such amount is actually outstanding unless and to the extent revoked pursuant to the immediately preceding subclause (ii) of this definition.
“Consolidated First-Out First Lien Secured Debt Ratio” means, as of any Applicable Calculation Date, with respect to any Person and its Restricted Subsidiaries, the ratio of (1) Consolidated Total Indebtedness of such Person and its Restricted Subsidiaries that constitute First-Out Indebtedness, computed as of the end of the most recent fiscal quarter for which internal financial statements are
13
available immediately preceding the Applicable Calculation Date to (2) such Person’s Consolidated EBITDA for the Applicable Measurement Period, in each case with such pro forma adjustments to First-Out Indebtedness and Consolidated EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio (other than as set forth in the third sentence of the first paragraph of such definition); provided that, for purposes of the calculation of Consolidated First-Out First Lien Secured Debt Ratio, in connection with the Incurrence of any Indebtedness pursuant to Section 4.09 , such Person may elect, pursuant to an Officer’s Certificate delivered to the Trustee, to treat an Elected Amount under any Indebtedness which is to be Incurred (or any commitment in respect thereof) or secured by such Lien, as the case may be, as being Incurred or secured, as the case may be, as of the Applicable Calculation Date and (i) any Incurrence of such Indebtedness under such commitment after such Applicable Calculation Date (so long as the total amount under such Indebtedness does not exceed the Elected Amount) shall not be for purposes of this calculation an Incurrence of additional Indebtedness or an additional Lien at any time, (ii) such Person may revoke an election of an Elected Amount pursuant to an Officer’s Certificate delivered to the Trustee and (iii) for purposes of calculations of the Consolidated First-Out First Lien Secured Debt Ratio, the Elected Amount (if any) shall be deemed to be outstanding, whether or not such amount is actually outstanding unless and to the extent revoked pursuant to the immediately preceding subclause (ii) of this definition.
“Consolidated Interest Expense” means, with respect to any Person for any period, without duplication, the sum of:
(1) consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (c) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in mark to market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP), (d) the interest component of Financing Lease Obligations and (e) net payments, if any, made (less net payments, if any, received), pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding (n) any interest expense attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto and with respect to the Transactions or any Specified Event, (o) annual agency or similar fees paid to the administrative agents, collateral trustees, collateral agents and other agents under any Credit Facilities, (p) any additional interest with respect to failure to comply with any registration rights agreement owing with respect to any securities, (q) costs associated with obtaining Hedging Obligations, (r) any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting in connection with any acquisition, (s) penalties and interest relating to taxes, (t) any “additional interest” or “liquidated damages” with respect to other securities for failure to timely comply with registration rights obligations, (u) amortization or expensing of deferred financing fees, amendment and consent fees, debt issuance costs, commissions, fees, expenses and discounted liabilities, (v) any expensing of bridge, commitment and other financing fees and any other fees related to the Transactions or any acquisitions after the Issue Date, (w) commissions, discounts, yield and other fees and charges (including any interest expense) related to any Permitted Receivables Financing, (x) any accretion of accrued interest on discounted liabilities and any prepayment, make whole or breakage premium, penalty or cost, (y) interest expense attributable to a Parent Entity resulting from push down accounting and (z) any lease, rental or other expense in connection with a Non-Financing Lease Obligation); plus
(2) consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less
14
(3) interest income of such Person and its Restricted Subsidiaries for such period.
For purposes of this definition, interest on a Financing Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Financing Lease Obligation in accordance with GAAP (or, if not implicit, as otherwise determined in accordance with GAAP).
“Consolidated Net Income” means, with respect to any Person for any period, the aggregate of the net income (loss) of such Person for such period, determined on a consolidated basis, excluding (and excluding the effect of), without duplication:
(1) extraordinary, exceptional, one-time, infrequent, non-recurring, non-operating or unusual gains or losses (less all fees and expenses relating thereto) and expenses (including any unusual or non-recurring operating expenses directly attributable to the implementation of cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) initiatives and any accruals or reserves in respect of any extraordinary, non-recurring or unusual items), severance, relocation costs, contract termination costs, system establishment charges, integration and facilities’ opening costs and other business optimization expenses (including related to new product introductions and other strategic or cost savings initiatives), restructuring charges, accruals or reserves (including restructuring and integration costs related to acquisitions after the Issue Date and adjustments to existing reserves), whether or not classified as restructuring expense on the consolidated financial statements, recruiting and signing costs, retention or completion bonuses, other executive recruiting and retention costs, transition costs, charges or expenses attributable to legal or regulatory claims, suits, actions, disputes, hearings and other matters, asset divestitures, costs or cost inefficiencies related to labor, facility, property or broadcasting transmission slowdowns, shutdowns or disruptions (as applicable), costs related to closure/consolidation of facilities and curtailments or modifications to pension and post-retirement employee benefit plans (including any settlement of pension liabilities and charges resulting from changes in estimates, valuations and judgments),
(2) the cumulative effect of a change in accounting principles and changes as a result of adoption or modification of accounting policies during such period to the extent included in Consolidated Net Income,
(3) Transaction Expenses,
(4) the net income for such period of any Person that is an Unrestricted Subsidiary and any Person that is not a Subsidiary or that is accounted for by the equity method of accounting, except that Consolidated Net Income shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash or Cash Equivalents (or if not paid in cash or Cash Equivalents, but later converted into cash or Cash Equivalents, upon such conversion) by such Person to the referent Person or a Restricted Subsidiary thereof during such period,
(5) [reserved],
(6) any fees and expenses (including any transaction or retention bonus or similar payment) incurred during such period, or any amortization thereof for such period, in connection with any Specified Event, acquisition, Investment, recapitalization, asset disposition, issuance or repayment of indebtedness, issuance of equity securities, refinancing transaction or amendment or other modification of, or the rating by the Rating Agencies of, any debt instrument (in each case, including any such transaction consummated prior to the Issue Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such
15
transaction, in each case whether or not successful or abandoned (including, for the avoidance of doubt, the effects of expensing all transaction-related expenses in accordance with FASB Accounting Standards Codification Topic 805—Business Combinations and gains or losses associated with FASB Accounting Standards Codification Topic 460—Guarantees),
(7) any income (loss) for such period attributable to the early extinguishment of Indebtedness, Hedging Obligations or other derivative instruments (including deferred financing costs written off and premiums paid),
(8) [reserved],
(9) non-cash expenses and costs that result from the issuance of stock-based awards, partnership interest-based awards and similar incentive-based compensation awards or arrangements,
(10) any income (loss) attributable to deferred compensation plans or trusts,
(11) any income (loss) from investments recorded using the equity method of accounting (but including any cash dividends or distributions actually received by such Person or a Restricted Subsidiary thereof in respect of such investment),
(12) any gain (loss) on asset sales, disposals or abandonments (other than asset sales, disposals or abandonments in the ordinary course of business) or income (loss) from discontinued operations (but if such operations are classified as discontinued due to the fact that they are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually disposed of),
(13) any non-cash gain (loss) attributable to the mark to market movement in the valuation of Hedging Obligations or other derivative instruments pursuant to FASB Accounting Standards Codification Topic 815—Derivatives and Hedging or mark to market movement of other financial instruments pursuant to FASB Accounting Standards Codification Topic 825—Financial Instruments in such period; provided that any cash payments or receipts relating to transactions realized in a given period shall be taken into account in such period,
(14) any non-cash gain (loss) related to currency remeasurements of Indebtedness (including the net loss or gain resulting from Hedging Obligations for currency exchange risk and revaluations of intercompany balances and other balance sheet items),
(15) any non-cash expenses, accruals or reserves related to adjustments to historical tax exposures; provided, in each case, that the cash payment in respect thereof in such future period shall be subtracted from Consolidated Net Income for the period in which such cash payment was made,
(16) any impairment charge or asset write-off or write-down (including related to intangible assets (including goodwill), long-lived assets, investments in debt and equity securities, and write-offs and write-downs in connection with film and other programming costs),
(17) solely for the purpose of determining the amount available for Restricted Payments under clause (3)(a) of Section 4.07(a), the net income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded to the extent the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its net income is not at the date of determination wholly permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, is otherwise restricted by the operation of the terms of its charter or any
16
agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived or released (or the Issuer reasonably believes such restriction could be waived or released and is using commercially reasonable efforts to pursue such waiver or release); provided that Consolidated Net Income of such Person will be increased by the amount of dividends or other distributions or other payments actually paid in cash or Cash Equivalents (or, if not paid in cash or Cash Equivalents, but later converted into cash or Cash Equivalents, upon such conversion) to such Person or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein,
(18) [reserved],
(19) costs associated with, or in anticipation of, or preparation for, compliance with the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and other costs and expenses attributable to any Parent Entity thereof being a public company, and
(20) any expenses, charges or losses to the extent covered by insurance or indemnity and actually reimbursed, or, so long as such Person has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the extent that such amount is in fact reimbursed within 365 days of the date of the insurable or indemnifiable event (net of any amount so added back in any prior period to the extent not so reimbursed within the applicable 365-day period).
There shall be excluded from Consolidated Net Income for any period the effects from applying acquisition method accounting, including applying acquisition method accounting to inventory, property and equipment, loans and leases, software and other intangible assets and deferred revenue (including deferred costs related thereto and deferred rent) required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to such Person and its Restricted Subsidiaries), as a result of any Specified Event, acquisition or Investment consummated prior to the Issue Date and any other Specified Event or acquisition (by merger, consolidation, amalgamation or otherwise) or other Investment or the amortization or write-off of any amounts thereof.
In addition, to the extent not already included in Consolidated Net Income, Consolidated Net Income shall include (i) the amount of proceeds received or due from business interruption insurance or reimbursement of expenses and charges that are covered by indemnification and other reimbursement provisions in connection with any acquisition or other Investment or any disposition of any asset permitted under this Indenture (net of any amount so added back in any prior period to the extent not so reimbursed within a two-year period) and (ii) the amount of any cash tax benefits related to the tax amortization of intangible assets in such period.
“Consolidated Secured Debt Ratio” means, as of any Applicable Calculation Date, with respect to any Person and its Restricted Subsidiaries, the ratio of (1) Consolidated Total Indebtedness of such Person and its Restricted Subsidiaries for borrowed money, unreimbursed drawings under letters of credit, Obligations in respect of Financing Lease Obligations, debt obligations evidenced by promissory notes and similar instruments that is secured by a Lien on the Collateral, computed as of the end of the most recent fiscal quarter for which internal financial statements are available immediately preceding the Applicable Calculation Date to (2) such Person’s Consolidated EBITDA for the Applicable Measurement Period, in each case with such pro forma adjustments to Consolidated Total Indebtedness and Consolidated EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio” (other than as set forth in the third sentence of
17
the first paragraph of such definition); provided that, for purposes of the calculation of Consolidated Secured Debt Ratio, in connection with (x) the Incurrence of any Indebtedness pursuant to Section 4.09 or (y) the Incurrence of any Lien pursuant to clause (34) of the definition of “Permitted Liens”, such Person may elect, pursuant to an Officer’s Certificate delivered to the Trustee, to treat an Elected Amount under any Indebtedness which is to be Incurred (or any commitment in respect thereof) or secured by such Lien, as the case may be, as being Incurred or secured, as the case may be, as of the Applicable Calculation Date and (i) any Incurrence of such Indebtedness under such commitment after such Applicable Calculation Date (so long as the total amount under such Indebtedness does not exceed the Elected Amount) shall not be for purposes of this calculation an Incurrence of additional Indebtedness or an additional Lien at any time, (ii) such Person may revoke an election of an Elected Amount pursuant to an Officer’s Certificate delivered to the Trustee and (iii) for purposes of calculations of the Consolidated Secured Debt Ratio, the Elected Amount (if any) shall be deemed to be outstanding, whether or not such amount is actually outstanding, unless and to the extent revoked pursuant to the immediately preceding subclause (ii) of this definition.
“Consolidated Total Debt Ratio” means, as of any Applicable Calculation Date, with respect to any Person and its Restricted Subsidiaries, the ratio of (1) Consolidated Total Indebtedness of such Person and its Restricted Subsidiaries for borrowed money, unreimbursed drawings under letters of credit, Obligations in respect of Financing Lease Obligations, debt obligations evidenced by promissory notes and similar instruments, computed as of the end of the most recent fiscal quarter for which internal financial statements are available immediately preceding the Applicable Calculation Date to (2) such Person’s Consolidated EBITDA for the Applicable Measurement Period, in each case with such pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio” (other than as set forth in the third sentence of the first paragraph of such definition); provided that, for purposes of the calculation of Consolidated Total Debt Ratio, in connection with the Incurrence of any Indebtedness pursuant to Section 4.09, such Person may elect, pursuant to an Officer’s Certificate delivered to the Trustee, to treat an Elected Amount under any Indebtedness which is to be Incurred (or any commitment in respect thereof) as being Incurred as of the Applicable Calculation Date and (i) any Incurrence of such Indebtedness under such commitment after such Applicable Calculation Date (so long as the total amount under such Indebtedness does not exceed the Elected Amount) shall not be for purposes of this calculation an Incurrence of additional Indebtedness at any time, (ii) such Person may revoke an election of an Elected Amount pursuant to an Officer’s Certificate delivered to the Trustee and (iii) for purposes of calculations of the Consolidated Secured Debt Ratio, the Elected Amount (if any) shall be deemed to be outstanding, whether or not such amount is actually outstanding unless and to the extent revoked pursuant to the immediately preceding subclause (ii) of this definition.
“Consolidated Total Indebtedness” means, as of any date of determination, with respect to any Person and its Restricted Subsidiaries, an amount equal to (a) the sum of (1) the aggregate amount of all outstanding Indebtedness of such Person and its Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money, unreimbursed drawings under letters of credit, Obligations in respect of Financing Lease Obligations, debt obligations evidenced by promissory notes and similar instruments, but excluding (A) all undrawn amounts under revolving credit facilities, (B) Hedging Obligations, (C) performance bonds or any similar instruments, (D) the effects of any discounting of Indebtedness resulting from the application of recapitalization accounting or acquisition method accounting in connection with any Specified Event, acquisition (by merger, consolidation, amalgamation, dividend, distribution or otherwise), or other Investment, and (E) all Obligations (including any Non-Recourse Indebtedness) relating to Permitted Receivables Financings and (2) the aggregate amount of all outstanding Disqualified Stock of Person and all Preferred Stock of its Restricted Subsidiaries on a consolidated basis, with the amount of such Disqualified Stock and Preferred Stock equal to the greater of their respective voluntary or involuntary liquidation preferences and maximum fixed repurchase prices, in each case determined on a consolidated basis in accordance with GAAP; less
18
(b) Unrestricted cash and Cash Equivalents of such Person and its Restricted Subsidiaries. For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Stock or Preferred Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock or Preferred Stock as if such Disqualified Stock or Preferred Stock were purchased on any date on which Consolidated Total Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the fair market value of such Disqualified Stock or Preferred Stock, such fair market value shall be determined in good faith by the Board or senior management of such Person.
“Contract Station” means (a) each television or radio station that is the subject of an Acquisition Transaction consummated by the Issuer or any Subsidiary on or after the Issue Date and (b) any television or radio station with which the Issuer or any Subsidiary has entered into any Program Services Agreement, Outsourcing Agreement or other similar agreement on or after the Issue Date, in each case until such time, if any, as the Issuer or any Subsidiary acquires the Broadcast License of such television or radio station and such station becomes an Owned Station.
“Controlled Investment Affiliate” means, as to any Person, any other Person, other than any Investor, which directly or indirectly controls, is controlled by, or is under common control with such Person and is organized by such Person (or any Person controlling such Person) primarily for making direct or indirect equity or debt investments in the Issuer and/or other Persons.
“Controlling Representative” has the meaning assigned to such term in the Collateral Trust Agreement.
“Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in Section 13.02 or such other address as to which the Trustee may give notice to the Holders and the Issuer.
“Covenant Restricted Acquisition” means a publicly announced entry into an agreement or arrangement in respect of an acquisition or Investment (each, a “CRA Transaction”) pursuant to which (A)(i) (1) the Issuer or a Restricted Subsidiary would acquire a Significant Acquired Person, (2) any Significant Acquired Person would be merged, consolidated or amalgamated with or into or wound up into the Issuer or a Restricted Subsidiary (whether or not the Issuer or a Restricted Subsidiary is the surviving Person) or (3) any Significant Acquired Person would sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets to the Issuer or a Restricted Subsidiary and (ii) in connection with such CRA Transaction, the Issuer or any of its Restricted Subsidiaries would reasonably expect to assume or acquire Indebtedness of such Significant Acquired Person or its Subsidiaries (which Indebtedness was not incurred by such Significant Acquired Person in contemplation of, or in connection with, such CRA Transaction) and (B) the Indebtedness to be assumed or acquired in such CRA Transaction (i) is first-lien secured Indebtedness and (ii) would not be permitted to be assumed or acquired as First-Out Indebtedness pursuant to Section 4.09 or Section 4.12. For the avoidance of doubt, (x) nothing in this definition shall permit any Indebtedness to be incurred in connection with a CRA Transaction or otherwise permit such CRA Transaction if such CRA Transaction would not be permitted pursuant to another covenant or agreement set forth in Article 4 or elsewhere set forth in this Indenture, and (y) no transaction undertaken in connection with or in furtherance of a Priming Financing/Liability Management Transaction shall be a CRA Transaction or a Covenant Restricted Acquisition under this definition.
“Covenant Restricted Change of Control” means a publicly announced entry into an agreement or arrangement in respect of a transaction (a “COC Transaction”) pursuant to which (A) a Change of Control would (or would reasonably be expected to) occur and the acquiring Person would, upon the consummation of such transaction, be required (or reasonably expected to be required) to
19
assume or acquire the Notes Obligations and (B) (i) the Indebtedness of such acquiring Person (which Indebtedness was not incurred by such acquiring Person in contemplation of, or in connection with, such COC Transaction) is first-lien secured Indebtedness and (ii) the agreements governing such Indebtedness as of the announcement date of the COC Transaction would not permit the acquiring Person to incur or assume the Notes Obligations as First-Out Indebtedness. For the avoidance of doubt, (x) nothing in this definition shall permit any Indebtedness to be incurred in connection with a COC Transaction or otherwise permit such COC Transaction if such COC Transaction would not be permitted pursuant to another covenant or agreement described in Article 4 or elsewhere set forth in this Indenture, and (y) no transaction undertaken in connection with or in furtherance of a Priming Financing/Liability Management Transaction shall be a COC Transaction or a Covenant Restricted Change of Control under this definition.^^
“Credit Facility” means one or more debt facilities (including, without limitation, the Senior Credit Facilities (including the First-Out Senior Credit Facilities) or other financing arrangements (including, without limitation, commercial paper facilities or indentures)) providing for revolving credit loans, term loans, letters of credit or other Indebtedness, including any notes, mortgages, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements, refundings, replacements, exchanges or refinancings thereof, in whole or in part, and any financing arrangements that amend, supplement, modify, extend, renew, restate, refund, replace, exchange or refinance any part thereof, including, without limitation, any such amended, supplemented, modified, extended, renewed, restated, refunding, replacement, exchanged or refinancing financing arrangement that increases the amount permitted to be borrowed or issued thereunder or alters the maturity thereof if and to the extent that such increase in borrowings or issuance is permitted under Section 4.09 or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, trustee, lender or group of lenders, investors, holders or otherwise.
“Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.
“Default” means any event that is, or after notice or lapse of time or both would become, an Event of Default.
“Definitive Note” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06(c), substantially in the form of Exhibit A, or in such other form as shall be established in one or more supplemental indentures, in each case, with such appropriate insertions, omissions, substitutions and other variations as are required or not prohibited by this Indenture, except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.
“Delaware Divided LLC” means any Delaware LLC which has been formed upon the consummation of a Delaware LLC Division.
“Delaware LLC” means any limited liability company organized or formed under the laws of the State of Delaware.
“Delaware LLC Division” means the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act.
“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 as the Depositary with respect to the Notes, and any and all successors thereto appointed as Depositary hereunder and having become such pursuant to the applicable provision of this Indenture.
20
“Designated Non-cash Consideration” means the fair market value of non-cash consideration received by or owing to the Issuer or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officer’s Certificate, less the amount of cash or Cash Equivalents actually received in connection with a subsequent disposition of or collection on such Designated Non-cash Consideration. A particular item of Designated Non-cash Consideration will no longer be considered to be outstanding when and to the extent it has been paid, redeemed or otherwise retired or subject of a disposition in exchange for consideration in the form of cash or Cash Equivalents in compliance with Section 4.10.
“Designated Parent Contribution” means any cash equity contribution made by Parent to the Issuer and designated by the Issuer as a “Designated Parent Contribution.”
“Designated Parent Subsidiary” means each Subsidiary of Parent that is designated as a “Designated Parent Subsidiary” in accordance with the terms of this Indenture, in each case so long as such Subsidiary remains a Designated Parent Subsidiary under this Indenture. As of the Issue Date, there are no Designated Parent Subsidiaries.
“Designated Preferred Stock” means Preferred Stock of the Issuer or any Parent Entity (in each case other than Disqualified Stock) that is issued for cash (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Issuer or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an Officer’s Certificate executed by the principal financial officer of the Issuer or the applicable Parent Entity, as the case may be, on the issuance date thereof, the cash proceeds of which are excluded from the calculation set forth in clause (3) of Section 4.07(a).
“Designated Representative” means, with respect to any series of First-Out Priority Payment Obligations, Second-Out Priority Payment Obligations, Pari Passu Lien Obligations, Junior Lien Obligations or other Secured Indebtedness, the trustee, administrative agent, collateral trustee, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, Incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.
“Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely for Capital Stock of such Person or any Parent Entity thereof that would not otherwise constitute Disqualified Stock, and other than solely as a result of a change of control, asset sale, casualty, condemnation or eminent domain) pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than solely as a result of a change of control, asset sale, casualty, condemnation or eminent domain), in whole or in part, in each case prior to the date 91 days after the maturity date of the Notes; provided, however, that if such Capital Stock is issued to any plan for the benefit of employees of the Issuer or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Issuer or its Subsidiaries or Parent Entities in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability; provided further, that any Capital Stock held by any future, current or former employee, director, officer, manager or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer, any of its Subsidiaries or any Parent Entity or any other entity in which the Issuer or
21
a Restricted Subsidiary has an Investment and is designated in good faith as an “affiliate” by the Board of the Issuer shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Issuer or its Subsidiaries pursuant to any stockholders’ agreement, management equity plan, stock option plan or any other management or employee benefit plan or agreement or in order to satisfy applicable statutory or regulatory obligations.
“Domestic Subsidiary” means any Restricted Subsidiary (other than a Foreign Subsidiary) that is organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof.
“DSG Cash Tax Payments” means the cash tax payments to be paid by or on behalf of the Issuer and its Restricted Subsidiaries related to the Diamond Sports Group, LLC bankruptcy. As of the Issue Date, the DSG Cash Tax Payments were approximately $121 million.
“Elected Amount” has the meaning set forth in the definition of “Consolidated First Lien Secured Debt Ratio”.
“EMU” means economic and monetary union as contemplated in the Treaty on European Union.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock.
“Equity Offering” means any public or private sale or issuance of common equity or Preferred Stock of the Issuer or any Parent Entity (excluding Disqualified Stock), other than:
(1) public offerings with respect to the Issuer or any Parent Entity’s common stock registered on Form S-8;
(2) issuances to any Subsidiary of the Issuer; and
(3) any such public or private sale or issuance that constitutes an Excluded Contribution.
“euro” means the single currency of participating member states of the EMU.
“Euroclear” means Euroclear S.A./N.V., as operator of the Euroclear system, or any successor securities clearance agency.
“Exchange Act” means the Securities Exchange Act of 1934, as amended (with respect to the definitions of “Change of Control” and “Permitted Holders” only, as in effect on the Issue Date).
“Exchange Offer” has the meaning ascribed to such term in the Offering Memorandum.
“Exchange Second-Out First Lien Notes” means the 4.375% Second-Out First Lien Secured Notes due 2032 governed by the Exchange Second-Out Indenture, and issued in connection with the Exchange Offer.
“Exchange Second-Out First Lien Notes Obligations” means the Obligations in respect of the Exchange Second-Out First Lien Notes, the guarantees in respect thereof, the Exchange Second-Out Indenture and the security documents relating to the foregoing.
22
“Exchange Second-Out Indenture” means the indenture, dated as of the Issue Date, among the Issuer, the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and collateral trustee, which indenture governs the Exchange Second-Out First Lien Notes, as amended or supplemented from time to time.
“Excluded Assets” has the meaning assigned to that term in the Security Agreement.
“Excluded Contribution” means net cash proceeds, the fair market value of marketable securities or the fair market value of Qualified Proceeds received by the Issuer from:
(1) contributions to its common equity capital,
(2) dividends, distributions, fees and other payments from any Unrestricted Subsidiaries or joint ventures or Investments in entities that are not Restricted Subsidiaries, and
(3) the sale (other than to a Subsidiary of the Issuer or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of the Issuer) of Capital Stock (other than Disqualified Stock and Designated Preferred Stock) of the Issuer,
in each case designated as Excluded Contributions pursuant to an Officer’s Certificate executed by the principal financial officer of the Issuer within 30 days of the date such capital contributions are made, the date such dividends, distributions, fees or other payments are received or the date such Equity Interests are sold, as the case may be, which are (or were) excluded from the calculation set forth in clause (3) of Section 4.07(a); provided that any such dividends, distributions, fees or other payments so designated pursuant to clause (2) of this definition shall be excluded from the definition of “Consolidated Net Income” for all purposes under this Indenture.
“Existing Credit Agreement” means the Seventh Amended and Restated Credit Agreement dated as of August 23, 2019 (as in effect immediately prior to the Issue Date), by and among the Issuer, the Guarantors, the lenders party thereto, JPMorgan Chase Bank, N.A., in its capacity as administrative agent and collateral agent, and the other agents party thereto.
“Existing LMT Debt” has the meaning assigned to it in the definition of “Priming Financing/Liability Management Transaction.”
“Existing Notes” means, individually or collectively as the context so requires, the Existing Unsecured Notes, and, in the case of the Existing Secured Notes, to the extent such Existing Secured Notes are not exchanged for (i) Exchange Second-Out First Lien Notes pursuant to the Exchange Offer or (ii) New Second Lien Notes pursuant to the Private Exchanges.
“Existing Secured Notes” means the 4.125% Senior Secured Notes due 2030 governed by the Existing Secured Notes Indenture.
“Existing Secured Notes Indenture” means the indenture, dated as of December 4, 2020 (as in effect immediately prior to the Issue Date), among the Issuer, the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and collateral agent, as amended or supplemented from time to time.
“Existing Senior Credit Facilities” means, individual or collectively, as the context may require, the term loan facility and revolving credit facility under the Existing Credit Agreement, in each case, as in effect immediately prior to the Issue Date, including, in each case, any related notes, mortgages, letters of credit, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any appendices, exhibits, annexes or schedules to any of the foregoing (as the same are in effect immediately prior to the Issue Date).
23
“Existing Unsecured Notes” means, collectively, the 5.125% Senior Unsecured Notes and the 5.500% Senior Unsecured Notes.
“fair market value” means, with respect to any asset or liability, the fair market value of such asset or liability as determined in good faith by the Board or senior management of the Issuer.
“FCC” means the Federal Communications Commission or any governmental authority substituted therefor.
“FCC License” means any license, authorization, approval, or permit granted by the FCC pursuant to the Communications Act of 1934, as amended, and the rules, regulations, published orders and published and promulgated policy statements of the FCC, all as may be amended from time to time, to the Issuer or any of its Restricted Subsidiaries, or assigned or transferred to the Issuer or any Subsidiary Guarantor pursuant to FCC consent.
“Film Cash Payments” means, for any period, the sum (determined on a consolidated basis and without duplication) of all payments by the Issuer and its Restricted Subsidiaries made during such period in respect of Film Obligations, which were previously reflected in the consolidated balance sheet with the Issuer and its Restricted Subsidiaries as a liability; provided that amounts applied to the prepayment of Film Obligations owing under any contract evidencing a Film Obligation under which the amount owed by the Issuer or any of its Restricted Subsidiaries exceeds the remaining value of such contract to the Issuer or such Subsidiary, as reasonably determined by the Issuer, shall not be deemed to be Film Cash Payments.
“Film Obligations” means obligations in respect of the purchase, use, license or acquisition of programs, programming materials, films, and similar assets used in connection with the business and operations of the Issuer and its Subsidiaries.
“Financing Lease Obligation” means, at the time any determination thereof is to be made, an obligation that is required to be accounted for as a financing or capital lease (and, for the avoidance of doubt, not a straight-line or operating lease) on both the balance sheet and income statement for financial reporting purposes in accordance with GAAP. At the time any determination thereof is to be made, the amount of the liability in respect of a financing or capital lease would be the amount required to be reflected as a liability on such balance sheet (excluding the footnotes thereto) in accordance with GAAP.
“First/Second/Third Lien Intercreditor Agreement” means the First/Second/Third Lien Intercreditor Agreement, dated as of the Issue Date, among the Collateral Trustee, U.S. Bank Trust Company, National Association, as notes collateral agent under the Second Lien Indenture, and the collateral agent under the Amended Credit Agreement, the Issuer and the Guarantors party thereto, substantially in the form of Exhibit G, as it may be amended or otherwise modified from time to time in accordance with the terms thereof, this Indenture and the Collateral Trust Agreement.
“First Lien Debt Documents” has the meaning assigned to such term in the Collateral Trust Agreement.
“First Lien Obligations” means, collectively, the First-Out Priority Payment Obligations and the Second-Out Priority Payment Obligations.
24
“First Lien Senior Credit Facilities” has the meaning assigned to it in the definition of “New Credit Agreement”.
“First-Out Bank Representative” means JPMorgan Chase Bank, N.A., in its capacity as administrative agent for the lenders holding First-Out Senior Credit Facilities Indebtedness (and commitments in respect thereof) and the other secured parties under each of the First Lien Senior Credit Facilities holding First-Out Priority Payment Obligations, together with its respective successors and permitted assigns under each of the First Lien Senior Credit Facilities acting in such capacity.
“First-Out Indebtedness” means the Indebtedness under the Notes, the First-Out Senior Credit Facilities Indebtedness and any other Indebtedness that is permitted by this Indenture and the other then-outstanding First Lien Debt Documents to have Liens on the Collateral pari passu with the Liens securing the Notes and the Note Guarantees and with payment priority as to the application of proceeds with respect to, and distributions made on account of, any Collateral pari passu with the Notes and the First-Out Senior Credit Facilities Indebtedness; provided that the holders of such Indebtedness or their Designated Representative shall have entered into the Collateral Trust Agreement and such Indebtedness shall constitute “First-Out First Lien Debt Obligations” as defined therein.
“First-Out Priority Payment Obligations” means the payment Obligations in respect of any First-Out Indebtedness.
“First-Out Revolving Credit Facility” has the meaning assigned to it in the definition of “New Credit Agreement”.
“First-Out Senior Credit Facilities” has the meaning assigned to it in the definition of “New Credit Agreement”.
“First-Out Senior Credit Facilities Indebtedness” means the First-Out Senior Credit Facilities Revolving Indebtedness.
“First-Out Senior Credit Facilities Revolving Indebtedness” means the Indebtedness in respect of the Revolving Loans and Letters of Credit (as each such term is defined in the New Credit Agreement as in effect in the Issue Date).
“Fitch” means Fitch Ratings, a part of the Fitch Group and a subsidiary of FIMALAC and Hearst Corporation, or any successor entity to its rating agency business.
“Fixed Charge Coverage Ratio” means, with respect to any Person as of any Applicable Calculation Date, the ratio of Consolidated EBITDA of such Person for the Applicable Measurement Period to the Fixed Charges of such Person for such Applicable Measurement Period. In the event that such Person or any Restricted Subsidiary incurs, assumes, guarantees, redeems, repays, retires or extinguishes any Indebtedness or issues or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the Applicable Measurement Period but on or prior to the Applicable Calculation Date, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee, redemption, repayment, retirement or extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred Stock (in each case, including a pro forma application of the net proceeds therefrom), as if the same had occurred at the beginning of the Applicable Measurement Period, except as provided in Section 1.06. Such pro forma calculation shall not give effect to any Indebtedness Incurred on the Applicable Calculation Date pursuant to Section 4.09(b) (other than pursuant to clause (14) thereof). For purposes of the calculation of the Fixed Charge Coverage Ratio, in connection with the Incurrence of any Indebtedness pursuant to Section 4.09(a), such
25
Person may elect, pursuant to an Officer’s Certificate delivered to the Trustee, to treat an Elected Amount under any Indebtedness which is to be Incurred (or any commitment in respect thereof) as being Incurred as of the Applicable Calculation Date and (i) any Incurrence of such Indebtedness under such commitment after such Applicable Calculation Date (so long as the total amount under such Indebtedness does not exceed the Elected Amount) shall not be for purposes of this calculation an Incurrence of additional Indebtedness at any time, (ii) such Person may revoke an election of an Elected Amount pursuant to an Officer’s Certificate delivered to the Trustee and (iii) for purposes of calculations of the Fixed Charge Coverage Ratio, the Elected Amount (if any) shall be deemed to be outstanding, whether or not such amount is actually outstanding unless and to the extent revoked pursuant to the immediately preceding subclause (ii) of this definition.
For purposes of making the computation referred to above, Specified Events, Investments, acquisitions, dispositions, mergers, amalgamations, consolidations and disposed operations (as determined in accordance with GAAP) and operational changes that have been made by the Issuer or any of its Restricted Subsidiaries during the Applicable Measurement Period or subsequent to such Applicable Measurement Period and on or prior to or simultaneously with the Applicable Calculation Date shall be calculated on a pro forma basis assuming that all such Specified Events, Investments, acquisitions, dispositions, mergers, amalgamations, consolidations, disposed operations and operational changes (and the change in any associated fixed charge obligations and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day of the Applicable Measurement Period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged or amalgamated with or into the Issuer or any of its Restricted Subsidiaries since the beginning of such period shall have made any Investment, acquisition, disposition, merger, amalgamation, consolidation or disposed operation that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such Applicable Measurement Period as if such Investment, acquisition, disposition, merger, amalgamation, consolidation or disposed operation had occurred at the beginning of the Applicable Measurement Period.
For purposes of this definition, whenever pro forma effect is to be given to a transaction, the pro forma calculations shall be made reasonably by a responsible financial or accounting officer of the Issuer (and may include cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) resulting from the Transactions, any Specified Event, Asset Sale or other disposition or such Investment, acquisition, disposition, merger, amalgamation or consolidation or other transaction, in each case calculated in accordance with and permitted by clause (2) of the definition of “Consolidated EBITDA” herein). If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Applicable Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness). Interest on a Financing Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Issuer to be the rate of interest implicit in such Financing Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period or, if lower, the maximum commitments under such revolving credit facility as of the Applicable Calculation Date. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Issuer may designate.
26
“Fixed Charges” means, with respect to any Person for any period, the sum of (without duplication):
(1) Consolidated Interest Expense of such Person for such period;
(2) all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Preferred Stock of such Person during such period; and
(3) all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Disqualified Stock of such Person during such period.
“Foreign Subsidiary” means any Restricted Subsidiary that is not organized under the laws of the United States of America or any state thereof or the District of Columbia and any Restricted Subsidiary of such Foreign Subsidiary.
“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time; provided that all terms of an accounting or financial nature used in this Indenture shall be construed, and all computations of amounts and ratios referred to in this Indenture shall be made without giving effect to any election under FASB Accounting Standards Codification Topic 825—Financial Instruments, or any successor thereto (including pursuant to the FASB Accounting Standards Codification), to value any Indebtedness of the Issuer or any Subsidiary at “fair value”, as defined therein.
If there occurs a change in generally accepted accounting principles occurring after the Issue Date and such change would cause a change in the method of calculation of any term or measure used in this Indenture (an “Accounting Change”), then the Issuer may elect, as evidenced by a written notice of the Issuer to the Trustee, that such term or measure shall be calculated as if such Accounting Change had not occurred; provided that, with respect to any Accounting Change (other than an Accounting Change in respect of the treatment of leases), in the Issuer’s good faith determination, the Issuer’s election to calculate such term or measure as if such Accounting Change had not occurred will not be less favorable to the Holders in any material respect than the method of calculation of such term or measure as in effect on the Issue Date.
“Global Note Legend” means the legend set forth in Section 2.06(f)(ii), which is required to be placed on all Global Notes issued under this Indenture.
“Global Notes” means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes, substantially in the form of Exhibit A.
“guarantee” means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including a pledge of assets (other than a non-recourse pledge of the Equity Interests of a Receivables Subsidiary to secure a Permitted Receivables Financing), letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness or other obligations. The term “guarantee” used as a verb has a corresponding meaning.
The amount of any guarantee shall be deemed to be an amount equal to the lesser of (a) the stated or determinable amount of the primary payment obligation in respect of which such guarantee is made and (b) the maximum amount for which the guaranteeing Person may be liable pursuant to the terms of the instrument embodying such guarantee unless such primary payment obligation and the maximum amount for which such guaranteeing Person may be liable are not stated or determinable, in which case the amount of the guarantee shall be such guaranteeing Person’s maximum reasonably possible liability in respect thereof as reasonably determined by Parent in good faith.
27
“Guarantors” means Parent and each Subsidiary of the Issuer that executes this Indenture as a Guarantor on the Issue Date and each other Affiliate of Parent (including, for the avoidance of doubt, any Designated Parent Subsidiary) that thereafter guarantees the Notes in accordance with the terms of this Indenture, until, in each case, such Person is released from its Note Guarantee with respect to the Notes in accordance with the terms of this Indenture. “Hedging Obligations” means, with respect to any Person, the obligations of such Person with respect to (1) any rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, 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 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 (2) 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 (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“holder” means, with reference to any Indebtedness or other Obligations, any holder or lender of, or trustee or collateral agent or other authorized representative with respect to, such Indebtedness or Obligations, and, in the case of Hedging Obligations, any counter-party to such Hedging Obligations.
“Holder” means the Person in whose name a Note is registered on the Registrar’s books; provided, however, that in connection with the giving any consent, instruction or authorization for purposes of the provisions of Article 6, Article 9 and Sections 7.08 and 12.08(f), beneficial owners of interests in a Note may constitute “Holders”, and in connection therewith, the Issuer, the Trustee, the Collateral Trustee, any Officer signing an Officer’s Certificate and any counsel delivering an Opinion of Counsel shall be permitted to rely in good faith on customary certificates of beneficial ownership as evidence of holdings of such interests (without, for the avoidance of doubt, DTC proxies, medallion-stamped guarantees or other similar evidence).
“IAI Global Note” means a Global Note substantially in the form of Exhibit A hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or not prohibited by this Indenture, bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes transferred to Institutional Accredited Investors in compliance with the Securities Act.
“Immediate Family Members” means with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, qualified domestic partner, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law (including adoptive relationships), and any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals or any private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which any such individual is the donor.
28
“Incur” means issue, assume, guarantee, incur or otherwise become liable for; provided, however, that any Indebtedness of a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Person at the time it becomes a Restricted Subsidiary. The term “Incurrence” when used as a noun shall have a correlative meaning.
“Indebtedness” means, with respect to any Person on any date of determination, the principal in respect of indebtedness of such Person (a) in respect of borrowed money, including indebtedness for borrowed money evidenced by notes, debentures, bonds or other similar instruments or reimbursement obligations in respect of letters of credit, (b) representing any balance deferred and unpaid portion of the purchase price of any property (including pursuant to Financing Lease Obligations), except (i) any such balance that constitutes a trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary course of business or consistent with industry or past practice, (ii) purchase price holdbacks to satisfy warranty or other unperformed obligations of the seller, (iii) obligations attributable to the exercise of appraisal rights and the settlement of any claims or actions with respect thereto and (iv) any earn-out obligations until, after 120 days of becoming due and payable, such earn-out obligation has not been paid or satisfied and such obligation is reflected as a liability on the balance sheet of such Person in accordance with GAAP, (c) Non-Financing Lease Obligations, and (d) representing any net Hedging Obligations, but only if and to the extent that any of the foregoing Indebtedness in clauses (a) through (d) (other than net Hedging Obligations) would appear as a liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP. If any Indebtedness of any Parent Entity would appear on the balance sheet of the Issuer solely by reason of push down accounting under GAAP, such Indebtedness shall be excluded. All guarantees in respect of Indebtedness specified in clause (a) through (d) of this definition (other than any exclusion therefrom) of another Person shall be included. To the extent not otherwise included, the obligations of the type referred to in clauses (a) through (d) of this definition (other than any exclusion therefrom) of another Person secured by a consensual Lien (other than a Permitted Lien) on any assets owned by such Person, whether or not such Indebtedness is assumed by such Person shall be included to such extent, but the amount of such Indebtedness will be the lesser of (x) the fair market value of such assets at such date of determination and (y) the amount of such Indebtedness of such other Person (it being understood, however, that Indebtedness shall in no event include any amounts payable or other liabilities to trade creditors (including undrawn letters of credit) arising in the ordinary course of business or consistent with industry or past practice). Indebtedness of the Issuer and its Restricted Subsidiaries shall exclude (i) intercompany liabilities arising from their cash management and accounting operations and intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any rollover or extensions of terms) and made in the ordinary course of business or consistent with industry or past practice, (ii) deferred or prepaid revenues, (iii) accrued expenses and royalties, (iv) any liabilities for taxes, (v) Capital Stock and Disqualified Stock, (vi) Film Obligations, (vii) obligations under any Program Services Agreement, Outsourcing Agreement or other similar agreement, (viii) any Put Obligations, (ix) any liability shown on the balance sheet of such Person solely as a result of the application of FASB Accounting Standards Codification Topic 810 and for which such Person is not primarily or contingently liable for payment, (x) accounts payable in connection with the sale of programming or advertising time owing by such Persons and (xi) obligations in respect of the lease or other use of spectrum space relating to sub-channels owing by such Person.
“Indenture” means this Indenture, as amended, supplemented or otherwise modified from time to time with respect to the Notes.
“Independent Financial Advisor” means an accounting, appraisal, investment banking firm or consultant of nationally recognized standing that is, in the good faith judgment of the Issuer, qualified to perform the task for which it has been engaged.
29
“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.
“Institutional Accredited Investor” means an institution that is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, that is not also a QIB.
“Intercreditor Agreements” means, collectively, the Collateral Trust Agreement and the First/Second/Third Lien Intercreditor Agreement.
“Interest Payment Date”, when used with respect to any Note, means the Stated Maturity of an installment of interest on such Note.
“Investment Grade Event” means (1) the Issuer has obtained a rating or, to the extent any Rating Agency will not provide a rating, an advisory, prospective or indicative rating or rating confirmation or reaffirmation (or comparable term used by such Rating Agency for such type of rating or evaluation) from either Rating Agency in the event two Rating Agencies provide ratings referred to in clauses (i) and (ii) below at such time, or from any two of three Rating Agencies in the event three Rating Agencies provide ratings referred to in clauses (i) and (ii) below at such time that reflect an Investment Grade Rating (i) for the corporate rating of the Issuer (or any Parent Guarantor) and (ii) with respect to the Notes after giving effect to the proposed release of all of the Note Guarantees to be released in connection therewith; and (2) no Event of Default shall have occurred and be continuing with respect to the Notes.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s, BBB- (or the equivalent) by S&P and BBB- (or the equivalent) by Fitch, or the equivalent investment grade credit rating from any other Rating Agency substituted for Moody’s, S&P or Fitch pursuant to clause (2) of the definition of “Rating Agency.”
“Investment Grade Securities” means:
(1) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Cash Equivalents);
(2) debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Issuer and its Subsidiaries;
(3) investments in any fund that invests at least 90% of its assets in investments of the type described in clauses (1) and (2) which fund may also hold immaterial amounts of cash pending investment or distribution; and
(4) corresponding instruments in countries other than the United States customarily utilized for high quality investments.
“Investments” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, trade credit, advances to customers, commission, travel and similar advances to officers, directors, managers, employees and consultants, in each case made in the ordinary course of business or consistent with industry or past practice), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet (excluding the footnotes) of the Issuer in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property.
30
For purposes of the definition of “Unrestricted Subsidiary” and Section 4.07:
(1) “Investments” shall include the portion (proportionate to such Person’s economic interest in such Subsidiary) of the fair market value of the net assets of a Subsidiary of such Person at the time that such Subsidiary becomes an Unrestricted Subsidiary. Upon a redesignation of such Subsidiary as a Restricted Subsidiary, such Person shall be deemed to continue to have an “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to:
(a) such Person’s “Investment” in such Subsidiary at the time of such redesignation, less
(b) the portion (proportionate to such Person’s economic equity interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation;
(2) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer, in each case as determined by the Issuer; and
(3) a Restricted Subsidiary ceasing to be a Restricted Subsidiary shall be deemed to be an Investment at such time in an amount equal to the portion of the fair market value (as determined in good faith by the Issuer) of the Issuer’s retained ownership interest, if any, in such Restricted Subsidiary that ceased to be a Restricted Subsidiary.
The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash or Cash Equivalents by the Issuer or a Restricted Subsidiary in respect of such Investment.
“Investors” means each of (1) (i) David D. Smith, Frederick G. Smith, J. Duncan Smith and Robert E. Smith, (ii) Immediate Family Members of the Persons described in clause (1)(i), (iii) any Affiliates, related estate plan and trusts created for the benefit of the Persons described in clause (1)(i), (ii) or (iv) or any trust for the benefit of any such Affiliate, estate plan or trust, or (iv) in the event of the incompetence of death of any of the Persons described in clause (1)(i) and (ii), such Persons’ estate, executor, administrator, committee or other personal representative or beneficiaries, in each case who at any particular date shall beneficially own or have the right to acquire, directly or indirectly, Equity Interests of the Issuer, any Parent Entity of the Issuer or any Subsidiary thereof and their respective Affiliates, and any funds, partnerships or other co-investment vehicles managed, advised or controlled by the foregoing or their respective Affiliates and (2) Parent.
“Issue Date” means February 12, 2025.
“Issuer” means Sinclair Television Group, Inc., a Maryland corporation.
“Issuer Order” means a written request or order signed on behalf of the Issuer by an Officer of the Issuer and delivered to the Trustee.
“Junior Lien Credit Facilities” is defined in the term “Amended Credit Agreement.”
31
“Junior Lien Indebtedness” means the New Second Lien Notes and the Indebtedness under the Amended Credit Agreement and any other Indebtedness secured by Liens only on all or a portion of the Collateral that is permitted under this Indenture to have Liens on the Collateral on a junior Lien basis relative to the Notes and the Note Guarantees pursuant to the First/Second/Third Lien Intercreditor Agreement; provided that the holders of such Indebtedness or their Designated Representative shall have entered into the First/Second/Third Lien Intercreditor Agreement and such Indebtedness shall constitute “Junior Lien Obligations” as defined therein.
“Junior Lien Obligations” means the Obligations in respect of the Junior Lien Indebtedness.
“Junior Lien Priority” means, with respect to specified Indebtedness, such Indebtedness is secured by a Lien that is junior in priority to the Liens on the Collateral that secures the Notes and the Notes Guarantees and is subject to the First/Second/Third Lien Intercreditor Agreement (or such other intercreditor agreement having substantially similar terms as the First/Second/Third Lien Intercreditor Agreement, taken as a whole).
“Junior Lien Revolving Credit Facility” is defined in the term “Amended Credit Agreement.”
“Junior Lien Term Loan B-3 Facility” has the meaning assigned to it in the term “Amended Credit Agreement.”
“Junior Lien Term Loan B-4 Facility” has the meaning assigned to it in the term “Amended Credit Agreement.”
“Junior Lien Term Loan Facilities” is defined in the term “Amended Credit Agreement.” “Legal Holiday” means a Saturday, a Sunday or a day on which commercial banking institutions are not required to be open in the State of New York or the city in which the Trustee’s corporate trust office is located.
“License Subsidiaries” means (a) with respect to each Station that is an Owned Station on the Issue Date, the Subsidiary of the Issuer that is the holder of the Broadcast Licenses for such Owned Station and (b) with respect to any Owned Station hereafter acquired by the Issuer or any of its Subsidiaries, the Subsidiary of the Issuer formed, created, or acquired after the Issue Date that holds the Broadcast Licenses for such Owned Station, and in each case any other Subsidiary into which any such License Subsidiary may be merged to the extent not prohibited by Section 5.01.
“Lien” means, with respect to any asset, (1) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (2) the interest of a vendor or a lessor under any conditional sale agreement, Financing Lease Obligation or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset; provided that in no event shall Non-Financing Lease Obligations be deemed to constitute a Lien.
“Limited Condition Transaction” means (1) any Investment or acquisition (whether by merger, amalgamation, consolidation or other business combination or the acquisition of Capital Stock or otherwise), whose consummation is not conditioned on the availability of, or on obtaining, third-party financing, (2) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Stock or Preferred Stock requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment, (3) any Restricted Payment requiring irrevocable notice in advance thereof, and (4) any Asset Sale or a disposition excluded from the definition of “Asset Sale.”
32
“Local Marketing Agreement” means a local marketing arrangement, sale agreement, time brokerage agreement, management agreement, outsourcing agreement, joint sale agreement, shared services agreement, program services agreement or similar arrangement pursuant to which a Person (i) obtains the right to sell at least a majority of the advertising inventory of a television station on behalf of a third party, (ii) purchases at least a majority of the air time of a television station to exhibit programming and sell advertising time, (iii) manages the selling operations of a television station with respect to at least a majority of the advertising inventory of such station, (iv) manages or controls the acquisition of programming for a television station, (v) acts as a program consultant for a television station, (vi) manages the operation of a television station generally, (vii) obtains the right to negotiate retransmission consent on behalf of a third party, (viii) provides non-programming related management and/or consulting services to a television station, (ix) consults, manages, sells or negotiates uses of excess spectrum or (x) any put or option agreement entered into in connection with any agreement referred to in clauses (i) through (ix) above that provides a right to acquire or sell the license or non-license assets of a television station.
“Management Investors” means current and/or former directors, officers and employees of the Issuer and/or any of its subsidiaries who are (directly or indirectly through one or more investment vehicles) Investors on the Issue Date.
“Material FCC License” means an FCC License that is, in the reasonable, good faith determination of the Issuer, material to the operation of the business of the Issuer and its Restricted Subsidiaries, taken as a whole.
“Material Intellectual Property” means any intellectual property that is, in the reasonable, good faith determination of the Issuer, material to the operation of the business of the Issuer and its Restricted Subsidiaries, taken as a whole.
“Material Subsidiary” means (a) each Wholly-Owned Subsidiary that is a Restricted Subsidiary that, as of the last day of the fiscal quarter of the Issuer most recently ended for which financial statements are available, had revenues or total assets for such quarter in excess of 2.5% of the consolidated revenues or total assets, as applicable, of the Issuer for such quarter or that is designated by the Issuer as a Material Subsidiary and (b) any group comprising Wholly-Owned Subsidiaries that are Restricted Subsidiaries that each would not have been a Material Subsidiary under clause (a) but that, taken together, as of the last day of the fiscal quarter of the Issuer most recently ended for which financial statements are available, had revenues or total assets for such quarter in excess of 10.0% of the consolidated revenues or total assets, as applicable, of the Issuer for such quarter.
“Maturity”, when used with respect to any Note, means the date on which the principal of such Note or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, exercise of option for repayment or otherwise.
“Media for Equity Transactions” means a transaction in the ordinary course of business in which the Issuer or any Restricted Subsidiary sells or exchanges advertising and/or other media inventory for consideration in the form of Equity Interests in, or Indebtedness issued by, the purchaser or an Affiliate (including a parent entity) of the purchaser.
“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
33
“Net Proceeds” means the aggregate cash proceeds received by the Issuer and any of its Restricted Subsidiaries in respect of any Asset Sale, including any cash received upon the sale or other disposition of any Designated Non-cash Consideration received in any Asset Sale, net of (1) the fees, out-of-pocket expenses and other direct costs relating to such Asset Sale or the sale or disposition of such Designated Non-cash Consideration (including, without limitation, legal, accounting, consulting, investment banking and other customary fees, underwriting discounts and commissions, survey costs, title and recordation expenses, title insurance premiums, payments made in order to obtain a necessary consent or required by applicable law, brokerage and sales commissions and any relocation expenses incurred as a result thereof), (2) all federal, state, provincial, foreign and local taxes (including tax distributions paid or payable to a Parent Entity pursuant to clause (13) of Section 4.07(b)) paid or reasonably estimated to be payable as a result thereof (including transfer taxes, deed or mortgage recording taxes and estimated taxes payable in connection with any repatriation of funds and after taking into account any available tax credits or deductions and any tax sharing arrangements), (3) amounts required to be applied to the repayment of principal, premium, if any, and interest on Senior Indebtedness (other than any unsecured Indebtedness or Junior Lien Indebtedness) required (other than required by Section 4.10(b)) to be paid as a result of such transaction, (4) the pro rata portion of Net Proceeds thereof (calculated without regard to this clause (4)) attributable to minority interests and not available for distribution to or for the account of the Issuer and the Restricted Subsidiaries as a result thereof, (5) any costs associated with unwinding any related Hedging Obligations in connection with such transaction, (6) any deduction of appropriate amounts to be provided by the Issuer or any of its Restricted Subsidiaries as a reserve in accordance with GAAP against any liabilities associated with the asset disposed of in such transaction and retained by the Issuer or any of its Restricted Subsidiaries after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction, (7) any portion of the purchase price from an Asset Sale placed in escrow, whether as a reserve for adjustment of the purchase price, for satisfaction of indemnities in respect of such Asset Sale or otherwise in connection with such Asset Sale; provided that upon the termination of that escrow (other than in connection with a payment in respect of any such adjustment or satisfaction of indemnities), Net Proceeds will be increased by any portion of funds in the escrow that are released to the Issuer or any of its Restricted Subsidiaries, (8) the amount of any liabilities (other than Indebtedness in respect of the Senior Credit Facilities, the Exchange Second-Out First Lien Notes, the Existing Notes, the New Second Lien Notes and the Notes) directly associated with such asset being sold and retained by the Issuer or any of its Restricted Subsidiaries and (9) any amounts paid by the Issuer and any of its Subsidiaries in connection with any Channel Sharing Agreement related to the asset that is the subject of such event or any option agreement related thereto. Any non-cash consideration received in connection with any Asset Sale that is subsequently converted to cash shall become Net Proceeds only at such time as it is so converted.
“New Credit Agreement” means the credit agreement, dated as of the Issue Date, among the Parent, as guarantor, the Issuer, as borrower, the lenders from time to time party thereto, certain other parties party thereto from time to time and JPMorgan Chase Bank, N.A., as administrative agent, issuing bank and swingline lender, including any related notes, guarantees, security documents, instruments and agreements executed in connection therewith, and as such agreement, in whole or in part, in one or more instances, may be further amended, restated, renewed, extended, substituted, refinanced, restructured, replaced (whether or not upon termination, and whether with the original lenders or otherwise), supplemented or otherwise modified from time to time (including, in each case, by means of one or more credit agreements, note purchase agreements or sales of debt securities to institutional investors whether with the original agents and lenders or otherwise and including, without limitation, any successive renewals, extensions, substitutions, refinancings, restructurings, replacements, supplementations or other modifications of the foregoing) and including, without limitation, to increase the amount of available borrowings thereunder or to add Restricted Subsidiaries as additional borrowers or guarantors or otherwise, which credit agreement shall provide for, as of the Issue Date, a “first-out” priority revolving credit facility (the “First-Out Revolving Credit Facility” or the “First-Out Senior Credit Facilities”), a “second-out” priority term loan B-6 facility (with the term loans thereunder referred to herein as the “Term B-6 Loans”) and a “second-out” priority term loan B-7 facility (together with such “second-out” priority term loan B-6 facility (with the term loans thereunder referred to herein as the “Term B-7 Loans”), the “Second-Out Term Loan Facility” and together with the First-Out Senior Credit Facilities, the “First Lien Senior Credit Facilities”).
34
“New LMT Debt” has the meaning assigned to it in the definition of “Priming Financing/Liability Management Transaction”.
“New Second Lien Notes” means each series of 9.750% Senior Second Lien Secured Notes due 2033 governed by the Second Lien Indenture, and issued in connection with the Private Exchanges.
“New Second Lien Notes Obligations” means the Obligations in respect of the New Second Lien Notes, the guarantees in respect thereof, the Second Lien Indenture and the security documents relating to the foregoing.
“Non-Financing Lease Obligation” means a lease obligation that is not required to be accounted for as a financing or capital lease on both the balance sheet and the income statement for financial reporting purposes in accordance with GAAP. For the avoidance of doubt, a straight-line or operating lease shall be considered a Non-Financing Lease Obligation.
“Non-Recourse Indebtedness” means Indebtedness that is non-recourse to the Issuer and its Restricted Subsidiaries (except for customary representations, warranties, covenants and indemnities made in connection with applicable facilities of such type).
“Non-U.S. Person” means a Person who is not a U.S. Person.
“Note Guarantee” means the guarantee by any Guarantor of the Issuer’s Obligations under this Indenture and the Notes.
“Notes” means the Notes and any Additional Notes.
“Notes Obligations” means Obligations in respect of the Notes, this Indenture, the Note Guarantees and the Security Documents relating to the foregoing.
“Obligations” means any principal, interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, federal or foreign law), premium, penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other liabilities, and guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any Indebtedness.
“Offering Memorandum” means the Offering Memorandum, dated January 29, 2025, relating to the offering of the Notes.
“Officer” means the Chairman of the Board, any Manager or Director, the Chief Executive Officer, the Chief Financial Officer, the Chief Operating Officer, the Chief Accounting Officer, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer, the Controller or the Secretary or any other officer designated by any such individuals of the Issuer or any other Person, as the case may be.
35
“Officer’s Certificate” means a certificate signed on behalf of the Issuer by an Officer of the Issuer or on behalf of any other Person, as the case may be, that meets the requirements set forth in this Indenture.
“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee (which opinion may be subject to customary assumptions and exclusions). The counsel may be an employee of or counsel to the Issuer.
“Outsourcing Agreements” means (a) any agreement to which the Issuer or any of its Subsidiaries is a party which provides for the Issuer or any of its Subsidiaries to deliver or receive non-programming related management and/or consulting services of any television station, and (b) any put or option agreement entered into in connection with any agreement referred to in clause (a) above that provides for the Issuer or any of its Subsidiaries to acquire or sell the license or non-license assets of the related television station.
“Owned Station” means any television or radio station the Broadcast Licenses of which are owned or held by the Issuer or any of its Subsidiaries on or after the Issue Date.
“Parent” means Sinclair Broadcast Group, LLC, a Maryland limited liability company, and the direct parent of the Issuer, or any successor thereto.
“Parent Entity” means any Person that, with respect to another Person, owns (directly or indirectly) 50% or more of the total voting power of the Voting Stock entitled to vote for the election of directors of such other Person having a majority of the aggregate votes on the Board of such other Person. Unless the context requires otherwise, any references to a Parent Entity refer to a Parent Entity of the Issuer (including Parent or Sinclair).
“Parent Guarantor” means a Guarantor that is a Parent Entity of the Issuer.
“Pari Passu Lien Obligations” means the First Lien Obligations and any other Indebtedness that is permitted to have Pari Passu Lien Priority and is not secured by any assets other than the Collateral; provided that the holders of such Indebtedness or their Designated Representative shall have entered into Collateral Trust Agreement. For the avoidance of doubt, Pari Passu Lien Obligations shall not include New Second Lien Notes Obligations or other Junior Lien Obligations.
“Pari Passu Lien Priority” means, with respect to any Indebtedness, such Indebtedness is secured by a Lien that is pari passu in priority to the Liens on specified Collateral that secures the Notes and the Note Guarantees (without regard to control of remedies or payment priority as to the application of proceeds with respect to, and distributions made on account of, any such Collateral) and is subject to the Collateral Trust Agreement and the First/Second/Third Lien Intercreditor Agreement (or such other intercreditor agreement having substantially similar terms as the Collateral Trust Agreement or the First/Second/Third Lien Intercreditor Agreement, as applicable, taken as a whole).
“Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).
“Permitted Asset Swap” means the substantially concurrent purchase and sale or exchange, including as a deposit for future purchases, of Related Business Assets or a combination of Related Business Assets and cash or Cash Equivalents between the Issuer or any of its Restricted Subsidiaries and another Person; provided that any cash or Cash Equivalents received must be applied in accordance with Section 4.10.
36
“Permitted Holders” means (1) each of the Investors, (2) the Management Investors and their Permitted Transferees, (3) any Person who is acting solely as an underwriter in connection with a public or private offering of Capital Stock of the Issuer or any Parent Entity, acting in such capacity, (4) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) of which any of the foregoing Persons described in clauses (1) and (2) or any Permitted Holder specified in the last sentence of this definition are members and any member of such group; provided that such Persons, without giving effect to the existence of such group or any other group, collectively own, directly or indirectly, more than 50% of the total voting power of the Voting Stock entitled to vote for the election of directors of the Issuer having a majority of the aggregate votes on the Board of the Issuer held by such group, (5) any Permitted Parent and (6) any Permitted Plan, in each case of the foregoing clauses (1) through (6), whether holding Equity Interests of the Issuer directly or indirectly. Any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) whose acquisition of beneficial ownership constitutes a Change of Control Triggering Event in respect of which a Change of Control Offer is made in accordance with the requirements of this Indenture will thereafter, together with its Affiliates, constitute an additional Permitted Holder.
“Permitted Investments” means:
(1) any Investment in the Issuer or any of its Restricted Subsidiaries;
(2) any Investment in cash and Cash Equivalents or Investment Grade Securities;
(3) any Investment by the Issuer or any of its Restricted Subsidiaries in a Person (including, to the extent constituting an Investment, in assets of a Person that represent substantially all of its assets or a division, business unit, product line or line of business, including research and development and related assets in respect of any product) that is engaged, directly or indirectly, in a Similar Business if as a result of such Investment:
(a) such Person is or becomes a Restricted Subsidiary; or
(b) such Person, in one transaction or a series of related transactions, is merged, amalgamated or consolidated with or into, or transfers or conveys substantially all of its assets (or such division, business unit, product line or line of business) to, or is liquidated into, the Issuer or a Restricted Subsidiary,
and, in each case, any Investment held by such Person if and to the extent such Investment was not acquired by such Person in contemplation of such acquisition, merger, amalgamation, consolidation, transfer or conveyance;
(4) any Investment in securities or other assets (including earn-outs) not constituting cash, Cash Equivalents or Investment Grade Securities and received in connection with an Asset Sale made pursuant to Section 4.10 or any other disposition of assets not constituting an Asset Sale;
(5) any Investment existing on the Issue Date or made pursuant to binding commitments in effect on the Issue Date or an Investment consisting of any extension, modification, replacement, reinvestment or renewal of any such Investment existing on the Issue Date or binding commitment in effect on the Issue Date; provided that the amount of any such Investment may be increased in such extension, modification, replacement, reinvestment or renewal only (a) as required by the terms of such Investment or binding commitment as in existence on the Issue Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or (b) as otherwise permitted under this Indenture;
37
(6) any Investment acquired by the Issuer or any of its Restricted Subsidiaries:
(i) in exchange for any other Investment or accounts receivable, endorsements for collection or deposit held by the Issuer or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the Issuer of such other Investment or accounts receivable;
(ii) in satisfaction or release of judgments against other Persons;
(iii) as a result of a foreclosure or other remedy by the Issuer or any of its Restricted Subsidiaries with respect to any Investment or other transfer of title or ownership interest with respect to any Investment; or
(iv) received in compromise or resolution of (A) obligations of trade creditors, suppliers or customers of the Issuer or any Restricted Subsidiary that were incurred in the ordinary course of business or consistent with industry or past practice, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency or reorganization of any trade creditor, supplier or customer, or (B) litigation, arbitration or other disputes or claims, actions or proceedings in law or equity;
(7) Hedging Obligations permitted under clause (10) of Section 4.09(b);
(8) Investments made in connection with any Media for Equity Transaction; provided that any such Investment is made and is held at all times by the Issuer or any Restricted Subsidiary, and is not used in connection with or in furtherance of a Priming Financing/Liability Management Transaction;
(9) Investments the payment for which consists of Equity Interests (exclusive of Disqualified Stock) of the Issuer or any Parent Entity to the extent that issuance of such Equity Interests did not prior thereto increase the amount available for Restricted Payments under clause (3) of Section 4.07(a);
(10) guarantees of Indebtedness permitted (and permitted to be guaranteed) under Section 4.09 and Investments consisting of Liens permitted under Section 4.12; provided that this clause (10) shall not be used in connection with or in furtherance of a Priming Financing/Liability Management Transaction;
(11) any transaction to the extent it constitutes an Investment that is permitted by and made in accordance with Section 4.11(b) (except transactions described in clauses (2), (5) and (9) of Section 4.11(b));
(12) any Investments consisting of purchases and acquisitions of inventory, supplies, material or equipment or other similar assets, or the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons;
38
(13) additional Investments having an aggregate fair market value measured at the time of committing, declaring or determining to make such Investment and without giving effect to subsequent changes in value, when aggregated with all other Investments outstanding under this clause (13), does not exceed at the time of such Investment the greater of (x) $187.0 million and (y) 25.0% of Consolidated EBITDA of the Issuer for the Applicable Measurement Period; provided that if any Investment pursuant to this clause (13) is made in any Person that is not a Restricted Subsidiary of the Issuer at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (13); provided further, that Investments made pursuant to this clause (13) shall not be used in connection with or in furtherance of a Priming Financing/Liability Management Transaction;
(14) Investments in Subsidiaries in the form of receivables and related assets required in connection with a Permitted Receivables Financing (including the contribution or lending of cash and Cash Equivalents to Subsidiaries to finance the purchase of such assets from the Issuer or any Restricted Subsidiary or to otherwise fund required reserves);
(15) loans and advances to, or guarantees of Indebtedness of, officers, directors, managers, employees and consultants not in excess of the greater of (x) $25.0 million and (y) 3.6% of Consolidated EBITDA of the Issuer for the Applicable Measurement Period, in the aggregate, outstanding at the time of such Investment;
(16) loans and advances to officers, directors, managers, employees, consultants and independent contractors for business-related travel expenses, moving or relocation expenses, entertainment, payroll advances and other analogous or similar expenses or payroll expenses;
(17) advances, loans or extensions of trade credit (including the creation of receivables) or prepayments to suppliers or lessors or loans or advances made to distributors, and performance guarantees, in each case in the ordinary course of business or consistent with past practice by the Issuer or any of its Restricted Subsidiaries;
(18) Investments consisting of purchases and acquisitions of assets or services in the ordinary course of business or consistent with industry or past practice and any earnest money deposits in connection therewith;
(19) repurchases of the Notes or any Refinancing Indebtedness in respect thereof;
(20) Investments in the ordinary course of business or consistent with industry or past practice consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers consistent with past practices;
(21) Investments (i) made after the Issue Date in joint ventures of the Issuer or any Restricted Subsidiary existing on the Issue Date or (ii) in Unrestricted Subsidiaries having an aggregate fair market value measured at the time of committing, declaring or determining to make such Investment and without giving effect to subsequent changes in value, in the case of clauses (i) and (ii), when aggregated with all other Investments outstanding under this clause (21), do not exceed, at the time of such Investment, $50.0 million; provided that if any Investment pursuant to this clause (21) is made in any Person that is an Unrestricted Subsidiary at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (21); provided, further, that Investments made pursuant to this clause (21) shall not be used (x) in connection with or in furtherance of a Priming Financing/Liability Management Transaction or (y) for Restricted Payments described in clause (I) (II) or (III) of the definition thereof;
39
(22) Investments made as part of, or in connection with, the Transactions;
(23) Investments of assets relating to non-qualified deferred payment plans in the ordinary course of business or consistent with industry or past practice;
(24) intercompany current liabilities owed to Unrestricted Subsidiaries or joint ventures incurred in the ordinary course of business or consistent with industry or past practice in connection with cash management operations of the Issuer and its Subsidiaries;
(25) any Investment in any Subsidiary or any joint venture in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business or consistent with industry or past practice;
(26) contributions to a “rabbi” trust for the benefit of employees, directors, consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the case of a bankruptcy of the Issuer or any Restricted Subsidiary;
(27) non-cash Investments in connection with tax planning and reorganization activities;
(28) any other Investment; provided that on the date of such Investment, on a pro forma basis after giving effect to such Investment, the Consolidated First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period would be equal to or less than 3.75 to 1.0 and no Event of Default under clause (1), (2), (6) or (7) of Section 6.01(a) shall have occurred and be continuing or would occur as a consequence thereof; provided further, that Investments made pursuant to this clause (28) shall not be used in connection with or in furtherance of a Priming Financing/Liability Management Transaction;
(29) Investments made in the ordinary course of business, on ordinary terms or consistent with industry or past practice in connection with obtaining, maintaining or renewing vendor contracts;
(30) Investments consisting of promissory notes issued by the Issuer or any Guarantor to future, present or former employees, directors, officers, managers, members, partners, independent contractors or consultants of the Issuer or any of its Subsidiaries or their respective estates, spouses or former spouses to finance the redemption of Equity Interests of the Issuer or any direct or indirect parent thereof, to the extent the applicable Restricted Payment is permitted by Section 4.07;
(31) Investments made from casualty insurance proceeds in connection with the replacement, substitution, restoration or repair of assets on account of a casualty event;
(32) Investments in Local Marketing Agreement purchase options (other than purchase options in existence as of the Issue Date) in an amount of up to $300.0 million in the aggregate plus customary closing fees and expenses;
(33) if otherwise permitted pursuant to FCC rules and regulations and the terms and conditions of the then extant Senior Credit Facilities, the acquisition of any television station which is subject to an option agreement, merger agreement or any similar agreement existing between Parent, the Issuer and any of their respective Subsidiaries and the owners of such television station; and
40
(34) any Investment with respect to purchase options relating to the purchase of Stations by the Issuer and its Subsidiaries; provided that at the time any such Investment is made, the aggregate outstanding amount of all Investments made in reliance on this clause (34), when aggregated with all other Investments outstanding under this clause (34), shall not exceed the greater of (x) $100.0 million and (y) 14.5% of Consolidated EBITDA of the Issuer for the most recently ended Applicable Measurement Period after giving pro forma effect to the making of such Investment.
“Permitted Junior Lien Revolving Facility Refinancings” means any refinancings, refundings, replacements, exchanges, and/or permanent prepayments of any Junior Lien Revolving Credit Facility (accompanied by permanent commitment reductions of the amounts so refinanced, refunded, replaced, exchanged and/or prepaid) with (x) the proceeds of any drawing of First-Out Senior Credit Facilities Revolving Indebtedness and/or refinancing, replacement or exchange into First-Out Senior Credit Facilities Revolving Indebtedness, to the extent so permitted under Section 4.09, or (y) with the use of proceeds other than First-Out Senior Credit Facilities Revolving Indebtedness, to the extent permitted under Section 4.07, other than pursuant to clause (27) of Section 4.07(b), in each case that occurs within 15 months before the applicable final maturity of such Junior Lien Revolving Credit Facility; provided that any such Indebtedness shall have a later maturity date than the Junior Lien Revolving Credit Facility.
“Permitted Liens” means:
(1) Liens for taxes, assessments or other governmental charges that are not overdue for a period of more than 60 days or not yet payable or subject to penalties for nonpayment or that are being contested in good faith by appropriate actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of the Issuer or any of its Restricted Subsidiaries in accordance with GAAP, or for property taxes on property that the Issuer or any of its Restricted Subsidiaries has determined to abandon if the sole recourse for such tax, assessment, charge, levy or claim is to such property;
(2) Liens imposed by law or regulation, such as landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, architects’ or construction contractors’ Liens and other similar Liens that secure amounts not overdue for a period of more than 60 days or, if more than 60 days overdue, are unfiled and no other action has been taken to enforce such Liens or that are being contested in good faith by appropriate actions or other Lien arising out of judgments or awards against the Issuer or any of its Restricted Subsidiaries with respect to which the Issuer or such Restricted Subsidiary shall then be proceeding with an appeal or other proceeding for review, if adequate reserves with respect thereto are maintained on the books of the Issuer or such Restricted Subsidiary in accordance with GAAP;
(3) Liens incurred or deposits made in the ordinary course of business or consistent with industry or past practice (a) in connection with workers’ compensation, unemployment insurance, employers’ health tax, and other social security or similar legislation or other insurance related obligations (including, but not limited to, in respect of deductibles, self-insured retention amounts and premiums and adjustments thereto) and (b) securing reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) insurance carriers providing property, casualty or liability insurance to the Issuer or any of its Restricted Subsidiaries or otherwise supporting the payment of items set forth in the foregoing clause (a);
(4) Liens incurred or deposits made to secure the performance of bids, tenders, trade contracts, governmental contracts, leases, public or statutory obligations, surety, indemnity, warranty, release, appeal or similar bonds or with respect to other regulatory requirements, completion guarantees, stay, customs and appeal bonds, performance bonds, bankers’ acceptance facilities and other obligations
41
of a like nature (including those to secure health, safety and environmental obligations), deposits as security for contested taxes or import duties or for payment of rent, performance and return of money bonds and obligations in respect of letters of credit, bank guarantees or similar instruments that have been posted to support the same, incurred in the ordinary course of business or consistent with industry or past practice;
(5) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, rights-of-way, restrictions, encroachments, protrusions, servitudes, sewers, electric lines, drains, telegraph, telephone and cable television lines and other similar purposes, or zoning, building codes or other restrictions (including minor defects and irregularities in title and similar encumbrances) affecting real properties or Liens incidental to the conduct of the business of the Issuer and its Subsidiaries or to the ownership of their respective properties which were not incurred in connection with Indebtedness and which do not in any case materially interfere with the ordinary conduct of the business of the Issuer and its Subsidiaries, taken as a whole;
(6) Liens securing Indebtedness permitted to be incurred pursuant to clause (5)(b) of Section 4.09(b); provided, that such Liens shall not secure First-Out Indebtedness;
(7) Liens on goods the purchase price of which is financed by a documentary letter of credit issued for the account of the Issuer or any of its Restricted Subsidiaries or Liens on bills of lading, drafts or other documents of title arising by operation of law or pursuant to the standard terms of agreements relating to letters of credit, bank guarantees and other similar instruments; provided that such Lien secures only the obligations of the Issuer or such Restricted Subsidiaries in respect of such letter of credit to the extent such obligations are permitted under Section 4.09;
(8) (a) rights of set-off, banker’s liens, netting agreements and other Liens arising by operation of law or by the terms of documents of banks or other financial institutions in relation to the maintenance of administration of deposit accounts, securities accounts, cash management arrangements or in connection with the issuance of letters of credit, bank guarantees or other similar instruments and (b) Liens securing, or otherwise arising from, judgments but not constituting an Event of Default under clause (5) of Section 6.01(a);
(9) Liens arising from Uniform Commercial Code financing statements, including precautionary financing statements, or any similar filings made in respect of operating leases or consignments entered into by the Issuer or any of its Restricted Subsidiaries;
(10) Liens securing (x) the Notes, any Additional Notes and the related Note Guarantees or (y) any other Indebtedness and other Obligations, including any letter of credit facility relating thereto, that was, at the time such Indebtedness is deemed to be incurred, permitted to be incurred pursuant to clauses (1) or (16) of Section 4.09(b); provided, that the Liens securing such Indebtedness (a) as First-Out Priority Payment Obligations shall not exceed the aggregate principal amounts permitted under subclause (a) (in respect of term indebtedness, including the Notes and any guarantees thereof) or (b) (in respect of revolving indebtedness) of such clause (1) and Obligations in respect thereof shall be subject to the Collateral Trust Agreement (with first-out priority); (b) as Second-Out Priority Payment Obligations shall not exceed the aggregate principal amount permitted under subclause (c) of such clause (1) and Obligations in respect thereof shall be subject to the Collateral Trust Agreement (with second-out priority); and (c) as Junior Lien Obligations shall not exceed the aggregate principal amount permitted under subclause (d) of such clause (1) (unless incurred in reliance on subclause (b) of such clause (1)) and Obligations in respect thereof shall be subject to the First/Second/Third Lien Intercreditor Agreement (with Junior Lien Priority relative to the First Lien Obligations), respectively;
42
(11) Liens existing on the Issue Date after giving effect to the Transactions (other than (a) Liens securing Indebtedness incurred pursuant to clause (1) of Section 4.09(b) and (b) Liens securing the Exchange Second-Out First Lien Notes, the New Second Lien Notes and the Junior Lien Term Loan Facilities incurred pursuant to clause (3) of Section 4.09(b));
(12) Liens securing Indebtedness permitted to be incurred pursuant to clauses (4)(a) or (b), (12), (14), (15), (19) and (28) of Section 4.09(b); provided that (a) Liens securing Indebtedness permitted to be incurred pursuant to such clause (4)(a) extend only to the property or assets purchased or acquired with the proceeds of such Indebtedness, accessions to such assets and the proceeds and products thereof, and any lease of such assets (including accessions thereto), the proceeds and the products thereof and customary security deposits in respect thereof; provided, however, that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender, (b) Liens securing Indebtedness permitted to be incurred pursuant to such clause (4)(b) extend only to the property or assets subject to the Sale and Lease-Back Transaction related thereto, accessions to such property or assets and the proceeds and products thereof, and any lease of such property or assets (including accessions thereto) and the proceeds and the products thereof, (c) Liens securing Indebtedness permitted to be incurred pursuant to such clause (12)(a) shall only secure Junior Lien Indebtedness and Liens securing Indebtedness permitted to be incurred pursuant to such clause (12)(b) shall only secure Second-Out Indebtedness or Junior Lien Indebtedness, (d) Liens securing Indebtedness permitted to be incurred pursuant to such clause (14) shall only be permitted if such Liens are limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof, or replacements of any thereof) acquired, or of any Person acquired or merged, amalgamated or consolidated with or into the Issuer or any Restricted Subsidiary (including designating an Unrestricted Subsidiary as a Restricted Subsidiary), in any transaction to which such Indebtedness relates, (e) Liens securing Indebtedness permitted to be incurred pursuant to such clause (19) are solely on acquired property, assets or Investment or extend only to the property or assets of the acquired entity, as the case may be, and the proceeds and products thereof and (f) Liens securing Indebtedness permitted to be incurred pursuant to such clause (28) extend only to the property or assets of, or Equity Interests issued by, Restricted Subsidiaries that are not Guarantors;
(13) Leases (including leases of aircraft), licenses, subleases or sublicenses granted to others that do not (a) interfere in any material respect with the business of the Issuer and its Restricted Subsidiaries, taken as a whole or (b) secure any Indebtedness;
(14) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
(15) Liens (a) of a collection bank arising under Section 4-210 of the Uniform Commercial Code or any comparable or successor provision on items in the course of collection, (b) attaching to pooling, commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business or consistent with industry or past practice and (c) in favor of a banking or other financial institution or electronic payment service providers arising as a matter of law or under general terms and conditions encumbering deposits (including the right of setoff) and that are within the general parameters customary in the banking or finance industry;
(16) Liens (a) on cash advances or escrow deposits in favor of the seller of any property to be acquired in an Investment permitted under this Indenture to be applied against the purchase price for such Investment or otherwise in connection with any escrow arrangements with respect to any such Investment (including any letter of intent or purchase agreement with respect to such investment), and (b) consisting of an agreement to sell, transfer, lease or otherwise dispose of any property in a transaction permitted under Section 4.10, in each case, solely to the extent such Investment or sale, disposition, transfer or lease, as the case may be, would have been permitted on the date of the creation of such Lien;
43
(17) Liens existing on property or assets at the time of acquisition thereof by the Issuer or any of its Subsidiaries (by a merger, consolidation or amalgamation or otherwise) or existing on the property or assets of, or Equity Interests issued by, any Person at the time such Person becomes a Restricted Subsidiary (including designating an Unrestricted Subsidiary as a Restricted Subsidiary), in each case after the Issue Date if (a) such Lien was not created in contemplation of such acquisition (by a merger, consolidation or amalgamation or otherwise) or such Person becoming a Restricted Subsidiary (including designating an Unrestricted Subsidiary as a Restricted Subsidiary), (b) such Lien does not extend to or cover any other property or assets of the Issuer or any of its other Restricted Subsidiaries, except that individual financings of equipment provided by one lender may be cross-collateralized to other financings of equipment provided by such lender and (c) the Indebtedness secured thereby is permitted under Section 4.09;
(18) any interest or title of a lessor under leases (other than leases constituting Financing Lease Obligations) entered into by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business or consistent with industry or past practice;
(19) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale or purchase of goods by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business or consistent with industry or past practice;
(20) Liens deemed to exist in connection with Investments in repurchase agreements permitted under clause (5) of the definition of “Cash Equivalents”;
(21) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business or consistent with industry or past practice and not for speculative purposes;
(22) Liens that are contractual rights of setoff or rights of pledge (a) relating to the establishment of depository relations with banks not given in connection with the incurrence of Indebtedness, (b) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business or consistent with industry or past practice or (c) relating to purchase orders and other agreements entered into with customers of the Issuer or any of its Restricted Subsidiaries in the ordinary course of business or consistent with industry or past practice;
(23) ground leases, subleases, licenses or sublicenses in respect of real property on which facilities owned or leased by the Issuer or any of its Restricted Subsidiaries are located;
(24) (a) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto or (b) deposits made or other security provided to secure liabilities to insurance carriers under insurance or self-insurance arrangements in the ordinary course of business or consistent with industry or past practice;
(25) Liens on cash and any Cash Equivalents used to satisfy or discharge Indebtedness;
(26) Liens on receivables and related assets incurred in connection with Permitted Receivables Financings;
44
(27) (A) receipt of progress payments and advances from customers in the ordinary course of business or consistent with industry or past practice to the extent the same creates a Lien on the related inventory and proceeds thereof and (B) Liens on specific items of inventory or other goods and proceeds of the Issuer or any of its Restricted Subsidiaries securing the Issuer’s or such Restricted Subsidiary’s accounts payable or similar trade obligations in respect of bankers’ acceptances or documentary or trade letters of credit issued or created for the account of the Issuer or such Restricted Subsidiary to facilitate the purchase, shipment or storage of such inventory or other goods;
(28) Liens securing Hedging Obligations; provided that with respect to Hedging Obligations relating to Indebtedness, such Indebtedness is permitted under this Indenture;
(29) Liens securing Obligations relating to any Indebtedness or other obligations of a Restricted Subsidiary owing to the Issuer or a Guarantor permitted to be incurred in accordance with Section 4.09;
(30) Liens in favor of the Issuer or any Guarantor or the Trustee;
(31) Liens on vehicles or equipment of the Issuer or any of its Restricted Subsidiaries granted in the ordinary course of business or consistent with past practice;
(32) Liens to secure any modification, refinancing, refunding, restatement, exchange, extension, renewal or replacement (or successive refinancing, refunding, restatement, exchange, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in clauses (6), (11), (12), (16), (17), (32), (33) and (34) of this definition; provided that (a) such new Lien shall be limited to all or part of the same property that secured the original Lien, plus accessions, additions and improvements on such property and after-acquired property that by the terms of such Indebtedness require or include a pledge of after-acquired property, (b) such new Lien shall have a Lien priority equal or junior to the original Lien, other than any such new Liens created, incurred, assumed or existing as a result of a Permitted LM Transaction or Indebtedness incurred or issued in accordance with clause (13) of Section 4.09(b) (and, for the avoidance of doubt, the Indebtedness secured by such new Lien shall not be First-Out Indebtedness unless the Indebtedness secured by the original Lien was First-Out Indebtedness) and (c) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (x) the outstanding principal amount or, if greater, committed amount of the Indebtedness under clauses (6), (11), (12), (16), (17), (32), (33) and (34) of this definition at the time the original Lien became a Permitted Lien under this Indenture, and (y) an amount necessary to pay accrued but unpaid interest on such Indebtedness and any dividend, premium (including tender premiums), defeasance costs, underwriting discounts and any fees, costs and expenses (including upfront fees, original issue discount (in lieu of upfront fees) or similar fees) incurred in connection with such modification, refinancing, refunding, extension, renewal or replacement;
(33) other Liens securing outstanding Indebtedness in an aggregate principal amount not to exceed, together with any Liens securing any modification, refinancing, refunding, restatement, exchange, extension, renewal or replacement (or successive modification, refinancing, refunding, restatement, exchange, extensions, renewals or replacements) under clause (32) above, $50.0 million; provided that Liens incurred under this clause (33) shall only secure Second-Out Indebtedness or Junior Lien Indebtedness;
(34) Liens incurred to secure Obligations in respect of any Indebtedness (other than First-Out Indebtedness) permitted to be incurred pursuant to Section 4.09; provided that, with respect to Liens securing Obligations permitted under this clause (34) and described in any such clause, at the time of incurrence of such Obligations and after giving pro forma effect thereto:
(a) in the case of any Second-Out Indebtedness incurred by the Issuer or any Subsidiary Guarantor, the Consolidated First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period would be equal to or less than 4.25 to 1.0; and
45
(b) in the case of any Junior Lien Indebtedness incurred by the Issuer or any Subsidiary Guarantor, the Consolidated Secured Debt Ratio of the Issuer for the Applicable Measurement Period would be equal to or less than 5.00 to 1.0.
(35) (a) any encumbrance or restriction (including put and call arrangements) with respect to capital stock of any joint venture or similar arrangement pursuant to any joint venture or similar arrangement, (b) Liens on Equity Interests in joint ventures or similar arrangements; provided that any such Lien is in favor of a creditor of such joint venture and such creditor is not an Affiliate of any partner to such joint venture or similar arrangement and (c) purchase options, calls, and similar rights of, and restrictions for the benefit of, a third party with respect to Equity Interests held by the Issuer or any of its Subsidiaries in joint ventures or similar arrangements;
(36) Liens on Capital Stock of an Unrestricted Subsidiary that secure Indebtedness or other obligations of the Issuer, any of its Subsidiaries or such Unrestricted Subsidiary;
(37) agreements to subordinate any interest of the Issuer or any Restricted Subsidiary in any accounts receivable or other proceeds arising from inventory consigned by the Issuer or any Restricted Subsidiary pursuant to an agreement entered into in the ordinary course of business or consistent with industry or past practice;
(38) Liens on property or assets used to defease or to irrevocably satisfy and discharge Indebtedness;
(39) Liens securing the Exchange Second-Out First Lien Notes, the New Second Lien Notes, the Junior Lien Term Loan Facilities and any guarantees with respect thereto incurred pursuant to clause (3) of Section 4.09(b) (provided, that such Liens securing (i) the Exchange Second-Out First Lien Notes, any guarantees with respect thereto and Obligations in respect thereof, shall be of Pari Passu Lien Priority relative to the Notes pursuant to the Collateral Trust Agreement and (ii) the New Second Lien Notes, the Junior Lien Term Loan Facilities and any guarantees with respect thereto and Obligations in respect thereof, shall be of Junior Lien Priority relative to the First Lien Obligations pursuant to the First/Second/Third Lien Intercreditor Agreement);
(40) Liens on deposits taken by a Restricted Subsidiary that constitutes a regulated bank incurred in connection with the taking of such deposits;
(41) Liens created in connection with a project financed with, and created to secure, Non-Recourse Indebtedness;
(42) Liens relating to future escrow arrangements securing Indebtedness, including (i) Liens on escrowed proceeds from the issuance of Indebtedness for the benefit of the related holders of debt securities or other Indebtedness (or the underwriters, arrangers, trustee or collateral agent thereof) and (ii) Liens on cash or Cash Equivalents set aside at the time of the incurrence of any Indebtedness, in either case to the extent such cash or Cash Equivalents prefund the payment of interest or premium or discount on such Indebtedness (or any costs related to the issuance of such Indebtedness) and are held in an escrow account or similar arrangement to be applied for such purpose;
(43) [reserved];
46
(44) security given to a public utility or any municipality or governmental authority when required by such utility or authority in connection with the operations of the Issuer or any of its Restricted Subsidiaries in the ordinary course of business or consistent with industry or past practice;
(45) Liens securing Cash Management Obligations owed by the Issuer or any of its Restricted Subsidiaries to any lender under the Senior Credit Facilities or any Affiliate of such a lender; and
(46) Liens solely on any cash earnest money deposits made by the Issuer or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement.
For purposes of determining compliance with this definition, (i) a Lien need not be incurred solely by reference to one category of Permitted Liens described in this definition but is permitted to be incurred in part under any combination thereof and of any other available exemption, (ii) in the event that a Lien (or any portion thereof) meets the criteria of one or more of the categories of Permitted Liens, the Issuer may, in its sole discretion, divide or classify (or later divide, classify or reclassify in whole or in part in its sole discretion ) such Lien (or any portion thereof) in any manner that complies with this definition and (iii) in the event that a portion of Indebtedness secured by a Lien could be classified as secured in part pursuant to clause (34) above (giving pro forma effect only to the incurrence of such portion of such Indebtedness), the Issuer, in its sole discretion, may divide or classify (or later divide, classify or reclassify in whole or in part in its sole discretion) such portion of such Indebtedness (and any Obligations in respect thereof) as having been secured pursuant to clause (34) above and thereafter the remainder of the Indebtedness as having been secured pursuant to one or more of the other clauses of this definition.
For purposes of this definition, the term “Indebtedness” shall be deemed to include interest on such Indebtedness.
“Permitted LM Transactions” means (i) the transactions permitted under (a) clause (3) (but solely with respect to Junior Lien Term Loan Facilities and Existing Notes and subject to the limitations set forth in the proviso at the end of such clause), (8), (23), (24), (25) or (26) of Section 4.07(b) or (b) clause (1)(c)(II), (3)(b) or (3)(c) of Section 4.09(b), or (ii) transactions constituting Permitted Junior Lien Revolving Facility Refinancings.
“Permitted Parent” means any Parent Entity that at the time it became a Parent Entity of the Issuer was a Permitted Holder pursuant to clause (1) of the definition thereof and was not formed in connection with, or in contemplation of, a transaction that (assuming such parent was not formed) would otherwise constitute a Change of Control.
“Permitted Plan” means any employee benefits plan of the Issuer or its Affiliates and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan.
“Permitted Receivables Financing” means, collectively, (a) a financing (including any factoring program) of accounts receivable and related accounts receivable collections, proceeds, records and other similar assets (or interests therein) are sold, contributed and/or financed in an aggregate outstanding amount under this clause (a) not to exceed the greater of (x) $375.0 million and (y) 40.0% of Consolidated EBITDA of the Issuer for the Applicable Measurement Period (the “Permitted Receivables Financing Cap”) (provided that with respect to Permitted Receivables Financings incurred in the form of a factoring program under this clause (a), the outstanding amount of such Permitted Receivables Financing for the purposes of this definition shall be deemed to be equal to the Permitted Receivables Net Investment for the Applicable Measurement Period), so long as such financings are non-recourse to the
47
Issuer and its Restricted Subsidiaries, other than any Receivables Subsidiary (except for customary representations, warranties, covenants and indemnities made in connection with such facilities), (b) any modifications, refinancings, renewals, replacements or extensions thereof; provided that, in the case of this clause (b), the terms of the applicable Permitted Receivables Financing, after giving effect to any modifications, refinancings, renewals, replacements or extensions thereof would satisfy the requirements set forth in clause (a) above and (c) the financings and factoring facilities existing on the Issue Date (if any) and any modifications, refinancings, renewals, replacements or extensions thereof; provided that any recourse to the Issuer and its Restricted Subsidiaries (other than any Receivables Subsidiary) is not expanded in any material respect by any such modification, refinancing, renewal, replacement or extension and the aggregate outstanding amount of such facilities is not increased after the Issue Date, in each case, except to the extent such recourse or increase would otherwise be permitted by clause (a) above (and is deemed a usage thereof); provided further, that (A) no Permitted Receivables Financing shall be effectuated in connection with or in furtherance of a Priming Financing/Liability Management Transaction; and (B) no “whole business” or intellectual property securitization shall constitute a Permitted Receivables Financing.
“Permitted Receivables Financing Cap” has the meaning assigned to such term in the definition of the term “Permitted Receivables Financing.”
“Permitted Receivables Net Investment” means the aggregate cash amount paid by the purchasers under any Permitted Receivables Financing in the form of a factoring program in connection with their purchase of accounts receivable and related accounts receivable collections, proceeds, records and other similar assets (or interests therein), as the same may be reduced from time to time by collections with respect to such accounts receivable and related assets or otherwise in accordance with the terms of such Permitted Receivables Financing (but excluding any such collections used to make payments of commissions, discounts, yield and other fees and charges incurred in connection with any Permitted Receivables Financing in the form of a factoring program which are payable to any Person other than the Issuer or a Restricted Subsidiary).
“Permitted Transferees” means, with respect to any Person that is a natural person (and any Permitted Transferee of such Person), (a) such Person’s Immediate Family Members, including his or her spouse, ex-spouse, children, step-children and their respective lineal descendants and (b) without duplication with any of the foregoing, such Person’s successors, heirs, executors and/or administrators upon the death of such Person and any other Person who was an Affiliate of such Person upon the death of such Person and who, upon such death, directly or indirectly owned Equity Interests in the Issuer.
“Person” means any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“Preferred Stock” means any Equity Interest with preferential rights of payment of dividends or upon liquidation, dissolution, or winding up.
“Priming Debt” has the meaning assigned to such term in the definition of the term “Priming Financing/Liability Management Transaction.”
“Priming Financing/Liability Management Transaction” means (i) any exchange, refinancing, amendment or extension transaction (or any transaction specifically designed to circumvent the restrictions set forth under Section 4.17) of any existing Indebtedness of the Issuer or any of its Restricted Subsidiaries (the “Existing LMT Debt”) with any other Indebtedness or Preferred Stock (including that of the Issuer or any of its Affiliates or of any other Person) (the “New LMT Debt”) in a
48
transaction that is designed to directly or indirectly “uptier”, or has the effect of, “uptiering”, holders of such Existing LMT Debt into contractually, effectively (including as to lien priority or recourse to additional assets or through a “double dip” or “pari plus” structure), temporally (i.e., having a shorter maturity than the Existing LMT Debt) or structurally senior New LMT Debt (“Priming Debt”) or (ii) the issuance of any Priming Debt in each case, other than the following:
(1) Permitted LM Transactions;
(2) the incurrence of Indebtedness to finance an acquisition secured by the acquired assets and/or guaranteed by an acquired entity, so along as such Indebtedness and the acquisition are permitted under this Indenture and any acquired assets that constitute Collateral are pledged to the lenders and holders of the Issuer’s other Indebtedness (including the Notes) and any acquired entity that is or becomes a Restricted Subsidiary grants a guarantee of the Notes and such other Indebtedness in each case to the extent required (and within the periods required) under this Indenture; and
(3) the refinancing of Financing Lease Obligations incurred in the ordinary course or of other Indebtedness secured by assets not constituting Collateral with other Indebtedness permitted under this Indenture secured by such assets not constituting Collateral.
“Private Exchanges” means the issuance to certain holders of Existing Secured Notes of up to $432.0 million aggregate principal amount of New Second Lien Notes in exchange for up to $432.0 million aggregate principal amount of Existing Secured Notes, together with accrued and unpaid interest to, but excluding, the Issue Date on the exchanged amount of Existing Secured Notes being paid in cash at the time of such exchange; provided, however, that any New Second Lien Notes issued in connection with such exchange after the Issue Date shall be issued with pre-accrued interest from the Issue Date.
“Private Placement Legend” means the legend set forth in Section 2.06(f)(i) to be placed on all Notes issued under this Indenture, except where otherwise permitted by the provisions of this Indenture.
“Program Services Agreements” means any agreement entered into by the Issuer or any of its Subsidiaries (other than License Subsidiaries) relating to a Contract Station, pursuant to which agreement the Issuer or any of its Subsidiaries (other than License Subsidiaries) will obtain the right to program and/or sell advertising on a substantial portion of such Contract Station’s inventory of broadcast time.
“Purchase Money Obligations” means any Indebtedness incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets (other than Capital Stock), and whether acquired through the direct acquisition of such property or assets, or otherwise (including through the purchase of Capital Stock of any Person owning such property or assets).
“Put Obligations” means the obligations of the Issuer or any of its Subsidiaries to purchase certain assets of any Station with respect to which the Issuer or such Subsidiary shall have entered into an Outsourcing Agreement.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Qualified Proceeds” means assets that are used or useful in, or Capital Stock of any Person engaged in, a Similar Business.
49
“Rating Agency” means (1) S&P, Moody’s and Fitch or (2) if S&P, Moody’s or Fitch or each of them shall not make a corporate rating with respect to the Issuer or a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Issuer, which shall be substituted for any or all of S&P, Moody’s or Fitch, as the case may be, with respect to such corporate rating or the rating of the Notes, as the case may be.
“Rating Decline” means, with respect to the Notes, the occurrence of a decrease in the rating of the Notes by one or more gradations by either Rating Agency in the event the Notes are rated by two Rating Agencies, or from any two of three Rating Agencies in the event the Notes are rated by three Rating Agencies (in each case, including gradations within the rating categories, as well as between categories), within 60 days before or after the earlier of (x) a Change of Control, (y) the date of public notice of the occurrence of a Change of Control or (z) public notice of the intention of the Issuer or Parent to effect a Change of Control (which 60-day period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by either of such Rating Agencies); provided, however, that a Rating Decline otherwise arising by virtue of a particular reduction in rating will not be deemed to have occurred in respect of a particular Change of Control (and thus will not be deemed a Rating Decline for purposes of the definition of Change of Control Triggering Event) unless each of such Rating Agencies making the reduction in rating to which this definition would otherwise apply announces or publicly confirms or informs the Trustee in writing that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control has occurred at the time of the Rating Decline); provided further, that notwithstanding the foregoing, a Rating Decline shall not be deemed to have occurred so long as the Notes have an Investment Grade Rating from both Rating Agencies in the event the Notes are rated by two Rating Agencies, or from at least two of three Rating Agencies in the event the Notes are rated by three Rating Agencies.
“Receivables Fees” means distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Receivables Subsidiary in connection with, any Permitted Receivables Financing.
“Receivables Subsidiary” means any Special Purpose Entity established in connection with a Permitted Receivables Financing.
“Record Date” means (i) a record date set by the Issuer for purposes of determining the identity of Holders entitled to give any request, demand, authorization, notice, consent, waiver or take any other act, or to vote or consent to any action by vote or consent authorized or permitted to be given or taken by Holders, or (ii) for the interest, if any, payable on any Interest Payment Date on the Notes means the date specified for that purpose as contemplated by Article 2 of the Notes.
“Redemption Price”, when used with respect to any Note to be redeemed, means the price at which such Note is to be redeemed pursuant to this Indenture.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Global Note” means a Regulation S Temporary Global Note or Regulation S Permanent Global Note, as applicable.
“Regulation S Permanent Global Note” means, with respect to the Notes, a permanent Global Note substantially in the form of Exhibit A hereto, bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the corresponding Regulation S Temporary Global Note representing the Notes upon expiration of the Restricted Period.
50
“Regulation S Temporary Global Note” means, with respect to the Notes, a temporary Global Note substantially in the form of Exhibit A hereto, bearing the Global Note Legend, the Private Placement Legend and the Regulation S Temporary Global Note Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes initially sold in reliance on Rule 903.
“Regulation S Temporary Global Note Legend” means the legend set forth in Section 2.06(f)(iii).
“Related Business Assets” means assets (other than cash or Cash Equivalents) used or useful in a Similar Business; provided that any assets received by the Issuer or a Restricted Subsidiary in exchange for assets transferred by the Issuer or a Restricted Subsidiary shall not be deemed to be Related Business Assets if they consist of securities of a Person, unless upon receipt of the securities of such Person, such Person would become a Restricted Subsidiary.
“Responsible Officer” means, when used with respect to the Trustee, any officer of the Trustee within its corporate trust department, including any vice president, assistant secretary, senior associate, associate, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such Person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.
“Restricted Global Note” means a Global Note bearing the Private Placement Legend.
“Restricted Investment” means an Investment other than a Permitted Investment.
“Restricted Period” means the 40-day distribution compliance period as defined in Regulation S.
“Restricted Subsidiary” means, at any time, with respect to any Person, any direct or indirect Subsidiary of such Person (including any Foreign Subsidiary or Designated Parent Subsidiary) that is not then an Unrestricted Subsidiary; provided, however, that upon the occurrence of an Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be included in the definition of “Restricted Subsidiary.” Unless the context requires otherwise, any references to Restricted Subsidiary refer to a Restricted Subsidiary of the Issuer.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“Rule 903” means Rule 903 promulgated under the Securities Act.
“Rule 904” means Rule 904 promulgated under the Securities Act.
51
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and any successor to its rating agency business.
“Sale and Lease-Back Transaction” means any arrangement with any Person providing for the leasing by the Issuer or any of its Restricted Subsidiaries of any real property or tangible personal property, which property has been or is to be sold or transferred by the Issuer or such Restricted Subsidiary to a third Person in contemplation of such leasing.
“SEC” means the U.S. Securities and Exchange Commission.
“Second Lien Indenture” means the indenture, dated as of the Issue Date, among the Issuer, the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and notes collateral agent, which indenture governs the New Second Lien Notes, as amended or supplemented from time to time.
“Second-Out Indebtedness” means the Indebtedness (including guarantees in respect thereof) under the Exchange Second-Out First Lien Notes, the Second-Out Senior Credit Facilities Indebtedness and any other Indebtedness that is permitted by this Indenture and the other then-outstanding First Lien Debt Documents to have Liens on the Collateral pari passu with the Liens securing the Notes and the Note Guarantees but with payment priorities relative to the First-Out Indebtedness provided in the Collateral Trust Agreement; provided that the holders of such Indebtedness or their Designated Representative shall have entered into the Collateral Trust Agreement and such Indebtedness shall constitute “Second-Out First Lien Debt Obligations” as defined therein.
“Second Lien Obligations” means the Obligations in respect of any Second Lien Debt (as defined in the First/Second/Third Lien Intercreditor Agreement).
“Second-Out Priority Payment Obligations” means the payment Obligations in respect of any Second-Out Indebtedness.
“Second-Out Senior Credit Facilities Indebtedness” means the Indebtedness in respect of the Term B-6 Loans and the Term B-7 Loans (as each such term is defined in the New Credit Agreement as in effect in the Issue Date).
“Secured Indebtedness” means any Indebtedness of the Issuer or any of its Restricted Subsidiaries secured by a Lien.
“Second-Out Term Loan Facility” has the meaning assigned to it in the definition of “New Credit Agreement”.
“Securities Act” means the U.S. Securities Act of 1933, as amended.
“Security Agreement” means that certain Collateral Agreement, dated as of the Issue Date, among the Issuer, the Guarantors and the Collateral Trustee, substantially in the form of Exhibit E, as it may be amended or otherwise modified from time to time in accordance with the terms thereof, this Indenture and the Collateral Trust Agreement.
“Security Documents” means, collectively, the Security Agreement, the Collateral Trust Agreement, the First/Second/Third Lien Intercreditor Agreement, other security or intercreditor agreements relating to the Collateral to preserve and protect the Liens on the Collateral (including, without limitation, financing statements under the Uniform Commercial Code of the relevant states applicable to the Collateral), each for the benefit of the Collateral Trustee in such capacity for itself, the Trustee and the Holders, as amended, amended and restated, modified, renewed or replaced from time to time.
52
“Senior Credit Facilities” means, individual or collectively, as the context may require, the First-Out Revolving Credit Facility and the Second-Out Term Loan Facility under the New Credit Agreement and the Junior Lien Revolving Credit Facility and the Junior Lien Term Loan Facility under the Amended Credit Agreement, in each case, as the same may be in effect from time to time, including, in each case, any related notes, mortgages, letters of credit, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any appendices, exhibits, annexes or schedules to any of the foregoing (as the same may be in effect from time to time) and any amendments, supplements, modifications, extensions, renewals, restatements, refundings, replacements, exchanges or refinancings thereof, in whole or in part, and any financing arrangements that amend, supplement, modify, extend, renew, restate, refund, replace, exchange or refinance any part thereof, including, without limitation, any such amended, supplemented, modified, extended, renewed, restated, refunding, replacement, exchanged or refinancing financing arrangement that increases the amount permitted to be borrowed or issued thereunder or alters the maturity thereof or adds Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, trustee, lender or group of lenders, investors, holders or otherwise.
“Senior Credit Facility Obligations” means the “Secured Obligations” (as defined in each of the Senior Credit Facilities).
“Senior Indebtedness” means:
(1) all Indebtedness of the Issuer or any Guarantor outstanding under the Senior Credit Facilities, the Existing Notes, the Exchange Second-Out First Lien Notes, the New Second Lien Notes or the Notes and related Note Guarantees (including interest accruing on or after the filing of any petition in bankruptcy or similar proceeding or for reorganization of the Issuer or any Guarantor (at the rate provided for in the documentation with respect thereto, regardless of whether or not a claim for post-filing interest is allowed in such proceedings)), and any and all other fees, expense reimbursement obligations, indemnification amounts, penalties, and other amounts (whether existing on the Issue Date or thereafter created or incurred) and all obligations of the Issuer or any Guarantor to reimburse any bank or other Person in respect of amounts paid under letters of credit, acceptances or other similar instruments;
(2) all (a) Hedging Obligations (and guarantees thereof) and (b) Cash Management Obligations (and guarantees thereof); provided that such Hedging Obligations and Cash Management Obligations, as the case may be, are permitted to be incurred under the terms of this Indenture;
(3) any other Indebtedness of the Issuer or any Guarantor permitted to be incurred under the terms of this Indenture, unless the instrument under which such Indebtedness is incurred expressly provides that it is subordinated in right of payment to the Notes or any related Note Guarantee; and
(4) all Obligations with respect to the items listed in the preceding clauses (1), (2) and (3);
provided, however, that Senior Indebtedness shall not include:
(a) any obligation of such Person to the Issuer or any of its Subsidiaries;
53
(b) any liability for federal, state, local or other taxes owed or owing by such Person;
(c) any accounts payable or other liability to trade creditors arising in the ordinary course of business;
(d) any Indebtedness or other Obligation of such Person which is subordinate or junior in right of payment to any other Indebtedness or other Obligation of such Person; or
(e) that portion of any Indebtedness which at the time of incurrence is incurred in violation of this Indenture.
“Significant Acquired Person” means a Person that would be a “Significant Subsidiary” of the Issuer within the meaning under Rule 1-02 of Regulation S-X promulgated by the SEC if such Person were a Subsidiary of the Issuer (and substituting 20 percent for 10 percent each place it appears in Rule 1-02(w) of Regulation S-X for purposes of the definition of Significant Subsidiary).
“Significant Subsidiary” means any Restricted Subsidiary that would be a “Significant Subsidiary” of the Issuer within the meaning under Rule 1-02 of Regulation S-X promulgated by the SEC.
“Similar Business” means any business conducted or proposed to be conducted by the Issuer and its Restricted Subsidiaries on the Issue Date or any business that is similar (including, without limitation, (a) the business of owning and operating the Stations (and related retransmission facilities), (b) the commercial utilization of frequencies licensed, granted or leased to the Issuer or any of its Subsidiaries by the FCC, any other governmental authority or any other Person in connection with the television or radio broadcasting businesses, including using or leasing spectrum for the distribution of data and/or ancillary and supplementary services, (c) the production of streaming programming, programming broadcast on television stations or syndicated to others, (d) the utilization of digital media, including, but not limited to, websites, mobile applications, podcasts, channel sharing, spectrum datacasting and social media, to promote or distribute programming and to assist other businesses to reach audiences, customers and consumers, (e) the business of broadcasting in a mobile environment, (f) the business of managing and/or consulting to television stations other than the Owned Stations and/or (g) from the technology, media and telecommunications industries, including sports team broadcasting, ownership or management and any sports gaming or wagering business), complementary, reasonably related, synergistic, incidental or ancillary thereto, or is a reasonable extension, development or expansion thereof, including using or leasing spectrum for the distribution of data and/or ancillary or supplementary services.
“Sinclair” means Sinclair, Inc., a Maryland corporation, and, as of the Issue Date, the direct or indirect parent of each of the Parent and the Issuer, or any successor thereto.
“Special Call Event” means a Covenant Restricted Acquisition or a Covenant Restricted Change of Control.
“Special Purpose Entity” means a direct or indirect subsidiary of the Issuer, whose organizational documents contain restrictions on its purpose and activities and impose requirements intended to preserve its separateness from the Issuer and/or one or more Subsidiaries of the Issuer.
“Specified Event” has the meaning given to such term in the definition of “Consolidated EBITDA.”
54
“Stated Maturity”, when used with respect to any Note or any installment of principal thereof or interest thereon, means the date specified in such Note as the fixed date on which the principal of such Note or such installment of principal or interest is due and payable. The Stated Maturity of the Notes is February 15, 2033.
“Stations” means the Owned Stations and Contract Stations.
“Subordinated Film Indebtedness” means Film Obligations of the Issuer and its Subsidiaries that are Subordinated Indebtedness of the Issuer and the Guarantors.
“Subordinated Indebtedness” means, with respect to the Notes or any Note Guarantee,
(1) any Indebtedness of the Issuer which is by its terms subordinated in right of payment to the Notes, or
(2) any Indebtedness of any Guarantor which is by its terms subordinated in right of payment to the Note Guarantee of such entity of the Notes.
“Subsidiary” means, with respect to any Person:
(1) any corporation, association or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof; or
(2) any partnership, joint venture, limited liability company or similar entity of which,
(a) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise, and
(b) such Person or any Restricted Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
For the avoidance of doubt, any entity that is owned at a 50% or less level (as described above) shall not be a “Subsidiary” for any purpose under this Indenture, regardless of whether such entity is consolidated on the Issuer’s or any of its Restricted Subsidiaries’ financial statements. Notwithstanding anything to the contrary in the foregoing, however, each Designated Parent Subsidiary shall be deemed to be a “Subsidiary” of the Issuer for all purposes of the Notes and this Indenture (unless the context requires otherwise). Unless otherwise specified, “Subsidiary” means a Subsidiary of the Issuer.
“Subsidiary Guarantor” means a Guarantor that is a Subsidiary of the Issuer (including, for the avoidance of doubt, any Designated Parent Subsidiary).
“Term B-6 Loans” has the meaning assigned to it in the definition of “New Credit Agreement”.
55
“Term B-7 Loans” has the meaning assigned to it in the definition of “New Credit Agreement”.
“Total Assets” means, as of any Applicable Calculation Date, with respect to any Person and its Restricted Subsidiaries, the total assets of such Person and its Restricted Subsidiaries on a consolidated basis, as shown on the most recent consolidated balance sheet of such Person and its Restricted Subsidiaries as of the end of the most recent fiscal quarter for which internal financial statements are available immediately preceding the Applicable Calculation Date; provided that, for purposes of testing the covenants under this Indenture in connection with any transaction, the Total Assets of such Person and its Restricted Subsidiaries shall be adjusted to reflect such pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio.”
“Transaction Expenses” means any fees or expenses incurred or paid by the Issuer, its Restricted Subsidiaries, any Parent Entity and any of their Affiliates and any Investors in connection with the Transactions (including, without limitation, expenses in connection with hedging transactions and any original issue discount or upfront fees, as well as any legal, filing, auditing and printing fees and expenses), this Indenture, the Notes, the Exchange Second-Out First Lien Notes, the New Second Lien Notes and the Senior Credit Facilities, and the transactions contemplated hereby and thereby.
“Transactions” means (i) the offering and sale of the Notes and the New Second Lien Notes and the use of proceeds therefrom, including, without limitation, the repayment of certain of the term loans outstanding under the Existing Senior Credit Facilities and the repurchase or repayment of certain of the Existing Secured Notes on the Issue Date, (ii) the issuance of the revolving commitments under the First-Out Senior Credit Facilities and the use of proceeds therefrom, (iii) the issuance of the Second-Out Term Loan Facility and the use of proceeds therefrom, (iv) the issuance of the Exchange Second-Out First Lien Notes, (v) the amendment of the Existing Secured Notes Indenture in respect of the Existing Secured Notes issued thereunder, and (vi) the amendment of the Existing Credit Agreement in respect of the revolving credit facility and term loans thereunder, each as described in the Offering Memorandum.
“Treasury Rate” means, as obtained by the Issuer, as of any Redemption Date, the yield to maturity as of such Redemption Date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 that has become publicly available at least two Business Days prior to the Redemption Date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such Redemption Date to February 15, 2028; provided, however, that if the period from such Redemption Date to February 15, 2028 is less than one year, the weekly average yield on actively traded United States Treasury securities adjusted to a constant maturity of one year will be used.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.
“Trustee” means U.S. Bank Trust Company, National Association until a successor replaces it and, thereafter, means any such successor.
“TV/Radio Acquisition” means (a) the acquisition by the Issuer or any of its Subsidiaries in accordance with the terms hereof of substantially all of the assets (including Broadcast Licenses) of a television or radio station in the United States in a single transaction (i.e., not by means of the acquisition of an option for such assets and the subsequent exercise of such option), (b) (i) the acquisition by the Issuer or any of its Subsidiaries in accordance with the terms hereof of (x) substantially all of the assets (other than Broadcast Licenses and other property required pursuant to the rules and regulations of the
56
FCC to be sold in connection with the transfer of such Broadcast Licenses) of a television or radio station in the United States and (y) an option to acquire the Broadcast Licenses and such other assets of such television or radio station and (ii) the entering into by the Issuer or any of its Subsidiaries of a Program Services Agreement with respect to such station and (c) the consummation of the acquisition of assets by the Issuer or any of its Subsidiaries pursuant to the exercise of an option referred to in the preceding clause (b)(i)(y), together with the termination of the related Program Services Agreement referred to in the preceding clause (b)(ii). As used in this definition, the acquisition of assets shall be deemed to include reference to the acquisition of the voting Capital Stock of the Person that owns such assets, and references to the acquisition and exercise of an option to acquire assets shall be deemed to include the acquisition and exercise of the option to acquire voting Capital Stock of the Person that owns such assets.
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction.
“Unrestricted” means, when referring to cash and Cash Equivalents of the Issuer and its Restricted Subsidiaries, that such cash and Cash Equivalents (a) do not appear or would not be required to appear as “restricted” on the financial statements of the Issuer or any such Restricted Subsidiary (unless related to the Collateral Trust Agreement and the other Security Documents or the Liens created thereunder), (b) are not the proceeds of long-term Indebtedness (it being understood revolving facility draws are not long-term Indebtedness for these purposes) incurred to finance the relevant transaction for which a relevant ratio under this Indenture, including incurrence of Indebtedness, is being tested and (c) are not otherwise unavailable to the Issuer or such Restricted Subsidiary; provided, that the aggregate amount of Unrestricted cash and Cash Equivalents as of any date of determination shall be deemed to be reduced by the amount of the then unpaid DSG Cash Tax Payments but, in any event, to an amount not less than $0.
“Unrestricted Definitive Note” means one or more Definitive Notes that do not bear and are not required to bear the Private Placement Legend.
“Unrestricted Global Note” means with respect to the Notes, a permanent Global Note, substantially in the form of Exhibit A, or in such other form as shall be established in one or more supplemental indentures, in each case, with such appropriate insertions, omissions, substitutions and other variations as are required or not prohibited by this Indenture, that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, and that is deposited with or on behalf of and registered in the name of the Depositary, representing Notes that do not bear the Private Placement Legend.
“Unrestricted Subsidiary” means:
(1) any Subsidiary of the Issuer which at the time of determination is an Unrestricted Subsidiary (as designated by the Issuer, as provided below); and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Issuer may designate any Subsidiary (including any existing Subsidiary and any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on, any property of, the Issuer or any Restricted Subsidiary (other than solely any Subsidiary of the Subsidiary to be so designated); provided that:
(1) any Unrestricted Subsidiary must be an entity of which the Equity Interests entitled to cast at least a majority of the votes that may be cast by all Equity Interests having ordinary voting power for the election of directors or Persons performing a similar function are owned, directly or indirectly, by the Issuer;
57
(2) such designation complies with Section 4.07;
(3) each of (a) the Subsidiary to be so designated and (b) its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of the Issuer or any Restricted Subsidiary (other than Equity Interests in the Unrestricted Subsidiary); and
(4) such Subsidiary is established or designated for a legitimate business purpose and not in connection with or in furtherance of a Priming Financing/Liability Management Transaction.
The Issuer may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that immediately after giving effect to any such designation, no Event of Default under clause (1), (2), (6) or (7) of Section 6.01(a) shall have occurred and be continuing or would occur as a consequence thereof and either:
(1) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); or
(2) the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such designation, in each case on a pro forma basis taking into account such designation.
Any such designation by the Issuer shall be notified by the Issuer to the Trustee by promptly filing with the Trustee an Officer’s Certificate certifying that such designation complied with the foregoing provisions.
“Unsecured Indebtedness” means Senior Indebtedness or Subordinated Indebtedness of the Issuer or any of its Restricted Subsidiaries that is not secured by a Lien.
“Unsecured Notes” means, collectively, the Existing Unsecured Notes and the 4.125% Unsecured Notes.
“U.S. Government Obligations” means securities that are:
(1) direct obligations of, or obligations guaranteed by, the United States of America for the timely payment of which its full faith and credit is pledged; or
(2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government Obligations or a specific payment of principal of or interest on any such U.S. Government Obligations held by such custodian for the account of the holder of
58
such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligations or the specific payment of principal of or interest on the U.S. Government Obligations evidenced by such depository receipt.
“U.S. Person” means a U.S. person as defined in Rule 902(k) under the Securities Act.
“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, at any date, the quotient obtained by dividing:
(1) the sum of the products of the number of years (calculated to the nearest one-twelfth) from the date of determination to the date of each successive scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Disqualified Stock or Preferred Stock multiplied by the amount of such payment; by
(2) the sum of all such payments.
“Wholly-Owned Subsidiary” of any Person means a Subsidiary of such Person, 100% of the outstanding Equity Interests of which (other than directors’ qualifying shares and shares issued to foreign nationals as required by applicable law) shall at the time be owned by such Person or by one or more Wholly-Owned Subsidiaries of such Person. Notwithstanding anything to the contrary in the foregoing, however, each Designated Parent Subsidiary that is a Wholly-Owned Subsidiary of Parent shall be deemed to be a “Wholly-Owned Subsidiary” of the Issuer for all purposes of the Notes and this Indenture (unless the context requires otherwise).
SECTION 1.02. Other Definitions.
| Term | Defined in<br>Section |
|---|---|
| “Acceptable Commitment” | 4.10(b) |
| “Action” | 12.08(v) |
| “Advance Offer” | 4.10(c) |
| “Advance Portion” | 4.10(c) |
| “Affiliate Transaction” | 4.11(a) |
| “Applicable Law” | 13.11 |
| “Asset Sale Offer” | 4.10(c) |
| “Asset Sale Proceeds Application Period” | 4.10(b) |
| “Authentication Order” | 2.02 |
| “CERCLA” | 12.08(q) |
| “Change of Control Offer” | 4.14(a) |
| “Change of Control Payment” | 4.14(a) |
| “Change of Control Payment Date” | 4.14(a)(2) |
| “Collateral Trustee” | Preamble |
| “Covenant Defeasance” | 8.03 |
| “Covenant Suspension Event” | 4.16(a) |
| “Declined Proceeds” | 4.10(d) |
| “DTC” | 2.03 |
| “Event of Default” | 6.01(a) |
59
| Term | Defined in<br>Section |
|---|---|
| “Excess Proceeds” | 4.10(c) |
| “Increased Amount” | 4.12(c) |
| “Issuer” | Preamble |
| “LCT Election” | 1.06(b) |
| “LCT Test Date” | 1.06(b) |
| “Legal Defeasance” | 8.02 |
| “Material Indebtedness” | 6.01(a)(4) |
| “MD&A” | 4.03(a) |
| “Note Register” | 2.03 |
| “Notes” | Recitals |
| “Offer Amount” | 3.09(b) |
| “Offer Period” | 3.09(b) |
| “Parent Guarantee Release Date” | 10.06(7) |
| “Paying Agent” | 2.03 |
| “Purchase Date” | 3.09(b) |
| “Redemption Date” | 3.07(a) |
| “Redemption Price Premium” | 6.02 |
| “refinance” | 4.09(b)(13) |
| “Refinancing Indebtedness” | 4.09(b)(13) |
| “Refunding Capital Stock” | 4.07(b)(2) |
| “Registrar” | 2.03 |
| “Related Person” | 12.08(b) |
| “Reserved Indebtedness Amount” | 4.09(c)(5) |
| “Restricted Payments” | 4.07(a) |
| “Reversion Date” | 4.16(b) |
| “Second Change of Control Payment Date” | 4.14(e) |
| “Security Document Order” | 12.08(r) |
| “Subject Lien” | 4.12(a) |
| “Successor Company” | 5.01(a)(1) |
| “Successor Guarantor” | 5.01(c)(1)(a) |
| “Suspended Covenants” | 4.16(a) |
| “Suspension Date” | 4.16(a) |
| “Suspension Period” | 4.16(b) |
| “Treasury Capital Stock” | 4.07(b)(2) |
| “Trustee” | Preamble |
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
The Issuer and the Guarantors, if any, shall not be required to qualify this Indenture under the Trust Indenture Act. Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and made a part of this Indenture.
The following Trust Indenture Act term used in this Indenture has the following meaning:
“obligor” on the Notes and the Note Guarantees means the Issuer and the Guarantors, respectively, and any successor obligor upon the Notes and the Note Guarantees, respectively.
60
All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by SEC rule under the Trust Indenture Act have the meanings so assigned to them.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or” is not exclusive;
(d) words in the singular include the plural, and in the plural include the singular;
(e) “will” shall be interpreted to express a command;
(f) provisions apply to successive events and transactions;
(g) references to sections of, or rules under, the Securities Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time;
(h) unless otherwise specifically indicated, the term “consolidated” with respect to any Person refers to such Person on a consolidated basis in accordance with GAAP but excluding from such consolidation any Unrestricted Subsidiary as if such Unrestricted Subsidiary were not an Affiliate of such Person;
(i) unless the context otherwise requires, any reference to an “Article”, “Section”, “clause” or “Exhibit” refers to an Article, Section, clause or Exhibit, as the case may be, of this Indenture; and
(j) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not any particular Article, Section, clause, other subdivision or Exhibit.
SECTION 1.05. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Issuer. Proof of execution of any such instrument or of a writing appointing any such agent, or the holding by any Person of a Note, shall be sufficient for any purpose of this Indenture and (subject to Section 7.01) conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Section 1.05.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by or on behalf of any legal entity other than an individual, such certificate or affidavit shall also constitute proof of the authority of the Person executing the same. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that the Trustee deems sufficient.
61
(c) Subject to the proviso in the definition of “Holder” in Section 1.01 regarding beneficial owners, ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of any action taken, suffered or omitted by the Trustee or the Issuer in reliance thereon, whether or not notation of such action is made upon such Note.
(e) The Issuer may set a Record Date for purposes of determining the identity of Holders entitled to give any request, demand, authorization, direction, notice, consent, waiver or take any other act, or to vote or consent to any action by vote or consent authorized or permitted to be given or taken by Holders. Unless otherwise specified, if not set by the Issuer prior to the first solicitation of a Holder made by any Person in respect of any such action, or in the case of any such vote, prior to such vote, any such Record Date shall be the later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders furnished to the Trustee prior to such solicitation.
(f) Without limiting the foregoing, a Holder entitled to take any action hereunder with regard to any particular Note may do so with regard to all or any part of the principal amount of such Note or by one or more duly appointed agents, each of which may do so pursuant to such appointment with regard to all or any part of such principal amount. Any notice given or action taken by a Holder or its agents with regard to different parts of such principal amount pursuant to this Section 1.05(f) shall have the same effect as if given or taken by separate Holders of each such different part.
(g) Without limiting the generality of the foregoing, a Holder, including DTC that is the Holder of a Global Note, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and DTC that is the Holder of a Global Note may provide its proxy or proxies to the beneficial owners of interests in any such Global Note through such depositary’s standing instructions and customary practices.
(h) The Issuer may fix a Record Date for the purpose of determining the Persons who are beneficial owners of interests in any Global Note held by DTC entitled under the procedures of such depositary to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders. If such a Record Date is fixed, the Holders on such Record Date or their duly appointed proxy or proxies, and only such Persons, shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other action, whether or not such Holders remain Holders after such Record Date. No such request, demand, authorization, direction, notice, consent, waiver or other action shall be valid or effective if made, given or taken more than 90 days after such Record Date.
62
SECTION 1.06. Calculations.
(a) So long as there is a Parent Guarantor that is a Parent Entity of the Issuer and does not hold any material assets other than, directly or indirectly, the Equity Interests of the Issuer (as determined in good faith by the Board or senior management of such Parent Guarantor), any calculations or measure that is determined with reference to the Issuer’s consolidated financial statements (including, without limitation, Applicable Measurement Period, Consolidated EBITDA, Consolidated Interest Expense, Consolidated Net Income, Consolidated First Lien Secured Debt Ratio, Consolidated First-Out First Lien Secured Debt Ratio, Consolidated Secured Debt Ratio, Consolidated Total Debt Ratio, Fixed Charge Coverage Ratio, Fixed Charges, Permitted Receivables Financing, Total Assets and clause (3)(a) of Section 4.07(a)) may be determined with reference to such Parent Guarantor’s consolidated financial statements instead.
(b) When determining compliance with, or inapplicability of, any provision or term of this Indenture in connection with or related to any Limited Condition Transaction and any actions or transactions related or appurtenant thereto, at the option of the Issuer (such election, an “LCT Election”), the date of determination of compliance with, or inapplicability of, such provision or term shall be deemed to be the first date (the “LCT Test Date”) any of the definitive agreements for such Limited Condition Transaction are entered into. If after giving pro forma effect to the Limited Condition Transaction and any actions or transactions related or appurtenant thereto, the Issuer or any of its Restricted Subsidiaries would have been permitted or not prohibited to consummate such Limited Condition Transaction and any actions or transactions related or appurtenant thereto on the relevant LCT Test Date in compliance with such term or provision, such term or provision shall be deemed to have been complied with (or satisfied) for all purposes; provided that (a) if financial statements are available for one or more fiscal quarters after such LCT Test Date, the Issuer may elect in its sole discretion to determine such compliance or inapplicability of such terms or provisions on the basis of such financial statements, and the LCT Test Date shall be the date of determination of such compliance or inapplicability after the date of availability of such financial statements, (b) no determination of compliance or inapplicability of any such term or provision shall be required at any time after the applicable LCT Test Date for such Limited Condition Transaction and any actions or transactions related or appurtenant thereto and (c) Consolidated Interest Expense for purposes of the Fixed Charge Coverage Ratio will be calculated using an assumed interest rate as reasonably determined by the Issuer.
For the avoidance of doubt, if the Issuer has made an LCT Election, (1) if any term or provision of this Indenture for which compliance was determined or tested as of the LCT Test Date would at any time after the LCT Test Date otherwise not be complied with for any reason, such terms and provisions will nevertheless continue to be determined to be complied with; (2) no such determination of compliance or inapplicability of any such term or provision of this Indenture shall be affected by any subsequent Default or Event of Default and such Default or Event of Default shall be deemed not to have occurred or be continuing solely for purposes of such compliance or inapplicability; and (3) all determinations of compliance with or inapplicability of any term or provision of this Indenture for any action or inaction that are not comprised within the action or inaction contemplated or related to such Limited Condition Transaction after the LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that such Limited Condition Transaction is terminated, expires or is abandoned, shall be determined after giving pro forma effect to such Limited Condition Transaction.
In the event an action or transaction is undertaken by the Issuer or any of its Restricted Subsidiaries that may rely on a ratio basket based on the Fixed Charge Coverage Ratio, Consolidated First Lien Secured Debt Ratio, Consolidated First-Out First Lien Secured Debt Ratio, Consolidated Secured Debt Ratio or Consolidated Total Debt Ratio or any other basket, each such action and transaction will be deemed to have been taken first, to the extent available, pursuant to the relevant Fixed Charge Coverage Ratio, Consolidated First Lien Secured Debt Ratio, Consolidated First-Out First Lien Secured Debt Ratio, Consolidated Secured Debt Ratio or Consolidated Total Debt Ratio test.
63
ARTICLE 2
THE NOTES
SECTION 2.01. Form and Dating; Terms.
(a) General. The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A, or in such other form as shall be established in one or more supplemental indentures, in each case, with such appropriate insertions, omissions, substitutions and other variations as are required or not prohibited by this Indenture. The Notes may have notations, legends or endorsements required by law, stock exchange rules or usage. Each Note shall be dated the date of its authentication. The Notes shall be in denominations of $2,000 and integral multiples of $1,000 thereof.
(b) Global Notes. Notes issued in global form shall be substantially in the form of Exhibit A, or in such other form as shall be established in one or more supplemental indentures, in each case, with such appropriate insertions, omissions, substitutions and other variations as are required or not prohibited by this Indenture (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes issued in definitive form shall be substantially in the form of Exhibit A, or in such other form as shall be established in one or more supplemental indentures, in each case, with such appropriate insertions, omissions, substitutions and other variations as are required or not prohibited by this Indenture (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note shall represent such of the outstanding Notes as shall be specified in the “Schedule of Exchanges of Interests in the Global Note” attached thereto and each shall provide that it shall represent up to the aggregate principal amount of Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as applicable, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06.
(c) Temporary Global Notes. Notes offered and sold in reliance on Regulation S shall be issued initially in the form of the Regulation S Temporary Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for the Depositary, and registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated agents holding on behalf of Euroclear or Clearstream, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided.
Following the termination of the Restricted Period, beneficial interests in the Regulation S Temporary Global Note shall be exchanged for beneficial interests in the Regulation S Permanent Global Note pursuant to the Applicable Procedures. Simultaneously with the authentication of the Regulation S Permanent Global Note, the Trustee shall cancel the Regulation S Temporary Global Note. The aggregate principal amount of the Regulation S Temporary Global Note and the Regulation S Permanent Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee, as the case may be, in connection with transfers of interest as hereinafter provided.
(d) Terms. The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture, and the Issuer, the Guarantors and the Trustee, by their execution and delivery of this Indenture (or, any other Guarantor from time to time party hereto, by its execution and delivery of a supplemental indenture to this Indenture).
64
The Notes shall be subject to repurchase by the Issuer pursuant to an Asset Sale Offer as provided in Section 4.10 or a Change of Control Offer as provided in Section 4.14. The Notes shall not be redeemable, other than as provided in Article 3.
Additional Notes ranking pari passu with the Notes may be created and issued from time to time by the Issuer and shall be consolidated with and form a single class with the Notes and shall have the same terms as to status, redemption or otherwise as the Notes; provided that the Issuer’s ability to issue Additional Notes shall be subject to the Issuer’s compliance with Section 4.09 and Section 4.12; provided further that any Additional Notes issued for the primary purpose of influencing the provision of, or in connection with obtaining, the requisite consents of Holders of Notes for any modification, amendment, release or waiver under this Indenture shall be disregarded in the calculation of the requisite consents for such modification, amendment, release or waiver; provided further that if any Additional Notes are not fungible with the Notes for U.S. federal income tax purposes, such Additional Notes will have a separate CUSIP number and ISIN from the Notes.
(e) Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream shall be applicable to transfers of beneficial interests in the Regulation S Temporary Global Note and the Regulation S Permanent Global Notes that are held by Participants through Euroclear or Clearstream.
SECTION 2.02. Execution and Authentication.
At least one Officer shall execute the Notes on behalf of the Issuer by manual, facsimile or electronic (including “.pdf”) signature.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be entitled to any benefit under this Indenture or be valid or obligatory for any purpose until authenticated substantially in the form of Exhibit A by the manual signature of the Trustee. The signature shall be conclusive evidence that the Note has been duly authenticated and delivered under this Indenture.
At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Notes executed by the Issuer to the Trustee for authentication and delivery and the Trustee shall, upon receipt of an Issuer Order (an “Authentication Order”), authenticate and deliver the Notes for an aggregate principal amount specified in such Authentication Order for the Notes.
In authenticating the Notes, and accepting the additional responsibilities under this Indenture in relation to the Notes, the Trustee shall receive, and, subject to Section 7.01, shall be fully protected in relying upon:
(a) an Officer’s Certificate delivered in accordance with Sections 13.04 and 13.05; and
(b) an Opinion of Counsel, delivered in accordance with Sections 13.04 and 13.05, and which shall also state:
(1) that the form of the Notes has been established in conformity with this Indenture;
(2) that the terms of the Notes have been established by this Indenture; and
65
(3) that the Notes, when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Issuer, enforceable in accordance with their terms, subject to customary exceptions, limitations, qualifications and other assumptions.
The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Issuer.
SECTION 2.03. Registrar and Paying Agent.
The Issuer shall maintain with respect to the Notes an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar shall keep a register with respect to the Notes (“Note Register”) and of their transfer and exchange. The Issuer may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar, and the term “Paying Agent” includes any additional paying agent. The Issuer may change any Paying Agent or Registrar without prior notice to any Holder. The Issuer shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Issuer fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. the Issuer or any of its Subsidiaries may act as Paying Agent or Registrar.
The Issuer initially appoints The Depository Trust Company (“DTC”) to act as Depositary with respect to the Global Notes.
The Issuer initially appoints the Trustee to act as the Paying Agent and Registrar for the Notes and to act as Custodian with respect to the Global Notes.
SECTION 2.04. Paying Agent to Hold Money in Trust.
The Issuer shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders of any Notes or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or interest, if any, on the Notes, and will notify the Trustee of any default by the Issuer in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it with respect to the Notes to the Trustee. The Issuer at any time may require a Paying Agent to pay all money held by it with respect to the Notes to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Issuer or a Subsidiary of the Issuer) shall have no further liability for the money. If the Issuer or a Subsidiary of the Issuer acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuer, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least two Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes.
66
SECTION 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. Except as otherwise set forth in this Section 2.06, a Global Note may be transferred, in whole and not in part, only to another nominee of the Depositary or to a successor Depositary or a nominee of such successor Depositary. A beneficial interest in a Global Note may not be exchanged for a Definitive Note unless (i) the Depositary (x) notifies the Issuer that it is unwilling or unable to continue as Depositary for such Global Note or (y) has ceased to be a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Issuer within 90 days, (ii) the Issuer, at its option, notifies the Trustee that it elects to cause the issuance of Definitive Notes, and any Participant requests a Definitive Note in accordance with the Applicable Procedures or (iii) there shall have occurred and be continuing an Event of Default with respect to the Notes. Upon the occurrence of any of the preceding events in (i) or (ii) above, Definitive Notes delivered in exchange for any Global Note or beneficial interests therein will be registered in the names, and issued in any approved denominations, requested by or on behalf of the Depositary (in accordance with its customary procedures). Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10, shall be authenticated and delivered in the form of, and shall be, a Global Note, except for Definitive Notes issued subsequent to any of the preceding events in (i) or (ii) above and pursuant to Section 2.06(b)(ii)(B) and Section 2.06(c). A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a); provided, however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b) or (c).
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also shall require compliance with either subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend; provided, however, that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Regulation S Temporary Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person (other than the firms whose marketing names are listed on the cover of the Offering Memorandum). Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(i), the transferor of such beneficial interest must deliver to the Registrar either (A) (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase or
67
(B) (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (1) above; provided that in no event shall Definitive Notes be issued upon the transfer or exchange of beneficial interests in a Regulation S Temporary Global Note prior to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar of any certificates required pursuant to Rule 903. Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(h).
(iii) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.06(b)(ii) and the Registrar receives the following:
(A) if the transferee will take delivery in the form of a beneficial interest in a 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B, including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a beneficial interest in a Regulation S Global Note, then the transferor must deliver a certificate in the form of Exhibit B, including the certifications in item (2) thereof; or
(C) if the transferee will take delivery in the form of a beneficial interest in the IAI Global Note, then the transferor must deliver a certificate in the form of Exhibit B, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an UnrestrictedGlobal Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.06(b)(ii) and the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit C, including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B, including the certifications in item (4) thereof;
68
and, in each such case set forth in this subparagraph (iv), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (iv) above at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to subparagraph (iv) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon the occurrence of any of the events in paragraph (i), (ii) or (iii) of Section 2.06(a) and receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder substantially in the form of Exhibit C, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate substantially in the form of Exhibit B, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate substantially in the form of Exhibit B, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in clauses (B) through (D) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3)(d) thereof;
(F) if such beneficial interest is being transferred to the Issuer or any of the Restricted Subsidiaries or any Guarantor, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(b) thereof; or
69
(G) if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h), and the Issuer shall execute and the Trustee shall authenticate and mail or otherwise deliver to the Person designated in the instructions a Definitive Note in the applicable principal amount. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall mail such Definitive Notes to the Persons in whose names the Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.
(ii) Beneficial Interests in Regulation S Temporary Global Note to Definitive Notes. Notwithstanding Sections 2.06(c)(i)(A) and (C), a beneficial interest in the Regulation S Temporary Global Note may not be exchanged for a Definitive Note or transferred to a Person who takes delivery thereof in the form of a Definitive Note prior to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) of the Securities Act, except in the case of a transfer pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.
(iii) BeneficialInterests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only upon the occurrence of any of the events in subsection (i), (ii) or (iii) of Section 2.06(a) and if the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder substantially in the form of Exhibit C, including the certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder substantially in the form of Exhibit B, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (iii), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
70
(iv) Beneficial Interests in Unrestricted Global Notes to UnrestrictedDefinitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon the occurrence of any of the events in subsection (i), (ii) or (iii) of Section 2.06(a) and satisfaction of the conditions set forth in Section 2.06(b)(ii), the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h), and the Issuer shall execute and the Trustee shall, upon receipt of an Authentication Order, authenticate and mail or otherwise deliver to the Person designated in the instructions a Definitive Note in the applicable principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from or through the Depositary and the Participant or Indirect Participant. The Trustee shall mail such Definitive Notes to the Persons in whose names the Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i) Restricted Definitive Notes toBeneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder substantially in the form of Exhibit C, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate substantially in the form of Exhibit B, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate substantially in the form of Exhibit B, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in clauses (B) through (D) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3)(d) thereof;
(F) if such Restricted Definitive Note is being transferred to the Issuer or any of the Restricted Subsidiaries or any Guarantor, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(b) thereof; or
71
(G) if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the applicable Restricted Global Note, in the case of clause (B) above, the applicable 144A Global Note, and in the case of clause (C) above, the applicable Regulation S Global Note, and in all other cases, the IAI Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if the Registrar receives the following:
(1) if the Holder of such Definitive Notes proposes to exchange the Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit C, including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes proposes to transfer the Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit B, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (ii), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to clause (ii) or (iii) above at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.
72
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e):
(i) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of Persons who take delivery thereof if the Registrar receives the following:
(A) if the transfer will be made pursuant to a QIB in accordance with Rule 144A, then the transferor must deliver a certificate substantially in the form of Exhibit B, including the certifications in item (1) thereof;
(B) if the transfer will be made to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904 then the transferor must deliver a certificate in the form of Exhibit B, including the certifications in item (2) thereof;
(C) if the transfer will be made to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in clauses (A) and (B) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3)(d) thereof; or
(D) if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B, including the certifications required by item (3) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if the Registrar receives the following:
(A) if the Holder of such Restricted Definitive Notes proposes to exchange the Notes for an Unrestricted Definitive Note, a certificate from such Holder substantially in the form of Exhibit C, including the certifications in item (1)(d) thereof; or
(B) if the Holder of such Restricted Definitive Notes proposes to transfer the Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder substantially in the form of Exhibit B, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (ii), if the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
73
(iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer the Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Legends. The following legends shall appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture:
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:
“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR (IN THE CASE OF NOTES SOLD PURSUANT TO RULE 144A) OR 40 DAYS (IN THE CASE OF NOTES SOLD PURSUANT TO REGULATION S) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN
74
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.”
(B) Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii) or (e)(iii) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) shall not bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in substantially the following form:
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06(h) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
75
(iii) Regulation S Temporary Global Note Legend. The Regulation S Temporary Global Note shall bear a legend in substantially the following form:
“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).”
(g) [Reserved].
(h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.11. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 or at the Registrar’s request.
(ii) No service charge shall be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.07, 2.10, 3.06, 3.09, 4.10, 4.14 and 9.05).
(iii) Neither the Registrar nor the Issuer shall be required to register the transfer of or exchange any Note selected for redemption or tendered (and not withdrawn) for repurchase in whole or in part, except the unredeemed or unpurchased portion of any Note being redeemed or repurchased in part.
(iv) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
76
(v) The Issuer shall not be required (A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 and ending at the close of business on the day of selection, (B) to register the transfer of or to exchange any Note so selected for redemption or tendered (and not withdrawn) for repurchase in connection with a Change of Control Offer, an Asset Sale Offer or other tender offer, in whole or in part, except the unredeemed portion of any Note being redeemed in part or (C) to register the transfer of or to exchange a Note between a Record Date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuer may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of (and premium, if any) and interest on the Notes and for all other purposes, and none of the Trustee, any Agent or the Issuer shall be affected by notice to the contrary.
(vii) Upon surrender for registration of transfer of any Note at the office or agency of the Issuer designated pursuant to Section 4.02, the Issuer shall execute, and the Trustee shall authenticate and mail or otherwise deliver, in the name of the designated transferee or transferees, one or more replacement Notes of any authorized denomination or denominations of a like aggregate principal amount.
(viii) At the option of the Holder, Notes may be exchanged for other Notes of any authorized denomination or denominations of a like aggregate principal amount upon surrender of the Notes to be exchanged at such office or agency. Whenever any Global Notes or Definitive Notes are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and mail or otherwise deliver, the replacement Global Notes and Definitive Notes which the Holder making the exchange is entitled to in accordance with the provisions of Section 2.02.
(ix) All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by electronic transmission.
(x) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Participants or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
(xi) Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not taken by the Depositary.
SECTION 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee, the Registrar or the Issuer and the Trustee receives evidence to its satisfaction of the ownership and destruction, loss or theft of any Note, the Issuer shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Issuer, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuer to protect the Issuer, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuer may charge for its expenses in replacing a Note.
77
Every replacement Note is a contractual obligation of the Issuer and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.
SECTION 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.08 as not outstanding. Except as set forth in Section 2.09, a Note does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note.
If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section 4.01, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of any thereof) holds, on a Redemption Date or the Maturity, money sufficient to pay Notes payable on that date, then on and after that date the Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.
SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer, or by any Affiliate of the Issuer, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee knows are so owned shall be so disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to deliver any such direction, waiver or consent with respect to the Notes and that the pledgee is not the Issuer or any obligor upon the Notes or any Affiliate of the Issuer or of such other obligor.
SECTION 2.10. Temporary Notes.
Until certificates representing Notes are ready for delivery, the Issuer may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of certificated Notes but may have variations that the Issuer considers appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate Definitive Notes in exchange for temporary Notes.
Holders and beneficial holders, as the case may be, of temporary Notes shall be entitled to all of the benefits accorded to Holders, or beneficial holders, respectively, of Notes under this Indenture.
78
SECTION 2.11. Cancellation.
The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee or, at the direction of the Trustee, the Registrar or the Paying Agent and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of cancelled Notes (subject to the record retention requirement of the Exchange Act). Certification of the disposal of all cancelled Notes shall be delivered to the Issuer upon its written request. The Issuer may not issue new Notes to replace Notes that have been paid or that have been delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest.
If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest to the Persons who are Holders on a subsequent special Record Date, in each case at the rate provided in the Notes and in Section 4.01. The Issuer shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such defaulted interest as provided in this Section 2.12. The Trustee shall fix or cause to be fixed each such special Record Date and payment date; provided that no such special Record Date shall be less than 10 days prior to the related payment date for such defaulted interest. The Trustee shall promptly notify the Issuer of such special Record Date. At least 5 days before the special Record Date, the Issuer (or, upon the written request of the Issuer, the Trustee in the name and at the expense of the Issuer) shall send or cause to be sent to each Holder of such Notes a notice at his or her address as it appears in the Note Register that states the special Record Date, the related payment date and the amount of such interest to be paid.
Subject to the foregoing provisions of this Section 2.12 and for greater certainty, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 2.13. CUSIP Numbers.
The Issuer in issuing the Notes may use CUSIP or ISIN numbers or both numbers (if then generally in use) and, if so, the Trustee shall use CUSIP or ISIN numbers or both numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will as promptly as practicable notify the Trustee of any change in the CUSIP or ISIN numbers of any Notes.
79
ARTICLE 3
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Issuer elects to redeem Notes pursuant to the optional redemption terms set forth in this Indenture, it shall furnish to the Trustee, at least 5 Business Days (or such shorter time period as the Trustee may agree) before notice of redemption is required to be sent or caused to be sent to Holders pursuant to Section 3.03, an Officer’s Certificate setting forth (i) the paragraph or subparagraph of such Note and/or Section of this Indenture governing the Notes, as applicable, pursuant to which the redemption shall occur, (ii) the Redemption Date, (iii) the principal amount of the Notes to be redeemed and (iv) the Redemption Price.
SECTION 3.02. Selection of Notes to Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any time, the Notes shall be selected for redemption or repurchase by lot, pro rata, or by such other method the Trustee considers fair and appropriate; provided that if the Notes are represented by Global Notes, interests in the Notes shall be selected for redemption or repurchase by DTC in accordance with its standard procedures therefor. The Notes to be redeemed or purchased shall be selected, unless otherwise provided herein, not less than 15 nor more than 60 days prior to the Redemption Date from the outstanding Notes not previously called for redemption or purchase.
The Trustee shall promptly notify the Issuer in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected shall be in amounts of $2,000 or whole multiples of $1,000 in excess thereof; no Notes in denominations of less than $2,000 can be redeemed or repurchased in part, except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except as provided in the preceding sentence, provisions of this Indenture that apply to the Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.
SECTION 3.03. Notice of Redemption.
Subject to Section 3.09, the Issuer shall deliver electronically, mail or cause to be mailed by first-class mail, postage prepaid, notices of redemption at least 15 days (which 15-day period shall include the day on which such notice is mailed or otherwise delivered) but, except as set forth in the last paragraph of this Section 3.03, not more than 60 days before the Redemption Date or purchase date to each Holder of Notes to be redeemed at such Holder’s registered address or otherwise in accordance with the procedures of DTC, except that redemption notices may be delivered or mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with Article 8 or Article 11. Notices of redemption may be conditional.
The notice shall identify the Notes to be redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
80
(c) if any Note is to be redeemed or purchased in part only, the portion of the principal amount of that Note that is to be redeemed or purchased and that, with respect to the Notes represented by Definitive Notes after the Redemption Date upon surrender of such Note, a new Note or Notes in a principal amount equal to the unredeemed or unpurchased portion of the original Note representing the same indebtedness to the extent not redeemed or repurchased will be issued in the name of the Holder of the Notes upon cancellation of the original Note; provided that the new Notes will be only issued in denominations of $2,000 and any integral multiple of $1,000 in excess thereof;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price;
(f) that, unless the Issuer defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the Redemption Date;
(g) the paragraph or subparagraph of the Notes and/or Section of this Indenture governing the Notes, as applicable, pursuant to which the Notes called for redemption are being redeemed;
(h) that no representation is made as to the correctness or accuracy of the CUSIP or ISIN number, if any, listed in such notice or printed on the Notes; and
(i) if in connection with a redemption of Notes pursuant to Section 3.07, any condition to such redemption.
A notice of redemption need not set forth the exact Redemption Price but only the manner of calculation thereof.
Notice of any redemption of, or any offer to purchase, the Notes may, at the Issuer’s discretion, be given in connection with an Equity Offering, other transaction (or series of related transactions) or an event that constitutes a Change of Control and prior to the completion or the occurrence thereof, and any such redemption or purchase may, at the Issuer’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion or occurrence of the related Equity Offering, transaction or event, as the case may be. In addition, if such redemption or purchase is subject to satisfaction of one or more conditions precedent, such notice shall describe each such condition, and if applicable, shall state that, in the Issuer’s discretion, the redemption or purchase date may be delayed until such time (including more than 60 days after the date the notice of redemption or offer to purchase was mailed or delivered, including by electronic transmission) as any or all such conditions shall be satisfied (or waived by the Issuer in its sole discretion), or such redemption or purchase may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied (or waived by the Issuer in its sole discretion) by the redemption or purchase date or by the redemption or purchase date as so delayed, or such notice or offer may be rescinded at any time in the Issuer’s discretion if the Issuer reasonably believes that any or all of such conditions will not be satisfied (or waived). In addition, the Issuer may provide in such notice that payment of the redemption or purchase price and performance of the Issuer’s obligations with respect to such redemption or offer to purchase may be performed by another Person.
81
SECTION 3.04. Effect of Notice of Redemption or Purchase.
Once a notice of redemption is sent (including electronically) in accordance with Section 3.03, Notes called for redemption or purchase become irrevocably due and payable on the Redemption Date or purchase date, as applicable, at the Redemption Price or purchase price, as applicable, unless such redemption or purchase is conditioned on the happening of a future event. The notice, if sent in a manner herein provided (including electronically), shall be conclusively presumed to have been given, whether or not the Holder receives such notice. In any case, failure to give such notice or any defect in the notice to the Holder of any Note designated for redemption or purchase in whole or in part shall not affect the validity of the proceedings for the redemption or purchase of any other Note or portions thereof. Subject to Section 3.05, on and after the Redemption Date or purchase date, as applicable, interest shall cease to accrue on Notes or portions of Notes called for redemption or purchase.
SECTION 3.05. Deposit of Redemption or Purchase Price.
Prior to noon (New York City time) on the Redemption Date or purchase date, the Issuer shall deposit with the Trustee or with the Paying Agent money sufficient to pay the Redemption Price or purchase price of and accrued and unpaid interest on all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent shall promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the Redemption Price of, and accrued and unpaid interest on, all Notes to be redeemed or purchased.
If the Issuer complies with the provisions of the preceding paragraph, on and after the Redemption Date or purchase date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after a Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest to the Redemption Date or purchase date shall be paid to the Person in whose name such Note was registered at the close of business on such Record Date. If any Note called for redemption or purchase shall not be so paid upon surrender for redemption or purchase because of the failure of the Issuer to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the Redemption Date or purchase date until such principal is paid, and to the extent lawful on any interest accrued to the Redemption Date or purchase date not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01.
SECTION 3.06. Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the Issuer shall issue and the Trustee shall authenticate for the Holder at the expense of the Issuer a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered representing the same indebtedness to the extent not redeemed or purchased; provided that each new Note will be issued in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. It is understood that, notwithstanding anything in this Indenture to the contrary, only an Authentication Order and not an Opinion of Counsel or Officer’s Certificate is required for the Trustee to authenticate such new Note.
SECTION 3.07. Optional Redemption.
(a) At any time prior to February 15, 2028, the Issuer may, at its option and on one or more occasions, redeem all or a part of the Notes, upon notice as set forth in Section 3.03, at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any, to, but excluding, the date of redemption (any applicable date of redemption hereunder, the “Redemption Date”), subject to the rights of Holders of Notes on the relevant Record Date to receive interest due on the relevant Interest Payment Date falling on or prior to the Redemption Date.
82
(b) On and after February 15, 2028, the Issuer may, at its option and on one or more occasions, redeem the Notes, in whole or in part, upon notice as set forth in Section 3.03, at the redemption prices (expressed as percentages of the principal amount of the Notes to be redeemed) set forth in this Section 3.07(b), plus accrued and unpaid interest thereon, if any, to, but excluding, the applicable Redemption Date, subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date falling on or prior to the Redemption Date, if redeemed during the twelve-month period beginning on February 15 of each of the years indicated below:
| Year | Percentage | ||
|---|---|---|---|
| 2028 | 104.063 | % | |
| 2029 | 102.031 | % | |
| 2030 and thereafter | 100.000 | % |
(c) Prior to February 15, 2028, the Issuer may, at its option, upon notice as set forth in Section 3.03, on one or more occasions, redeem in an amount equal to or less than the net cash proceeds from one or more Equity Offerings to the extent such net cash proceeds are received by or contributed to the Issuer, up to 40% of the aggregate principal amount of Notes (including Additional Notes) issued under this Indenture at a redemption price (as calculated by the Issuer) equal to (i) 108.125% of the aggregate principal amount thereof being redeemed, plus (ii) accrued and unpaid interest thereon, if any, to, but excluding, the applicable Redemption Date, subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date falling on or prior to the Redemption Date; provided that (a) at least 50% of the sum of the aggregate principal amount of Notes originally issued under this Indenture on the Issue Date (but excluding any Additional Notes issued under this Indenture after the Issue Date) remains outstanding immediately after the occurrence of each such redemption and (b) each such redemption occurs within 180 days of the date of closing of each such Equity Offering.
(d) At any time prior to February 15, 2028, if a Special Call Event occurs with respect to the Notes, then the Issuer may, at its option, redeem all of the Notes, upon notice as set forth in Section 3.03, at a redemption price (as calculated by the Issuer) equal to (a) 108.125% of the aggregate principal amount thereof being redeemed, plus (b) accrued and unpaid interest thereon, if any, to, but excluding, the applicable Redemption Date, subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date falling on or prior to the Redemption Date; provided that the Issuer shall be permitted to repurchase Notes pursuant to a notice of redemption issued in accordance with this clause (d) at any time following public announcement of the Special Call Event transaction and on or prior to the date that is 30 days following the consummation of the applicable Special Call Event transaction. For the avoidance of doubt, notice of redemption pursuant to this clause (d) may be given if the Issuer publicly announces entry into an agreement or arrangement in respect of a Special Call Event, whether or not such transaction is completed on or before such date, and such notice may be subject to one or more conditions precedent, including, without limitation, the completion of a transaction constituting a Special Call Event. A third party or Person who is approved by the Issuer may exercise the repurchase option pursuant to this clause (d) at the times and otherwise in compliance with the requirements set forth in this clause (d).
(e) Notwithstanding the foregoing, in connection with any tender offer for the Notes, if Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in such tender offer and the Issuer, or any third party approved in writing by the Issuer making such tender offer in lieu of the Issuer, purchases all of the Notes validly tendered and
83
not withdrawn by such Holders, the Issuer or such third party will have the right upon not less than 15 nor more than 60 days’ prior notice, given not more than 60 days following any such purchase date, to redeem (with respect to the Issuer) or purchase (with respect to a third party) all Notes that remain outstanding following such purchase at a price equal to the price paid to each other Holder in such tender offer (which may be less than par) plus, to the extent not included in the tender offer payment, accrued and unpaid interest, if any, thereon, to, but excluding, the Redemption Date or purchase date, subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date falling on or prior to the Redemption Date or purchase date.
(f) The Notes may be redeemed under the circumstances and in accordance with Section 4.14(e).
(g) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06.
(h) The Issuer and its affiliates may acquire Notes by means other than a redemption, whether by a tender offer, open market purchases, negotiated transactions or otherwise.
SECTION 3.08. Mandatory Redemption.
The Issuer shall not be required to make any mandatory redemption or sinking fund payments with respect to any Notes.
SECTION 3.09. Offers to Repurchase by Application of Excess Proceeds.
(a) In the event that, pursuant to Section 4.10, the Issuer shall be required to commence an Asset Sale Offer, it shall follow the procedures specified below.
(b) The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than five Business Days after the termination of the Offer Period (the “Purchase Date”), the Issuer shall apply all Excess Proceeds (the “Offer Amount”) to the purchase of all Notes and, if required, other First-Out Priority Payment Obligations (on a pro rata basis, if applicable), or, if less than the Offer Amount has been tendered, all Notes and such other First-Out Priority Payment Obligations tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made.
(c) If the Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest, if any, up to but excluding the Purchase Date, shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
(d) Upon the commencement of an Asset Sale Offer, the Issuer shall send, electronically or by first-class mail, a notice to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders and holders of such other First-Out Priority Payment Obligations. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(1) that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 and the length of time the Asset Sale Offer shall remain open;
84
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment shall continue to accrue interest;
(4) that, unless the Issuer defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in amounts of $2,000 or whole multiples of $1,000 in excess thereof only;
(6) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Note completed, or transfer by book-entry transfer, to the Issuer, the Depositary, if appointed by the Issuer, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Issuer, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, electronic transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes and such other First-Out Priority Payment Obligations surrendered by the holders thereof exceeds the Offer Amount, the Notes and such other First-Out Priority Payment Obligations shall be selected to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such other First-Out Priority Payment Obligations tendered (with such adjustments so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased; provided that no Notes of $2,000 or less can be redeemed in part, except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes of such Holder, even if not a multiple of $1,000, shall be redeemed or purchased); and
(9) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer) representing the same indebtedness to the extent not repurchased.
(e) On or before the Purchase Date, the Issuer shall, to the extent lawful, (1) accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof validly tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered and (2) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof so tendered.
(f) The Issuer, the Depositary or the Paying Agent, as the case may be, shall promptly mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes properly tendered by such Holder and accepted by the Issuer for purchase, and the Issuer shall promptly issue a new Note, and the Trustee, upon receipt of an Authentication Order, shall authenticate and mail or deliver (or cause to be transferred by book-entry) such new Note to such Holder (it being understood that, notwithstanding anything in this Indenture to the contrary, no Opinion of Counsel or Officer’s Certificate is required for
85
the Trustee to authenticate and mail or deliver such new Note) in a principal amount equal to any unpurchased portion of the Note surrendered representing the same indebtedness to the extent not repurchased; provided, that each such new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Any Note not so accepted shall be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Purchase Date.
Other than as specifically provided in this Section 3.09 or Section 4.10, any purchase pursuant to this Section 3.09 shall be made pursuant to the applicable provisions of Sections 3.01 through 3.06.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Notes.
The Issuer shall pay or cause to be paid the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes; provided that all payments of principal, premium, if any, and interest with respect to the Notes represented by one or more Global Notes registered in the name of or held by DTC or its nominee will be made in accordance with DTC’s applicable procedures. Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent (other than the Issuer or a Subsidiary thereof) holds as of noon (New York City time) on the due date money deposited by the Issuer in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due. If an Interest Payment Date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is a Business Day, and no interest on such payment will accrue in respect of the delay.
The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to the interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest at the same rate to the extent lawful.
SECTION 4.02. Maintenance of Office or Agency.
The Issuer shall maintain an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served. The Issuer shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The Issuer may also from time to time designate one or more other offices or agencies where Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency for such purposes. The Issuer shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
86
The Issuer hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Issuer in accordance with Section 2.03.
SECTION 4.03. Reports and Other Information.
(a) So long as any Notes are outstanding, Parent shall have its annual consolidated financial statements audited by a nationally recognized firm of independent auditors and its interim consolidated financial statements reviewed by a nationally recognized firm of independent auditors in accordance with Statement on Auditing Standards No. 100 issued by the American Institute of Certified Public Accountants (or any similar replacement standard). In addition, so long as any Notes are outstanding, whether or not Parent is subject to Section 13(a) or 15(d) of the Exchange Act, Parent shall furnish to the Holders (x) all annual and quarterly financial statements substantially in forms that would be required to be contained in a filing with the SEC on Forms 10-K and 10-Q of Parent, plus a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” (“MD&A”) with respect to the Issuer and (y) with respect to the annual financial statements only, a report on the annual financial statements by the Parent’s independent registered public accounting firm; provided, however, that (i) in no event shall such reports be required to comply with Rule 3-09, 3-10, 3-16, 13-01 or 13-02 of Regulation S-X promulgated by the SEC from time to time and (ii) in no event shall such reports be required to comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-GAAP financial measures contained therein; and provided further that the Issuer shall not be required to furnish to the Holders a separate MD&A of the Issuer and the Guarantors if and to the extent that the MD&A of any Parent Entity (including Parent) includes a discussion of the Issuer (in the form of segment reporting or otherwise), which includes financial information not materially different (in the good faith judgment of the Issuer) than the financial information required pursuant to clause (x) above for the relevant period. In addition, the quarterly and annual financial information required by this clause (a) shall include the percentages of the total assets, total revenue and total operating income of Parent and its Subsidiaries represented by (i) all Restricted Subsidiaries of Parent and Issuer that are not Guarantors and (ii) all Unrestricted Subsidiaries.
(b) All such annual reports (commencing with the fiscal year ending December 31, 2024) shall be furnished within 120 days after the end of the fiscal year to which they relate, and all such quarterly reports (commencing with the fiscal quarter ending March 31, 2025) shall be furnished within 60 days after the end of the fiscal quarter to which they relate.
(c) Parent or the Issuer shall make available such information and such reports to the Trustee under this Indenture, to any Holder of the Notes and, upon request, to any beneficial owner of the Notes, in each case by posting such information on its website, or on Intralinks or on any comparable password-protected online data system which shall require a confidentiality acknowledgment, and shall make such information readily available to any Holder of the Notes, any bona fide prospective investor in the Notes, any securities analyst (to the extent providing analysis of investment in the Notes) or any market maker in the Notes who agrees to treat such information as confidential or accesses such information on Intralinks or on any comparable password-protected online data system which will require a confidentiality acknowledgment; provided that Parent or the Issuer shall post such information thereon and make readily available any password or other login information to any such Holder of the Notes, bona fide prospective investor, securities analyst or market maker; provided further, that Parent or the Issuer, as applicable, may deny access to any competitively-sensitive information otherwise to be provided pursuant to this Section 4.03 to any such Holder, bona fide prospective investor, security analyst or market maker that is a competitor of Parent or the Issuer, as applicable, and its Subsidiaries to the extent that Parent or the Issuer determines in good faith that the provision of such information to such Person would be competitively harmful to the Issuer and its Subsidiaries.
87
(d) To the extent not satisfied by the foregoing, Parent or the Issuer, as the case may be, shall furnish to prospective investors in the Notes, upon their request, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely transferable under the Securities Act.
(e) Any Parent Entity may satisfy the obligations of Parent set forth in this Section 4.03 by providing the requisite financial and other information of such Parent Entity instead of Parent; provided that to the extent such Parent Entity either (i) holds assets (other than its direct or indirect interest in Parent and its Subsidiaries) that exceeds 1.0% of the Total Assets of such Parent Entity and its Subsidiaries or (ii) has revenue (other than revenue from its direct or indirect interest in Parent and its Subsidiaries) that exceeds 1.0% of the total revenue for the preceding fiscal year of such Parent Entity and its Subsidiaries, then such information related to such Parent Entity shall be accompanied by consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information of such Parent Entity, on the one hand, and the information relating to the Issuer and its Subsidiaries on a stand-alone basis, on the other hand.
(f) Parent and the Issuer shall be deemed to have furnished the financial statements referred to in Section 4.03(a) if Parent, the Issuer or any Parent Entity of Parent or the Issuer, as applicable, has filed reports containing such information (or any such information of a Parent Entity in accordance with Section 4.03(e)) with the SEC.
(g) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
SECTION 4.04. Compliance Certificate.
(a) The Issuer shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Issuer, an Officer’s Certificate from the principal executive officer, principal financial officer or principal accounting officer stating that a review of the activities of the Issuer and its Restricted Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Issuer and its Restricted Subsidiaries have kept, observed, performed and fulfilled their obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best of his or her knowledge the Issuer and its Restricted Subsidiaries have kept, observed, performed and fulfilled each and every condition and covenant contained in this Indenture and are not in default in the performance or observance of any of the terms, provisions, covenants and conditions of this Indenture (or, if a Default shall have occurred, describing all such Defaults of which he or she may have knowledge and what action the Issuer is taking or proposes to take with respect thereto).
(b) If the Issuer becomes aware of any Default, it shall, within thirty (30) days, deliver to the Trustee an Officer’s Certificate specifying such Default and what action the Issuer proposes to take with respect thereto.
88
SECTION 4.05. Taxes.
The Issuer shall pay, and shall cause each of its Restricted Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies except such as are contested in good faith and by appropriate negotiations or proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes.
SECTION 4.06. Stay, Extension and Usury Laws.
The Issuer and each of the Guarantors covenant (to the extent that they may lawfully do so) that they shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Issuer and each of the Guarantors (to the extent that they may lawfully do so) hereby expressly waive all benefit or advantage of any such law, and covenant that they shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.
SECTION 4.07. Limitation on Restricted Payments.
(a) From and after the Issue Date, the Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(I) declare or pay any dividend or make any payment or distribution on account of the Issuer’s or any of its Restricted Subsidiaries’ Equity Interests, including any dividend or distribution payable in connection with any merger, amalgamation or consolidation other than:
(a) dividends, payments or distributions by the Issuer payable solely in Equity Interests (other than Disqualified Stock) of the Issuer or in options, warrants or other rights to purchase such Equity Interests (other than Disqualified Stock); or
(b) dividends, payments or distributions by a Restricted Subsidiary so long as, in the case of any dividend, payments or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly-Owned Subsidiary, the Issuer or a Restricted Subsidiary receives at least its pro rata share of such dividend, payment or distribution as required by its Equity Interests in such class or series of securities;
(II) purchase, redeem, defease or otherwise acquire or retire for value any Equity Interests of the Issuer or any Parent Entity, including in connection with any merger, amalgamation or consolidation, in each case, owned by a Person other than the Issuer or a Restricted Subsidiary;
(III) make any principal payment on, or redeem, repurchase, defease, discharge or otherwise acquire or retire for value in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Junior Lien Indebtedness, Unsecured Indebtedness or Subordinated Indebtedness, other than:
(a) Indebtedness permitted to be incurred or issued under any or all of clauses (7), (8) or (9) of Section 4.09(b); or
(b) the redemption, defeasance, purchase, repurchase, discharge or other acquisition of Junior Lien Indebtedness, Unsecured Indebtedness or Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of redemption, defeasance, purchase, repurchase, discharge or acquisition; or
89
(IV) make any Restricted Investment
(all such payments and other actions set forth in clauses (I) through (IV) above (other than any exceptions thereto) being collectively referred to as “Restricted Payments”), unless, at the time of such Restricted Payment:
(1) no Event of Default under clause (1), (2), (6) or (7) of Section 6.01(a) shall have occurred and be continuing or would occur as a consequence thereof;
(2) on a pro forma basis after giving effect to such Restricted Payment and the incurrence of any Indebtedness the proceeds of which are used to make such Restricted Payment, the Consolidated First-Out First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period would be equal to or less than in the case where such Restricted Payment is a Restricted Payment described in clause (I), (II) or (III) of the definition thereof, 3.00 to 1.0; and
(3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Issuer and its Restricted Subsidiaries after the Issue Date (including Restricted Payments permitted by clauses (1) and (6)(c) of Section 4.07(b), but excluding all other Restricted Payments permitted by Section 4.07(b)), is less than the sum of (without duplication):
(a) 100% of the (i) Consolidated EBITDA of the Issuer for the period (taken as one accounting period) beginning on the first day of the fiscal quarter during which the Issue Date occurs to the end of the Issuer’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment, or, in the case such Consolidated EBITDA of the Issuer for such period is a negative figure, minus 100% of such negative figure, less (ii) 1.4 times Fixed Charges of the Issuer for the period (taken as one accounting period) described in clause (i); plus
(b) 100% of the aggregate net cash proceeds and the fair market value of marketable securities or other property received by the Issuer and its Restricted Subsidiaries since immediately after the Issue Date (other than net cash proceeds to the extent such net cash proceeds have been used to incur Indebtedness or issue Disqualified Stock or Preferred Stock pursuant to clause (12)(a) of Section 4.09(b)) from the issue or sale of:
(i) (A) Equity Interests of the Issuer, including Treasury Capital Stock, but excluding cash proceeds and the fair market value of marketable securities or other property received from the sale of:
(x) Equity Interests to any employee, director or consultant of the Issuer, its Subsidiaries or any Parent Entity after the Issue Date to the extent such amounts have been applied to Restricted Payments made in accordance with clause (4) of Section 4.07(b); and
(y) Designated Preferred Stock; and
90
(B) Equity Interests of Parent Entities, to the extent such net cash proceeds and the fair market value of marketable securities or other property are contributed to the Issuer (excluding contributions to the extent such amounts have been applied to Restricted Payments made in accordance with clause (4) of Section 4.07(b)); or
(ii) Indebtedness or Disqualified Stock of the Issuer or any Restricted Subsidiary that has been converted into or exchanged for or satisfied with such Equity Interests (other than Disqualified Stock) of the Issuer or a Parent Entity;
provided, however, that this clause (b) of Section 4.07(a)(3) shall not include the proceeds from (W) Refunding Capital Stock applied in accordance with Section 4.07(b)(2), (X) Equity Interests (or Indebtedness that has been converted or exchanged for Equity Interests) of the Issuer sold to a Restricted Subsidiary, (Y) Disqualified Stock or debt securities that have been converted or exchanged into Disqualified Stock or (Z) Excluded Contributions; plus
(c) 100% of the aggregate amount of cash or Cash Equivalents and the fair market value of marketable securities or other property contributed to the capital of the Issuer or a Restricted Subsidiary, or that becomes part of the capital of the Issuer or a Restricted Subsidiary through consolidation or merger, following the Issue Date (other than net cash proceeds to the extent such net cash proceeds (i) have been used to incur Indebtedness or issue Disqualified Stock or Preferred Stock pursuant to clause (12)(a) of Section 4.09(b), (ii) are contributed by a Restricted Subsidiary or (iii) constitute Excluded Contributions); plus
(d) 100% of the aggregate amount received in cash or Cash Equivalents and the fair market value of marketable securities or other property received by the Issuer or a Restricted Subsidiary by means of:
(i) the sale or other disposition (other than to the Issuer or a Restricted Subsidiary) of, or other returns on Investments from, Restricted Investments made by the Issuer or its Restricted Subsidiaries (including repurchases and redemptions of such Restricted Investments and cash distributions or cash interest received in respect thereof) and repayments of loans or advances, and releases of guarantees, which constitute Restricted Investments made by the Issuer or its Restricted Subsidiaries, in each case, after the Issue Date; or
(ii) the issuance, sale or other disposition (other than to the Issuer or a Restricted Subsidiary) of the Equity Interests of, or a dividend or distribution from, an Unrestricted Subsidiary (other than to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment, but including cash and the fair market value of marketable securities or other property to the extent exceeding the amount of such Investment); plus
91
(e) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger, amalgamation or consolidation of an Unrestricted Subsidiary into the Issuer or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Issuer or a Restricted Subsidiary after the Issue Date, the fair market value of the Investment in such Unrestricted Subsidiary (or the net assets transferred) at the time of the redesignation, merger, amalgamation, consolidation or transfer of such Unrestricted Subsidiary as a Restricted Subsidiary (other than to the extent such Investment constituted a Permitted Investment made after the Issue Date, but including cash and the fair market value of marketable securities or other property to the extent exceeding the amount of such Investment); plus
(f) the aggregate amount of Declined Proceeds since the Issue Date; plus
(g) $250.0 million.
(b) The foregoing provisions of Section 4.07(a) shall not prohibit:
(1) the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration thereof or the giving of such irrevocable notice, as applicable, if, at the date of declaration or the giving of such notice, such payment would have complied with the provisions of this Indenture (assuming, in the case of a redemption payment, the giving of the notice of such redemption payment would have been deemed to be a Restricted Payment at such time);
(2) (a) the prepayment, redemption, repurchase, defeasance, discharge, retirement or other acquisition of any Equity Interests of the Issuer (“Treasury Capital Stock”) (including any accrued and unpaid dividends thereon), Junior Lien Indebtedness, Unsecured Indebtedness or Subordinated Indebtedness or any Equity Interests of any Parent Entity, in exchange for, or in an amount equal to or less than the proceeds of a sale or issuance (other than to a Restricted Subsidiary) made within 120 days of such sale of Equity Interests of the Issuer or any Parent Entity to the extent such amount was contributed to the Issuer (in each case, other than any Disqualified Stock) (“Refunding Capital Stock”) and (b) if immediately prior to the retirement of Treasury Capital Stock, the declaration and payment of dividends thereon was permitted under clauses (6)(a) or (b) of this Section 4.07(b), the declaration and payment of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Equity Interests of any Parent Entity) in an aggregate amount per year no greater than the aggregate amount of dividends per annum that were declarable and payable on such Treasury Capital Stock immediately prior to such retirement;
(3) the prepayment, redemption, defeasance, repurchase, retirement, discharge, exchange or other acquisition of (i) Junior Lien Indebtedness, Unsecured Indebtedness or Subordinated Indebtedness made in exchange for, or out of the proceeds of, an incurrence of new Indebtedness of the Issuer or a Subsidiary Guarantor or (ii) Disqualified Stock of the Issuer or a Subsidiary Guarantor made in exchange for, or out of the proceeds of, an incurrence of Disqualified Stock of the Issuer or a Subsidiary Guarantor that, in any case is made within 120 days of such incurrence in compliance with Section 4.09 so long as:
(a) the principal amount (or accreted value, if applicable) of such new Indebtedness or the liquidation preference of such new Disqualified Stock does not exceed the principal amount of (or accreted value, if applicable), plus any accrued and unpaid interest on, the Junior Lien Indebtedness, Unsecured Indebtedness or Subordinated Indebtedness or the liquidation preference of, plus any accrued and unpaid dividends on, the Disqualified Stock being so prepaid, redeemed, defeased, repurchased, acquired, retired, discharged or exchanged, plus the amount of any premium (including tender premiums), defeasance costs, underwriting discounts and any fees, costs and expenses incurred in connection with the issuance of such new Indebtedness or Disqualified Stock and such prepayment, redemption, defeasance, repurchase, acquisition, retirement, discharge or exchange;
92
(b) in the case of the prepayment, redemption, defeasance, repurchase, retirement, discharge, exchange or other acquisition of (i) Junior Lien Indebtedness or Unsecured Indebtedness, such new Indebtedness is Junior Lien Indebtedness, Unsecured Indebtedness or Subordinated Indebtedness and (ii) Subordinated Indebtedness, such new Indebtedness is subordinated in right of payment to the Notes or the applicable Note Guarantee at least to the same extent as such Subordinated Indebtedness so prepaid, redeemed, defeased, repurchased, acquired, retired, discharged or exchanged;
(c) the amount of such new Indebtedness or Disqualified Stock has a final scheduled maturity date or mandatory redemption date, as applicable, equal to or later than the final scheduled maturity date or mandatory redemption date of the amount of Junior Lien Indebtedness, Unsecured Indebtedness, Subordinated Indebtedness or Disqualified Stock being so prepaid, redeemed, defeased, repurchased, acquired, retired, discharged or exchanged (or if earlier, such date that is at least 91 days after the maturity date of the Notes);
(d) the encumbrances and restrictions in respect of such new Indebtedness are not materially more restrictive, taken as a whole, than those set forth in this Article 4 (as determined in the good faith determination of the Issuer); and
(e) the amount of such new Indebtedness or Disqualified Stock has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the amount of Junior Lien Indebtedness, Unsecured Indebtedness, Subordinated Indebtedness or Disqualified Stock being so prepaid, redeemed, defeased, repurchased, acquired, retired, discharged or exchanged (or requires no or nominal payments in cash (other than interest payments) prior to the date that is 91 days after the maturity date of the Notes);
provided, however, that notwithstanding the foregoing, in the case of Junior Lien Indebtedness consisting of Junior Lien Term Loan Facilities, if such new Indebtedness is incurred within 15 months before the applicable final maturity of such Junior Lien Term Loan Facilities, such new Indebtedness may constitute Second-Out Indebtedness, so long as the Consolidated First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period (determined on a pro forma basis) would be equal to or less than 4.00 to 1.0;
(4) Restricted Payments to pay for the repurchase, redemption, retirement or other acquisition of Equity Interests (other than Disqualified Stock) of the Issuer or any Parent Entity held by any future, present or former employee, director, officer, manager or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer, any of its Subsidiaries or any Parent Entity upon the death, disability, retirement, resignation or termination of employment of any such Person or otherwise pursuant to any management, director and/or employee equity plan or equity option plan, stock appreciation rights plan, or any other management, director and/or employee benefit plan or agreement or any equity subscription or equity holder agreement or any employment termination agreement (including, for the avoidance of doubt, any principal and interest payable on any Indebtedness issued by the Issuer or any Parent Entity in connection with such repurchase,
93
retirement or other acquisition), including any Equity Interests rolled over by management, directors or employees of the Issuer, any of its Subsidiaries or any Parent Entity in connection with any corporate transaction; provided, that the aggregate amount of Restricted Payments made under this clause (4) do not exceed in any fiscal year an amount equal to:
(a) the cash proceeds from the sale of Equity Interests (other than Disqualified Stock) of the Issuer and, to the extent contributed to the Issuer, the cash proceeds from the sale of Equity Interests of any Parent Entity, in each case, to any future, present or former employees, directors, officers, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Issuer, any of its Subsidiaries or any Parent Entity that occurs on or after the Issue Date, to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments by virtue of clause (3) of Section 4.07(a); plus
(b) the cash proceeds of key man life insurance policies received by the Issuer or its Restricted Subsidiaries (or any Parent Entity to the extent contributed to the Issuer) after the Issue Date; plus
(c) the amount of any cash bonuses otherwise payable to future, present or former employees, directors, officers, managers, members, partners or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Issuer, any of its Subsidiaries or any Parent Entity that are foregone in exchange for the receipt of Equity Interests of the Issuer or any Parent Entity pursuant to any compensation arrangement, including any deferred compensation plan; plus
(d) the amount of cash dividends that would have been permitted to be made pursuant to clause (29) of this Section 4.07(b) as if such cash dividends were made (and the record date referred to in such clause (29) were), in each case, on the date such Restricted Payments to pay for the repurchase, redemption, retirement or other acquisition of Equity Interests were made; less
(e) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (a), (b), (c) and (d) of this clause (4);
provided that the Issuer may elect to apply all or any portion of the net aggregate increase contemplated by clauses (a) through (e) of this clause (4) in any fiscal year; and provided further, that cancellation of Indebtedness owing to the Issuer or any Restricted Subsidiary from any future, present or former employees, directors, officers, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer, any of its Restricted Subsidiaries or any Parent Entity in connection with a repurchase of Equity Interests of the Issuer or any Parent Entity is not a Restricted Payment under this Section 4.07 or any other provision of this Indenture;
(5) the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Issuer or any of its Restricted Subsidiaries or any class or series of Preferred Stock of any Restricted Subsidiary in each case issued in accordance with Section 4.09 to the extent such dividends are included in the definition of “Fixed Charges”;
94
(6) (a) the declaration and payment of dividends or distributions to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) issued by the Issuer after the Issue Date; provided that the amount of dividends or distributions made pursuant to this clause (a) shall not exceed the net cash proceeds received by the Issuer from the issuance of such Designated Preferred Stock;
(b) the declaration and payment of dividends or distributions to a Parent Entity, the proceeds of which will be used to fund the payment of dividends or distributions to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) of such Parent Entity issued after the Issue Date; provided that the amount of dividends or distributions made pursuant to this clause (b) shall not exceed the aggregate amount of cash contributed to the Issuer from the issuance of such Designated Preferred Stock; or
(c) the declaration and payment of dividends or distributions on Refunding Capital Stock that is Preferred Stock in excess of the dividends or distributions declarable and payable thereon pursuant to clause (2) of this Section 4.07(b); provided that the amount of dividends or distributions made pursuant to this clause (c) shall not exceed the net cash proceeds received by the Issuer from the issuance of such Preferred Stock;
provided, however, in the case of each of clause (a) and clause (c) of this clause (6), that for the Applicable Measurement Period at the date of issuance of such Designated Preferred Stock or the declaration of such dividends or distributions on Refunding Capital Stock that is Preferred Stock, after giving effect to such issuance or declaration on a pro forma basis, the Issuer would have had either (x) a Fixed Charge Coverage Ratio of at least 2.0 to 1.0 or (y) a Consolidated Total Debt Ratio of equal to or less than 7.0 to 1.0;
(7) payments made or expected to be made by the Issuer or any Restricted Subsidiary in respect of withholding or similar taxes payable in connection with the exercise or vesting of Equity Interests or any other equity award by any future, present or former employee, director, officer, manager or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee or any legatee or distributee thereof) of the Issuer, any of its Restricted Subsidiaries or any Parent Entity and repurchases or withholdings of Equity Interests in connection with the exercise or vesting of any stock or other equity options, warrants or other incentive interests or the grant, vesting or delivery of equity awards if such Equity Interests represent all or a portion of the exercise price thereof or payments in lieu of the issuance of fractional Equity Interests, or withholding obligations with respect to, such options, warrants or other incentive interests or other Equity Interests or equity awards;
(8) the prepayment, redemption, defeasance, repurchase, retirement, discharge, exchange or other acquisition of Junior Lien Indebtedness (other than obligations under the Junior Lien Term Loan Facilities) or Unsecured Indebtedness for consideration not to exceed, in the aggregate, $125.0 million;
(9) Restricted Payments that are made (a) in an amount not to exceed the amount of Excluded Contributions received following the Issue Date and (b) without duplication with clause (a), in an amount not to exceed the net cash proceeds from any sale or disposition of Investments acquired after the Issue Date, to the extent the acquisition of such Investments was financed with Excluded Contributions;
95
(10) other Restricted Payments in an aggregate amount taken together with all other Restricted Payments made and outstanding under this clause (10) (in the case of Restricted Investments, at the time outstanding (without giving effect to the sale of an Investment to the extent the proceeds of such sale do not consist of, or have not been converted to, Cash Equivalents)) not to exceed $50.0 million (in the case of a Restricted Investment, determined on the date such Investment is made, with the fair market value of such Investment being measured at the time made and without giving effect to subsequent changes in value); provided, however, that if any Restricted Payment pursuant to this clause (10) consists of an Investment made in any Person that is not a Restricted Subsidiary of the Issuer at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) of the definition of “Permitted Investments” and shall cease to have been made pursuant to this clause (10);
(11) any Restricted Payment on or after the Issue Date made in connection with or in order to consummate the Transactions and the fees and expenses related thereto or used to fund amounts owed in connection with the Transactions;
(12) the repurchase, redemption, defeasance, acquisition, retirement or discharge of any Junior Lien Indebtedness, Unsecured Indebtedness or Subordinated Indebtedness, Disqualified Stock or Preferred Stock (i) in accordance with the provisions similar to those set forth in Section 4.10 and Section 4.14, or (ii) after completion of an Asset Sale Offer, from any remaining Excess Proceeds (assuming such Excess Proceeds were not reset at zero upon completion of an Asset Sale Offer); provided that (x) at or prior to such repurchase, redemption, defeasance, acquisition, retirement or discharge, a Change of Control Offer or Asset Sale Offer, as the case may be, with respect to the Notes to the extent required as a result of such Change of Control Triggering Event or Asset Sale, as the case may be, has been made and (y) all Notes required to be repurchased, redeemed, defeased, acquired, retired or discharged in connection with the relevant Change of Control Offer or Asset Sale Offer, as applicable, have been so repurchased, redeemed, defeased, acquired, retired or discharged;
(13) the declaration and payment of dividends or distributions by the Issuer to, or the making of loans to, any Parent Entity in amounts required for any Parent Entity to pay or cause to be paid, in each case without duplication,
(a) franchise, excise and similar taxes and other fees, taxes and expenses, in each case, required to maintain their corporate or other legal existence;
(b) for any taxable period for which the Issuer and/or any of its Subsidiaries are members of a consolidated, combined or unitary tax group for U.S. federal and/or applicable state, local or foreign income tax purposes of which a direct or indirect parent of the Issuer is the common parent (a “Tax Group”), the portion of any U.S. federal, state, local or foreign taxes (as applicable) of such Tax Group for such taxable period that are attributable to the income of the Issuer and/or its Subsidiaries; provided that Restricted Payments made pursuant to this clause (13)(b) of Section 4.07(b) shall not exceed the tax liability that the Issuer and/or its Subsidiaries (as applicable) would have incurred were such taxes determined as if such entity(ies) were a stand-alone taxpayer or stand-alone group;
(c) customary salary, incentive compensation, bonus, severance and other benefits payable to, and indemnities provided on behalf of, future, current or former officers, employees, directors, managers, independent contractors and consultants of any Parent Entity to the extent such salaries, bonuses, severance and other benefits and indemnities are attributable to the ownership or operation of the Issuer and its Restricted Subsidiaries, including (without limitation) the Issuer’s or its Restricted Subsidiaries’ proportionate share of such amount relating to such Parent Entity being a public company;
96
(d) general corporate, operating, overhead, management costs and expenses and other costs and expenses (including, without limitation, expenses related to the maintenance of corporate or other existence, auditing or other accounting or tax reporting matters), listing fees, other costs and expenses attributable to being a public company of the Issuer, and other fees, costs and expenditures related to the foregoing that are attributable to the ownership or operation of the Issuer and its Restricted Subsidiaries by such Parent Entity (including such attributable amounts payable in respect of such Parent Entity’s lease for its corporate headquarters);
(e) fees and expenses related to any equity or debt offering, financing transaction, acquisitions, divestitures, investments or other non-ordinary course transaction (whether or not successful or abandoned) of such Parent Entity on or after the Issue Date; provided that any such transaction was intended to be for the benefit of the Issuer and its Restricted Subsidiaries;
(f) amounts (including fees and expenses) that would otherwise be permitted to be paid directly by the Issuer pursuant to Section 4.11 (except transactions described in clause (2) of Section 4.11(b));
(g) cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Issuer or any Parent Entity;
(h) any Restricted Payments permitted by clause (4) or (11) of this Section 4.07(b); and
(i) any Investment that would otherwise be permitted to be made pursuant to this Section 4.07 if made by the Issuer or any Restricted Subsidiary; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment, (B) such Parent Entity shall cause (1) all property acquired (whether assets or Equity Interests but not including any loans or advances made pursuant to clause (15) or (16) of the definition of “Permitted Investments”) to be contributed to the capital of the Issuer or one of its Restricted Subsidiaries (which contribution shall not be designated as an Excluded Contribution) or (2) the Person formed or acquired to merge into, or amalgamate or consolidate with, the Issuer or one of its Restricted Subsidiaries (to the extent not prohibited by Section 5.01) in order to consummate such Investment, (C) to the extent constituting an Investment, such Investment shall be deemed to have been made by the Issuer or such Restricted Subsidiary in a manner permitted or not prohibited by this Indenture and (D) any property received by the Issuer or a Restricted Subsidiary in excess thereof shall not increase amounts available for Restricted Payments pursuant to clause (3) of Section 4.07(a);
(14) the repurchase, redemption, or other acquisition of Equity Interests of the Issuer or any Restricted Subsidiary deemed to occur in connection with paying cash in lieu of fractional shares of such Equity Interests in connection with a share dividend, distribution, share split, reverse share split, merger, consolidation, amalgamation or other business combination of the Issuer or any Restricted Subsidiary, in each case, permitted or not prohibited by this Indenture;
97
(15) [reserved];
(16) any other Restricted Payment; provided that, on the date of such Restricted Payment on a pro forma basis after giving effect to such Restricted Payment and the incurrence of any Indebtedness the proceeds of which are used to make such Restricted Payment, the Consolidated First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period would be equal to or less than (a) in the case where such other Restricted Payment is a Restricted Payment described in clause (I) or (II) of the definition thereof, 3.00 to 1.0 and (b) in the case where such other Restricted Payment is a Restricted Payment described in clause (III) of the definition thereof, 3.25 to 1.0; provided that any Restricted Payment under this clause (16) may not be made in connection with or in furtherance of a Priming Financing/Liability Management Transaction;
(17) payments or distributions to satisfy dissenters’ or appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, pursuant to or in connection with a consolidation, amalgamation, merger or transfer of assets that complies with Section 5.01;
(18) distributions or payments of Receivables Fees and purchases of receivables in connection with any Permitted Receivables Financing or any repurchase obligation in connection therewith;
(19) [reserved];
(20) mandatory redemptions of Disqualified Stock;
(21) to the extent constituting Restricted Payments, the acquisition of Equity Interests held by joint venture partners pursuant to put and call or similar arrangements under any joint venture or similar agreement;
(22) payments, distributions or other Restricted Payments made in connection with transactions among the Issuer and any of its Restricted Subsidiaries, on the one hand, and Parent and any of its direct or indirect Subsidiaries and/or any joint venture partners, customers and/or clients, on the other hand, entered into in the ordinary course of business or consistent with industry or past practice, including, without limitation, any cash management and treasury activities and any shared services, offices or facilities, including back office, accounting, books and record-keeping or similar functions, and shared production or other facilities, branch offices and other shared spaces and licensing or similar arrangements related thereto;
(23) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of obligations under the 5.125% Senior Unsecured Notes, including any Restricted Payment deemed to occur upon the refinancing of such 5.125% Senior Unsecured Notes permitted under Section 4.09;
(24) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of obligations under (i) the Junior Lien Term Loan Facilities or (ii) the 4.125% Unsecured Notes, in each case, to the extent such Restricted Payments are financed with or exchanged for Refinancing Indebtedness permitted under clause (13) of Section 4.09(b);
98
(25) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of obligations under the Junior Lien Term Loan Facilities, for consideration not to exceed, in the aggregate, $100.0 million;
(26) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of obligations under (i) Junior Lien Indebtedness or (ii) Unsecured Indebtedness in an aggregate principal amount not to exceed the sum of (x) any Excluded Contribution and (y) any net cash proceeds from the issuance of Junior Lien Indebtedness or Unsecured Indebtedness received by the Issuer after the Issue Date; provided that such Excluded Contributions and net cash proceeds shall not increase the amount available for Restricted Payments pursuant to clause (3) of Section 4.07(a);
(27) to the extent constituting Restricted Payments, Permitted Junior Lien Revolving Facility Refinancings;
(28) [reserved]; and
(29) payments of cash dividends to Parent in connection with the payment of cash dividends on Sinclair’s shares of common stock in the aggregate amount per fiscal quarter not to exceed $0.25 (or $0.30 if at the time that Sinclair makes such cash dividends, on a pro forma basis after giving effect to the making thereof and the incurrence of any Indebtedness the proceeds of which are used to make such cash dividends, the Consolidated First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period would be equal to or less than 3.25 to 1.0) per share for each share of common stock of Sinclair outstanding as of the one record date for dividends payable in respect of such fiscal quarter (as such amount shall be appropriately adjusted for any stock splits, stock dividends, reverse stock splits, stock consolidations and similar transactions); provided, that the amount of such cash dividends that may be made pursuant to this clause (29) shall be reduced by the amount of Restricted Payments made to pay for the repurchase, redemption, retirement or other acquisition of any Equity Interests in such fiscal quarter pursuant to clause (4)(d) of this Section 4.07(b);
provided, however, that at the time of, and after giving effect to, any Restricted Payment permitted under clauses (10) and (16) of this Section 4.07(b), no Event of Default under clause (1), (2), (6) or (7) of Section 6.01(a) shall have occurred and be continuing or would occur as a consequence thereof.
(c) For purposes of determining compliance with this Section 4.07, in the event that a Restricted Payment or Permitted Investment (or a portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in clauses (1) through (29) of Section 4.07(b) and/or is entitled to be made pursuant to Section 4.07(a) and/or one or more of the clauses contained in the definition of “Permitted Investments”, the Issuer will be entitled to divide or classify (or later divide, classify or reclassify in whole or in part in its sole discretion) such Restricted Payment or Investment (or a portion thereof) among such clauses (1) through (29) (other than clause (16)) of Section 4.07(b) and/or Section 4.07(a) and/or one or more of the clauses contained in the definition of “Permitted Investments” (other than clause (28) of the definition thereof) in a manner that otherwise complies with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the assets or securities proposed to be transferred or issued by the Issuer or any Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
99
(d) As of the Issue Date, all of the Issuer’s Subsidiaries will be Restricted Subsidiaries, other than ONE Media Technologies, LLC, HealthyBest, LLC, Circa, LLC, Highwoods Joint Venture, Holdco RCC, LLC, Holdco RCK, LLC and Heartland Tower Company, LLC. The Issuer shall not permit any Unrestricted Subsidiary to become a Restricted Subsidiary except pursuant to the second to last paragraph of the definition of “Unrestricted Subsidiary.” For purposes of designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the Issuer and its Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so designated shall be deemed to be Restricted Payments or Permitted Investments in an amount determined as set forth in clause (1) of the second paragraph of the definition of “Investments.” Such designation shall be permitted only if a Restricted Payment or Permitted Investment in such amount would be permitted at such time, pursuant to this Section 4.07 or pursuant to the definition of “Permitted Investments”, and if such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(e) Notwithstanding anything to the contrary in this Indenture:
(1) in no event shall any Persons that are not the Issuer or any Guarantor hold Material Intellectual Property or Material FCC Licenses or any other assets owned by the Issuer or any such Guarantor that are, in the reasonable, good faith determination of the Issuer, material to the business operations, assets, financial condition or prospects of the Issuer and its Restricted Subsidiaries, taken as a whole (collectively, “Covered Assets”), and in no event shall Issuer or any of its Restricted Subsidiaries sell, transfer or otherwise dispose of any Covered Assets (in each case, whether pursuant to a sale, lease, license, transfer, Investment, Restricted Payment, dividend or otherwise or relating to the exclusive rights thereto) to any Person that is neither a Guarantor nor the Issuer; provided, however, that in no event shall this clause (a) prohibit the Issuer or any Guarantor from (i) selling, transferring or otherwise disposing any Covered Assets in connection with (A) a bona-fide sale for cash or Cash Equivalents to an unaffiliated third party or (B) a bona-fide joint venture with an unaffiliated third party in the ordinary course of business, in each case, to the extent not otherwise prohibited by this Indenture, (ii) entering into non-exclusive licensing arrangements or (iii) selling, transferring or otherwise disposing of accounts receivable and related accounts receivable collections, proceeds, records and other similar assets (or interests therein) sold to any Receivables Subsidiary or otherwise pledged, factored, transferred or sold in connection with any Permitted Receivables Financing that is otherwise permitted by this Indenture; and
(2) the Issuer shall not permit any of its Unrestricted Subsidiaries to make any dividend or other distribution declared or paid on any Capital Stock of such Unrestricted Subsidiary on a greater than pro rata basis to any holder of the Capital Stock of such Unrestricted Subsidiary (other than to the extent any of the Issuer or any of its Restricted Subsidiaries receives a greater than pro rata share of such dividend or other distribution).
(f) For the avoidance of doubt, this Section 4.07 shall not restrict the making of any “AHYDO catch up payment” with respect to, and required by the terms of, any Indebtedness of the Issuer or any of its Restricted Subsidiaries permitted to be incurred under the terms of this Indenture.
SECTION 4.08. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.
(a) From and after the Issue Date, the Issuer shall not, and shall not permit any of its Restricted Subsidiaries that is not a Subsidiary Guarantor to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Subsidiary Guarantor to:
100
(1) (A) pay dividends or make any other distributions to the Issuer or any of its Restricted Subsidiaries on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or (B) pay any Indebtedness owed to the Issuer or any Guarantor;
(2) make loans or advances to the Issuer or any Guarantor; or
(3) sell, lease or transfer any of its properties or assets to the Issuer or a Guarantor.
(b) The restrictions in Section 4.08(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Issue Date, including pursuant to any of the Senior Credit Facilities, the Exchange Second-Out First Lien Notes, the New Second Lien Notes, the Existing Notes and, in each case, related documentation and related Hedging Obligations;
(2) this Indenture, the Notes, the Note Guarantees and the Security Documents;
(3) Purchase Money Obligations for property acquired in the ordinary course of business or consistent with industry or past practice, and Financing Lease Obligations that at the relevant time otherwise would not be permitted by clause (3) of Section 4.08(a) on the property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(5) (i) any agreement, arrangement, Indebtedness or Capital Stock of any Person or its affiliates that is acquired by or merged, consolidated or amalgamated with or into any of the Issuer or any Restricted Subsidiary that applies to such Person or its affiliates or any assets acquired in any such acquisition, merger, consolidation or amalgamation or acquisition of assets in existence at the time thereof, or assumed in connection therewith (unless and to the extent created in contemplation thereof), which encumbrance or restriction is not applicable to the Issuer or any of its Restricted Subsidiaries or its properties or assets, other than any such Person or its affiliates or such assets, or any Unrestricted Subsidiary; and (ii) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger, amalgamation or consolidation of an Unrestricted Subsidiary into the Issuer or a Restricted Subsidiary or the transfer of all, substantially all or any of the assets of an Unrestricted Subsidiary to the Issuer or a Restricted Subsidiary, any such encumbrance or restriction existing or assumed (unless and to the extent created in contemplation thereof);
(6) contracts, including sale-leaseback agreements, for the sale or disposition of assets, including customary restrictions with respect to a Subsidiary of the Issuer pursuant to an agreement that has been entered into for the sale or disposition of Capital Stock or assets of such Subsidiary;
(7) Secured Indebtedness permitted to be incurred pursuant to Section 4.09 and Section 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash, Cash Equivalents or other deposits under contracts or customary net worth provisions contained in real property leases, in each case, entered into in the ordinary course of business or consistent with industry or past practice and restrictions on cash, Cash Equivalents or other deposits permitted under Section 4.12 or arising in connection with any Permitted Liens;
101
(9) other Indebtedness, Disqualified Stock or Preferred Stock of Restricted Subsidiaries that are not Guarantors permitted to be incurred or issued subsequent to the Issue Date pursuant to the provisions of Section 4.09;
(10) provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to such joint venture;
(11) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course or consistent with industry or past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary party thereto, the payment rights arising thereunder or the proceeds thereof;
(12) any encumbrance or restriction with respect to any Unrestricted Subsidiary or any of its affiliates or their respective properties or assets that existed before the date that such Subsidiary became a Restricted Subsidiary if such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary unless and to the extent otherwise permitted by this Indenture;
(13) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Issue Date pursuant to Section 4.09; if (A) in the judgment of the Issuer, such incurrence will not materially impair the Issuer’s ability to make payments on the Notes when due, (B) the encumbrances and restrictions in such Indebtedness, Disqualified Stock or Preferred Stock otherwise not permitted by this Indenture apply only so long as a default in respect of a payment or financial maintenance covenant relating to such Indebtedness, Disqualified Stock or Preferred Stock is not cured or waived or (C) the encumbrances and restrictions in such Indebtedness, Disqualified Stock or Preferred Stock either are not materially more restrictive, taken as a whole, than those contained in this Article 4 or are not materially more disadvantageous, taken as a whole, to the Holders than is ordinary or customary at the time and under the circumstances for financings for similarly situated borrowers or issuers or available to the Issuer and its Subsidiaries (as determined by the Issuer);
(14) restrictions contained in any documentation relating to, or otherwise required or necessary to consummate, any Permitted Receivables Financing;
(15) customary provisions in leases, subleases, licenses, sublicenses and other contracts restricting the assignment or other transfer thereof (or the assets subject thereto), including with respect to intellectual property; and
(16) any encumbrances and restrictions of the type referred to in clauses (1), (2) and (3) of Section 4.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (15) of this Section 4.08(b) if such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the judgment of the Issuer, not materially more restrictive with respect to such encumbrances and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing or are not materially more disadvantageous, taken as a whole, to the Holders than is ordinary or customary at the time and under the circumstances for financings for similarly situated borrowers or issuers or available to the Issuer and its Subsidiaries (as determined by the Issuer).
102
(c) For purposes of determining compliance with this Section 4.08, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (2) the subordination of loans and advances made to the Issuer or a Restricted Subsidiary to other Indebtedness incurred by the Issuer or such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
SECTION 4.09. Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock.
(a) From and after the Issue Date, the Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness), and the Issuer shall not issue any shares of Disqualified Stock and shall not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or Preferred Stock; provided, however, that the Issuer may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock, and any of its Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness), and issue shares of Disqualified Stock or Preferred Stock, if either (i) the Fixed Charge Coverage Ratio of the Issuer for the Applicable Measurement Period would have been at least 2.0 to 1.0 or (ii) the Consolidated Total Debt Ratio of the Issuer for the Applicable Measurement Period would have been equal to or less than 7.0 to 1.0, in each case, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock or Preferred Stock had been issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of the Applicable Measurement Period; provided further, that Restricted Subsidiaries that are not Guarantors may incur Indebtedness or issue Disqualified Stock or Preferred Stock if, after giving pro forma effect to such incurrence or issuance (including a pro forma application of the net proceeds therefrom), no more than an aggregate of the greater of (x) $115.0 million and (y) 12.5% of Consolidated EBITDA of the Issuer for the Applicable Measurement Period of Indebtedness or Disqualified Stock or Preferred Stock of Restricted Subsidiaries that are not Guarantors incurred pursuant to this Section 4.09(a), together with amounts incurred under subclause (c) of clause (14) of Section 4.09(b) by Restricted Subsidiaries that are not Guarantors, would be outstanding at such time.
(b) The provisions of Section 4.09(a) shall not apply to:
(1) Indebtedness owed and outstanding by the Issuer or any of the Subsidiary Guarantors and the issuance and creation of letters of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the face amount thereof) consisting of:
(a) the Notes and any other First-Out Indebtedness (including any Additional Notes issued after the Issue Date) in an aggregate principal amount not to exceed the greater of (x) up to $1,430.0 million (which amount shall not be reborrowed after repayment and shall be reduced by the amount of any mandatory prepayments and voluntary permanent prepayments of principal thereof (other than in connection with any refinancing thereof)) and (y) such other aggregate principal amount so long as the Consolidated First-Out First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period (determined on a pro forma basis) would be equal to or less than 2.00 to 1.0;
103
(b) up to the greater of (x) $650.0 million and (y) 75.0% of Consolidated EBITDA of the Issuer for the Applicable Measurement Period of aggregate outstanding principal amount of First-Out Senior Credit Facilities Revolving Indebtedness (which amount shall be reduced by the amount of any permanent reduction of the commitments in respect thereof resulting from or accompanying any mandatory prepayments and voluntary permanent prepayments of principal thereof (other than in connection with any refinancing thereof)); provided that, notwithstanding anything to the contrary herein, any Indebtedness incurred in the form of Permitted Junior Lien Revolving Facility Refinancings and shall be incurred solely in reliance on this subclause (b);
(c) Second-Out Indebtedness in an aggregate outstanding principal amount of up to (I) the greater of (x) the aggregate outstanding principal amount of Second-Out Senior Credit Facilities Indebtedness issued or incurred as of the Issue Date and (y) such other aggregate principal amount so long as the Consolidated First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period (determined on a pro forma basis) would be equal to or less than 4.25 to 1.0, plus (II) an amount equal to the then outstanding principal amount of the 5.125% Senior Unsecured Notes at the time of incurrence of Indebtedness (solely to the extent the proceeds of such Indebtedness are used to refinance an equal or greater principal amount of 5.125% Senior Unsecured Notes) using the capacity under this clause (c)(II); and
(d) Junior Lien Indebtedness in an aggregate outstanding principal amount so long as the Consolidated Secured Debt Ratio of the Issuer for the Applicable Measurement Period (determined on a pro forma basis) would be equal to or less than 5.00 to 1.0;
provided that (A) any Indebtedness incurred pursuant to subclauses (a), (b) and (c) above shall be treated as First Lien Obligations in all calculations of the Consolidated First Lien Secured Debt Ratio and the Consolidated Secured Debt Ratio, and (B) any Indebtedness incurred pursuant to subclause (d) above shall be treated as being secured by a Lien on the Collateral in all calculations of the Consolidated Secured Debt Ratio;
(2) [reserved];
(3) (a) Indebtedness, Disqualified Stock and Preferred Stock (other than Indebtedness described in clause (1) above and clauses (b) and (c) below) of the Issuer and its Restricted Subsidiaries (a) in existence on, and in an amount not to exceed the amount outstanding on, the Issue Date, including the Existing Notes and any guarantees with respect thereto and the Junior Lien Term Loan Facilities and any guarantees with respect thereto, (b) (i) the Exchange Second-Out First Lien Notes, including any guarantees thereof, issued on the Issue Date (excluding, for the avoidance of doubt, any additional Exchange Second-Out First Lien Notes, including any guarantees thereof, issued upon final settlement of the Exchange Offer) and (ii) any additional Exchange Second-Out First Lien Notes, including any guarantees thereof, issued upon final settlement of the Exchange Offer after the Issue Date and (c) (i) the New Second Lien Notes, including any guarantees thereof, issued on the Issue Date (excluding, for the avoidance of doubt, any additional New Second Lien Notes, including any guarantees thereof, issued upon final settlement of the Private Exchanges after the Issue Date) and (ii) any additional New Second Lien Notes, including any guarantees thereof, issued upon final settlement of the Private Exchanges after the Issue Date;
104
(4) (a) Indebtedness (including Financing Lease Obligations and Purchase Money Obligations), Disqualified Stock and Preferred Stock incurred or issued by the Issuer or any of its Restricted Subsidiaries, to finance the purchase, lease, expansion, construction, development, replacement, maintenance, upgrade, installation, replacement, repair or improvement of property (real or personal), equipment or any other asset, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets, so long as such Indebtedness exists at the date of such purchase, lease or improvement or is created within 12 months thereafter, (b) Indebtedness in the form of Financing Lease Obligations arising out of any Sale and Lease-Back Transactions and (c) Subordinated Film Indebtedness of the Issuer and its Restricted Subsidiaries, if the aggregate amount of Indebtedness, Disqualified Stock and Preferred Stock outstanding under this clause (4), when aggregated with all Indebtedness outstanding under clause (13) of this Section 4.09(b) incurred to refinance such Indebtedness, does not at the time of any incurrence under this clause (4) exceed $150.0 million; provided, that such Indebtedness, Disqualified Stock and Preferred Stock is incurred for such bona fide business purposes and not in connection with or in furtherance of any Priming Financing/Liability Management Transaction; provided further, however, that any Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to this clause (4) shall, at the Issuer’s election, cease to be deemed incurred or outstanding for purposes of this clause (4) but shall be deemed incurred pursuant to Section 4.09(a) from and after the first date on which the Issuer or such Restricted Subsidiary could have incurred or issued such Indebtedness, Disqualified Stock or Preferred Stock under Section 4.09(a) without reliance on this clause (4);
(5) (a) Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit, bankers’ acceptances, bank guarantees, warehouse receipts or similar instruments issued or entered into, or relating to obligations or liabilities incurred, in the ordinary course of business or consistent with industry or past practice, including letters of credit in favor of suppliers or trade creditors or in respect of workers’ compensation claims, performance, completion or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to obligations regarding workers’ compensation claims, performance, completion or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance and (b) Indebtedness of the Issuer or any of its Restricted Subsidiaries as an account party in respect of letters of credit, bank guarantees or similar instruments in favor of suppliers, customers or other creditors issued in the ordinary course of business or consistent with industry or past practice if the aggregate amount outstanding under this subclause (b) of this clause (5), when aggregated with all Indebtedness outstanding under clause (13) of this Section 4.09(b) incurred to refinance such Indebtedness, does not exceed on a pro forma basis at the time of incurrence of such Indebtedness the greater of (x) $100.0 million and (y) 14.5% of Consolidated EBITDA of the Issuer for the Applicable Measurement Period, except that any Indebtedness incurred pursuant to this clause (5) shall, at the Issuer’s election, cease to be deemed incurred or outstanding for purposes of this clause (5) but shall be deemed incurred pursuant to Section 4.09(a) from and after the first date on which the Issuer or such Restricted Subsidiary could have incurred or issued such Indebtedness under Section 4.09(a) without reliance on this clause (5);
(6) Indebtedness arising from agreements of the Issuer or any of its Restricted Subsidiaries providing for indemnification, adjustment of purchase price, earn out or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary or Investment, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
105
(7) Indebtedness, Disqualified Stock and Preferred Stock of the Issuer owing to a Restricted Subsidiary; provided that any such Indebtedness, Disqualified Stock and Preferred Stock owing to a Restricted Subsidiary that is not the Issuer or a Subsidiary Guarantor, excluding any Indebtedness, Disqualified Stock and Preferred Stock in respect of accounts payable incurred in connection with goods and services rendered in the ordinary course of business or consistent with industry or past practice (and not in connection with the borrowing of money), is expressly subordinated in right of payment (but only to the extent permitted by applicable law and does not result in material adverse tax consequences as determined by the Issuer) to the Notes; provided further, that if any such Restricted Subsidiary ceases to be a Restricted Subsidiary or any such Indebtedness, Disqualified Stock and Preferred Stock is not held by a Restricted Subsidiary, thereupon the then outstanding principal amount of such Indebtedness, Disqualified Stock and Preferred Stock shall no longer be permitted by this clause (7);
(8) Indebtedness of a Restricted Subsidiary owing to the Issuer or another Restricted Subsidiary; provided that if the Issuer or a Subsidiary Guarantor incurs such Indebtedness owing to a Restricted Subsidiary that is neither the Issuer nor a Subsidiary Guarantor, excluding any Indebtedness in respect of accounts payable incurred in connection with goods and services rendered in the ordinary course of business or consistent with past practice (and not in connection with the borrowing of money), such Indebtedness is expressly subordinated in right of payment (but only to the extent permitted by applicable law and does not result in material adverse tax consequences as determined by the Issuer) to the Notes or the Note Guarantee of the Notes of such Guarantor; provided further, that if any such Restricted Subsidiary ceases to be a Restricted Subsidiary or any such Indebtedness is not owned by the Issuer or another Restricted Subsidiary, thereupon the then outstanding principal amount of such Indebtedness shall no longer be permitted by this clause (8);
(9) shares of Preferred Stock or Disqualified Stock of a Restricted Subsidiary issued to the Issuer or another Restricted Subsidiary; provided that if any such Restricted Subsidiary ceases to be a Restricted Subsidiary or any such Preferred Stock or Disqualified Stock is not held by the Issuer or another Restricted Subsidiary, thereupon the then outstanding amount of such capital stock shall no longer be permitted by this clause (9);
(10) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes);
(11) obligations in respect of self-insurance and obligations in respect of stays, customs, performance, indemnity, bid, appeal, judgment, surety and other similar bonds or instruments and performance, bankers’ acceptance facilities and completion guarantees and similar obligations provided by the Issuer or any of its Restricted Subsidiaries or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business or consistent with industry or past practice;
(12) (a) Indebtedness that is Junior Lien Indebtedness or unsecured Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or any of the Guarantors in an aggregate principal amount or liquidation preference then outstanding under this subclause (a) of this clause (12) of up to 100.0% of the net cash proceeds received by the Issuer since immediately after the Issue Date from the issue or sale of Equity Interests of the Issuer or cash contributed to the capital
106
of the Issuer and (b) Indebtedness that is Second-Out Indebtedness, Junior Lien Indebtedness or unsecured Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or any of its Restricted Subsidiaries if the aggregate principal amount or liquidation preference outstanding Indebtedness under this subclause (b) of this clause (12), when aggregated with and all outstanding Indebtedness under clause (13) of this Section 4.09(b) incurred to refinance such Indebtedness outstanding under this subclause (b) of this clause (12), does not exceed at the time of such incurrence or issuance the greater of (x) $150.0 million and (y) 25% of Consolidated EBITDA of the Issuer for the Applicable Measurement Period; provided that (I) no such Indebtedness, Disqualified Stock or Preferred Stock may be incurred under this clause (12) in connection with or in furtherance of any Priming Financing/Liability Management Transaction; (II) subclause (a) of this clause (12) shall not include Excluded Contributions or proceeds of Disqualified Stock or sales of Equity Interests to the Issuer or any of its Subsidiaries as determined in accordance with clauses (3)(b) and (3)(c) of Section 4.07(a) to the extent such proceeds have been applied pursuant to such clauses to make Restricted Payments or to make other Investments, payments or exchanges pursuant to Section 4.07(b) or to make Permitted Investments (other than Permitted Investments specified in clauses (1), (2) and (3) of the definition thereof) and (III) any Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to subclause (b) of this clause (12) shall, at the election of the Issuer, cease to be deemed incurred or outstanding for purposes of subclause (b) of this clause (12) but shall be deemed incurred pursuant to Section 4.09(a) from and after the first date on which the Issuer or such Restricted Subsidiary could have incurred or issued such Indebtedness, Disqualified Stock or Preferred Stock under Section 4.09(a) without reliance on subclause (b) of this clause (12);
(13) the incurrence or issuance by the Issuer or any of its Restricted Subsidiaries of Indebtedness, Disqualified Stock or Preferred Stock which serves to refund, refinance, replace, renew, extend or defease (collectively, “refinance” with “refinances”, “refinanced” and “refinancing” having a correlative meaning) any Indebtedness, Disqualified Stock or Preferred Stock incurred or issued as permitted under Section 4.09(a) and clauses (2), (3), (4), (5)(b) and (12) of this Section 4.09(b), this clause (13) and clauses (14), (19) and (28) of this Section 4.09(b) or any Indebtedness, Disqualified Stock or Preferred Stock incurred or issued to so refinance such Indebtedness, Disqualified Stock or Preferred Stock, including additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay accrued but unpaid interest, dividends, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including upfront fees, original issue discount (in lieu of customary upfront fees) or similar fees) in connection with such refinancing (the “Refinancing Indebtedness”) on or prior to its respective maturity; provided, however, that such Refinancing Indebtedness:
(A) has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is incurred which is not less than the remaining Weighted Average Life to Maturity of the Indebtedness, Disqualified Stock or Preferred Stock being refinanced (or requires no or nominal payments in cash (other than interest payments) prior to the date that is 91 days after the maturity date of the Notes);
(B) to the extent such Refinancing Indebtedness refinances (i) Subordinated Indebtedness, such Refinancing Indebtedness is subordinated in right of payment to the Notes or the applicable Note Guarantee at least to the same extent as the Indebtedness being refinanced and also complies with the terms of the immediately succeeding clause (ii), (ii) Unsecured Indebtedness, such Refinancing Indebtedness shall constitute Unsecured Indebtedness or Junior Lien Indebtedness or (iii) Disqualified Stock or Preferred Stock, such Refinancing Indebtedness is Disqualified Stock or Preferred Stock for Disqualified Stock, or Preferred Stock for Preferred Stock;
107
(C) shall not include:
(i) Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary of the Issuer that is not a Guarantor that refinances Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or a Guarantor; or
(ii) Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or a Restricted Subsidiary of the Issuer that refinances Indebtedness, Disqualified Stock or Preferred Stock of an Unrestricted Subsidiary; and
(D) to the extent such Refinancing Indebtedness refinances Secured Indebtedness, (i) the Liens securing such Refinancing Indebtedness have a Lien priority equal or junior to the Liens securing the Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased, or such Refinancing Indebtedness is unsecured Indebtedness and (ii) such Refinancing Indebtedness shall not be secured by a Lien on any asset or property that did not secure the Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased; provided, however, that if such Secured Indebtedness is Junior Lien Indebtedness, such clause (i) and (ii) shall not apply so long as such Refinancing Indebtedness constitutes Junior Lien Indebtedness (which, for the avoidance of doubt, shall be subject to the First/Second/Third Lien Intercreditor Agreement and not be secured by any assets not constituting Collateral) or Unsecured Indebtedness;
provided further, however, that notwithstanding anything contrary in the foregoing, (x) Refinancing Indebtedness in respect of any Junior Lien Term Loan Facilities that is incurred within 15 months before the applicable final maturity of such Junior Lien Term Loan Facilities may constitute Second-Out Indebtedness, so long as the Consolidated First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period (determined on a pro forma basis) would be equal to or less than 4.00 to 1.0 and (y) notwithstanding anything to the contrary in the immediately preceding clause (x) or otherwise herein, Existing Secured Notes incurred under clause (3)(a) of this Section 4.09(b) may be refinanced with (A) Exchange Second-Out First Lien Notes to be issued upon final settlement of the Exchange Offer after the Issue Date in accordance with clause (3)(b) of this Section 4.09(b) and (B) New Second Lien Notes to be issued upon final settlement of the Private Exchanges after the Issue Date in accordance with clause (3)(c) of this Section 4.09(b);
(14) Indebtedness (other than First-Out Indebtedness), Disqualified Stock or Preferred Stock of (x) the Issuer or a Restricted Subsidiary incurred or issued to finance an acquisition or Investment, (y) any Person that is acquired by or merged or consolidated with or into the Issuer or a Restricted Subsidiary, or (z) any Unrestricted Subsidiary which becomes a Restricted Subsidiary; provided that after giving pro forma effect thereto, in the case of:
(a) the incurrence of any such Indebtedness that is Second-Out Indebtedness by (i) the Issuer or any Subsidiary Guarantor, (ii) any Person that is acquired by or merged or consolidated with or into the Issuer or a Subsidiary Guarantor, or (iii) any Unrestricted Subsidiary which becomes a Subsidiary Guarantor, either (A) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Consolidated First Lien Secured Debt Ratio test set forth in clause (1)(c) of this Section 4.09(b) or (B) the Consolidated First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period is no more than such ratio immediately prior to such event;
108
(b) the incurrence of any such Indebtedness that is Junior Lien Indebtedness by (i) the Issuer or any Subsidiary Guarantor, (ii) any Person that is acquired by or merged or consolidated with or into the Issuer or a Subsidiary Guarantor, or (iii) any Unrestricted Subsidiary which becomes a Subsidiary Guarantor, either (A) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Secured Debt Ratio test set forth in clause (1)(d) of this Section 4.09(b) or (B) the Consolidated Secured Debt Ratio of the Issuer for the Applicable Measurement Period is no more than such ratio immediately prior to such event; and
(c) (i) the incurrence of any such Indebtedness that is unsecured Indebtedness by (A) the Issuer or any Restricted Subsidiary, (B) any Person that is acquired by or merged or consolidated with or into the Issuer or a Restricted Subsidiary, or (C) any Unrestricted Subsidiary which becomes a Restricted Subsidiary, (ii) the issuance of any such Disqualified Stock by the Issuer or (iii) the issuance of any such Disqualified Stock or Preferred Stock by (A) any Restricted Subsidiary, (B) any Person that is acquired by or merged or consolidated with or into the Issuer or a Restricted Subsidiary, or (C) any Unrestricted Subsidiary which becomes a Restricted Subsidiary, either (I) (aa) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in clause (i) of Section 4.09(a) or (bb) the Fixed Charge Coverage Ratio of the Issuer for the Applicable Measurement Period is at least equal to such ratio immediately prior to such event; or (II) (aa) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Total Debt Ratio test set forth in clause (ii) of Section 4.09(a) or (bb) the Consolidated Total Debt Ratio of the Issuer for the Applicable Measurement Period is no more than such ratio immediately prior to such event;
provided, however, that on a pro forma basis, the Indebtedness, Disqualified Stock or Preferred Stock incurred or issued by Restricted Subsidiaries that are not Subsidiary Guarantors outstanding under subclause (c) of this clause (14), together with amounts incurred and outstanding pursuant to the second proviso to Section 4.09(a) by Restricted Subsidiaries that are not Guarantors, when aggregated with all outstanding Indebtedness under clause (13) of this Section 4.09(b) incurred to refinance such Indebtedness, shall not exceed, at the time of such incurrence or issuance, the greater of (x) $115.0 million and (y) 12.5% of Consolidated EBITDA of the Issuer for the Applicable Measurement Period;
(15) (a) Cash Management Obligations and (b) Indebtedness in respect of netting services, overdraft protections and similar arrangements and other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds (including Indebtedness owed on a short term basis of no longer than 30 days to banks and other financial institutions incurred in the ordinary course of business or consistent with past practice of the Issuer and its Restricted Subsidiaries with such banks or financial institutions that arises in connection with ordinary banking arrangements to manage cash balances of the Issuer and its Restricted Subsidiaries);
(16) Indebtedness of the Issuer or any of its Restricted Subsidiaries supported by a letter of credit issued pursuant to a Credit Facility permitted under clause (1) of this Section 4.09(b), in a principal amount not in excess of the face amount of such letter of credit, bank guarantee or such other instrument;
109
(17) any guarantee or co-issuance by the Issuer or any Restricted Subsidiary of Indebtedness or other obligations of the Issuer or any Restricted Subsidiary if the incurrence of such Indebtedness incurred by the Issuer or such Restricted Subsidiary is permitted or not prohibited by this Indenture;
(18) [reserved];
(19) Indebtedness (other than First-Out Indebtedness), Disqualified Stock or Preferred Stock of the Issuer or any of its Restricted Subsidiaries incurred to finance or assumed in connection with an acquisition or Investment in an aggregate amount outstanding under this clause (19), when aggregated with all Indebtedness outstanding under clause (13) of this Section 4.09(b) incurred to refinance such Indebtedness, Disqualified Stock or Preferred Stock, not to exceed, at the time of incurrence of such Indebtedness or issuance of Disqualified Stock or Preferred Stock, $25.0 million, except that any Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to this clause (19) shall, at the election of the Issuer, cease to be deemed incurred or outstanding for purposes of this clause (19) but shall be deemed incurred pursuant to Section 4.09(a) from and after the first date on which the Issuer or such Restricted Subsidiary could have incurred such Indebtedness or issued such Disqualified Stock or Preferred Stock under Section 4.09(a) without reliance on this clause (19);
(20) Indebtedness of the Issuer or any of its Restricted Subsidiaries consisting of (a) the financing of insurance premiums or (b) take-or-pay obligations contained in supply arrangements, in each case, incurred in the ordinary course of business or consistent with past practice;
(21) Indebtedness consisting of Indebtedness issued by the Issuer or any of its Restricted Subsidiaries to future, current or former officers, directors, employees, managers, consultants or independent contractors thereof (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer, any Restricted Subsidiary or any Parent Entity, in each case to finance the purchase or redemption of Equity Interests of the Issuer or any Parent Entity to the extent described in clause (4) of Section 4.07(b);
(22) Indebtedness in respect of Permitted Receivables Financings;
(23) Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries to the extent that the net proceeds thereof are promptly deposited with the Trustee to satisfy and discharge the Notes or exercise the Issuer’s legal defeasance or covenant defeasance option pursuant to Article 8, in each case, in accordance with this Indenture;
(24) [reserved];
(25) Indebtedness attributable to (but not incurred to finance) the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, in each case with respect to any acquisition (by merger, consolidation or amalgamation or otherwise) permitted or not prohibited by the terms of this Indenture;
(26) Indebtedness representing deferred compensation or stock-based compensation to directors, employees, consultants or independent contractors of any Parent Entity, the Issuer or any Restricted Subsidiary incurred in the ordinary course of business or consistent with industry or past practice;
110
(27) Indebtedness consisting of obligations under deferred compensation or any other similar arrangements incurred in connection with any Investment or any acquisition (by merger, consolidation or amalgamation or otherwise) permitted under this Indenture;
(28) Indebtedness of any Restricted Subsidiary that is not a Guarantor if the aggregate principal amount of such Indebtedness outstanding under this clause (28), when aggregated with all outstanding Indebtedness under clause (13) of this Section 4.09(b) incurred to refinance such Indebtedness, shall not exceed, at the time of incurrence thereof, $25.0 million; provided that (a) no such Indebtedness may be incurred in connection with or in furtherance of a Priming Financing/Liability Management Transaction; provided further, however, that except that any Indebtedness incurred pursuant to this clause (28) shall, at the election of the Issuer, cease to be deemed incurred or outstanding for purposes of this clause (28) but shall be deemed incurred pursuant to Section 4.09(a) from and after the first date on which the Issuer or such Restricted Subsidiary could have incurred or issued such Indebtedness under Section 4.09(a) without reliance on this clause (28);
(29) to the extent constituting Indebtedness, customer deposits and advance payments (including progress premiums) received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business or consistent with past practice;
(30) unfunded pension fund and other employee benefits plan obligations and liabilities incurred in the ordinary course of business or consistent with past practice;
(31) [reserved]; and
(32) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (1) through (31) of this Section 4.09(b).
(c) For purposes of determining compliance with this Section 4.09:
(1) in the event that an item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) meets the criteria of more than one of the categories of permitted Indebtedness, Disqualified Stock or Preferred Stock described in clauses (3) through (32) of Section 4.09(b) or is entitled to be incurred pursuant to Section 4.09(a), the Issuer, in its sole discretion, may divide or classify (or later divide, classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) in any manner that complies with this Section 4.09 and shall only be required to include the amount and type of such Indebtedness, Disqualified Stock or Preferred Stock (or portion thereof) in one or more of the clauses in Section 4.09(b) or under Section 4.09(a); provided that (i) all Indebtedness under the First-Out Revolving Credit Facility and any Junior Lien Revolving Credit Facility and any guarantees related to any of the foregoing (and any “refinancing” of any of the foregoing) shall be Incurred only under clause (1)(b) of Section 4.09(b) and may not later be reclassified, (ii) all First-Out Indebtedness and any guarantees related thereto (and any “refinancing” of any of the foregoing), other than that described in the preceding clause (i), shall be Incurred only under clause (1)(a) of Section 4.09(b), and may not later be reclassified, and (iii) all Second-Out Indebtedness and any guarantees related thereto (and any “refinancing” of any of the foregoing) Incurred on the Issue Date (including Second-Out Senior Credit Facilities Indebtedness Incurred on the Issue Date) shall be Incurred only under clause (1)(c)(x) or clause (3)(b) of Section 4.09(b) and may not later be reclassified;
111
(2) at the time of incurrence, the Issuer will be entitled to divide or classify (or later divide, classify or reclassify in whole in part in its sole discretion) an item of Indebtedness in more than one of the types of Indebtedness, Disqualified Stock or Preferred Stock described in Section 4.09(a) or Section 4.09(b) above; provided that this clause (2) shall be subject to the proviso at the end of clause (1) of this Section 4.09;
(3) the principal amount of Indebtedness, Disqualified Stock or Preferred Stock outstanding under any clause of this Section 4.09 shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness;
(4) the principal amount of any Disqualified Stock of the Issuer or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary, will be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof; and
(5) for purposes of calculating the Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Debt Ratio, the Consolidated First-Out First Lien Secured Debt Ratio, the Consolidated Secured Debt Ratio or the Consolidated Total Debt Ratio, as applicable, in connection with the incurrence of any Indebtedness pursuant to Section 4.09(a) or Section 4.09(b) or the creation or incurrence of any Lien pursuant to the definition of “Permitted Liens”, the Issuer may elect, at its option, to treat all or any portion of the committed amount of any Indebtedness (and the issuance and creation of letters of credit and bankers’ acceptances thereunder) which is to be incurred (or any commitment in respect thereof) or secured by such Lien, as the case may be (any such committed amount elected until revoked as described below, the “Reserved Indebtedness Amount”), as being incurred as of such election date, and, if such Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Debt Ratio, Consolidated First-Out First Lien Secured Debt Ratio, Consolidated Secured Debt Ratio or Consolidated Total Debt Ratio, as applicable, is satisfied with respect thereto on such election date, any subsequent borrowing or reborrowing thereunder (and the issuance and creation of letters of credit and bankers’ acceptances thereunder) will be deemed to be permitted under this Section 4.09 or the definition of “Permitted Liens”, as applicable, whether or not the Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Debt Ratio, the Consolidated First-Out First Lien Secured Debt Ratio, the Consolidated Secured Debt Ratio or the Consolidated Total Debt Ratio, as applicable, at the actual time of any subsequent borrowing or reborrowing (or issuance or creation of letters of credit or bankers’ acceptances thereunder) is met; provided that for purposes of subsequent calculations of the Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Debt Ratio, the Consolidated First-Out First Lien Secured Debt Ratio, the Consolidated Secured Debt Ratio or the Consolidated Total Debt Ratio, as applicable, the Reserved Indebtedness Amount shall be deemed to be outstanding, whether or not such amount is actually outstanding, for so long as such commitments are outstanding or until the Issuer revokes an election of a Reserved Indebtedness Amount.
(d) Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Indebtedness, Disqualified Stock or Preferred Stock shall not be deemed to be an incurrence of Indebtedness, Disqualified Stock or Preferred Stock for purposes of this Section 4.09. If Indebtedness, Disqualified Stock or Preferred Stock originally incurred in reliance upon the Consolidated First-Out First Lien Secured Debt Ratio of the Issuer, the Consolidated First Lien Secured Debt Ratio of the Issuer or the Consolidated Secured Debt Ratio of the Issuer under any subclause of clause (1) of Section 4.09(b) is being refinanced under such subclause of clause (1) of Section 4.09(b) and such refinancing would cause the maximum amount of Indebtedness, Disqualified Stock or Preferred Stock thereunder to be exceeded
112
at such time, then such refinancing shall nevertheless be permitted thereunder and such additional Indebtedness, Disqualified Stock or Preferred Stock shall be deemed to have been incurred under such subclause of clause (1) of Section 4.09(b) so long as the principal amount of such refinancing Indebtedness, Disqualified Stock or Preferred Stock does not exceed the principal amount of Indebtedness, Disqualified Stock or Preferred Stock being refinanced plus amounts permitted by the next sentence. Any Indebtedness, Disqualified Stock or Preferred Stock incurred to refinance Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to Section 4.09 shall be permitted to include additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay accrued but unpaid interest, dividends, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including upfront fees, original issue discount (in lieu of upfront fees) or similar fees) incurred in connection with such refinancing.
(e) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, Disqualified Stock or Preferred Stock, the U.S. dollar-equivalent principal amount of Indebtedness, Disqualified Stock or Preferred Stock denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness, Disqualified Stock or Preferred Stock was deemed to be incurred, in the case of term debt, or first committed, in the case of revolving credit debt, for purposes of this Section 4.09; provided that if such Indebtedness, Disqualified Stock or Preferred Stock is incurred to refinance other Indebtedness, Disqualified Stock or Preferred Stock denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness, Disqualified Stock or Preferred Stock does not exceed the principal amount of such Indebtedness, Disqualified Stock or Preferred Stock being refinanced plus the aggregate amount of accrued but unpaid interest, dividends, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including upfront fees, original issue discount (in lieu of upfront fees) or similar fees) incurred in connection with such refinancing.
The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.
(f) For the purposes of this Indenture, (1) Indebtedness that is unsecured is deemed not to be subordinated or junior in right of payment to Secured Indebtedness merely because such Indebtedness is unsecured, and (2) Indebtedness is deemed not to be subordinated or junior in right of payment to any other Indebtedness solely because such Indebtedness has a junior priority with respect to shared collateral or because it is guaranteed by other obligors.
SECTION 4.10. Asset Sales.
(a) From and after the Issue Date, the Issuer shall not, and shall not permit any Restricted Subsidiary to, consummate, directly or indirectly, an Asset Sale unless:
(1) the Issuer or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (measured at the time of agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration (measured at the time of agreeing to such Asset Sale) for such Asset Sale, together with all other Asset Sales since the Issue Date (on a cumulative basis), received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents.
113
(b) Within 365 days after the later of (A) the date of any Asset Sale and (B) the receipt of any Net Proceeds from any Asset Sale (the “Asset Sale Proceeds Application Period”), the Issuer or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to the extent such Net Proceeds are from an Asset Sale of Collateral, to repay (i) Obligations under the Notes, and/or (ii) other First-Out Priority Payment Obligations, and in the case of other First-Out Priority Payment Obligations consisting of revolving obligations, to correspondingly reduce commitments with respect thereto; provided that if the Issuer or any Restricted Subsidiary shall so reduce any such other First-Out Priority Payment Obligations pursuant to clause (ii), the Issuer or such Restricted Subsidiary shall either (A) reduce Obligations under the Notes on a pro rata basis with such other First-Out Priority Payment Obligations by, at its option, (x) redeeming Notes pursuant to Section 3.07 or (y) purchasing Notes through open market purchases or in privately negotiated transactions at market prices (which may be below par), or (B) make an offer (in accordance with the procedures for an Asset Sale Offer set forth in Section 3.09 and this Section 4.10) to all Holders to purchase their Notes on a ratable basis with such other First-Out Priority Payment Obligations for no less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon up to the principal amount of Notes to be repurchased;
(2) to the extent such Net Proceeds are from an Asset Sale that does not constitute Collateral, to repay Obligations under any Senior Indebtedness, and in the case of revolving obligations, to correspondingly reduce commitments with respect thereto; provided that the Issuer or such Restricted Subsidiary shall either (A) reduce the aggregate principal amount of Obligations under the Notes on an equal or ratable basis with any Senior Indebtedness repaid pursuant to this clause (2) by, at its option, (x) redeeming Notes pursuant to Section 3.07 and/or (y) purchasing Notes through open-market purchases or in privately negotiated transactions at market prices (which may be below par) and/or (B) make an offer (in accordance with Section 3.09 and this Section 4.10) to all Holders to purchase their Notes on an equal or ratable basis with any Senior Indebtedness repaid pursuant to this clause (2) (which offer shall be deemed to be an Asset Sale Offer for purposes hereof);
(3) to invest in the business of the Issuer and its Subsidiaries, including (i) any investment in Additional Assets and (ii) making capital expenditures; provided that to the extent such Net Proceeds are from an Asset Sale of Collateral, such Net Proceeds shall be invested in Additional Assets that are substantially concurrently added to the Collateral in the manner and to the extent required under this Indenture and the Security Documents;
(4) to the extent such Net Proceeds are from an Asset Sale that does not constitute Collateral, to repay Indebtedness of any Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Issuer or a Guarantor, and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto; or
(5) any one or more combinations of the foregoing;
provided that, in the case of clause (3) above, any agreement shall be treated as a permitted application of the Net Proceeds from the date of such agreement so long as the Issuer or such Restricted Subsidiary enters into such agreement with the good faith expectation that such Net Proceeds will be applied to satisfy such agreement within 180 days of the expiration of the Asset Sale Proceeds Application Period
114
(an “Acceptable Commitment”) and such Net Proceeds are actually applied substantially in such manner within 180 days of the expiration of the Asset Sale Proceeds Application Period, and, in the event any Acceptable Commitment is later cancelled or terminated for any reason after the expiration of the Asset Sale Proceeds Application Period and before the Net Proceeds are applied in connection therewith, then such Net Proceeds shall constitute Excess Proceeds.
(c) Any Net Proceeds from the Asset Sale covered by this Section 4.10 that are not invested or applied as provided and within the time period set forth in this Section 4.10 will be deemed to constitute “Excess Proceeds”; provided that any amount of Net Proceeds offered to Holders of the Notes pursuant to clauses (1) and (2) of Section 4.10(b) shall not be deemed to be Excess Proceeds without regard to whether such offer is accepted by any Holders. No later than 30 Business Days after the date that the aggregate amount of Excess Proceeds, after giving effect to the operation of the immediately following sentence, exceeds $200.0 million, the Issuer shall make an offer to purchase to all Holders and, if required by the terms of other Indebtedness that constitutes First-Out Priority Payment Obligations, to repay or offer to repay such Indebtedness (an “Asset Sale Offer”) the maximum aggregate principal amount (or accreted value, as applicable) of the Notes and such Indebtedness (in the case of the Notes only, equal to minimum denominations of $2,000 or an integral multiple of $1,000 thereof) that may be purchased or repaid out of the Excess Proceeds (at an offer price in cash in the case of the Notes in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date fixed for the repurchase of such Notes pursuant to such offer) in accordance with the procedures set forth in this Indenture and, if applicable, the documents governing such applicable First-Out Priority Payment Obligations. With respect to the Notes only, the Issuer shall commence an Asset Sale Offer by sending the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. The Issuer may satisfy the foregoing obligation with respect to such Net Proceeds from an Asset Sale by making an Asset Sale Offer in advance of being required to do so by this Indenture (an “Advance Offer”) with respect to all or part of the available Net Proceeds (the “Advance Portion”).
(d) To the extent that the aggregate principal amount (or accreted value, as applicable) of Notes and, if applicable, such First-Out Priority Payment Obligations tendered, purchased or repaid pursuant to an Asset Sale Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, any remaining Advance Portion), the Issuer may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) (“Declined Proceeds”) in any manner permitted or not prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes or such other Indebtedness tendered, purchased or repaid, pursuant to an Asset Sale Offer exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Trustee shall select the Notes (subject to applicable DTC procedures as to Global Notes) and the Issuer or the representative of such First-Out Priority Payment Obligations shall select such First-Out Priority Payment Obligations to be purchased or repaid on a pro rata basis based on the accreted value or principal amount of the Notes and such First-Out Priority Payment Obligations tendered, purchased or repaid, with adjustments as necessary so that no Notes or First-Out Priority Payment Obligations, as the case may be, will be repurchased in an unauthorized denomination; provided that no Notes of $2,000 or less shall be repurchased in part. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero (regardless of whether there are any remaining Excess Proceeds upon such completion), and in the case of an Advance Offer, the Advance Portion shall be excluded in subsequent calculations of Excess Proceeds.^^
(e) An Asset Sale Offer or an Advance Offer may be made at the same time as consents are solicited with respect to an amendment, supplement or waiver of this Indenture, the Notes, the Security Documents and/or Note Guarantees (but the Asset Sale Offer or Advance Offer may not condition tenders on the delivery of such consents).
115
(f) Pending the final application of an amount equal to the Net Proceeds pursuant to this Section 4.10, the holder of such Net Proceeds may apply any Net Proceeds to reduce indebtedness outstanding under a revolving credit facility (including under the Senior Credit Facilities) or otherwise invest such Net Proceeds in any manner permitted or not prohibited by this Indenture.
(g) For purposes of this Section 4.10 only, the following shall be deemed to be cash or Cash Equivalents:
(1) the greater of the principal amount and the carrying value of any liabilities (as reflected on the most recent balance sheet of the Issuer or such Restricted Subsidiary or in the footnotes thereto, or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Issuer or such Restricted Subsidiary or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Issuer) of the Issuer or such Restricted Subsidiary, other than liabilities that are unsecured or are by their terms subordinated to the Notes or have Junior Lien Priority on the Collateral, that are assumed, prepaid or repaid by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Asset Sale) pursuant to a written agreement which releases or indemnifies the Issuer or such Restricted Subsidiary from such liabilities;
(2) any securities, notes or other obligations or assets received by the Issuer or such Restricted Subsidiary from such transferee that are converted by the Issuer or such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within 180 days following the closing of such Asset Sale;
(3) any Designated Non-cash Consideration received by the Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value (with the fair market value of such item of Designated Non-cash Consideration being measured at the date of agreement for the related Asset Sale) and without giving effect to subsequent changes in value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (3) that is at that time outstanding, not to exceed $40.0 million; provided that this clause (3) shall not be used in connection with or in furtherance of a Priming Financing/Liability Management Transaction; and
(4) the fair market value of any Local Marketing Agreement entered into in connection with, or received as consideration for, any Asset Sale.
(h) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the procedures for an Asset Sale Offer set forth in Section 3.09 and this Section 4.10, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under either Section 3.09 or this Section 4.10 by virtue of such compliance.
(i) The provisions of Section 3.09 and this Section 4.10 relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the Notes.
116
SECTION 4.11. Transactions with Affiliates.
(a) From and after the Issue Date, the Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Issuer (each of the foregoing, an “Affiliate Transaction”) involving aggregate payments or consideration in respect of such Affiliate Transaction in excess of the greater of (x) $50.0 million and (y) 7.2% of Consolidated EBITDA of the Issuer for the Applicable Measurement Period, unless:
(1) such Affiliate Transaction is on terms, taken as a whole, that are not materially less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person on an arm’s-length basis or, if in the good faith judgment of the Issuer, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Issuer or such Restricted Subsidiary from a financial point of view and when such transaction is taken in its entirety; and
(2) the Issuer delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $100.0 million, a resolution adopted by the Board of the Issuer approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (1) of this Section 4.11(a).
(b) The provisions of Section 4.11(a) shall not apply to the following:
(1) (a) transactions between or among Parent, the Issuer and a Restricted Subsidiary or between or among Restricted Subsidiaries or, in any case, any entity that becomes a Restricted Subsidiary as a result thereof and (b) any merger, amalgamation or consolidation of the Issuer into any Parent Entity; provided that such merger, amalgamation or consolidation is otherwise consummated in compliance with the terms of this Indenture and effected for a bona fide business purpose as determined by the Issuer;
(2) Restricted Payments permitted by Section 4.07 (other than pursuant to clause (13)(f) of Section 4.07(b)) and the definition of “Permitted Investments”;
(3) the payment or settlement of management, consulting, monitoring, transaction, advisory and other fees and related expenses to the Investors, indemnification and other similar amounts to the Investors and reimbursement of expenses of the Investors, in each case, approved by, or pursuant to arrangements approved by, the Board of the Issuer;
(4) the payment or settlement of reasonable and customary fees and compensation paid to, and indemnities and reimbursements and employment, consulting, compensation and severance benefit arrangements provided to or on behalf of, or for the benefit of, former, current or future employees, directors, officers, managers, members, partners, independent contractors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Issuer, any Restricted Subsidiary or any Parent Entity;
(5) transactions in which the Issuer or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or
117
stating that the terms are not materially less favorable, when taken as a whole, to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person on an arm’s length basis;
(6) any agreement or arrangement as in effect or disclosed as of the Issue Date (other than any agreement or arrangement of the type described in clause (3) of this Section 4.11(b)) or any amendment, modification, waiver, consent or replacement (so long as the totality of all such amendments, modifications, waivers, consents or replacements is not materially more disadvantageous in the judgment of the Board of the Issuer or the senior management of the Issuer to the Holders when taken as a whole as compared to the totality of such agreements or arrangements as in effect on the Issue Date);
(7) the existence of, or the performance or satisfaction by the Issuer or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders, investor rights or similar agreement or the equivalent (including any registration rights agreement or purchase agreement related thereto) to which it (or any Parent Entity) is a party as of the Issue Date and any similar agreements which it (or any Parent Entity) may enter into thereafter; provided, however, that the existence of, or the performance or satisfaction by the Issuer or any of its Restricted Subsidiaries (or such Parent Entity) of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (7) to the extent that the terms of any such amendment or new agreement are not materially more disadvantageous in the judgment of the Board of the Issuer or the senior management of the Issuer to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date;
(8) the Transactions and the payment of all fees and expenses related to the Transactions, including Transaction Expenses;
(9) transactions with customers, clients, suppliers, contractors, joint venture partners or purchasers or sellers of goods or services or providers of employees or other labor that are Affiliates, in each case in the ordinary course of business or consistent with industry or past practice and otherwise in compliance with the terms of this Indenture that in the determination of the Board of the Issuer or the senior management thereof, or are on terms, taken as a whole, that are not materially less favorable as reasonably could have been obtained at such time from an unaffiliated party;
(10) the issuance or transfer of (a) Equity Interests (other than Disqualified Stock) of the Issuer and the granting and performing of customary registration rights to any Parent Entity or to any Permitted Holder or to any former, current or future director, manager, officer, employee or consultant (or their respective Controlled Investments Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer or any of its Subsidiaries or any Parent Entity and (b) directors’ qualifying shares and shares issued to foreign nationals as required by applicable law;
(11) transactions related to or in connection with Permitted Receivables Financings;
(12) payments by the Issuer or any of its Restricted Subsidiaries made for any financial advisory, consulting, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures if approved or ratified by the Board of the Issuer or the senior management of the Issuer;
118
(13) payments, loans, advances or guarantees (or cancellation of loans, advances or guarantees) to future, current or former employees, directors, officers, managers, members, partners, independent contractors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer, any of its Subsidiaries or any Parent Entity and employment agreements, stock option plans and other compensatory or severance arrangements (and any successor plans thereto) and any supplemental executive retirement benefit plans or similar arrangements with any such future, present or former employees, directors, officers, managers, members, partners, independent contractors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) (including salary or guaranteed payments and bonuses) if approved or ratified by the Board of the Issuer or the senior management of the Issuer;
(14) (A) investments by Affiliates in securities or loans of the Issuer or any of its Restricted Subsidiaries (and any payment of out-of-pocket expenses incurred by such Affiliate or Permitted Holders in connection therewith) so long as the investment is being offered generally to other investors on the same or more favorable terms, and (B) payments to Affiliates in respect of securities or loans of the Issuer or any of its Restricted Subsidiaries contemplated in the foregoing subclause (A) or that were acquired from Persons other than the Issuer and its Restricted Subsidiaries, in each case, in accordance with the terms of such securities or loans;
(15) transactions with a Person that is an Affiliate of the Issuer arising solely because the Issuer or any Restricted Subsidiary owns any Equity Interest in, or controls, such Person;
(16) any lease entered into between the Issuer or any Restricted Subsidiary, on the one hand, and any Affiliate of the Issuer, on the other hand, if approved or ratified by the Board of the Issuer or the senior management of the Issuer in good faith;
(17) intellectual property licenses entered into in the ordinary course of business or consistent with industry or past practice;
(18) transactions between the Issuer or any Restricted Subsidiary and any other Person that would constitute an Affiliate Transaction solely because a director of such other Person is also a director of the Issuer or any Parent Entity; provided, however, that such director abstains from voting as a director of the Issuer or such Parent Entity, as the case may be, on any matter including such other Person;
(19) payment or satisfaction by the Issuer (and any Parent Entity) and its Subsidiaries pursuant to, or the entry into, any tax sharing agreement or arrangement among Parent (and any such Parent Entity) and its Subsidiaries, to the extent such payments are permitted under clause (13) of Section 4.07(b);
(20) payment or satisfaction of reasonable out of pocket costs and expenses relating to registration rights and indemnities provided to equity holders of the Issuer or any Parent Entity thereof pursuant to any equity holders, registration rights or similar agreements;
(21) intercompany transactions undertaken in good faith for the purpose of improving the consolidated tax efficiency of the Issuer and its Restricted Subsidiaries and not for the purpose of circumventing any covenant set forth in this Indenture; and
119
(22) pledges of Equity Interests of Unrestricted Subsidiaries.
SECTION 4.12. Liens.
(a) From and after the Issue Date, the Issuer shall not, and shall not permit any Subsidiary Guarantor to, directly or indirectly, create, incur, assume or suffer to exist any Lien that is not a Permitted Lien (each, a “Subject Lien”) that secures Obligations under any Indebtedness on any asset or property of the Issuer or any Subsidiary Guarantor, unless:
(1) in the case of Subject Liens on any Collateral, (i) such Subject Lien expressly has Junior Lien Priority on the Collateral or (ii) such Subject Lien is a Permitted Lien; and
(2) in the case of any Subject Lien on any asset or property that is not Collateral, (i) the Notes (or a Note Guarantee in the case of Subject Liens on assets or property of a Subsidiary Guarantor) are or will be substantially contemporaneously equally and ratably secured with (or, at the Issuer’s option or if such Subject Lien secures Subordinated Indebtedness, on a senior basis to) the Obligations secured by such Subject Lien until such time as such Obligations are no longer secured by such Subject Lien or (ii) such Subject Lien is a Permitted Lien.
(b) Any Lien created for the benefit of the Holders pursuant to Section 4.12(a)(2) shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged and a nullity upon and to the extent the release and discharge of the Subject Lien that gave rise to the obligation to secure the Notes. In addition, in the event that a Subject Lien at any time qualifies as a Permitted Lien, the Issuer may, at its option and without consent from any Holder, elect to release and discharge any Lien created for the benefit of the Holders pursuant to Section 4.12(a) in respect of such Subject Lien.
(c) With respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the Incurrence of such Indebtedness, such Lien shall also be permitted to secure any Increased Amount of such Indebtedness. The “Increased Amount” of any Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortization of original issue discount, the payment of interest in the form of additional Indebtedness with the same terms, accretion of original issue discount or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Indebtedness.
SECTION 4.13. Corporate Existence.
Subject to Article 5, the Issuer shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) its corporate, partnership or other existence, and the corporate, partnership or other existence of each of its Restricted Subsidiaries, in accordance with the respective organizational documents (as the same may be amended from time to time) of the Issuer or such Restricted Subsidiary, as applicable, and (ii) the rights (charter and statutory), licenses and franchises of the Issuer and its Restricted Subsidiaries; provided that the Issuer shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Restricted Subsidiaries (other than the Issuer), if the Issuer in good faith shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Issuer and its Subsidiaries, taken as a whole.
120
SECTION 4.14. Change of Control Triggering Event.
(a) If a Change of Control Triggering Event occurs with respect to the Notes, unless, prior to the time the Issuer is required to make a Change of Control Offer, the Issuer has previously or concurrently mailed or delivered, or otherwise sent through electronic transmission, a redemption notice with respect to all of the outstanding Notes pursuant to Section 3.07 or Section 11.01, the Issuer shall make an offer to purchase all of the Notes pursuant to the offer described below (the “Change of Control Offer”) at a price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date falling on or prior to the Change of Control Payment Date. Within 60 days following any Change of Control Triggering Event, the Issuer shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, to each Holder of the Notes to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Section 4.14 and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Issuer;
(2) the purchase price and the purchase date, which will be no earlier than 20 Business Days nor later than 60 days from the date such notice is sent (the “Change of Control Payment Date”); provided that the Change of Control Payment Date may be delayed, at the Issuer’s discretion, until such time (including more than 60 days after the date such notice is sent) as any or all such conditions referred to in clause (8) below shall be satisfied;
(3) that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on the Change of Control Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third (3^rd^) Business Day preceding the Change of Control Payment Date;
(6) that Holders shall be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives, not later than the expiration time of the Change of Control Offer, a facsimile or other electronic transmission or letter setting forth the name of the Holder of the Notes, the principal amount of the Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that if the Issuer is redeeming less than all of the Notes, the Holders of the remaining Notes will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered (the unpurchased portion of the Notes must be equal to minimum denominations of $2,000 or an integral multiple of $1,000 in excess thereof);
121
(8) if such notice is sent prior to the occurrence of a Change of Control Triggering Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Triggering Event or such other conditions specified therein and shall describe each such condition and, if applicable, shall state that in the Issuer’s discretion the Change of Control Payment Date may be delayed until such time as any or all such conditions shall be satisfied or that such purchase shall not occur and such notice shall be rescinded in the event that any or all such conditions shall not have been satisfied by the Change of Control Payment Date, or by the Change of Control Payment Date as so delayed, unless such conditions are waived by the Issuer in its discretion; and
(9) the other instructions, as determined by the Issuer, consistent with this Section 4.14, that a Holder must follow.
The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.14, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.14 by virtue thereof.
(b) On the Change of Control Payment Date, the Issuer shall, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer.
(c) The Issuer shall not be required to make a Change of Control Offer if a third party approved by the Issuer makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.14 applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer. In addition, a Change of Control Offer may be made in advance of a Change of Control Triggering Event, conditional upon such Change of Control Triggering Event or such other conditions specified therein, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
(d) A Change of Control Offer may be made at the same time as consents are solicited with respect to an amendment, supplement or waiver of the provisions of this Indenture, the Notes, the Security Documents and/or the Note Guarantees; provided that such Change of Control Offer shall not include the delivery of such consents as a condition precedent.
(e) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Issuer, or any third party approved in writing by the Issuer making a Change of Control Offer in lieu of the Issuer as set forth in clause (c) of this Section 4.14, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer or such third party shall have the right, upon not less than 15 nor more than 60 days’
122
prior notice, given not more than 60 days following such purchase pursuant to the Change of Control Offer as set forth in this Section 4.14, to redeem (with respect to the Issuer) or purchase (with respect to a third party) all Notes that remain outstanding following such purchase on a date (the “Second Change of Control Payment Date”) at a price in cash equal to the Change of Control Payment in respect of the Second Change of Control Payment Date.
(f) Other than as specifically provided in this Section 4.14, any purchase pursuant to this Section 4.14 shall be made pursuant to the provisions of Sections 3.02, 3.05 and 3.06.
(g) The provisions of this Section 4.14 relating to the Issuer’s obligation to make a Change of Control Offer with respect to the Notes upon a Change of Control Triggering Event may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the Notes.
SECTION 4.15. Additional Note Guarantees.
From and after the Issue Date, the Issuer shall not permit any of its Domestic Subsidiaries that is a Wholly-Owned Subsidiary that is a Restricted Subsidiary (other than the Guarantors and any Receivables Subsidiary), to become an obligor with respect to any Indebtedness owed and outstanding for the Obligations under the Senior Credit Facilities or any other Indebtedness of the Issuer or the Guarantors in an aggregate principal amount in excess of $100.0 million or (ii) to incur Indebtedness in an aggregate principal amount in excess of $100.0 million that is guaranteed (including via a pledge of assets) by the Issuer or any Guarantor, in each case of clause (i) and (ii), unless such Subsidiary within 60 days executes and delivers a supplemental indenture to this Indenture providing for a Note Guarantee by such Subsidiary and joinders to the Security Documents or new Security Documents together with any other filings and agreements required by the Security Documents to create or perfect the security interests for the benefit of the Holders of the Notes in the Collateral of such Subsidiary.
SECTION 4.16. Covenant Suspension.
(a) If on any date following the Issue Date, (i) the Notes have Investment Grade Ratings from both Rating Agencies in the event the Notes are rated by two Rating Agencies, or from any two of three Rating Agencies in the event the Notes are rated by three Rating Agencies, and (ii) no Default has occurred and is continuing under this Indenture with respect to the Notes (the occurrence of the events described in the foregoing clauses (i) and (ii), a “Covenant Suspension Event” and the date thereof, the “Suspension Date”), then, beginning on the Suspension Date, Parent, the Issuer and its Restricted Subsidiaries will not be subject to Section 4.07, Section 4.08, Section 4.09, Section 4.10, Section 4.11, Section 4.15 and clause (4) of Section 5.01(a) (collectively, the “Suspended Covenants”) until the occurrence of the Reversion Date (as defined below).
(b) In the event that Parent, the Issuer and its Restricted Subsidiaries are not subject to the Suspended Covenants under this Indenture for any period as a result of the foregoing, and on any subsequent date (the “Reversion Date”), any Rating Agency withdraws its Investment Grade Rating or downgrades the rating assigned to the Notes below an Investment Grade Rating (in each case, to the extent given an Investment Grade Rating by such Rating Agency and after giving effect to such downgrade or withdrawal, the Notes no longer have an Investment Grade Rating from at least two Rating Agencies), then Parent, the Issuer and its Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants under this Indenture with respect to future events. The period of time between the Suspension Date and the Reversion Date is referred to in this description as the “Suspension Period.” The Note Guarantees of the Subsidiary Guarantors will be suspended during the Suspension Period, and the Liens on the Collateral securing the Notes and the Notes Guarantees will be released. Additionally, upon the occurrence of a Covenant Suspension Event, the amount of Excess Proceeds from any Asset Sales shall be reset to zero.
123
(c) During the Suspension Period, the Issuer and its Restricted Subsidiaries will be entitled to incur Liens permitted under Section 4.12 (including, without limitation, Permitted Liens) with respect to the Notes. To the extent Section 4.12 and any Permitted Liens refer to one or more Suspended Covenants, such covenant or definition shall be interpreted as though such applicable Suspended Covenant(s) continued to be applicable during the Suspension Period (but solely for purposes of Section 4.12 and the definition of “Permitted Liens” and for no other covenant in this Indenture).
(d) Notwithstanding the foregoing, in the event of any such reinstatement, no action taken or omitted to be taken by Parent, the Issuer or any of its Restricted Subsidiaries prior to such reinstatement will give rise to a Default or Event of Default under this Indenture with respect to the Notes, and no Default or Event of Default will be deemed to exist or have occurred as a result of any failure by Parent, the Issuer or any Restricted Subsidiary to comply with any of the Suspended Covenants during the Suspension Period; provided that (1) with respect to Restricted Payments made after such reinstatement, the amount available to be made as Restricted Payments will be calculated as though Section 4.07 had been in effect prior to, but not during, the Suspension Period (including with respect to a Limited Condition Transaction entered into during the Suspension Period); (2) all Indebtedness incurred, or Disqualified Stock or Preferred Stock issued, during the Suspension Period (or deemed incurred or issued in connection with a Limited Condition Transaction entered into during the Suspension Period) will be classified to have been incurred or issued pursuant to clause (3) of Section 4.09(b); (3) any Affiliate Transaction entered into after such reinstatement pursuant to an agreement entered into during any Suspension Period shall be deemed to be permitted pursuant to clause (6) of Section 4.11(b); (4) any encumbrance or restriction on the ability of any Restricted Subsidiary that is not a Guarantor to take any action described in clauses (1) through (3) of Section 4.08(a) that becomes effective during any Suspension Period shall be deemed to be permitted pursuant to clause (1) of Section 4.08(b); (5) no Subsidiary of Parent or the Issuer shall be required to comply with Section 4.15 after such reinstatement with respect to any guarantee or obligation entered into by such Subsidiary during any Suspension Period, other than any Senior Credit Facilities in effect on the Reversion Date; and (6) all Investments made during the Suspension Period (or deemed made in connection with a Limited Condition Transaction entered into during the Suspension Period) will be classified to have been made under clause (5) of the definition of “Permitted Investments.”
(e) Upon the Reversion Date, the Issuer, the Guarantors and the Collateral Trustee will enter into Security Documents that establish the terms of the security interests with respect to the Collateral on terms consistent with those set forth in the Security Documents as of the Issue Date.
(f) Notwithstanding that the Suspended Covenants may be reinstated after the Reversion Date, (1) no Default, Event of Default or breach of any kind will be deemed to exist under this Indenture, the Notes or the Note Guarantees with respect to the Suspended Covenants, and none of Parent, the Issuer or any of its Subsidiaries shall bear any liability for any actions taken or events occurring during the Suspension Period, or any actions taken at any time pursuant to any contractual obligation arising during any Suspension Period, in each case as a result of a failure to comply with the Suspended Covenants during the Suspension Period (or, upon termination of the Suspension Period or after that time based solely on any action taken or event that occurred during the Suspension Period), and (2) following a Reversion Date, Parent, the Issuer and each Restricted Subsidiary will be permitted, without causing a Default or Event of Default, to honor, comply with or otherwise perform any contractual commitments or obligations arising during any Suspension Period and to consummate the transactions contemplated thereby.
124
(g) During any period that the foregoing covenants have been suspended, the Issuer shall not designate any Subsidiary as an Unrestricted Subsidiary unless such designation would have complied with Section 4.07 as if Section 4.07 were in effect for the purposes of designating Unrestricted Subsidiaries from the Issue Date to the date of such designation.
(h) The Issuer shall deliver promptly to the Trustee an Officer’s Certificate notifying it of any such Covenant Suspension Event or other occurrence under this Section 4.16.
SECTION 4.17. Limitation on Priming Financing/ Liability Management Transactions.
The Issuer shall not, and shall not permit any of its Subsidiaries to, enter into or effect any Priming Financing/Liability Management Transaction or make any Investment, sale, transfer or disposition of assets or Restricted Payment in connection with or in furtherance of a Priming Financing/Liability Management Transaction.
SECTION 4.18. [Reserved].
SECTION 4.19. After-Acquired Property.
From and after the Issue Date, and subject to the applicable limitations set forth in the Security Documents and this Indenture (including with respect to Excluded Assets), if the Issuer or any Guarantor creates any additional security interest upon any property or asset that would constitute Collateral to secure any First Lien Obligations, it must concurrently grant a first-priority perfected security interest (subject to Permitted Liens and the terms of the Intercreditor Agreements) upon any such Collateral, as security for the Notes Obligations.
ARTICLE 5
SUCCESSORS
SECTION 5.01. Merger, Consolidation, Amalgamation or Sale of All or Substantially All Assets.
(a) From and after the Issue Date, the Issuer, Parent and any Subsidiary of Parent that is a Parent Guarantor shall not merge, consolidate or amalgamate with or into or wind up into (whether or not the Issuer, Parent or such Parent Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless:
(1) the Issuer, Parent or a Subsidiary of Parent that is a Parent Guarantor, as the case may be, is the surviving Person or the Person formed by or surviving any such merger, consolidation or amalgamation (if other than the Issuer, Parent or a Subsidiary of Parent that is a Parent Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited partnership, limited liability company, trust or other entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (the Issuer, Parent, such Subsidiary of Parent that is a Parent Guarantor or such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the Successor Company is not a corporation, a co-issuer of the Notes is a corporation;
125
(2) the Successor Company, if other than the Issuer, Parent or a Subsidiary of Parent that is a Parent Guarantor, expressly assumes, in the case of Parent or a Subsidiary of Parent that is a Parent Guarantor, all the obligations of Parent or such Parent Guarantor, as the case may be, under this Indenture, its Note Guarantee and the applicable Security Documents and, in the case of the Issuer, all of the obligations of the Issuer under this Indenture, the Security Documents and the Notes, in each case, pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee (provided that, in making such determination, the Trustee may rely on, and shall be fully protected in relying on an Officer’s Certificate and an Opinion of Counsel, each stating that such merger, consolidation, amalgamation, sale, assignment, transfer, lease, conveyance or disposition and such supplemental indentures and other documents or instruments, if any, comply with this Indenture);
(3) immediately after such transaction, no Event of Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the Applicable Measurement Period,
(a) the Successor Company could incur at least $1.00 of additional Indebtedness pursuant to either (x) the Fixed Charge Coverage Ratio test or (y) the Consolidated Total Debt Ratio test, in each case, set forth in Section 4.09(a), or
(b) either (x) the Fixed Charge Coverage Ratio of the Successor Company for the Applicable Measurement Period would be no less than the Fixed Charge Coverage Ratio of the Issuer for the Applicable Measurement Period immediately prior to such transaction or (y) the Consolidated Total Debt Ratio of the Successor Company for the Applicable Measurement Period would be no more than the Consolidated Total Debt Ratio of the Issuer for the Applicable Measurement Period immediately prior to such transaction;
(5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such merger, consolidation, amalgamation, sale, assignment, transfer, lease, conveyance or disposition and such supplemental indentures, and/or other documents or instruments, if any, comply with this Indenture;
(6) to the extent any assets of the Person which is merged, consolidated or amalgamated with or into the Issuer, Parent or a Subsidiary of Parent that is a Parent Guarantor, as applicable, are assets of the type which would constitute Collateral under the Security Documents, the Issuer, Parent, such Parent Guarantor or the Successor Company, as applicable, will take such action, if any, as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the applicable Security Documents in the manner and to the extent required in this Indenture or the applicable Security Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the applicable Security Documents; and
(7) the Collateral owned by or transferred to the Successor Company shall: (i) continue to constitute Collateral under this Indenture and the Security Documents, (ii) be subject to the Lien in favor of the Collateral Trustee for the benefit of itself, the Trustee and the Holders of the Notes, and (iii) not be subject to any Lien other than Permitted Liens.
126
(b) The Successor Company shall succeed to, and be substituted for the Issuer, Parent or a Subsidiary of Parent that is a Parent Guarantor, as the case may be, under this Indenture, the Note Guarantees, the Notes and the Security Documents, as applicable, and such Issuer, Parent or such Parent Guarantor, as applicable, shall automatically be released and discharged from its obligations under this Indenture, the Note Guarantees, the Security Documents and the Notes.
Notwithstanding Sections 5.01(a)(3) and 5.01(a)(4),
(1) any Restricted Subsidiary may merge, consolidate or amalgamate with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Issuer or any Restricted Subsidiary,
(2) the Issuer, Parent or a Subsidiary of Parent that is a Parent Guarantor may merge, consolidate or amalgamate with or into an Affiliate of the Issuer, Parent or such Parent Guarantor, as the case may be, solely for the purpose of reincorporating the Issuer, Parent or such Parent Guarantor in the United States, any state thereof, the District of Columbia or any territory thereof; and
(3) any License Subsidiary may be merged or consolidated with or into (i) any other License Subsidiary or (ii) a newly formed Subsidiary of the Issuer (which may be organized as a limited liability company) established for the purpose of becoming a License Subsidiary; provided that such newly formed Subsidiary, if it is the continuing or surviving entity, shall have assumed all of the obligations of such Subsidiary under this Indenture, the Note Guarantees, the Security Documents and the Notes, as applicable.
(c) From and after the Issue Date and other than as permitted or not prohibited by Section 10.06 upon the sale, disposition or transfer of Capital Stock of a Subsidiary Guarantor, no Subsidiary Guarantor shall, and the Issuer shall not permit a Subsidiary Guarantor to, merge, consolidate or amalgamate with or into or wind up into (whether or not the Issuer or a Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1)
(a) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such merger, consolidation or amalgamation (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited partnership, limited liability company, trust or other entity organized or existing under the laws of the jurisdiction of organization of such Subsidiary Guarantor or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor”);
(b) the Successor Guarantor, if other than such Subsidiary Guarantor, expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and such Subsidiary Guarantor’s related Note Guarantee and the applicable Security Documents pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee (provided that, in making such determination, the Trustee may rely on, and shall be fully protected in relying on, an Officer’s Certificate and an Opinion of Counsel, each stating that such merger, consolidation, amalgamation, sale, assignment, transfer, lease, conveyance or disposition and such supplemental indentures and/or other documents or instruments, if any, comply with this Indenture);
127
(c) immediately after such transaction, no Event of Default exists;
(d) to the extent any assets of the Person which is merged, consolidated or amalgamated with or into such Subsidiary Guarantor are assets of the type which would constitute Collateral under the Security Documents, such Subsidiary Guarantor or the Successor Company will take such action, if any, as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the applicable Security Documents in the manner and to the extent required in this Indenture or the applicable Security Documents and shall take all reasonably necessary action so that such Lien in perfected to the extent required by the applicable Security Documents; and
(e) the Collateral owned by or transferred to the Successor Guarantor shall: (A) continue to constitute Collateral under this Indenture and the Security Documents, (B) be subject to the Lien in favor of the Collateral Trustee for the benefit of itself, the Trustee and the Holders of the Notes, and (C) not be subject to any Lien other than Permitted Liens; or
(2) the transaction is permitted or not prohibited by Section 4.10 and the release of such Subsidiary Guarantor is permitted under Section 10.06.
(d) The Successor Guarantor shall succeed to, and be substituted for, such Subsidiary Guarantor under this Indenture, and such Subsidiary Guarantor’s Note Guarantee and the applicable Security Documents and such Subsidiary Guarantor shall automatically be released and discharged from its obligations under this Indenture, such Subsidiary Guarantor’s Note Guarantee and the applicable Security Documents. Notwithstanding the foregoing, any Subsidiary Guarantor may (i) merge, consolidate or amalgamate with or into, wind up into or transfer all or part of its properties and assets to another Subsidiary Guarantor, Parent or the Issuer, (ii) merge, consolidate or amalgamate with or into any Subsidiary of the Issuer solely for the purpose of reincorporating or reorganizing the Subsidiary Guarantor in the United States, any state thereof, the District of Columbia or any territory thereof, (iii) convert into a corporation, partnership, limited partnership, limited liability company, trust or other entity organized or existing under the laws of the jurisdiction of organization of such Subsidiary Guarantor or a jurisdiction in the United States or (iv) liquidate or dissolve or change its legal form if the Board of the Issuer or the senior management of the Issuer determines in good faith that such action is in the best interests of the Issuer and is not materially disadvantageous to the Holders, in each case, without regard to the requirements set forth in Section 5.01(c).
SECTION 5.02. Successor Corporation Substituted.
Upon any consolidation, merger or amalgamation, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets of the Issuer in accordance with Section 5.01, the successor corporation formed by such consolidation or into or with which the Issuer is merged or amalgamated or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, amalgamation, sale, lease, conveyance or other disposition, the provisions of this Indenture referring to the Issuer shall refer instead to the successor corporation and not to the Issuer), and may exercise every right and power of the Issuer under this Indenture with the same effect as if such Successor Guarantor had been named as the Issuer herein; provided that the Issuer shall not be relieved from the obligation to pay the principal of and interest, if any, on the Notes except in the case of a sale, assignment, transfer, conveyance or other disposition of all of the Issuer’s assets that meets the requirements of Section 5.01.
128
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
(a) An “Event of Default” wherever used herein with respect to the Notes, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) the failure to pay the principal of (or premium, if any, on) the Notes when due and payable and such failure remains uncured;
(2) the failure to pay any interest installment on the Notes when due and payable, which failure continues for more than 30 days;
(3) the failure by the Issuer or any Guarantor to comply with or remedy a breach of any covenant in this Indenture applicable to the Notes for more than 90 consecutive days after receipt of written notice given to the Issuer by the Trustee or the Holders of not less than 30% in principal amount of the outstanding Notes (other than those described in clauses (1) through (2) above), except that a failure to comply with Section 4.03 shall only be an Event of Default if it shall have existed and not been remedied for more than 180 consecutive days after written notice given to the Issuer by the Trustee or the Holders of not less than 30% in principal amount of the outstanding Notes;
(4) default under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any existing or future Indebtedness for money borrowed or owed by the Issuer or any of its Wholly-Owned Subsidiaries that are Restricted Subsidiaries or the payment of which is guaranteed by the Issuer or any of its Wholly-Owned Subsidiaries that are Restricted Subsidiaries (other than Indebtedness owed to the Issuer or a Restricted Subsidiary or any Permitted Receivables Financing) if both:
(a) such default either results from the failure to pay any principal of such Indebtedness at its stated final maturity (after giving effect to any applicable grace periods) or relates to an obligation other than the obligation to pay principal of any such Indebtedness at its stated final maturity and results in the holder or holders of such Indebtedness causing such Indebtedness to become due prior to its stated maturity and is not rescinded; and
(b) the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness in default for failure to pay principal at its stated final maturity (after giving effect to any applicable grace periods), or the maturity of which has become due, aggregate $150.0 million (or its foreign currency equivalent) or more at any one time outstanding (such Indebtedness, “Material Indebtedness”);
129
(5) failure by the Issuer or any Significant Subsidiary (or group of Restricted Subsidiaries that together (as determined as of the most recent consolidated financial statements of the Issuer for a fiscal quarter end provided as required under Section 4.03) would constitute a Significant Subsidiary) to pay final judgments aggregating in excess of $150.0 million (net of (x) amounts covered by insurance policies issued by reputable insurance companies as determined by the Issuer and (y) amounts covered by valid third party indemnification obligations from a third party that is solvent and has been notified of the claim under such indemnification obligation and has not disputed that it is liable for such claim), which final judgments remain unpaid, undischarged and unstayed for a period of more than 60 days after such judgment becomes final, and, in the event such judgment is covered by insurance, an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly stayed;
(6) Parent, any Parent Guarantor, the Issuer or any Significant Subsidiary (or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary), pursuant to or within the meaning of any Bankruptcy Law:
(a) commences proceedings to be adjudicated bankrupt or insolvent;
(b) consents to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under applicable Bankruptcy Law;
(c) consents to the appointment of a receiver, liquidator, assignee, trustee, sequestrator or other similar official of it or for all or substantially all of its property;
(d) makes a general assignment for the benefit of its creditors; or
(e) generally is not paying its debts as they become due;
(7) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(a) is for relief against Parent, any Parent Guarantor, the Issuer or any Significant Subsidiary (or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary), in a proceeding in which Parent, any Parent Guarantor, the Issuer, or any Significant Subsidiary (or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary) is to be adjudicated bankrupt or insolvent;
(b) appoints a receiver, liquidator, assignee, trustee, sequestrator or other similar official of Parent, any Parent Guarantor, the Issuer or any Significant Subsidiary (or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary), or for all or substantially all of the property of Parent, any Parent Guarantor, the Issuer or any Significant Subsidiary (or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary); or
(c) orders the liquidation of Parent, any Parent Guarantor, the Issuer or any Significant Subsidiary (or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary);
and the order or decree remains unstayed and in effect for 60 consecutive days;
130
(8) any Note Guarantee of Parent, any Parent Guarantor, or any Subsidiary Guarantor that is a Significant Subsidiary (or Note Guarantees of any group of Subsidiary Guarantors that, taken together, would constitute a Significant Subsidiary) ceases to be in full force and effect (other than in accordance with the terms of such Note Guarantee) or Parent, any Parent Guarantor, or any such Subsidiary Guarantor or such group of Subsidiary Guarantors denies or disaffirms its obligations under its Note Guarantee (other than by reason of the satisfaction in full of all obligations under this Indenture and discharge of this Indenture or the release of such Note Guarantee in accordance with the terms of this Indenture);
(9) (i) the Liens created by the Security Documents shall at any time not constitute a valid and perfected Lien on any material portion of the Collateral intended to be covered thereby (unless perfection is not required by this Indenture or the Security Documents) other than (A) in accordance with the terms of the relevant Security Document and this Indenture, (B) the satisfaction in full of all Obligations under this Indenture or (C) any loss of perfection that results from the failure of the Collateral Trustee to maintain possession of certificates delivered to it representing securities pledged under the Security Documents or to file Uniform Commercial Code continuation statements and (ii) such default continues for 30 days after receipt of written notice given by the Trustee or the Holders of not less than 30% in aggregate principal amount of the then outstanding Notes; or
(10) the Issuer or any Subsidiary Guarantor that is a Significant Subsidiary (or any group of Subsidiary Guarantors that together (determined as of the most recent consolidated financial statements of the Issuer for a fiscal quarter or fiscal year end provided as required under Section 4.03 would constitute a Significant Subsidiary)) shall assert, in any pleading in any court of competent jurisdiction, that any security interest in any Security Document on any material portion of the Collateral is invalid or unenforceable.
(b) In the event of any Event of Default specified in clause (4) of Section 6.01(a), such Event of Default and all consequences thereof (excluding any resulting payment default, other than as a result of acceleration of the Notes) shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 30 days after the Issuer becomes aware of such Event of Default:
(1) the Indebtedness or guarantee that is the basis for such Event of Default has been discharged; or
(2) holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default; or
(3) the default that is the basis for such Event of Default has been cured or waived.
SECTION 6.02. Acceleration.
If any Event of Default (other than an Event of Default specified in clauses (6) and (7) of Section 6.01(a) (with respect to the Issuer, any Subsidiary of Parent that is a Parent Guarantor or Parent)) with respect to the Notes at the time outstanding occurs and is continuing under this Indenture, the Trustee or the Holders of at least 30% in aggregate principal amount of the then total outstanding Notes may by a notice in writing to the Issuer (and to the Trustee if given to the Holders) declare the principal of and premium, if any, interest and any other monetary obligations on all the then outstanding Notes to be due and payable immediately. Upon the effectiveness of such declaration, such principal, premium, if any, and interest with respect to the Notes shall be due and payable immediately. The Trustee shall have no obligation to accelerate the Notes if and so long as a committee of its Responsible Officers in good faith determines acceleration is not in the best interest of the Holders of the Notes.
131
Notwithstanding the foregoing, in the case of an Event of Default arising under clause (6) or (7) of Section 6.01(a) that has occurred and is continuing under this Indenture (with respect to the Issuer, any Subsidiary of Parent that is a Parent Guarantor), all outstanding Notes shall be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
Without limiting the generality of the foregoing, it is understood and agreed that if the Notes are accelerated or otherwise become due prior to their stated maturity, in each case, as a result of an Event of Default (including, but not limited to, an Event of Default specified in clause (6) or (7) of Section 6.01(a) (including the acceleration of any portion of the Indebtedness evidenced by the Notes by operation of law)), the Applicable Premium or the amount by which the applicable redemption price exceeds the principal amount of the Notes (the “Redemption Price Premium”), as applicable, with respect to an optional redemption of the Notes shall also be due and payable as though the Notes had been optionally redeemed on the date of such acceleration and shall constitute part of the Notes Obligations in view of the impracticability and difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Holder’s lost profits as a result thereof. If the Applicable Premium or the Redemption Price Premium, as applicable, becomes due and payable, it shall be deemed to be principal of the Notes, and interest shall accrue on the full principal amount of the Notes (including the Applicable Premium or the Redemption Price Premium, as applicable) from and after the applicable triggering event, including in connection with an Event of Default specified in clause (6) or (7) of Section 6.01(a). Any premium payable pursuant to this paragraph shall be presumed to be liquidated damages sustained by each Holder as the result of the acceleration of the Notes, and the Issuer agrees that it is reasonable under the circumstances currently existing. The premium shall also be payable in the event the Notes or this Indenture are satisfied, released or discharged through foreclosure, whether by judicial proceeding, deed in lieu of foreclosure or by any other means. THE ISSUER AND EACH GUARANTOR EXPRESSLY WAIVES (TO THE FULLEST EXTENT THEY MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREMIUM INCONNECTION WITH ANY SUCH ACCELERATION. The Issuer expressly agrees (to the fullest extent it may lawfully do so) that: (A) the premium is reasonable and is the product of an arm’s length transaction between sophisticated business entities ably represented by counsel; (B) the premium shall be payable notwithstanding the then prevailing market rates at the time acceleration occurs; (C) there has been a course of conduct between the Holders and the Issuer giving specific consideration in this transaction for such agreement to pay the premium; and (D) the Issuer shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Issuer expressly acknowledges that its agreement to pay the premium to the Holders as herein described is a material inducement to the Holders to purchase the Notes.
In the event of a declaration of acceleration with respect to the Notes, the Holders of a majority in aggregate principal amount of the then total outstanding Notes by written notice to the Issuer and the Trustee may on behalf of all of the Holders of the Notes rescind and annul such declaration of acceleration and its consequences if the rescission and annulment would not conflict with any judgment or decree and if all existing Events of Default with respect to the Notes (except nonpayment of principal, interest, if any, or premium, if any, that has become due solely because of the acceleration) have been cured or waived.
132
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing with respect to the Notes at the time outstanding, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture with respect to the Notes.
The Trustee may maintain a proceeding even if it does not possess any Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default with respect to the Notes shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of the then total outstanding Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default with respect to the Notes and its consequences hereunder, except a continuing Default in the payment of the principal of, premium, if any, or interest on, any Note held by a non-consenting Holder of the Notes (including in connection with an Asset Sale Offer or a Change of Control Offer); provided, subject to Section 6.02, that the Holders of a majority in aggregate principal amount of the then total outstanding Notes may rescind a declaration of acceleration and its consequences, including any related payment default that resulted from such acceleration. Upon any such waiver, such Default with respect to the Notes shall cease to exist, and any Event of Default with respect to the Notes arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
SECTION 6.05. Control by Majority.
Subject to the terms of the Collateral Trust Agreement and Section 6.06, the Holders of a majority in aggregate principal amount of the outstanding Notes will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or the Collateral Trustee or of exercising any trust or power conferred on the Trustee or the Collateral Trustee with respect to the Notes, and, subject to Article 7, the Trustee and the Collateral Trustee may act at the direction of the Holders without liability. The Trustee and the Collateral Trustee, however, may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee or the Collateral Trustee, as the case may be, determines is unduly prejudicial to the rights of any other Holder of a Note or that would involve the Trustee or the Collateral Trustee, as the case may be, in personal liability.
SECTION 6.06. Limitation on Suits.
Subject to the terms of the Collateral Trust Agreement and Section 6.07, no Holder of a Note shall have any right to institute any proceeding with respect to this Indenture or the Notes or for any remedy thereunder unless:
(1) such Holder has previously given the Trustee and the Issuer written notice that a Default or an Event of Default with respect to the Notes is continuing with respect to the Notes;
(2) Holders of at least 30% in aggregate principal amount of the total outstanding Notes have requested that the Trustee to pursue the remedy in writing;
133
(3) Holders of the Notes have offered and, if requested, provided to the Trustee for the Notes indemnity or security reasonably satisfactory to the Trustee against any cost, loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days after the receipt thereof and the offer of security or indemnity; and
(5) Holders of a majority in aggregate principal amount of the outstanding Notes have not given the Trustee a direction inconsistent with such request within such 60-day period;
provided that the foregoing limitation shall not apply to a suit instituted by a Holder of a Note for the enforcement of payment of the principal of, premium, if any, or interest on such Note on or after the respective due date expressed in such Note.
A Holder of Notes may not use this Indenture to prejudice the rights of another Holder of Notes or to obtain a preference or priority over another Holder of Notes.
SECTION 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal, premium, if any, and interest on such Note, on or after the respective due dates expressed in such Note (including in connection with an Asset Sale Offer or a Change of Control Offer), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a)(1) or (2) with respect to the Notes occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Issuer for the whole amount of principal of, premium, if any, and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. Restoration of Rights and Remedies.
If the Trustee or any Holder of Notes has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceedings, the Issuer, the Guarantors, the Trustee and the Holders of Notes shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders of Notes shall continue as though no such proceeding has been instituted.
SECTION 6.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.07, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
134
SECTION 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article 6 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 6.12. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Issuer (or any other obligor upon the Notes including the Guarantors), its creditors or its property and shall be entitled and empowered to participate as a member in any official committee of creditors appointed in such matter and to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.13. Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order:
(i) to the Trustee, its agents and attorneys for amounts due under Section 7.07, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;
(ii) to Holders of the Notes for amounts due and unpaid on the Notes for principal, premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively; and
(iii) to the Issuer or to such party as a court of competent jurisdiction shall direct, including a Guarantor, if applicable.
135
The Trustee may fix a Record Date and payment date for any payment to Holders of Notes pursuant to this Section 6.13.
SECTION 6.14. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.14 does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default with respect to the Notes has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b) Except during the continuance of an Event of Default with respect to the Notes:
(i) the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this Section 7.01(c) does not limit the effect of Section 7.01(b);
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved in a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05; and
136
(iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it.
(d) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) The Trustee shall be under no obligation to exercise any of its rights or powers under this Indenture at the request or direction of any of the Holders of the Notes unless the Holders of the Notes have offered to the Trustee indemnity or security reasonably satisfactory to the Trustee against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
SECTION 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney at the sole cost of the Issuer and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(b) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if signed by an Officer of the Issuer.
(f) The Trustee shall not be deemed to have notice of any Default or Event of Default unless written notice of any event which is in fact such a Default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.
(g) In no event shall the Trustee be responsible or liable for special, indirect, punitive, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
137
(h) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder, including the Collateral Trustee.
(i) The Trustee may request that the Issuer and any Guarantor deliver an Officer’s Certificate setting forth the names of the individuals and/or titles of Officers (with specimen signatures) authorized at such times to take specific actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person specified as so authorized in any certificate previously delivered and not superseded.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days or resign as Trustee. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11.
SECTION 7.04. Trustee’s Disclaimer.
The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.
SECTION 7.05. Notice of Defaults.
If a Default with respect to the Notes occurs and is continuing and if the Trustee has received written notice thereof, the Trustee shall send to each Holder of Notes a notice of the Default within 90 days of having received such notice. Except in the case of a Default relating to the payment of principal, premium, if any, or interest on any Note, the Trustee may withhold from the Holders of Notes notice of any continuing Default if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of Notes. The Trustee shall not be deemed to have received notice of any Default unless written notice of any event which is such a Default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee.
SECTION 7.06. [Reserved].
SECTION 7.07. Compensation and Indemnity.
The Issuer and any Guarantors shall pay to the Trustee from time to time such compensation for its acceptance of this Indenture and services hereunder as the parties shall agree in writing from time to time. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer and any Guarantors shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it (including the reasonable compensation and the expenses and disbursements of its agents and counsel) in addition to the compensation for its services.
138
The Issuer and the Guarantors, jointly and severally, shall indemnify the Trustee for, and hold the Trustee harmless against, any and all loss, damage, claim, liability or expense (including attorneys’ fees) incurred by it in connection with the acceptance or administration of this trust and the performance of its duties hereunder (including the costs and expenses of enforcing this Indenture against the Issuer or any of the Guarantors (including this Section 7.07) or defending itself against any claim whether asserted by any Holder, the Issuer or any Guarantor, or liability in connection with the acceptance, exercise or performance of any of its powers or duties hereunder). The Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer shall defend the claim and the Trustee may have separate counsel and the Issuer shall pay the fees and expenses of such counsel. The Issuer need not reimburse any expense or indemnify against any loss, liability or expense determined to have been caused by the Trustee’s own willful misconduct, negligence or bad faith.
The obligations of the Issuer and the Guarantors, if any, under this Section 7.07 shall survive the satisfaction and discharge of this Indenture or the earlier resignation or removal of the Trustee.
To secure the payment obligations of the Issuer and the Guarantors in this Section 7.07, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(a)(6) or (7) occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of Trust Indenture Act Section 313(b)(2) to the extent applicable.
SECTION 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08. The Trustee may resign with respect to the Notes in writing at any time and be discharged from the trust hereby created by so notifying the Issuer. At any time, the Holders of at least a majority in aggregate principal amount of the Notes then outstanding shall have the right to require the resignation of the Trustee and immediately appoint a successor thereto. The Trustee shall be permitted to rely in good faith on customary certificates of beneficial ownership as evidence of holdings (and shall not require the provision of DTC proxies, medallion-stamped guarantees or other similar evidence) in connection with any determination with respect to the Holders of Notes giving any consent, instruction or authorization under this Indenture. The Issuer may remove the Trustee with respect to the Notes if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
139
(c) a custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed with respect to the Notes or if a vacancy exists in the office of Trustee for any reason, the Issuer shall promptly appoint a successor Trustee.
If a successor Trustee with respect to the Notes does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee (at the Issuer’s expense), the Issuer or the Holders of at least 10% in aggregate principal amount of the then total outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has been a Holder of Notes for at least six months, fails to comply with Section 7.10, such Holder may petition any court of competent jurisdiction for the removal of the Trustee with respect to the Notes and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee with respect to the Notes. The successor Trustee shall send a notice of its succession to Holders of Notes. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuer’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc.(a)
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50.0 million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements of Trust Indenture Act Sections 310(a)(1), (2) and (5). The Trustee is subject to Trust Indenture Act Section 310(b).
SECTION 7.11. Preferential Collection of Claims Against Issuer.
The Trustee is subject to Trust Indenture Act Section 311(a), excluding any creditor relationship listed in Trust Indenture Act Section 311(b). A Trustee who has resigned or been removed shall be subject to Trust Indenture Act Section 311(a) to the extent indicated therein.
140
SECTION 7.12. [Reserved].
SECTION 7.13. Security Documents; Intercreditor Agreements.
By their acceptance of the Notes, the Holders hereby authorize and direct the Trustee and Collateral Trustee, as the case may be, to execute and deliver the Intercreditor Agreements and any other Security Documents in which the Trustee or the Collateral Trustee, as applicable, is named as a party, including any Security Documents executed after the Issue Date. It is hereby expressly acknowledged and agreed that, in doing so, the Trustee and the Collateral Trustee are not responsible for the terms or contents of such agreements, or for the validity or enforceability thereof, or the sufficiency thereof for any purpose. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under, the Intercreditor Agreements or any other Security Documents, the Trustee and the Collateral Trustee each shall have all of the rights, immunities, indemnities and other protections granted to it under this Indenture (in addition to those that may be granted to it under the terms of such other agreement or agreements).
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuer may, at its option and at any time, elect to have either Section 8.02 or 8.03 applied to all outstanding Notes upon compliance with the conditions set forth below in this Article 8.
SECTION 8.02. Legal Defeasance and Discharge.
Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.02, the Issuer and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be deemed to have been discharged from their obligations with respect to all outstanding Notes, the related Note Guarantees and the Security Documents on the date the conditions set forth below are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 and the other Sections of this Indenture referred to in (a) and (b) below, to have the Liens on the Collateral released and to have satisfied all their other obligations under the Notes, this Indenture and the Security Documents, including the obligations of the Guarantors (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same, in each case, with respect to the Notes) except for the following provisions which shall survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of Notes to receive payments in respect of the principal of, premium, if any, and interest, if any, on the Notes when such payments are due solely out of the trust created pursuant to this Indenture referred to in Section 8.04;
(b) the Issuer’s obligations with respect to the Notes concerning issuing temporary Notes, registration of the Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust;
(c) the rights, powers, trusts, duties and immunities of the Trustee, and the Issuer’s obligations in connection therewith; and
141
(d) this Section 8.02.
Subject to compliance with this Article 8, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03.
SECTION 8.03. Covenant Defeasance.
Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03, the Issuer and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be released from their obligations under the covenants contained in Sections 4.03, 4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.14, 4.15 and 4.17 and Section 5.01(a)(4), Section 5.01(c) (except as such section relates to Parent or any other Parent Guarantor) and Section 5.01(d) (except as such section relates to Parent or any other Parent Guarantor) with respect to the Notes and to have the Liens on the Collateral released on and after the date the conditions set forth in Section 8.04 are satisfied (“Covenant Defeasance”), and Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders of Notes (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the Notes, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default with respect to the Notes under Section 6.01, but, except as specified above, the remainder of this Indenture and Notes shall be unaffected thereby. In addition, upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04, Sections 6.01(a)(3) (with respect to the covenants contained in the sections of this Indenture specified in this Section 8.03), 6.01(a)(4), 6.01(a)(5), 6.01(a)(6) (solely with respect to Restricted Subsidiaries that are Significant Subsidiaries and any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary), 6.01(a)(7) (solely with respect to Restricted Subsidiaries that are Significant Subsidiaries and any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary), 6.01(a)(8) (except as such section relates to Parent or any other Parent Guarantor), 6.01(a)(9) and 6.01(a)(10) shall not constitute Events of Default with respect to the Notes.
SECTION 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section 8.02 or 8.03 to the Notes:
(1) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, U.S. Government Obligations (that through the scheduled payment of principal and interest in accordance with their terms will provide money in an amount), or a combination thereof, in such amounts as will be sufficient, in the opinion of an Independent Financial Advisor (insofar as any U.S. Government Obligations are so included), to pay the principal of, premium, if any, and interest due on the Notes on the Stated Maturity date or on the Redemption Date, as the case may be, of such principal, premium, if any, or interest on the Notes, and the Issuer must specify whether the Notes are being defeased to Maturity or to a particular Redemption Date;
142
(2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions,
(a) the Issuer has received from, or there has been published by, the United States Internal Revenue Service a ruling, or
(b) since the issuance of the Notes, there has been a change in the applicable U.S. federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, subject to customary assumptions and exclusions, the beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes, as applicable, as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is bound (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith);
(6) the Issuer shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuer or any Guarantor or others; and
(7) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions) each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
SECTION 8.05. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 in respect of the Notes shall be held in trust and
143
applied by the Trustee, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer or a Guarantor acting as Paying Agent) as the Trustee may determine, to the Holders of Notes of all sums due and to become due thereon in respect of principal, premium and interest, but such money need not be segregated from other funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or U.S. Government Obligations deposited pursuant to Section 8.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon the request of the Issuer any money or U.S. Government Obligations held by it as provided in Section 8.04 which, in the opinion of an Independent Financial Advisor expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(2)), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance of the Notes.
SECTION 8.06. Repayment to Issuer.
Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of, premium or interest on any Note and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Issuer on its request or (if then held by the Issuer) shall be discharged from such trust; and the Holder of such Note shall thereafter look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, shall thereupon cease.
SECTION 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States dollars or U.S. Government Obligations in accordance with Section 8.02 or 8.03, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuer’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03, as the case may be; provided that, if the Issuer makes any payment of principal of, premium or interest on any Note following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of the Notes to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. Without Consent of Holders of Notes.
Notwithstanding Section 9.02, the Issuer, any Guarantor (with respect to a Note Guarantee) and the Trustee and/or the Collateral Trustee may amend or supplement this Indenture, the Security Documents, the Notes and any related Note Guarantee without the consent of any Holder:
(1) to cure any ambiguity or omission or correct any defect or inconsistency;
144
(2) to convey, transfer, assign, mortgage or pledge any property to or with the Trustee, or to make such other provisions in regard to matters or questions arising under this Indenture, in each case as shall not adversely affect the interests of any Holders of the Notes in any material respect;
(3) to evidence the succession of another Person to the Issuer or any Guarantor and the assumption by any such successor of the covenants, agreements and obligations of the Issuer or Guarantor, as the case may be, under the Notes, the Note Guarantees, the Security Documents or this Indenture pursuant to Section 5.01;
(4) to surrender any right or power conferred upon the Issuer or to add further covenants, restrictions, conditions or provisions relating to the Issuer or the Guarantors for the protection of the Holders of the Notes, and to add any additional defaults or Events of Default for the Issuer’s or any Guarantor’s failure to comply with any such further covenants, restrictions, conditions or provisions;
(5) to modify or amend this Indenture in such a manner to permit the qualification of this Indenture or any supplemental indenture thereto under the Trust Indenture Act; provided, that no such modification or amendment shall adversely affect the Holders rights under Section 7.08 or otherwise adversely affect the interests of any Holders of the Notes in any material respect;
(6) to add Note Guarantees with respect to any or all of the Notes or to release any Guarantor or Note Guarantee when permitted or required by this Indenture;
(7) to add Collateral with respect to any or all the Notes or to release Collateral from the Lien securing the Notes when permitted or required by the Security Documents, this Indenture or the Intercreditor Agreements (including, for the avoidance of doubt, the release of Collateral that becomes an Excluded Asset and, following the occurrence of an Investment Grade Event, the release of Collateral that was not at such time required under this Indenture to be pledged as security for the Notes);
(8) to release and discharge any Lien securing the Notes when permitted or required by this Indenture (including pursuant to Section 4.12(b));
(9) to provide for the issuance of Additional Notes in accordance with the terms of this Indenture;
(10) to modify or amend the terms of this Indenture in a manner that does not adversely affect the rights of any Holder of the Notes;
(11) to evidence and provide for the acceptance of appointment by a successor or separate Trustee or Collateral Trustee with respect to the Notes;
(12) to comply with the rules of any applicable securities depositary;
(13) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(14) to conform the text of this Indenture, the Notes, any Note Guarantee or the Security Documents to any provision of the “Description of Notes” section of the Offering Memorandum to the extent that such provisions in the “Description of Notes” section of the Offering Memorandum were intended to be a verbatim recitation of a provision in this Indenture, the Notes, such Note Guarantee or the Security Documents;
145
(15) to modify or amend any of the provisions of this Indenture relating to the transfer and legending of the Notes; provided, however, that (a) compliance with this Indenture as so amended would not result in the Notes being transferred in violation of the Securities Act or any other applicable securities law and (b) such amendment does not adversely affect the rights of Holders to transfer the Notes;
(16) in the case of any Security Document, to include therein any legend required to be set forth therein pursuant to the Intercreditor Agreements or to modify any such legend as required by the Intercreditor Agreements;
(17) to enter into any intercreditor agreement having substantially similar terms with respect to the Holders as those set forth in the Collateral Trust Agreement or the First/Second/Third Lien Intercreditor Agreement, taken as a whole, or any joinder thereto;
(18) with respect to the Security Documents, as provided in the relevant Security Document and the Intercreditor Agreements (including to add or replace the secured parties or their respective Designated Representatives and/or to provide for the succession of any parties to the Security Documents and other amendments that are administrative or ministerial in nature, including in connection with an amendment, renewal, extension, substitution, refinancing, restructuring, replacement, supplementing or other modification from time to time of any of the Senior Credit Facilities, the New Second Lien Notes, the Exchange Second-Out First Lien Notes, the Existing Secured Notes or any other agreement that is not prohibited by this Indenture); or
(19) to modify any of the provisions of this Indenture, the Notes, any Note Guarantee or the Security Documents in accordance with the immediately following paragraph below.
For the avoidance of doubt, the Holders will be deemed to have consented for purposes of (i) the Collateral Trust Agreement and the other Security Documents to any amendments, waivers or other modifications to the Collateral Trust Agreement and the other Security Documents, as applicable, (1) to add other parties (or any authorized agent thereof or trustee therefor) holding Obligations that have Pari Passu Lien Priority that are incurred in compliance with this Indenture and the Security Documents and (2) to establish that the Liens on any Collateral securing such Obligations shall rank equally under the Collateral Trust Agreement with the Liens on such Collateral securing the obligations under this Indenture and the Notes (including, if such Obligations are permitted to constitute First-Out Priority Payment Obligations in accordance with this Indenture and the Collateral Trust Agreement, having a payment priority as to the application of proceeds with respect to, and distributions made on account of, any such Collateral on an equal basis with the Notes Obligations; or otherwise, if not in respect of First-Out Priority Payment Obligations, having a payment priority as to the application of proceeds with respect to, and distributions made on account of, any such Collateral on a junior basis to the Notes Obligations), all on the terms provided for in the Collateral Trust Agreement as in effect immediately prior to such amendment and (ii) the First/Second/Third Lien Intercreditor Agreement and the other Security Documents to any amendments, waivers or other modifications to the First/Second/Third Lien Intercreditor Agreement and the other Security Documents, as applicable, (1) to add other parties (or any authorized agent thereof or trustee therefor) holding Obligations constituting Junior Lien Indebtedness that are incurred in compliance with this Indenture and the Security Documents and (2) to establish that the Liens on any Collateral securing such Obligations shall rank junior under the First/Second/Third Lien Intercreditor Agreement to the Liens on such Collateral securing the obligations under this Indenture and the Notes, all on the terms provided for in the First/Second/Third Lien Intercreditor Agreement as in
146
effect immediately prior to such amendment. Any such additional party and the Trustee and the Collateral Trustee shall be entitled to rely upon an Officer’s Certificate certifying that such Obligations as having Pari Passu Lien Priority or Junior Lien Priority, as the case may be, were issued or borrowed in compliance with this Indenture and the Security Documents.
Upon the request of the Issuer accompanied by a resolution of its Board authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 7.02 and Section 9.06, the Trustee and/or the Collateral Trustee shall join with the Issuer and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture or the Security Documents and to make any further appropriate agreements and stipulations that may be therein contained; provided that the Trustee and/or the Collateral Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture or Security Documents that affect its own rights, duties or immunities under this Indenture or otherwise. The consent of the Holders is not necessary under this Indenture to approve the particular form of any proposed amendment. It is sufficient if such consent approves the substance of the proposed amendment.
SECTION 9.02. With Consent of Holders of Notes.
Except as provided below in this Section 9.02 with respect to the Notes, the Issuer, any Guarantor (with respect to a Note Guarantee), or the Trustee and/or the Collateral Trustee may modify, amend or supplement this Indenture, the Notes, the Note Guarantees, the Intercreditor Agreements and the Security Documents with the consent of the Holders of at least a majority in aggregate principal amount of the Notes (including Additional Notes, if any) then outstanding and affected thereby (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes) and, subject to Sections 6.04 and 6.07, any existing Default or Event of Default with respect to the Notes (other than a Default or Event of Default in the payment of the principal of, premium or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded or annulled) or compliance in respect of the Notes with any provision of this Indenture, Security Documents, the Intercreditor Agreements, the Note Guarantees of the Notes may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes (including Additional Notes, if any) (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes). Section 2.08 and Section 2.09 shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.02.
Upon the request of the Issuer accompanied by a resolution of its Board authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 and Section 9.06, the Trustee and/or the Collateral Trustee shall join with the Issuer in the execution of such amended or supplemental indenture, Intercreditor Agreements or Security Documents unless such amended or supplemental indenture, Intercreditor Agreements or Security Documents directly affects the Trustee’s and/or the Collateral Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee and/or the Collateral Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture, Intercreditor Agreement or Security Document.
It shall not be necessary for the consent of the Holders of Notes under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.
147
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuer shall deliver to the Holders of Notes affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuer to deliver such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver.
Without the consent of each Holder of Notes affected thereby, an amendment or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):
(1) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any such Note (or implement a grace period with respect to any such Stated Maturity);
(2) reduce the principal amount of, or the rate of interest on, any such Note;
(3) reduce any premium, if any, or alter the time at which Notes may be redeemed (or implement a grace period with respect to any such Stated Maturity) or the Redemption Price payable upon the redemption of any such Note pursuant to Section 3.07;
(4) reduce the amount of the principal of an original discount Note that would be due and payable upon a declaration of acceleration of the Maturity thereof;
(5) change any place of payment where, or the coin or currency in which, the principal of, premium, if any, or interest on any such Note is payable;
(6) eliminate the contractual right expressly set forth in this Indenture or any Note of any Holder to institute suit for the enforcement of any payment of principal of, premium, if any, or interest on such Note on or after the Stated Maturity or Redemption Date of any such Note;
(7) reduce the percentage in principal amount of the outstanding Notes, the consent of whose Holders is required to approve any such modification or amendment or for any waiver of compliance with, or Defaults under, this Indenture;
(8) modify or amend any of the provisions of Section 6.04 or this Section 9.02, except to increase any percentage vote required or to provide that certain other provisions of this Indenture may not be modified or waived without the consent of the Holder of each Note affected thereby;
(9) waive a Default in the payment of principal of or premium, if any, or interest on any Note (except a rescission or annulment of acceleration of such Note by the Holders of at least a majority in aggregate principal amount of the Notes and a waiver of the payment default that resulted from such acceleration), or in respect of a covenant or provision contained in this Indenture or any Note Guarantee that cannot be amended or modified without the consent of all Holders of such Note;
(10) modify or amend the ranking as to the right of payment of any Note in a manner that would adversely affect the Holders of such Note;
(11) except as expressly permitted by this Indenture, modify or amend the Note Guarantees of any Parent Guarantor or Significant Subsidiary in any manner materially adverse to the Holders of any Note; or
148
(12) modify or amend any of the provisions of this Section 9.02 (except as provided for herein).
Notwithstanding the foregoing, without the consent of the Holders of at least 90% in aggregate principal amount of the Notes then-outstanding, no amendment or waiver may (a) (i) make any change or have the effect of making any change in any Security Document, the Intercreditor Agreements or the provisions in this Indenture dealing with Collateral or application of trust proceeds of the Collateral with the effect of releasing the Liens on all or substantially all of the Collateral which secure the Obligations in respect of the Notes and the Note Guarantees or (ii) change, alter or have the effect of changing or otherwise altering the priority of the Liens securing the Obligations in respect of the Notes or the Note Guarantees or the priority of the Notes or the Note Guarantees as to the application of proceeds with respect to, and distributions made on account of, any Collateral, in each case, in any material portion of the Collateral in any way adverse to the Holders of the Notes in any material respect, other than, in each case, as provided under the terms of the Security Documents or the Intercreditor Agreements, (b) amend, otherwise modify or have the effect of amending or otherwise modifying Section 4.17 or the definition of the term “Priming Financing/Liability Management Transaction” or “Permitted LM Transaction” in any way adverse to the Holders of the Notes in any material respect or (c) amend, otherwise modify or have the effect of amending or otherwise modifying the provisions set forth in clause (1) of Section 4.07(e), except where all Holders are provided an opportunity to provide a pro rata share of any “senior” Indebtedness (including any Priming Debt) on the same terms and for the same fees and benefits.
SECTION 9.03. [Reserved].
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
The Issuer may, but shall not be obligated to, fix a Record Date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver. If a Record Date is fixed, then, notwithstanding the preceding paragraph, those Persons who were Holders at such Record Date (or their duly designated proxies), and only such Persons, shall be entitled to consent to such amendment, supplement, or waiver or to revoke any consent previously given, whether or not such Persons continue to be Holders after such Record Date. No such consent shall be valid or effective for more than 120 days after such Record Date unless the consent of the requisite number of Holders has been obtained.
SECTION 9.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuer in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.
149
Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. Trustee and Collateral Trustee to Sign Amendments, Etc..
The Trustee and the Collateral Trustee, as applicable, shall sign any amendment, supplement or waiver authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee and the Collateral Trustee. The Issuer may not sign an amendment, supplement or waiver until its Board approves it. In executing any amendment, supplement or waiver, the Trustee shall receive and (subject to Section 7.01) shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture and that such amendment, supplement or waiver is the legal, valid and binding obligation of the Issuer and any Guarantors party thereto, enforceable against them in accordance with its terms, subject to customary exceptions, and complies with the provisions hereof.
ARTICLE 10
NOTE GUARANTEES
SECTION 10.01. Note Guarantee.
Subject to this Article 10, each of (i) the Guarantors hereby and (ii) any other Guarantors from time to time, upon the execution and delivery of any other supplemental indenture to this Indenture, hereby, jointly and severally, fully and unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (a) the principal of, premium, if any, or interest on the Notes shall be promptly paid in full when due, whether at Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Issuer to the Holders or the Trustee and the Collateral Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that this Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.
150
Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Collateral Trustee, the Trustee or any Holder in enforcing any rights under this Section 10.01.
If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Guarantors, any amount paid either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the Maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantees.
Each Note Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation or reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Note Guarantees, whether as a “voidable preference”, “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
In case any provision of any Note Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
The Note Guarantee issued by any Guarantor shall be a general senior obligation of such Guarantor and shall be pari passu in right of payment with all existing and future Senior Indebtedness of such Guarantor (including the guarantee of all Obligations of such Guarantor in respect of the First-Out Senior Credit Facilities Indebtedness, the New Second Lien Notes, the Junior Lien Credit Facilities, the Unsecured Notes and, subject to the payment priorities set forth in the Collateral Trust Agreement, the Exchange Second-Out First Lien Notes and the Second-Out Senior Credit Facilities Indebtedness).
Each payment to be made by a Guarantor in respect of its Note Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
151
SECTION 10.02. Limitation on Guarantor Liability.
Subject to this Article 10, each of (i) the Guarantors and (ii) any other Guarantors from time to time, upon the execution and delivery of any other supplemental indenture to this Indenture, and, by its acceptance of Notes, each Holder, confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors irrevocably agree that the obligations of each Subsidiary Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Subsidiary Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Subsidiary Guarantor under its Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Note Guarantee shall be entitled upon payment in full of all guaranteed Obligations under this Indenture to a contribution from each other Guarantor in an amount equal to such other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP.
SECTION 10.03. Execution and Delivery.
To evidence its Note Guarantee set forth in Section 10.01, (i) each Guarantor as of the Issue Date shall execute and deliver this Indenture on the Issue Date and (ii) each other Guarantor from time to time shall execute and deliver a supplemental indenture to this Indenture (which may be substantially in the form of the supplemental indenture set forth in Exhibit D).
Upon the execution and delivery of this Indenture or any supplemental indenture to this Indenture, each Guarantor who executes this Indenture or such supplemental indenture agrees that its Note Guarantee set forth in Section 10.01 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
If an Officer whose signature is on a supplemental indenture to this Indenture no longer holds that office at the time the Trustee authenticates the Note, the Note Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.
If required by Section 4.15, the Issuer shall cause any of its Domestic Subsidiaries that is a Wholly-Owned Subsidiary and is a Restricted Subsidiary (other than the Guarantors or a Receivables Subsidiary) to comply with the provisions of Section 4.15 and this Article 10, to the extent applicable.
SECTION 10.04. Subrogation.
Upon the execution and delivery of this Indenture, each Guarantor and, upon the execution and delivery of any supplemental indenture to this Indenture, each other Guarantor, as applicable, shall be subrogated to all rights of Holders of Notes against the Issuer in respect of any amounts paid by any Guarantor pursuant to the provisions of Section 10.01; provided that, if an Event of Default has occurred and is continuing, no Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Issuer under this Indenture or the Notes shall have been paid in full.
152
SECTION 10.05. Benefits Acknowledged.
Upon the execution and delivery of this Indenture, each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
Upon the execution and delivery of any supplemental indenture to this Indenture, each other Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
SECTION 10.06. Release of Note Guarantees.
Each Note Guarantee of the Notes by a Guarantor shall provide by its terms that such Guarantor’s Obligations under this Indenture with respect to such Note Guarantee shall be automatically and unconditionally released and discharged, and no further action by such Guarantor, the Issuer or the Trustee is required for the release of such Guarantor’s Note Guarantee, upon:
(1) in the case of a Subsidiary Guarantor, any sale, exchange, transfer or other disposition (by merger, consolidation, amalgamation, dividend, distribution or otherwise) of the Capital Stock of such Subsidiary Guarantor, after which such Subsidiary Guarantor is no longer a Restricted Subsidiary if such sale, exchange, transfer or other disposition is permitted or not prohibited by the applicable provisions of this Indenture;
(2) in the case of a Subsidiary Guarantor, the release or discharge of the guarantee by (or direct obligation of) such Subsidiary Guarantor of the Senior Credit Facilities or the release or discharge of such other guarantee or direct obligation that resulted in the creation of such Note Guarantee, except a discharge or release by or as a result of payment under such guarantee or payment of such obligation after the occurrence of a payment default or acceleration thereunder (it being understood that a release subject to a contingent reinstatement is still a release);
(3) in the case of a Subsidiary Guarantor, the designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary as permitted or not prohibited by the applicable provisions of this Indenture;
(4) with respect to the Notes, the Issuer exercising the legal defeasance option or covenant defeasance option with respect to the Notes in accordance with Article 8 or the Issuer’s obligations under this Indenture with respect to the Notes being discharged in accordance with the terms of this Indenture and the applicable Security Documents or in accordance with the provisions of the Collateral Trust Agreement;
(5) the merger, amalgamation or consolidation of any Subsidiary Guarantor with and into the Issuer or another Subsidiary Guarantor that is the surviving Person in such merger, amalgamation or consolidation, or upon the liquidation of a Subsidiary Guarantor;
(6) in the case of a Subsidiary Guarantor, upon the occurrence of an Investment Grade Event; provided that such Note Guarantee shall not be released pursuant to this clause (6) for so long as such Subsidiary Guarantor is an obligor with respect to any Indebtedness under the Senior Credit Facilities, any other First Lien Obligations, the New Second Lien Notes or the Existing Notes; or
153
(7) in the case of Parent or any other Parent Guarantor, the release or discharge of the guarantees by (or direct obligation of) Parent or such Parent Guarantor of the Senior Credit Facilities, any other First Lien Obligations, the New Second Lien Notes, the Existing Notes and any other Material Indebtedness of the Issuer (other than Obligations under the Notes) then guaranteed by Parent or such other Parent Guarantor, to the extent such guarantees or direct obligations have been released or discharged or are released or discharged substantially contemporaneously with the release or discharge of such guarantee under the Notes (the date on which such release or discharge occurs, the “Parent Guarantee Release Date”).
Notwithstanding the foregoing, the Note Guarantee of any Subsidiary Guarantor shall not be released from its Note Guarantee (i) in connection with or in furtherance of a Priming Financing/Liability Management Transaction, (ii) upon such Subsidiary Guarantor becoming a Restricted Subsidiary that is not a Wholly-Owned Subsidiary except in connection with a bona-fide joint venture with a Person that is not an Affiliate of the Issuer in the ordinary course of business or (iii) upon such Subsidiary Guarantor no longer remaining a Restricted Subsidiary primarily for the purpose of releasing its Note Guarantee. Any release of a Subsidiary Guarantor will be deemed to be the incurrence of an Investment in such released Subsidiary Guarantor at the time of such release in an amount equal to the portion of the fair market value (as determined in good faith by the Issuer) of the Issuer’s retained ownership interest, if any, in such Person; provided that such release will not be permitted unless such Investment is not prohibited by the applicable provisions of this Indenture.
Upon the Parent Guarantee Release Date, the Events of Default set forth in Section 6.01(a) shall cease to apply to Parent or such Parent Guarantor, as the case may be; provided that, if at any time after the Parent Guarantee Release Date, Parent or such Parent Guarantor, as the case may be, shall guarantee any Material Indebtedness of the Issuer, the guarantee obligations of Parent or such Parent Guarantor, as the case may be, shall be automatically reinstated, and the Events of Default set forth in Section 6.01(a) shall again apply to Parent or such Parent Guarantor, as the case may be. Parent or such Parent Guarantor, as the case may be, shall take all actions reasonably necessary in order to provide the same Note Guarantee as would be required had the Parent Guarantee Release Date never occurred.
ARTICLE 11
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture.
This Indenture shall, upon the Issuer’s request, cease to be of further effect with respect to the Notes specified by the Issuer and any related Note Guarantees (except as to any surviving rights of registration of transfer or exchange of Notes herein expressly provided for), and the Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to the Notes, when:
(1) either (A) all Notes theretofore authenticated and delivered (other than (i) Notes which have been mutilated, destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.07 and (ii) Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer or the Guarantors and thereafter repaid to the Issuer or the Guarantors or discharged from such trust), have been delivered to the Trustee for cancellation; or
(B) (w) all Notes not theretofore delivered to the Trustee for cancellation (i) have become due and payable by reason of the making of a notice of redemption or otherwise, (ii) will become due and payable at their Stated Maturity within one year or (iii) are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer;
154
(x) the Issuer or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders of the Notes, cash in U.S. dollars, U.S. Government Obligations, or a combination thereof, in an amount sufficient to pay and discharge the entire indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal, premium, if any, and accrued interest to the date of such deposit (in the case of Notes which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(y) no Event of Default (other than that resulting from borrowing funds to be applied to make such deposit or the grant of any Lien securing such borrowing or any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith) with respect to the Notes or this Indenture in respect of the Notes shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit, and such deposit will not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is bound (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith); and
(z) the Issuer has delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Notes at Maturity or the Redemption Date, as the case may be;
(2) the Issuer has paid or caused to be paid all other sums payable hereunder by the Issuer with respect to the Notes; and
(3) the Issuer has delivered an Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions) to the Trustee, each stating that all conditions precedent herein relating to the satisfaction and discharge of this Indenture as to the Notes have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Issuer to the Trustee under Section 7.07 and, if money shall have been deposited with the Trustee pursuant to subclause (1)(B) of this Section 11.01, the obligations of the Trustee under Section 11.02 and Section 8.06 shall survive.
SECTION 11.02. Application of Trust Money.
Subject to the provisions of Section 8.06, all money and U.S. Government Obligations deposited with the Trustee pursuant to Section 11.01 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto as set forth in the Registrar, of the principal, premium and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
155
If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with Section 11.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s and any Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01; provided that if the Issuer has made any payment of principal of, premium or interest on any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of the Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE 12
COLLATERAL
SECTION 12.01. Security Documents.
From and after the consummation of the Transactions and upon the execution and delivery of the Security Documents, the due and punctual payment of the principal of, premium, if any, or interest on the Notes when and as the same shall be due and payable, whether on an Interest Payment Date, at Maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of, premium, if any, or interest on the Notes and performance of all other Obligations of the Issuer and the Guarantors to the Holders or the Trustee under this Indenture, such Notes, the related Note Guarantees and the Security Documents with respect to the Notes, according to the terms hereunder or thereunder, shall be secured as provided in the Security Documents, which define the terms of the Liens that secure the Notes Obligations. The Trustee, the Issuer and the Guarantors hereby acknowledge and agree that the Collateral Trustee holds the Collateral in trust for the benefit of the Holders, the Trustee, the Collateral Trustee and the other First Lien Secured Parties (as defined in the Collateral Trust Agreement) and pursuant to the terms of the Security Documents. Each Holder, by accepting a Note, consents and agrees to the terms of the Security Documents (including the provisions providing for the possession, use, release and foreclosure of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms and this Indenture, and authorizes and directs each of the Trustee and the Collateral Trustee to enter into the Security Documents to which it is named as a party on the Issue Date, and at any time after the Issue Date, if applicable, and to perform its obligations and exercise its rights thereunder in accordance therewith. Upon the execution and delivery of the Security Documents, the Issuer shall deliver to the Collateral Trustee copies of all documents required to be filed pursuant to the Security Documents, and will do or cause to be done all such acts and things as may be reasonably required by the next sentence of this Section 12.01, to assure and confirm to the Collateral Trustee the security interest in the Collateral contemplated hereby, by the Security Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and of the Notes secured hereby, according to the intent and purposes herein expressed. The Issuer shall, and shall cause the Guarantors to, take any and all actions and make all filings (including the filing of UCC financing statements, continuation statements and amendments thereto) required to cause the Security Documents to create and maintain, as security for the Obligations of the Issuer and the Guarantor to the secured parties under this Indenture, the Notes, the Note Guarantees and the Security Documents, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Security Documents), in favor of the Collateral Trustee for the benefit of the Holders, the Trustee and the Collateral Trustee subject to no Liens other than Permitted Liens. It is further understood and agreed that there shall be no Security Document (or other security agreements or pledge agreements) governed under the laws of any non-U.S. jurisdiction.
156
SECTION 12.02. Release of Collateral.
(a) Collateral may be released from the Lien and security interest created by the Security Documents at any time and from time to time with respect to the Notes in accordance with the provisions of the Security Documents and this Indenture. Notwithstanding anything to the contrary in the Security Documents and this Indenture, the Issuer and the Guarantors will be entitled to the release of property and other assets constituting Collateral from the Liens securing the Notes and the Notes Obligations under any one or more of the following circumstances:
(1) to enable the Issuer or any Guarantor to consummate the sale, transfer or other disposition of such property or assets to the extent not prohibited under Section 4.10 hereof;
(2) in the case of a Guarantor that is released from its Note Guarantee with respect to the Notes pursuant to the terms of this Indenture with respect to the property and other assets of such Guarantor, upon the release of such Guarantor from such Note Guarantee;
(3) with respect to Collateral that is Capital Stock, upon (i) the dissolution or liquidation of the issuer of that Capital Stock that is not prohibited by this Indenture or (ii) upon the designation by Issuer of the issuer of that Capital Stock as an Unrestricted Subsidiary;
(4) with respect to any Collateral that becomes an “Excluded Asset”, upon it becoming an Excluded Asset;
(5) upon the occurrence of an Investment Grade Event;
(6) in accordance with Section 4.12(b);
(7) to the extent the Liens on the Collateral securing the First-Out Senior Credit Facilities Indebtedness are released at the direction of the First-Out Bank Representative in compliance with the terms of the Senior Credit Facilities (other than any release by, or as a result of, payment of such Indebtedness), upon the release of such Liens;
(8) in connection with any enforcement action taken by the Collateral Trustee (acting at the direction of the Controlling Representative) in accordance with the terms of the Collateral Trust Agreement; or
(9) pursuant to Article 9 hereof.
(b) The Liens on the Collateral securing the Notes and the related Note Guarantees also will be terminated and released:
(1) upon payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations with respect to the Notes under this Indenture, the related Note Guarantees and the Security Documents with respect to the Notes that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
157
(2) upon a Legal Defeasance or Covenant Defeasance under this Indenture pursuant to Sections 8.02 and 8.03, respectively, or a satisfaction and discharge of this Indenture pursuant to Section 11.01; or
(3) pursuant to the Intercreditor Agreements and the Security Documents with respect to the Notes.
(c) Any Lien on any Collateral may be released or subordinated to the holder of any Lien on such Collateral securing any Financing Lease Obligations or any Lien on such Collateral that is permitted by clause (16) of the definition of “Permitted Liens” to the extent required by the terms of the Obligations secured by such Liens.
(d) With respect to any release of Collateral, upon receipt of an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent under this Indenture and the Security Documents, as applicable, to such release have been met and that it is permitted for the Trustee or the Collateral Trustee to execute and deliver the documents requested by the Issuer in connection with such release and any necessary or proper instruments of termination, satisfaction or release prepared by the Issuer, the Trustee and the Collateral Trustee shall, execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture, the Security Documents or the Intercreditor Agreements.
Neither the Trustee nor the Collateral Trustee shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate or Opinion of Counsel, and notwithstanding any term hereof or in any Security Document to the contrary, the Trustee and the Collateral Trustee shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officer’s Certificate and Opinion of Counsel.
SECTION 12.03. Suits to Protect the Collateral.
Subject to the provisions of Article 7 and the Security Documents, the Trustee may or may direct the Collateral Trustee to take all actions it determines in order to:
(a) enforce any of the terms of the Security Documents; and
(b) collect and receive any and all amounts payable in respect of the Obligations hereunder.
Subject to the provisions of the Security Documents (including the Intercreditor Agreements), the Trustee and the Collateral Trustee shall have power to institute and to maintain such suits and proceedings as the Trustee may determine to prevent any impairment of the Collateral by any acts which may be unlawful or in violation of any of the Security Documents or this Indenture, and such suits and proceedings as the Trustee may determine to preserve or protect its interests and the interests of the Holders in the Collateral, as applicable. Nothing in this Section 12.03 shall be considered to impose any such duty or obligation to act on the part of the Trustee or the Collateral Trustee.
SECTION 12.04. Authorization of Receipt of Funds by the Trustee Under the Security Documents.
Subject to the provisions of the Intercreditor Agreements, the Trustee is authorized to receive any funds for the benefit of the Holders distributed under the Security Documents, and to make further distributions of such funds to the Holders according to the provisions of this Indenture.
158
SECTION 12.05. Purchaser Protected.
In no event shall any purchaser in good faith of any property purported to be released hereunder be bound to ascertain the authority of the Collateral Trustee or the Trustee to execute the release or to inquire as to the satisfaction of any conditions required by the provisions hereof for the exercise of such authority or to see to the application of any consideration given by such purchaser or other transferee; nor shall any purchaser or other transferee of any property or rights permitted by this Article 12 to be sold be under any obligation to ascertain or inquire into the authority of the Issuer or the applicable Guarantor to make any such sale or other transfer.
SECTION 12.06. Powers Exercisable by Receiver or Trustee.
In case the Collateral shall be in the possession of a receiver or trustee, lawfully appointed, the powers conferred in this Article 12 upon the Issuer or a Guarantor with respect to the release, sale or other disposition of such property may be exercised by such receiver or trustee, and an instrument signed by such receiver or trustee shall be deemed the equivalent of any similar instrument of the Issuer or a Guarantor or of any Officer or Officers thereof required by the provisions of this Article 12; and if the Trustee shall be in the possession of the Collateral under any provision of this Indenture, then such powers may be exercised by the Trustee.
SECTION 12.07. Release Upon Termination of the Issuer’s Obligations.
In the event that the Issuer delivers to the Trustee an Officer’s Certificate certifying that (i) payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, such Notes, the related Note Guarantees and the Security Documents that were due and payable at or prior to the time such principal, together with accrued and unpaid interest, were paid or (ii) the Issuer shall have either (x) exercised their Legal Defeasance option or their Covenant Defeasance option, in each case in compliance with the provisions of Article 8 or (y) satisfied and discharged this Indenture in compliance with the provisions of Article 11, and in each case of (i) and (ii), an Opinion of Counsel stating that all conditions precedent to the release of such Lien in the Collateral by the Trustee have been satisfied, the Trustee and the Collateral Trustee shall deliver to the Issuer a release of Lien in the Collateral without recourse, representations or warranties and shall do or cause to be done (at the expense of the Issuer) all acts reasonably requested of them to release such Lien as soon as is reasonably practicable.
SECTION 12.08. Collateral Trustee.
(a) The Issuer and each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Trustee as its agent under this Indenture and the Security Documents and the Issuer and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Trustee to take such action on its behalf under the provisions of this Indenture and the Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Trustee with respect to such Holder’s Notes by the terms of this Indenture and the Security Documents, and consents and agrees to the terms of each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Trustee agrees to act as such on the express conditions contained in this Section 12.08. Each Holder agrees that any action taken by the Collateral Trustee in accordance with the provision of this Indenture and the Security Documents, and the exercise by the Collateral Trustee of any rights or remedies set forth herein with respect to such Holder’s Notes and therein shall be authorized and binding upon such Holder. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Security Documents, the duties of the Collateral Trustee
159
shall be ministerial and administrative in nature, and the Collateral Trustee shall not have any duties or responsibilities, except those expressly set forth herein and in the Security Documents to which the Collateral Trustee is a party, nor shall the Collateral Trustee have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or the Issuer or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the Security Documents or otherwise exist against the Collateral Trustee. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Trustee 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 merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Collateral Trustee may perform any of its duties under this Indenture or the Security Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Trustee shall not be responsible for the negligence or misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care.
(c) None of the Collateral Trustee or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Security Document or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or a Guarantor or Affiliate of the Issuer or any Guarantor, or any Officer or Related Person thereof, contained in this Indenture or the Security Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Trustee under or in connection with, this Indenture or the Security Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture or the Security Documents, or for any failure of the Issuer or any Guarantor or any other party to this Indenture or the Security Documents to perform its obligations hereunder or thereunder. None of the Collateral Trustee or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture or the Security Documents or to inspect the properties, books, or records of the Issuer or any Guarantor or any Affiliate of the Issuer or a Guarantor.
(d) The Collateral Trustee shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Guarantor), independent accountants and other experts and advisors selected by the Collateral Trustee. The Collateral Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Trustee shall be fully justified in failing or refusing to take any action under this Indenture or the Security Documents unless it shall first receive such advice or concurrence of the Trustee or the
160
Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be offered security or indemnity to its satisfaction by the Holders of such Notes against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Trustee shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Security Documents in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders of such Notes.
(e) The Collateral Trustee shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Collateral Trustee shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Trustee shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 12.08).
(f) The Collateral Trustee may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor collateral trustee to its appointment as Collateral Trustee. If the Collateral Trustee resigns under this Indenture, the Issuer shall appoint a successor collateral trustee. If no successor collateral trustee is appointed prior to the intended effective date of the resignation of the Collateral Trustee (as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of Notes then outstanding, may appoint a successor collateral trustee, subject to the consent of the Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default). If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Collateral Trustee shall be entitled to petition a court of competent jurisdiction to appoint a successor. In addition, the Holders of at least a majority in aggregate principal amount of the Notes then outstanding shall have the right to require the resignation of the Collateral Trustee and immediately appoint a successor thereto (with any resignation or replacement of the Collateral Trustee being subject to the terms and conditions of the Collateral Trust Agreement). The Collateral Trustee shall be permitted to rely in good faith on customary certificates of beneficial ownership as evidence of holdings (and shall not require the provision of DTC proxies, medallion-stamped guarantees or other similar evidence) in connection with any determination with respect to the Holders of Notes giving any consent, instruction or authorization under this Indenture. Upon the acceptance of its appointment as successor collateral trustee hereunder, such successor collateral trustee shall succeed to all the rights, powers and duties of the retiring Collateral Trustee, and the term “Collateral Trustee” shall mean such successor collateral trustee, and the retiring Collateral Trustee’s appointment, powers and duties as the Collateral Trustee shall be terminated. After the retiring Collateral Trustee’s resignation hereunder, the provisions of this Section 12.08 (and Section 7.07) shall continue to inure to its benefit and the retiring Collateral Trustee shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Collateral Trustee under this Indenture.
(g) The Collateral Trustee shall be authorized to appoint co-Collateral Trustees as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Security Documents, neither the Collateral Trustee nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The Collateral Trustee shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Trustee nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own gross negligence or willful misconduct.
161
(h) The Collateral Trustee is authorized and directed to (i) enter into the Security Documents to which it is party, whether executed on or after the Issue Date, (ii) make the representations of the Holders set forth in the Security Documents, (iii) bind the Holders on the terms as set forth in the Security Documents and (iv) perform and observe its obligations under the Security Documents.
(i) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Trustee pursuant to the terms of this Indenture, or (ii) payments from the Collateral Trustee in excess of the amount required to be paid to the Trustee pursuant to Article 6, the Trustee shall promptly turn the same over to the Collateral Trustee, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Trustee such proceeds to be applied by the Collateral Trustee pursuant to the terms of this Indenture and the Security Documents.
(j) The Collateral Trustee is each Holder’s agent for the purpose of perfecting the Holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon request from the Issuer, the Trustee shall notify the Collateral Trustee thereof and promptly shall deliver such Collateral to the Collateral Trustee or otherwise deal with such Collateral in accordance with the Collateral Trustee’s instructions.
(k) The Collateral Trustee shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by the Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Trustee’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer or Guarantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Trustee pursuant to this Indenture or any Security Document other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of Notes or as otherwise provided in the Security Documents.
(l) If the Issuer or any Guarantor (i) incurs any obligations in respect of First Lien Obligations or Junior Lien Obligations at any time when no applicable intercreditor agreement is in effect or at any time when Indebtedness constituting First Lien Obligations or Junior Lien Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Trustee and/or the Collateral Trustee an Officer’s Certificate so stating and requesting the Trustee and/or the Collateral Trustee to enter into an intercreditor agreement (on substantially the same terms as the applicable Intercreditor Agreement) in favor of a designated agent or representative for the holders of the First Lien Obligations or Junior Lien Obligations so incurred, together with an Opinion of Counsel, the Trustee and/or the Collateral Trustee shall (and is hereby authorized and directed to) enter into such intercreditor agreement (at the sole expense and cost of the Issuer, including legal fees and expenses of the Trustee and/or the Collateral Trustee), bind the Holders of Notes secured as provided in the Security Documents and this Article 12 on the terms set forth therein and perform and observe its obligations thereunder; provided that neither an Officer’s Certificate nor an Opinion of Counsel shall be required in connection with the applicable Intercreditor Agreements to be entered into by the Trustee and/or the Collateral Trustee on the Issue Date.
162
(m) No provision of this Indenture or any Security Document shall require the Collateral Trustee (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders (or the Trustee in the case of the Collateral Trustee) if it shall have received indemnity satisfactory to the Collateral Trustee and the Trustee against potential costs and liabilities incurred by the Collateral Trustee relating thereto. Notwithstanding anything to the contrary contained in this Indenture or the Security Documents, in the event the Collateral Trustee is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Collateral Trustee shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the mortgages or take any such other action if the Collateral Trustee has determined that the Collateral Trustee may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances. The Collateral Trustee shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient.
(n) The Collateral Trustee (i) shall not be liable for any action taken or omitted to be taken by it in connection with this Indenture and the Security Documents or instrument referred to herein or therein, except to the extent that any of the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct, (ii) shall not be liable for interest on any money received by it except as the Collateral Trustee may agree in writing with the Issuer (and money held in trust by the Collateral Trustee need not be segregated from other funds except to the extent required by law) and (iii) may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Trustee shall not be construed to impose duties to act.
(o) Neither the Collateral Trustee nor the Trustee shall be liable for delays or failures in performance resulting from acts caused by, directly or indirectly, forces beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Trustee nor the Trustee shall be liable for any indirect, special, punitive, incidental or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
(p) The Collateral Trustee does not assume any responsibility for any failure or delay in performance or any breach by the Issuer or any Guarantor under this Indenture and the Security Documents. The Collateral Trustee shall not be responsible to the Holders or any other Person for any recitals, statements, information, representations or warranties contained in this Indenture, the Security Documents or in any certificate, report, statement, or other document referred to or provided for in, or received by the Collateral Trustee under or in connection with, this Indenture or any Security Document; the execution, validity, genuineness, effectiveness or enforceability of any Security Documents of any other party thereto; the genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral, or the validity, effectiveness, enforceability, sufficiency, extent, perfection or priority of any Lien therein; the validity, enforceability or collectability of any Obligations; the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any obligor; or for
163
any failure of any obligor to perform its Obligations under this Indenture and the Security Documents. The Collateral Trustee shall have no obligation to any Holder or any other Person to ascertain or inquire into the existence of any Default or Event of Default, the observance or performance by any obligor of any terms of this Indenture and the Security Documents, or the satisfaction of any conditions precedent contained in this Indenture and any Security Documents. The Collateral Trustee shall not be required to initiate or conduct any litigation or collection or other proceeding under this Indenture and the Security Documents unless expressly set forth hereunder or thereunder. The Collateral Trustee shall have the right at any time to seek instructions from the Holders with respect to the administration of this Indenture and the Security Documents.
(q) The parties hereto and the Holders hereby agree and acknowledge that neither the Collateral Trustee nor the Trustee shall assume, be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including but not limited to, any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result of this Indenture, the Security Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture and the Security Documents, the Collateral Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Trustee in the Collateral and that any such actions taken by the Collateral Trustee shall not be construed as or otherwise constitute any participation in the management of such Collateral. In the event that the Collateral Trustee or the Trustee is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Collateral Trustee or the Trustee’s sole discretion may cause the Collateral Trustee or the Trustee to be considered an “owner or operator” under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause the Collateral Trustee or the Trustee to incur liability under CERCLA or any other federal, state or local law, the Collateral Trustee and the Trustee reserves the right, instead of taking such action, to either resign as the Collateral Trustee or the Trustee or arrange for the transfer of the title or control of the asset to a court-appointed receiver. Neither the Collateral Trustee nor the Trustee shall be liable to the Issuer, the Guarantors or any other Person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Trustee or the Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment. If at any time it is necessary or advisable for property to be possessed, owned, operated or managed by any Person (including the Collateral Trustee or the Trustee) other than the Issuer or the Guarantors, Holders of a majority in aggregate principal amount of the then outstanding Notes affected thereby shall direct the Collateral Trustee or the Trustee to appoint an appropriately qualified Person (excluding the Collateral Trustee or the Trustee) who they shall designate to possess, own, operate or manage, as the case may be, the property.
(r) Upon the receipt by the Collateral Trustee of a written request of the Issuer signed by an Officer (a “Security Document Order”), the Collateral Trustee is hereby authorized to execute and enter into, and shall execute and enter into, without the further consent of any Holder or the Trustee, any Security Document or amendment or supplement thereto, to be executed after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Trustee pursuant to, and is a Security Document Order referred to in, this Section 12.08(r), and (ii) instruct the Collateral Trustee to execute and enter into such Security Document or amendment or supplement thereto. Any such execution of a Security Document or amendment or supplement thereto, shall be at the direction and expense of the Issuer, upon delivery to the Collateral Trustee of an Officer’s Certificate and Opinion of
164
Counsel stating that all conditions precedent to the execution and delivery of the Security Document or amendment or supplement thereto, have been satisfied. The Holders, by their acceptance of the Notes, hereby authorize and direct the Collateral Trustee to execute such Security Documents or amendment or supplement thereto.
(s) Subject to the provisions of the applicable Security Documents and the Intercreditor Agreements, each Holder, by acceptance of the Notes, agrees that the Trustee and/or Collateral Trustee shall execute and deliver the Security Documents and Intercreditor Agreements to which it is a party and all agreements, documents and instruments incidental thereto, and act in accordance with the terms thereof. For the avoidance of doubt, the Collateral Trustee shall have no discretion under this Indenture, the Intercreditor Agreements or the Security Documents and shall not be required to make or give any determination, consent, approval, request or direction except as set forth in the Collateral Trust Agreement and, to the extent any instruction is required pursuant to this Indenture, at the direction of the Trustee acting in accordance with a written direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes.
(t) After the occurrence and continuance of an Event of Default, the Trustee, acting at the direction of the Holders of a majority of the aggregate principal amount of the then outstanding Notes, may direct the Collateral Trustee in connection with any action required or permitted by this Indenture, the Security Documents or the Intercreditor Agreements.
(u) The Collateral Trustee is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, for turnover to the Trustee to make further distributions of such funds to itself, the Trustee and the Holders in accordance with the provisions of Section 6.13 and the other provisions of this Indenture.
(v) In each case that the Collateral Trustee may or is required hereunder or under any Security Document to take any action (an “Action”) with respect to the Notes, including without limitation to make any determination, to give consents, to exercise rights, powers or remedies, to release or sell Collateral or otherwise to act hereunder or under any Security Document, the Collateral Trustee may seek direction in accordance with the Collateral Trust Agreement and, to the extent any instruction is required pursuant to this Indenture, at the direction of the Trustee acting in accordance with a written direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes. The Collateral Trustee shall not be liable with respect to any Action taken or omitted to be taken by it in accordance with the Collateral Trust Agreement and, to the extent any instruction is required pursuant to this Indenture, at the direction of the Trustee acting in accordance with a written direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes.
(w) Notwithstanding anything to the contrary in this Indenture or in any Security Document, in no event shall the Collateral Trustee or the Trustee be responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security interests or Liens intended to be created by this Indenture, the Security Documents (including without limitation the filing or continuation of any UCC financing or continuation statements or similar documents or instruments), nor shall the Collateral Trustee or the Trustee be responsible for, and neither the Collateral Trustee nor the Trustee makes any representation regarding, the validity, effectiveness or priority of any of the Security Documents or the security interests or Liens intended to be created thereby.
(x) Before the Collateral Trustee acts or refrains from acting in each case at the request or direction of the Issuer or the Guarantors, it may require an Officer’s Certificate and an Opinion of Counsel, which shall conform to the provisions of this Section 12.08. The Collateral Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion.
165
(y) Notwithstanding anything to the contrary contained herein, the Collateral Trustee shall act in accordance with the Collateral Trust Agreement and, to the extent any instruction is required pursuant to this Indenture, at the direction of the Trustee acting in accordance with a written direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes.
SECTION 12.09. Other Limitations.
(a) Liens required to be granted from time to time pursuant to this Indenture shall be subject to exceptions and limitations set forth in the Security Documents;
(b) control agreements or other control or similar arrangements shall not be required with respect to deposit accounts, securities accounts, commodities accounts or other assets requiring perfection by control agreements;
(c) no actions in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction shall be required to be taken to create any security interests in assets located or titled outside of the United States (including any Equity Interests of any Foreign Subsidiary and foreign intellectual property) or to perfect or make enforceable any security interests in any such assets (it being understood that there shall be no Security Document (or other security agreements or pledge agreements) governed under the laws of any non-U.S. jurisdiction); and
(d) no actions shall be required to perfect a security interest in letter of credit rights (other than the filing of a UCC financing statement) and no perfection actions (other than the filing of a UCC financing statement) shall be required with respect to promissory notes evidencing debt for borrowed money in a principal amount of less than $10.0 million.
ARTICLE 13
MISCELLANEOUS
SECTION 13.01. [Reserved].
SECTION 13.02. Notices.
Any notice or communication by the Issuer, any Guarantor or the Trustee or the Collateral Trustee to the others is duly given if in writing and delivered in person or mailed by first-class mail (registered or certified, return receipt requested), or overnight air courier guaranteeing next day delivery, to the others’ address, or given electronically:
166
If to the Issuer and/or any Guarantor:
Sinclair Television Group, Inc.
10706 Beaver Dam Road
Hunt Valley, Maryland 21030
Attention: Lucy Rutishauser
Justin Bray
David Gibber
Email: LRutisha@sbgtv.com
JLBray@sbgtv.com
dbgibber@sbgtv.com
If to the Trustee or the Collateral Trustee:
U.S. Bank Trust Company, National Association
Corporate Trust Services, 18th Floor
1021 East Cary Street, Suite 1850
Richmond, Virginia 23219
Attention: Melody Scott
Email: melody.scott@usbank.com
The Issuer, any Guarantor, the Trustee or the Collateral Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; on the first day on which publication is made, if given by publication; five calendar days after being deposited in the mail, postage prepaid, if mailed by first-class mail; at the time delivered, if sent by overnight air courier guaranteeing next day delivery; and at the time sent, if given electronically; provided that any notice or communication delivered to the Trustee or the Collateral Trustee shall be deemed effective upon actual receipt thereof. Notice otherwise given in accordance with the procedures of DTC will be deemed given on the date sent to DTC.
Any notice or communication to a Holder shall be mailed by first-class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. Notwithstanding anything to the contrary contained herein, as long as the Notes are in the form of a Global Note, notice to the Holders may be made electronically in accordance with procedures of the Depositary for such Note.
If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
If the Issuer delivers a notice or communication to Holders, it shall deliver a copy to the Trustee and the Collateral Trustee at the same time.
The Trustee and the Collateral Trustee agree to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail or other similar unsecured electronic methods. Electronic signatures believed by the Trustee and the Collateral Trustee to comply with the ESIGN Act of 2000 or other applicable law (including electronic images of handwritten signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign or any other digital signature provider
167
identified by any other party hereto and acceptable to the Trustee and the Collateral Trustee) shall be deemed original signatures for all purposes. If the Issuer, any Guarantor or any Holder elects to give the Trustee or the Collateral Trustee e-mail instructions (or instructions by a similar electronic method) and the Trustee or the Collateral Trustee in its discretion elects to act upon such instructions, the Trustee’s or the Collateral Trustee’s understanding of such instructions shall be deemed controlling. Neither the Trustee nor the Collateral Trustee shall be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s or the Collateral Trustee’s reliance upon and compliance with such instructions notwithstanding if such instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions and electronic signatures agrees to assume all risks arising out of the use of such electronic signatures and electronic methods to submit instructions and directions to the Trustee or the Collateral Trustee, including without limitation the risk of the Trustee or the Collateral Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties. Notwithstanding the foregoing, Agent may in any instance and in its sole discretion require that a Notice in the form of an original document bearing a manual signature be delivered to Agent in lieu of, or in addition to, any such electronic Notice.
SECTION 13.03. Communication by Holders of Notes with Other Holders of Notes.
Holders of Notes may communicate pursuant to Trust Indenture Act Section 312(b) with other Holders of Notes with respect to their rights under this Indenture or the Notes. The Issuer, the Trustee, the Registrar and anyone else shall have the protection of Trust Indenture Act Section 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer or any of the Guarantors to the Trustee to take any action under this Indenture, the Issuer or such Guarantor, as the case may be, shall furnish to the Trustee or, if such action relates to a Security Document or an Intercreditor Agreement, the Collateral Trustee:
(a) An Officer’s Certificate in form and substance reasonably satisfactory to the Trustee or the Collateral Trustee, as applicable (which shall include the statements set forth in Section 13.05), stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture and the Security Documents relating to the proposed action have been satisfied; and
(b) An Opinion of Counsel in form and substance reasonably satisfactory to the Trustee or the Collateral Trustee, as applicable (which shall include the statements set forth in Section 13.05) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
SECTION 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to Section 4.04) and shall include:
(a) a statement that the Person making such certificate or opinion has read such covenant or condition;
168
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with (and, in the case of an Opinion of Counsel, may be limited to reliance on an Officer’s Certificate as to matters of fact); and
(d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
SECTION 13.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
SECTION 13.07. No Personal Liability of Directors, Managers, Officers, Employees and Stockholders.
No past, present or future director, manager, officer, employee, incorporator, member, partner or stockholder of the Issuer or any Guarantor or any of their parent companies or entities (other than the Issuer in respect of the Notes and each Guarantor in respect of its Note Guarantee) shall have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Note Guarantees, this Indenture or the Security Documents (including any Intercreditor Agreements) or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder by accepting Notes waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
SECTION 13.08. Governing Law; Submission to Jurisdiction.
THIS INDENTURE, THE NOTES AND ANY NOTE GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Each of the parties hereto hereby irrevocably submits to the jurisdiction of any New York State court sitting in the Borough of Manhattan in the City of New York or any federal court sitting in the Borough of Manhattan in the City of New York inrespect of any suit, action or proceeding arising out of or relating to this Indenture, any Note Guarantee and the Notes, and irrevocably accepts for itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaidcourts.
SECTION 13.09. Waiver of Jury Trial.
EACH OF THE ISSUER, THE GUARANTORS, THE TRUSTEE AND EACH HOLDER OF A NOTE BY ITS ACCEPTANCE THEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 13.10. Force Majeure.
In no event shall the Trustee or the Collateral Trustee be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
169
SECTION 13.11. Foreign Account Tax Compliance Act (FATCA).
In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (“Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent, holder or other institution is or has agreed to be subject to related to this Indenture, the Issuer agrees (i) to use commercially reasonable efforts to provide to the Trustee sufficient information about Holders or other applicable parties and/or transactions related to this Indenture (including any modification to the terms of such transactions) so that the Trustee can determine whether it has tax related obligations under Applicable Law and (ii) that the Trustee shall be entitled to make any withholding or deduction from payments under this Indenture to the extent necessary to comply with Applicable Law for which the Trustee shall not have any liability. The terms of this Section 13.11 shall survive the termination of this Indenture.
SECTION 13.12. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer or a Guarantor or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 13.13. Successors.
All agreements of the Issuer in this Indenture and the Notes shall bind its successors. All agreements of the Trustee and the Collateral Trustee in this Indenture shall bind each of its successors. All agreements of each Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section 10.06.
SECTION 13.14. Severability.
In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 13.15. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
SECTION 13.16. Table of Contents, Headings, Etc.
The Table of Contents, Cross Reference Table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
170
SECTION 13.17. No Adverse Interpretation of Other Agreement.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer, any Guarantor or any other Restricted Subsidiary or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 13.18. Intercreditor Agreements.
Reference is made to the Intercreditor Agreements. Each Holder, by its acceptance of a Note, (a) agrees that it will be bound by and will take no actions contrary to the provisions of the Intercreditor Agreements and (b) authorizes and instructs the Trustee and the Collateral Trustee to enter into the Intercreditor Agreements as Trustee and as Collateral Trustee, as the case may be, and on behalf of such Holder, including without limitation, making the representations of the Holders contained therein. The foregoing provisions are intended as an inducement to the lenders under the Senior Credit Facilities to extend credit and such lenders are intended third party beneficiaries of such provisions and the provisions of the Intercreditor Agreements.
[Signatures on following page]
171
| SINCLAIR TELEVISION GROUP, INC., as the Issuer | |
|---|---|
| By: | /s/ Christopher S. Ripley |
| Name: Christopher S. Ripley | |
| Title: President and Chief Executive Officer |
[Signature Page to Indenture]
| GUARANTORS: | |
|---|---|
| SINCLAIR BROADCAST GROUP,<br>LLC | |
| By: | /s/ Christopher S. Ripley |
| --- | --- |
| Name: Christopher S. Ripley | |
| Title: President and Chief Executive<br>Officer | |
| BIRMINGHAM (WABM-TV) LICENSEE, INC. | |
| --- | |
| FISHER MILLS INC. | |
| FISHER PROPERTIES INC. | |
| HARRISBURG TELEVISION, INC. | |
| NEW YORK TELEVISION, INC. | |
| PERPETUAL CORPORATION | |
| RALEIGH (WRDC-TV) LICENSEE, INC. | |
| SINCLAIR ACQUISITION IX, INC. | |
| SINCLAIR ACQUISITION VII, INC. | |
| SINCLAIR ACQUISITION VIII, INC. | |
| SINCLAIR MEDIA III, INC. | |
| SINCLAIR MEDIA VI, INC. | |
| SINCLAIR TELEVISION MEDIA, INC. | |
| SINCLAIR TELEVISION OF BAKERSFIELD, INC. | |
| SINCLAIR TELEVISION OF SEATTLE, INC. | |
| SINCLAIR TELEVISION OF WASHINGTON, INC. | |
| WGME, INC. | |
| WSMH, INC. | |
| WSYX LICENSEE, INC. | |
| WVTV LICENSEE, INC. | |
| KAME, LLC | |
| KENV, LLC | |
| KRNV, LLC | |
| KRXI, LLC | |
| KVCW, LLC | |
| KVMY, LLC |
| By: | Chesapeake Media I, LLC, Sole Member |
|---|---|
| By: | Sinclair Television Group, Inc., Sole Member |
| of Chesapeake Media I, LLC | |
| WCWF LICENSEE, LLC | |
| WJAR LICENSEE, LLC | |
| WLUK LICENSEE, LLC | |
| By: | Harrisburg Television, Inc., Sole Member |
| SINCLAIR TELEVISION OF ILLINOIS, LLC | |
| --- | --- |
| WICD LICENSEE, LLC | |
| WICS LICENSEE, LLC | |
| By: | Illinois Television, LLC, Sole Member |
| By: | Sinclair Communications LLC, Sole Member of Illinois Television, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| KATV LICENSEE, LLC | |
| By: | KATV, LLC, Sole Member |
| By: | Sinclair Television Stations, LLC, Sole |
| Member of KATV, LLC | |
| By: | Perpetual Corporation, Sole Member of |
| Sinclair Television Stations, LLC | |
| KDSM LICENSEE, LLC | |
| By: | KDSM, LLC, Sole Member |
| By: | Sinclair Television Group, Inc., Sole Member of KDSM, LLC |
| KOKH LICENSEE, LLC | |
| By: | KOKH, LLC, Sole Member |
| By: | Sinclair Communications, LLC, Sole Member of KOKH, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| KTUL LICENSEE, LLC | |
| By: | KTUL, LLC, Sole Member |
| By: | Sinclair Television Stations, LLC, Sole |
| Member of KTUL, LLC | |
| By: | Perpetual Corporation, Sole Member of |
| Sinclair Television Stations, LLC | |
| WCGV LICENSEE, LLC | |
| By: | Milwaukee Television, LLC, Sole Member |
| By: | Sinclair Communications, LLC Sole Member of Milwaukee Television, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| WSMH LICENSEE, LLC | |
| By: | WSMH, Inc., Sole Member |
| SINCLAIR TELEVISION STATIONS, LLC | |
| By: | Perpetual Corporation, Sole Member |
| --- | --- |
| MJ PODCAST, LLC | |
| UMR PODCAST, LLC | |
| By: | Sinclair Audio, LLC |
| By: | Sinclair Television Group, Inc. |
| WKEF LICENSEE L.P. | |
| By: | Sinclair Communications, LLC, General Partner |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| CHESAPEAKE TELEVISION LICENSEE, LLC | |
| --- | |
| HARRISBURG LICENSEE, LLC | |
| ILLINOIS TELEVISION, LLC | |
| KABB LICENSEE, LLC | |
| KDNL LICENSEE, LLC | |
| KEYE LICENSEE, LLC | |
| KFDM LICENSEE, LLC | |
| KFOX LICENSEE, LLC | |
| KFXA LICENSEE, LLC | |
| KGAN LICENSEE, LLC | |
| KGBT LICENSEE, LLC | |
| KHGI LICENSEE, LLC | |
| KHQA LICENSEE, LLC | |
| KJZZ LICENSEE, LLC | |
| KOCB LICENSEE, LLC | |
| KOKH, LLC | |
| KPTH LICENSEE, LLC | |
| KRCG LICENSEE, LLC | |
| KRXI LICENSEE, LLC | |
| KSAS LICENSEE, LLC | |
| KTVL LICENSEE, LLC | |
| KTVO LICENSEE, LLC | |
| KUPN LICENSEE, LLC | |
| KUQI LICENSEE, LLC | |
| KUTV LICENSEE, LLC | |
| KVII LICENSEE, LLC | |
| MILWAUKEE TELEVISION, LLC | |
| SAN ANTONIO TELEVISION, LLC | |
| SINCLAIR PROPERTIES, LLC | |
| SINCLAIR TELEVISION OF EL PASO, LLC | |
| WACH LICENSEE, LLC | |
| WCWB LICENSEE, LLC | |
| WCWN LICENSEE, LLC | |
| WDKY LICENSEE, LLC | |
| WEAR LICENSEE, LLC | |
| --- | |
| WFGX LICENSEE, LLC | |
| WFXL LICENSEE, LLC | |
| WGFL LICENSEE, LLC | |
| WGXA LICENSEE, LLC | |
| WHOI LICENSEE, LLC | |
| WKRC LICENSEE, LLC | |
| WLFL LICENSEE, LLC | |
| WLOS LICENSEE, LLC | |
| WMSN LICENSEE, LLC | |
| WNAB LICENSEE, LLC | |
| WNWO LICENSEE, LLC | |
| WOAI LICENSEE, LLC | |
| WOLF LICENSEE, LLC | |
| WPBN LICENSEE, LLC | |
| WPDE LICENSEE, LLC | |
| WPEC LICENSEE, LLC | |
| WPGH LICENSEE, LLC | |
| WQMY LICENSEE, LLC | |
| WRDC, LLC | |
| WRGB LICENSEE, LLC | |
| WRGT LICENSEE, LLC | |
| WRLH LICENSEE, LLC | |
| WSBT LICENSEE, LLC | |
| WSTQ LICENSEE, LLC | |
| WSTR ACQUISITION, LLC | |
| WTGS LICENSEE, LLC | |
| WTOV LICENSEE, LLC | |
| WTTO LICENSEE, LLC | |
| WTVC LICENSEE, LLC | |
| WTVX LICENSEE, LLC | |
| WTVZ LICENSEE, LLC | |
| WTWC LICENSEE, LLC | |
| WUCW, LLC | |
| WUHF LICENSEE, LLC | |
| WUPN LICENSEE, LLC | |
| WUTV LICENSEE, LLC | |
| WUXP LICENSEE, LLC | |
| WWHO LICENSEE, LLC | |
| WWMT LICENSEE, LLC | |
| WXLV LICENSEE, LLC | |
| WZTV LICENSEE, LLC | |
| By: | Sinclair Communications, LLC, Sole Member |
| --- | --- |
| By: | Sinclair Television Group, Inc., Sole Member |
| of Sinclair Communications, LLC | |
| SINCLAIR DIGITAL NEWS, LLC | |
| --- | --- |
| WEST COAST DIGITAL, LLC | |
| By: | Sinclair Digital Group, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Digital Group, LLC |
| WCHS LICENSEE, LLC | |
| WVAH LICENSEE, LLC | |
| By: | Sinclair Media III, Inc., Sole Member |
| SINCLAIR MEDIA LICENSEE, LLC | |
| --- | |
| SINCLAIR TELEVISION OF ABILENE, LLC | |
| SINCLAIR TELEVISION OF BRISTOL, LLC | |
| SINCLAIR TELEVISION OF CALIFORNIA, LLC | |
| SINCLAIR TELEVISION OF MONTANA, LLC | |
| SINCLAIR TELEVISION OF NEW BERN, LLC | |
| WCTI LICENSEE, LLC | |
| By: | Sinclair Media VI, Inc., Sole Member |
| --- | --- |
| KBSI LICENSEE L.P. | |
| WMMP LICENSEE L.P. | |
| By: | Sinclair Properties, LLC, General Partner |
| By: | Sinclair Communications, LLC, Sole Member of Sinclair Properties, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| WDKA LICENSEE, LLC | |
| By: | Sinclair Properties, LLC, Sole Member |
| By: | Sinclair Communications, LLC, Sole Member of Sinclair Properties, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| ACTION TV, LLC | |
| --- | |
| CHESAPEAKE MEDIA I, LLC | |
| COMETTV, LLC | |
| DRIVE SALES, LLC | |
| FULL MEASURE, LLC | |
| HUMMINGBIRD, LLC | |
| HUNT VALLEY TRACKS, LLC | |
| KDSM, LLC | |
| NEST TV, LLC | |
| SINCLAIR AUDIO, LLC | |
| SINCLAIR COMMUNICATIONS, LLC | |
| SINCLAIR DIGITAL GROUP, LLC | |
| SINCLAIR GAMING SERVICES, LLC | |
| --- | |
| SINCLAIR NETWORKS GROUP, LLC | |
| SINCLAIR PROGRAMMING COMPANY, LLC | |
| SINCLAIR TELEVISION OF FRESNO, LLC | |
| SINCLAIR TELEVISION OF OMAHA, LLC | |
| TBD TV, LLC | |
| THE NATIONAL DESK, LLC | |
| By: | Sinclair Television Group, Inc., Sole<br>Member |
| --- | --- |
| SINCLAIR BAKERSFIELD LICENSEE, LLC | |
| --- | |
| SINCLAIR BOISE LICENSEE, LLC | |
| SINCLAIR BROADCASTING OF SEATTLE, LLC | |
| SINCLAIR EUGENE LICENSEE, LLC | |
| SINCLAIR LEWISTON LICENSEE, LLC | |
| SINCLAIR MEDIA OF BOISE, LLC | |
| SINCLAIR MEDIA OF WASHINGTON, LLC | |
| SINCLAIR PORTLAND LICENSEE, LLC | |
| SINCLAIR SEATTLE LICENSEE, LLC | |
| SINCLAIR TELEVISION OF OREGON, LLC | |
| SINCLAIR MEDIA OF SEATTLE, LLC | |
| SINCLAIR TELEVISION OF PORTLAND, LLC | |
| SINCLAIR YAKIMA LICENSEE,<br>LLC |
| By: | Sinclair Television Media, Inc., Sole Member |
|---|---|
| SINCLAIR-CALIFORNIA LICENSEE, LLC | |
| --- | --- |
| By: | Sinclair Television of California, LLC, Sole Member |
| By: | Sinclair Media VI, Inc., Sole Member of Sinclair Television of California, LLC |
| KDBC LICENSEE, LLC | |
| By: | Sinclair Television of El Paso, LLC, Sole Member |
| By: | Sinclair Communications, LLC, Sole Member of |
| Sinclair Television of El Paso, LLC | |
| By: | Sinclair Television Group, Inc., Sole Member of |
| Sinclair Communications, LLC | |
| KFRE LICENSEE, LLC | |
| KMPH LICENSEE, LLC | |
| WJAC LICENSEE, LLC | |
| By: | Sinclair Television of Fresno, LLC, Sole Member |
| By: | Sinclair Television Group, Inc., Sole Member of |
| Sinclair Television of Fresno, LLC | |
| KPTM LICENSEE, LLC | |
| By: | Sinclair Television of Omaha, LLC, Sole Member |
| By: | Sinclair Television Group, Inc., Sole Member of |
| --- | --- |
| Sinclair Television of Omaha, LLC | |
| SINCLAIR KENNEWICK LICENSEE, LLC | |
| SINCLAIR LA GRANDE LICENSEE, LLC | |
| By: | Sinclair Television of Washington, Inc., Sole Member |
| ACC LICENSEE, LLC | |
| KATV, LLC | |
| KTUL, LLC | |
| WBMA LICENSEE, LLC | |
| WSET LICENSEE, LLC | |
| By: | Sinclair Television Stations, LLC, Sole |
| Member | |
| By: | Perpetual Corporation, Sole Member of |
| Sinclair Television Stations, LLC | |
| WGME LICENSEE, LLC | |
| By: | WGME, Inc., Sole Member |
| KLGT LICENSEE, LLC | |
| By: | WUCW, LLC, Sole Member |
| By: | Sinclair Communications, LLC, Sole Member of WUCW, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| By: | /s/ Christopher S. Ripley |
| --- | --- |
| Christopher S. Ripley, in his capacity as President and Chief Executive Officer | |
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee and Collateral Trustee | |
| --- | --- |
| By: | /s/ Melody M. Scott |
| Name: Melody M. Scott | |
| Title: Assistant Vice President |
[Signature Page to Indenture]
EXHIBIT A
[Face of Note]
[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]
[Insert the Regulation S Temporary Global Note Legend, if applicable pursuant to the provisions of the Indenture]
A-1
CUSIP [ ]
ISIN [ ]
[RULE 144A][REGULATION S][IAI] [GLOBAL] NOTE
representing up to
[$______________]
8.125% First-Out First Lien Secured Notes due 2033
| No. ___ | [$______________] |
|---|
SINCLAIR TELEVISION GROUP, INC.
promises to pay to CEDE & CO. or registered assigns, the principal sum [set forth on the Schedule of Exchanges of Interests in the Global Note attached hereto] [of ________________________ United States Dollars] on [ ].
Interest Payment Dates: February 15 and August 15, commencing on August 15, 2025
Record Dates: February 1 and August 1
A-2
IN WITNESS HEREOF, the Issuer has caused this instrument to be duly executed.
Dated:
| SINCLAIR TELEVISION GROUP, INC. | |
|---|---|
| By: | |
| Name: | |
| Title: |
A-3
This is one of the Notes referred to in the within-mentioned Indenture:
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | |
|---|---|
| Dated: | |
| By: | |
| Authorized Signatory |
A-4
[Back of Note]
8.125% First-Out First Lien Secured Notes due 2033
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
INTEREST. Sinclair Television Group, Inc., a Maryland corporation (the “Issuer”), promises to pay interest on the principal amount of this Note at 8.125% per annum from [February 12, 2025]^1^ until Maturity. The Issuer shall pay interest semi-annually in arrears on February 15 and August 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from [February 12, 2025]^2^; provided that the first Interest Payment Date shall be [August 15, 2025]^3^. The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at the interest rate on the Notes to the extent lawful; the Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest from time to time on demand at the interest rate on the Notes. Interest shall be computed on the basis of a 360-day year comprised of twelve 30-day months. This note is one of the series designated on the face hereof (individually, a “Note” and, collectively, the “Notes”).
METHOD OF PAYMENT. The Issuer will pay interest on the Notes to the Persons who are registered Holders of the Notes at the close of business (if applicable) on the February 1 or August 1 (whether or not a Business Day), as the case may be, immediately preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. Payment of interest may be made by check mailed to the Holders of the Notes at their addresses set forth in the register of Holders; provided that all payments of principal of and interest and premium, if any, with respect to the Notes represented by one or more Global Notes will be made in accordance with DTC’s applicable procedures. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
PAYING AGENT AND REGISTRAR. Initially, U.S. Bank Trust Company, National Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Issuer may change any Paying Agent or Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may act in any such capacity.
INDENTURE. The Issuer issued the Notes under the Indenture, dated as of February 12, 2025 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), among the Issuer, the Guarantors party thereto, the Trustee and U.S. Bank Trust Company, National Association, as collateral trustee (the “Collateral Trustee”). This Note is one of a duly authorized issue of Notes of the Issuer designated as its 8.125% First-Out First Lien Secured Notes due 2033. The Issuer shall be entitled to issue Additional Notes constituting Notes pursuant to Sections 2.01, 4.09 and 4.12 of the Indenture. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms, and Holders of the Notes are referred to the Indenture for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
| ^1^ | Revise in connection with the issuance of Additional Notes. |
|---|---|
| ^2^ | Revise in connection with the issuance of Additional Notes. |
| --- | --- |
| ^3^ | Revise in connection with the issuance of Additional Notes. |
| --- | --- |
A-5
REDEMPTION AND REPURCHASE. The Notes are subject to optional redemption and may be the subject of a Change of Control Offer, an Asset Sale Offer or a redemption in connection with a Special Call Event, as further described in the Indenture. The Issuer shall not be required to make any mandatory redemption or sinking fund payments with respect to the Notes.
DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuer need not exchange or register the transfer of any Note or portion of a Note selected for redemption or tendered (and not withdrawn) for repurchase in connection with a Change of Control Offer, an Asset Sale Offer or other tender offer, in whole or in part, except for the unredeemed portion of any Note being redeemed in part. Also, the Issuer need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed.
PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes; provided, however, that in connection with the giving any consent, instruction or authorization for purposes of the provisions of Article 6, Article 9 and Sections 7.08 and 12.08(f) of the Indenture, beneficial owners of interests in a Note may constitute registered Holders, and in connection therewith, the Issuer, the Trustee, the Collateral Trustee, any Officer signing an Officer’s Certificate and any counsel delivering an Opinion of Counsel shall be permitted to rely in good faith on customary certificates of beneficial ownership as evidence of holdings of such interests (without, for the avoidance of doubt, DTC proxies, medallion-stamped guarantees or other similar evidence).
AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the Notes or the related Note Guarantees may be amended or supplemented as provided in the Indenture.
DEFAULTS AND REMEDIES. The Events of Default relating to the Notes are defined in Section 6.01 of the Indenture. Upon the occurrence of an Event of Default relating to the Notes, the rights and obligations of the Issuer, the Parent, the other Guarantors, the Trustee and the Holders of the Notes shall be as set forth in the applicable provisions of the Indenture.
AUTHENTICATION. This Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose until authenticated by the manual signature of the Trustee.
GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES.
CUSIP AND ISIN NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP and ISIN numbers and/or similar numbers to be printed on the Notes and the Trustee may use CUSIP and ISIN numbers and/or similar numbers in notices of redemption as a convenience to Holders of the Notes. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
A-6
- SECURITY. The Notes and the related Note Guarantees shall be secured by the Collateral on the terms and subject to the conditions set forth in the Indenture and the Security Documents. The Trustee and the Collateral Trustee, as the case may be, shall hold the Collateral in trust for the benefit of the Holders of the Notes, in each case pursuant to the Notes. Each Holder of the Notes, by accepting this Note, consents and agrees to the terms of the Security Documents (including the provisions providing for the foreclosure and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms and the Indenture and authorizes and directs the Collateral Trustee to enter into the Security Documents on the Issue Date, and at any time after the Issue Date, if applicable, and to perform its obligations and exercise its rights thereunder in accordance therewith.
The Issuer will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to the Issuer at the following address:
Sinclair Television Group, Inc.
10706 Beaver Dam Road
Hunt Valley, Maryland 21030
Attention: Lucy Rutishauser
Justin Bray
David Gibber
Email: LRutisha@sbgtv.com
JLBray@sbgtv.com
dbgibber@sbgtv.com
A-7
ASSIGNMENT FORM
To assign this Note, fill in the form below:
| (I) or (we) assign and transfer this Note to: |
|---|
(Insert assignee’s legal name)
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
| and irrevocably appoint |
|---|
to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
| Date: _____________________ | |
|---|---|
| Your Signature: | |
| --- | --- |
| (Sign exactly as your name appears on the face of this Note) | |
| Signature Guarantee:* __________________________________ | |
| --- | |
| * | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to<br>the Trustee). |
| --- | --- |
A-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.10 or 4.14 of the Indenture, check the appropriate box below:
[ ] Section 4.10 [ ] Section 4.14
If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.10 or Section 4.14 of the Indenture, state the amount you elect to have purchased:
$_______________
| Date: _____________________ | |
|---|---|
| Your Signature: | |
| --- | --- |
| (Sign exactly as your name appears on the face of this Note) | |
| Tax Identification No.: | |
| --- | |
| Signature Guarantee:* __________________________________ | |
| --- | |
| * | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to<br>the Trustee). |
| --- | --- |
A-9
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The initial outstanding principal amount of this Global Note is $__________. The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global or Definitive Note for an interest in this Global Note, have been made:
| Date of<br><br><br>Exchange | Amount of<br><br><br>decrease<br> <br>in Principal<br><br><br>Amount | Amount of increase<br><br><br>in Principal<br> <br>Amount of this<br><br><br>Global Note | Principal Amount<br><br><br>of<br> <br>this Global Note<br><br><br>following such<br> <br>decrease or<br><br><br>increase | Signature of<br><br><br>authorized officer<br> <br>of Trustee or<br><br><br>Note Custodian |
|---|---|---|---|---|
| * | This schedule should be included only if the Note is issued in global form. | |||
| --- | --- |
A-10
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Sinclair Television Group, Inc.
10706 Beaver Dam Road
Hunt Valley, Maryland 21030
Attention: Lucy Rutishauser
Justin Bray
David Gibber
U.S. Bank Trust Company, National Association
Corporate Trust Services, 18th Floor
1021 East Cary Street, Suite 1850
Richmond, Virginia 23219
Attention: Melody Scott
Re: 8.125% First-Out First Lien Secured Notes due 2033
Reference is hereby made to the Indenture, dated as of February 12, 2025 (as amended or supplemented from time to time, the “Indenture”), among the Issuer, the Guarantors party thereto, the Trustee and the Collateral Trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
_______________ (the “Transferor”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $___________ in such Note[s] or interests (the “Transfer”), to _______________ (the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
[ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States.
[ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such
B-1
Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than the firms whose marketing names are listed on the cover of the Offering Memorandum). Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Indenture and the Securities Act.
- [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Issuer, a Restricted Subsidiary or a Guarantor;
or
(c) [ ] such Transfer is being effected pursuant to an effective registration statement under the Securities Act and, if applicable, in compliance with the prospectus delivery requirements of the Securities Act;
or
(d) [ ] such Transfer is in a principal amount of at least $250,000 and is being effected to an Institutional Accredited Investor and pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Global Note or Definitive Notes and the requirements of the exemption claimed, which certification is supported by (1) a certificate executed by the Transferee in the form of Exhibit H to the Indenture and (2) an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the effect that such Transfer is in compliance with the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the IAI Global Note and/or the Definitive Notes and in the Indenture and the Securities Act.
B-2
- [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
B-3
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
| [Insert Name of Transferor] |
|---|
| By: |
| Name: |
| Title: |
| Dated: _______________________ |
| --- |
B-4
ANNEX A TO CERTIFICATE OF TRANSFER
| 1. | The Transferor owns and proposes to transfer the following: |
|---|
[CHECK ONE OF (a) OR (b)]
| (a) | [ ] a beneficial interest in the: |
|---|---|
| (i) | [ ] 144A Global Note (CUSIP [ ]), or |
| --- | --- |
| (ii) | [ ] Regulation S Global Note (CUSIP [ ]), or |
| --- | --- |
| (iii) | [ ] IAI Global Note (CUSIP [ ]), or |
| --- | --- |
| (b) | [ ] a Restricted Definitive Note. |
| --- | --- |
| 2. | After the Transfer the Transferee will hold: |
| --- | --- |
[CHECK ONE]
| (a) | [ ] a beneficial interest in the: |
|---|---|
| (i) | [ ] 144A Global Note (CUSIP [ ]), or |
| --- | --- |
| (ii) | [ ] Regulation S Global Note (CUSIP [ ]), or |
| --- | --- |
| (iii) | [ ] IAI Global Note (CUSIP [ ]), or |
| --- | --- |
| (iv) | [ ] Unrestricted Global Note (CUSIP [ ]); or |
| --- | --- |
| (b) | [ ] a Restricted Definitive Note; or |
| --- | --- |
| (c) | [ ] an Unrestricted Definitive Note, |
| --- | --- |
in accordance with the terms of the Indenture.
B-5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Sinclair Television Group, Inc.
10706 Beaver Dam Road
Hunt Valley, Maryland 21030
Attention: Lucy Rutishauser
Justin Bray
David Gibber
U.S. Bank Trust Company, National Association
Corporate Trust Services, 18th Floor
1021 East Cary Street, Suite 1850
Richmond, Virginia 23219
Attention: Melody Scott
| Re: | 8.125% First-Out First Lien Secured Notes due 2033<br> |
|---|
Reference is hereby made to the Indenture, dated as of February 12, 2025 (as amended or supplemented from time to time, the “Indenture”), among the Issuer, the Guarantors party thereto, the Trustee and the Collateral Trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
(the “Owner”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $ in such Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:
1) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the United States Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
C-1
b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
2) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.
C-2
b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE] [ ] 144A Global Note [ ] Regulation S Global Note [ ] IAI Global Note, with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
| [Insert Name of Transferor] | |
|---|---|
| By: | |
| Name: | |
| Title: |
Dated:
C-3
EXHIBIT D
[FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
SUPPLEMENTAL INDENTURE NO. [ ] (this “Supplemental Indenture”), dated as of [ ], by and between [ ] (the “Guaranteeing Entity”), a subsidiary of [the Issuer], U.S. Bank Trust Company, National Association, as trustee (the “Trustee”) and collateral trustee (the “Collateral Trustee”).
W I T N E S S E T H
WHEREAS, Sinclair Television Group, Inc., a Maryland corporation (the “Issuer”), the other parties that are signatories thereto as Guarantors, the Trustee and the Collateral Trustee have heretofore executed and delivered an indenture, dated as of February 12, 2025 (together with this Supplemental Indenture, and as further amended, supplemented or otherwise modified, the “Indenture”) providing for the initial issuance of $1,430,000,000 aggregate principal amount of 8.125% First-Out First Lien Secured Notes due 2033 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Entity shall execute and deliver to the Trustee and the Collateral Trustee a supplemental indenture pursuant to which the Guaranteeing Entity shall unconditionally guarantee, on a joint and several basis with the other Guarantors, all of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and the Collateral Trustee are authorized to execute and deliver this Supplemental Indenture to amend or supplement the Indenture without the consent of any Holder of Notes.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
(1) Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
(2) Agreement to Guarantee. The Guaranteeing Entity hereby agrees to be a Guarantor under the Indenture and to be bound by the terms of the Indenture applicable to a Guarantor, including Article 10 thereof.
(3) Execution and Delivery. The Guaranteeing Entity agrees that the Note Guarantee shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
D-1
(4) Governing Law. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(5) Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
(6) Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
(7) The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Entity.
[Signature Page Follows]
D-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
| GUARANTOR: | |
|---|---|
| [GUARANTEEING ENTITY] | |
| By: | |
| Name: | |
| Title: | |
| By: | |
| Name: | |
| Title: |
D-3
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee and Collateral Trustee | |
|---|---|
| By: | |
| Name: | |
| Title: |
D-4
Exhibit E
FORM OF SECURITY AGREEMENT
[Intentionally Omitted. To be provided
to the Securities and Exchange
Commission or its staff upon request.]
Exhibit F
FORM OF COLLATERAL TRUST AGREEMENT
[Intentionally Omitted. To be provided to
the Securities and Exchange Commission
or its staff upon request.]
Exhibit G
FORM OF FIRST/SECOND/THIRD LIEN INTERCREDITOR AGREEMENT
[Intentionally Omitted. To be provided to
the Securities and Exchange Commission
or its staff upon request.]
Exhibit H
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Sinclair Television Group, Inc.
10706 Beaver Dam Road
Hunt Valley, Maryland 21030
Attention: Lucy Rutishauser
Justin Bray
David Gibber
U.S. Bank Trust Company, National Association
Corporate Trust Services, 18th Floor
1021 East Cary Street, Suite 1850
Richmond, Virginia 23219
Attention: Melody Scott
| Re: | 8.125% First-Out First Lien Secured Notes due 2033<br> |
|---|
(CUSIP )
Reference is hereby made to the Indenture, dated as of February 12, 2025 (as amended and supplemented to the date hereof, the “Indenture”), by and among Sinclair Television Group, Inc., a Maryland corporation (the “Issuer”), the other parties that are signatories thereto as Guarantors and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”) and collateral trustee (the “Collateral Trustee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $ aggregate principal amount (which is at least $250,000) of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
We understand that any subsequent transfer of the Notes or any interest therein is subject to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended (the “Securities Act”).
We understand that the offer and sale of the Notes have not been registered under the Securities Act, and that the Notes and any interest therein may not be offered or sold except as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should sell the Notes or any interest therein, we will do so only (A) to the Issuer, a Restricted Subsidiary or a Guarantor, (B) in accordance with Rule 144A under the Securities Act to a “qualified institutional buyer” (as defined therein), (C) to an institutional “accredited investor” (as defined below) in a principal amount of at least $250,000 and that, prior to such transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the Issuer a signed letter substantially in the form of this letter and an Opinion of Counsel in form reasonably acceptable to the Issuer to the effect that such transfer is in compliance with the Securities Act, (D) outside the United
H-1
States in accordance with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the provisions of Rule 144 under the Securities Act or (F) pursuant to an effective registration statement under the Securities Act, and we further agree to provide to any Person purchasing the Definitive Note or beneficial interest in a Global Note from us in a transaction meeting the requirements of clauses (A) through (E) of this paragraph a notice advising such purchaser that resales thereof are restricted as stated herein.
We understand that, on any proposed resale of the Notes or beneficial interest therein, we will be required to furnish to you and the Issuer such certifications, legal opinions and other information as you and the Issuer may reasonably require to confirm that the proposed sale complies with the foregoing restrictions. We further understand that the Notes purchased by us will bear a legend to the foregoing effect.
We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we and any accounts for which we are acting are each able to bear the economic risk of our or its investment.
We are acquiring the Notes or beneficial interest therein purchased by us for our own account or for one or more accounts (each of which is an institutional “accredited investor”) as to each of which we exercise sole investment discretion.
The Trustee and the Issuer are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
| [Insert Name of Institutional Accredited Investor] | |
|---|---|
| By: | |
| Name: | |
| Title: |
Dated:
H-2
EX-4.2
Exhibit No. 4.2
Execution Version ****
SUPPLEMENTAL INDENTURE NO.4
SUPPLEMENTAL INDENTURE NO. 4 (this “Supplemental Indenture”), dated as of February 10, 2025, by and among SINCLAIR TELEVISION GROUP, INC., a Maryland corporation (the “Issuer”), the Guarantors party hereto and U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), as trustee (the “Trustee”) and collateral agent (the “Notes Collateral Agent”).
W I T N E S S E T H
WHEREAS, the Issuer, the other parties that are signatories thereto as Guarantors, the Trustee and the Notes Collateral Agent have heretofore executed and delivered an indenture, dated as of December 4, 2020 (as supplemented by Supplemental Indenture No. 1 dated as of March 15, 2021, Supplemental Indenture No. 2 dated as of June 16, 2022 and Supplemental Indenture No. 3 dated as of May 30, 2024 (as so supplemented, the “Existing Indenture”), and, as further amended, supplemented or otherwise modified by this Supplemental Indenture, the “Indenture”) providing for the issuance of $750,000,000 aggregate principal amount of 4.125% Senior Secured Notes due 2030 (the “Notes”);
WHEREAS, Section 9.02 of the Existing Indenture provides, inter alia, that, in certain circumstances, the Issuer and the Trustee and/or the Notes Collateral Agent may amend the Existing Indenture, the Security Documents, the Intercreditor Agreements, the Note Guarantees and the Notes with the written consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding and affected thereby (the “General Requisite Consents”);
WHEREAS, Sections 9.02 further provides that no amendment or waiver may make any change in any Security Document, the Intercreditor Agreements or the provisions of the Existing Indenture dealing with Collateral or application of trust proceeds of the Collateral with the effect of releasing the Liens on all or substantially all of the Collateral which secure the Obligations in respect of the Notes without the consent of the holders of at least 66-2/3% in aggregate principal amount of the Notes then outstanding (the “Collateral Requisite Consents” and, together with the General Requisite Consents, the “Requisite Consents”);
WHEREAS, the Issuer desires to exchange (the “Exchange Offer”) new 4.375% Senior Second-Out Secured Notes due 2032 (the “New Notes”) for any and all of the outstanding Notes and in connection therewith solicit consents (the “Consent Solicitation”) to effect the amendments, supplements and other modifications to the Existing Indenture, the Security Documents, the Intercreditor Agreements, the Note Guarantees and the Notes set forth herein (the “Amendments”);
WHEREAS, the holders of at least $730 million in aggregate principal amount of the Notes outstanding as of the date hereof (excluding any Notes owned by the Issuer or its affiliates) have consented pursuant to the Exchange Offer and the Consent Solicitation, to the adoption of all of the Amendments to be effected by this Supplemental Indenture in accordance with the provisions of the Existing Indenture, and evidence of such consents, which constitute the Requisite Consents, and a resolution of the Board of the Issuer authorizing the execution hereof have been provided by the Issuer to the Trustee;
WHEREAS, the execution and delivery of this instrument has been duly authorized and all conditions and requirements necessary to make this instrument a valid and binding agreement have been duly performed and complied with;
WHEREAS, in accordance with Sections 9.06, 13.04 and 13.05, as applicable, of the Existing Indenture, the Issuer has delivered to the Trustee and the Notes Collateral Agent an Officer’s Certificate and an Opinion of Counsel with respect to this Supplemental Indenture on the date hereof; and
WHEREAS, pursuant to Sections 9.02 and 9.06 of the Existing Indenture, together with receipt of the Requisite Consents, the Trustee and the Notes Collateral Agent are authorized or permitted to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
(a) For purposes of this Supplemental Indenture, capitalized terms used herein without definition shall have the meanings assigned to them in the Existing Indenture; and references to Articles or Sections shall, unless the context indicates otherwise, be references to Articles or Sections of the Existing Indenture.
(b) The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
ARTICLE 2
AMENDMENTS TO THE EXISTING INDENTURE AND THE NOTES
Pursuant to Section 9.02 of the Existing Indenture, the Issuer, the Trustee (in the case of the Trustee, acting in reliance upon the instructions and directions of the holders of the Requisite Consents obtained pursuant to the Exchange Offer and the Consent Solicitation) and to the extent applicable, the Notes Collateral Agent (in the case of the Notes Collateral Agent, acting in reliance upon the instructions and directions of the holders of the Requisite Consents obtained pursuant to the Exchange Offer and the Consent Solicitation) hereby agree that subject to the occurrence of the Operative Time, from and after the Operative Time:
(a) Section 1.01 of the Existing Indenture is hereby amended by:
(i) deleting the definition of “Intercreditor Agreements” in its entirety.
(ii) amending and restating the definition of “Permitted Liens” in its entirety to read as set forth below:
“‘Permitted Liens’ mean any and all Liens.”
2
(iii) deleting (A) any definitions not used in any provision of the Existing Indenture, the Notes or the Security Documents other than the provisions of the Existing Indenture or Notes that are deleted pursuant to the amendments set forth in this Supplemental Indenture, and (B) any definitions used exclusively within such definitions, in each case, in their entirety from the Existing Indenture and the Notes.
(b) Section 4.13 of the Existing Indenture is hereby amended and restated to read in its entirety as set forth below:
“Section 4.13. Corporate Existence. Subject to Article 5, the Issuer shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) its corporate, partnership or other existence, as applicable, in accordance with its organizational documents (as the same may be amended from time to time), and (ii) the rights (charter and statutory), licenses and franchises material to the conduct of its business.”
(c) Section 4.03 of the Existing Indenture is hereby amended and restated in its entirety as set forth below:
“Section 4.03. Reports and Other Information. So long as any Notes are outstanding, the Issuer shall furnish to prospective investors of the Notes any information required to be delivered by the Issuer pursuant to Rule 144A(d)(4) under the Securities Act if at any time a Parent Entity of the Issuer is not required to file with the SEC its annual and quarterly reports on Form 10-K and 10-Q, respectively, and does not voluntarily file such reports.”
(d) (i) Sections 3.09,^^4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.14, 4.15, 4.19 , clauses (3), (4), (5), (6) and (7) of Section 5.01(a), clauses (1)(iii), (iv) and (v) and (2) of Section 5.01(c) of the Existing Indenture are hereby deleted in their entirety and the Issuer and the Guarantors shall be released from their respective obligations thereunder; and (ii) the Issuer and the Guarantors may omit to comply with, and shall have no liability in respect of, any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere in the Existing Indenture, any Note or any Security Document to any such covenant or by reason of any reference in any such covenant to any other provision therein, and such omission to comply shall not constitute a Default or an Event of Default with respect to the Notes under Section 6.01 and not in limitation but in furtherance of the foregoing;
(e) clauses (3), (4), (5), (6) (solely with respect to any Significant Subsidiary and any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary), (7) (solely with respect to any Significant Subsidiary and any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary), (9) and (10) of Section 6.01(a) of the Existing Indenture shall not constitute Defaults or Events of Default for purposes of the Existing Indenture, any Note or any Security Document;
(f) the words “(with respect to the Issuer, any Subsidiary of Parent that is a Parent Guarantor or Parent)” appearing in the first paragraph of Section 6.02 of the Existing Indenture are amended to read as “(with respect to the Issuer)”;
(g) the words “(with respect to the Issuer, any Subsidiary of Parent that is a Parent Guarantor)” appearing in the second paragraph of Section 6.02 of the Existing Indenture are amended to read as “(with respect to the Issuer)”;^^
3
(h) Sections 12.01, 12.03, 12.04, 12.06 and 12.09 are hereby deleted in their respective entireties;
(i) Section 13.18 of the Existing Indenture is hereby deleted in its entirety; and
(j) all textual references in the Existing Indenture and the Notes exclusively relating to paragraphs, Sections, Articles or other terms or provisions of the Existing Indenture that have been otherwise deleted pursuant to this Supplemental Indenture are hereby deleted in their entirety; provided, however, that any term or provision in the Existing Indenture that authorizes any action by any Restricted Subsidiary, or authorizes a given circumstance or occurrence, when permitted by a deleted paragraph, Section, Article or other term or provision or performed in accordance with a deleted paragraph, Section, Article or other term or provision, shall be deemed to permit such action, circumstance or occurrence.
ARTICLE 3
RELEASE OF COLLATERAL; TERMINATION OF SECURITY DOCUMENTS
Pursuant to Sections 9.02 and 12.02(a)(9) of the Existing Indenture and Section 5.13 of the Security Agreement, subject to the occurrence of the Operative Time, the Security Agreement is hereby terminated effective as of the Operative Time, and all Liens and security interests created by and granted under the Security Agreement and the other Security Documents in and on the Collateral are hereby immediately, automatically and irrevocably released and terminated as of the Operative Time and shall be of no further force and effect from and after the Operative Time, without any further action on the part of the Trustee or the Notes Collateral Agent. The Trustee and the Notes Collateral Agent are hereby instructed subject to the occurrence of the Operative Time, to execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases to evidence the release of the Collateral as may be requested by the Issuer from time to time at or after the Operative Time, including any instruments or other documentation relating to the termination of the Liens and security interests in respect of the Intercreditor Agreements, including, but not limited to: (1) entering into and delivering an instrument and other documentation to terminate the Notes Collateral Agent’s interests in the First Lien Intercreditor Agreement, including the Termination of First Lien Intercreditor Agreement substantially in the form attached hereto as Exhibit A, (2) the filing of the UCC-3 termination statements substantially in the form attached hereto as Exhibit B, (3) the filing of the Termination of Trademark Security Agreement attached hereto as Exhibit C, (4) the filing of the Termination of Patent Security Agreement substantially in the form attached hereto as Exhibit D, (5) the filing of the Termination of Copyright Security Agreement substantially in the form attached hereto as Exhibit E, in each case, at or after the Operative Time, and the Issuer and the Guarantors are hereby authorized at or after the Operative Time to file such termination statements or instruments of termination described in the foregoing clauses (2) through (5) with the appropriate Secretary of State or Department of State, the U.S. Patent and Trademark Office, the U.S. Copyright Office and/or any other appropriate government authority, as applicable.
ARTICLE 4
OVERRIDE PROVISIONS
Notwithstanding anything to the contrary herein or in the Existing Indenture but subject to the occurrence of the Operative Time, the occurrence of any event or circumstance that constituted or would have constituted a Default or Event of Default under the Existing Indenture shall be deemed to have been waived by the holders of the Notes ab initio from the date of the occurrence of any such event or circumstance if the occurrence of any such event or circumstance would not have constituted a Default or Event of Default under the Indenture.
4
ARTICLE 5
EFFECTIVENESS; OPERATIVENESS
This Supplemental Indenture shall become a binding agreement between the parties hereto and effective when executed by the parties hereto; provided that notwithstanding anything to the contrary herein, the amendments, supplements and other modifications to the Existing Indenture set forth in Articles 2, 3 and 4 shall become operative only at the time and date (the “Operative Time”) at which (i) all of the Notes that have been validly tendered in the Exchange Offer prior to the Early Tender Time (as defined in the Statement) and not validly withdrawn shall have been accepted for exchange in accordance with the terms of the Confidential Offering Memorandum and Offer to Exchange and Consent Solicitation Statement dated January 27, 2025, as amended and supplemented by Supplement No. 1 dated January 30, 2025, delivered to the Holders of the Notes in connection with the Exchange Offer and the Consent Solicitation (as amended, supplemented or otherwise modified from time to time, the “Statement”), and (ii) the Issuer shall have caused an Officer’s Certificate and Opinion of Counsel, in each case, complying with the requirements of Sections 12.02(d), 13.04 and 13.05 of the Existing Indenture to be delivered to the Trustee and the Notes Collateral Agent.
ARTICLE 6
MISCELLANEOUS
(a) Notes; Corresponding Amendments. Amendments to the Indenture pursuant to this Supplemental Indenture shall also apply to the Notes. Pursuant to Section 8 of each Global Note, with effect on and from the date hereof, each Global Note shall be deemed supplemented, modified and amended in such manner as necessary to render the terms of such Global Note consistent with the terms of the Indenture, as amended by this Supplemental Indenture. Except as specified in Articles 2, 3 and 4 above, the remainder of the Indenture and the Notes shall be unaffected hereby.
(b) Incorporation. All provisions of this Supplemental Indenture shall be deemed to be incorporated in, and made a part of, the Indenture, and the Indenture, as amended and supplemented by this Supplemental Indenture, shall be read, taken and construed as one and the same instrument.
(c) Third Parties. Nothing in this Supplemental Indenture, express or implied, shall give to any Person, other than the parties hereto and their successors under the Indenture and the holders of the Notes, any benefit or any legal or equitable right, remedy or claim under the Indenture.
(d) Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(e) Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
(f) Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
(g) The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Issuer and the Guarantors.
[Signature Pages Follow]
5
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
ISSUER:
| SINCLAIR TELEVISION GROUP, INC. | |
|---|---|
| By: | /s/ Christopher S. Ripley |
| Name: Christopher S. Ripley | |
| Title: President and Chief Executive Officer |
[Signature page to Supplemental Indenture No. 4 to 4.125% Senior Secured Notes Indenture]
| GUARANTORS: | ||
|---|---|---|
| SINCLAIR BROADCAST GROUP, LLC | ||
| By: | /s/ Christopher S. Ripley | |
| Name: Christopher S. Ripley | ||
| Title: President and Chief Executive Officer | ||
| BIRMINGHAM (WABM-TV) LICENSEE, INC. | ||
| FISHER MILLS, INC. | ||
| FISHER PROPERTIES, INC. | ||
| HARRISBURG TELEVISION, INC. | ||
| NEW YORK TELEVISION, INC. | ||
| PERPETUAL CORPORATION | ||
| RALEIGH (WRDC-TV) LICENSEE, INC. | ||
| SINCLAIR ACQUISITION IX, INC. | ||
| SINCLAIR ACQUISITION VII, INC. | ||
| SINCLAIR ACQUISITION VIII, INC. | ||
| SINCLAIR MEDIA III, INC. | ||
| SINCLAIR MEDIA VI, INC. | ||
| SINCLAIR TELEVISION MEDIA, INC. | ||
| SINCLAIR TELEVISION OF BAKERSFIELD, INC. | ||
| SINCLAIR TELEVISION OF SEATTLE, INC. | ||
| SINCLAIR TELEVISION OF WASHINGTON, INC. | ||
| WGME, INC. | ||
| WSMH, INC. | ||
| WSYX LICENSEE, INC. | ||
| WVTV LICENSEE, INC. | ||
| KAME, LLC | ||
| KENV, LLC | ||
| KRNV, LLC | ||
| KRXI, LLC | ||
| KVCW, LLC | ||
| KVMY, LLC | ||
| By: | Chesapeake Media I, LLC, Sole Member | |
| By: | Sinclair Television Group, Inc., Sole Member of Chesapeake Media I, LLC | |
| WCWF LICENSEE, LLC | ||
| WJAR LICENSEE, LLC | ||
| WLUK LICENSEE, LLC | ||
| By: Harrisburg Television, Inc., Sole Member | ||
| SINCLAIR TELEVISION OF ILLINOIS, LLC | ||
| --- | --- | |
| WICD LICENSEE, LLC | ||
| WICS LICENSEE, LLC | ||
| By: | Illinois Television, LLC, Sole Member | |
| By: | Sinclair Communications LLC, Sole Member of Illinois Television, LLC | |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC | |
| KATV LICENSEE, LLC | ||
| By: | KATV, LLC, Sole Member | |
| By: | Sinclair Television Stations, LLC, Sole Member of KATV, LLC | |
| By: | Perpetual Corporation, Sole Member of Sinclair Television Stations, LLC | |
| KDSM LICENSEE, LLC | ||
| By: | KDSM, LLC, Sole Member | |
| By: | Sinclair Television Group, Inc., Sole Member of KDSM, LLC | |
| KOKH LICENSEE, LLC | ||
| By: | KOKH, LLC, Sole Member | |
| By: | Sinclair Communications, LLC, Sole Member of KOKH, LLC | |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC | |
| KTUL LICENSEE, LLC | ||
| By: | KTUL, LLC, Sole Member | |
| By: | Sinclair Television Stations, LLC, Sole Member of KTUL, LLC | |
| By: | Perpetual Corporation, Sole Member of Sinclair Television Stations, LLC | |
| WCGV LICENSEE, LLC | ||
| By: | Milwaukee Television, LLC, Sole Member | |
| By: | Sinclair Communications, LLC Sole Member of Milwaukee Television, LLC | |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC | |
| WSMH LICENSEE, LLC | ||
| By: | WSMH, Inc., Sole Member | |
| SINCLAIR TELEVISION STATIONS, LLC | ||
| By: | Perpetual Corporation, Sole Member | |
| --- | --- | |
| MJ PODCAST, LLC | ||
| UMR PODCAST, LLC | ||
| By: | Sinclair Audio, LLC | |
| By: | Sinclair Television Group, Inc. | |
| WKEF LICENSEE L.P. | ||
| By: | Sinclair Communications, LLC, General Partner | |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC | |
| CHESAPEAKE TELEVISION LICENSEE, LLC | ||
| HARRISBURG LICENSEE, LLC | ||
| ILLINOIS TELEVISION, LLC | ||
| KABB LICENSEE, LLC | ||
| KDNL LICENSEE, LLC | ||
| KEYE LICENSEE, LLC | ||
| KFDM LICENSEE, LLC | ||
| KFOX LICENSEE, LLC | ||
| KFXA LICENSEE, LLC | ||
| KGAN LICENSEE, LLC | ||
| KGBT LICENSEE, LLC | ||
| KHGI LICENSEE, LLC | ||
| KHQA LICENSEE, LLC | ||
| KJZZ LICENSEE, LLC | ||
| KOCB LICENSEE, LLC | ||
| KOKH, LLC | ||
| KPTH LICENSEE, LLC | ||
| KRCG LICENSEE, LLC | ||
| KRXI LICENSEE, LLC | ||
| KSAS LICENSEE, LLC | ||
| KTVL LICENSEE, LLC | ||
| KTVO LICENSEE, LLC | ||
| KUPN LICENSEE, LLC | ||
| KUQI LICENSEE, LLC | ||
| KUTV LICENSEE, LLC | ||
| KVII LICENSEE, LLC | ||
| MILWAUKEE TELEVISION, LLC | ||
| SAN ANTONIO TELEVISION, LLC | ||
| SINCLAIR PROPERTIES, LLC | ||
| SINCLAIR TELEVISION OF EL PASO, LLC | ||
| WACH LICENSEE, LLC | ||
| WCWB LICENSEE, LLC | ||
| WCWN LICENSEE, LLC | ||
| WDKY LICENSEE, LLC | ||
| WEAR LICENSEE, LLC | ||
| --- | --- | |
| WFGX LICENSEE, LLC | ||
| WFXL LICENSEE, LLC | ||
| WGFL LICENSEE, LLC | ||
| WGXA LICENSEE, LLC | ||
| WHOI LICENSEE, LLC | ||
| WKRC LICENSEE, LLC | ||
| WLFL LICENSEE, LLC | ||
| WLOS LICENSEE, LLC | ||
| WMSN LICENSEE, LLC | ||
| WNAB LICENSEE, LLC | ||
| WNWO LICENSEE, LLC | ||
| WOAI LICENSEE, LLC | ||
| WOLF LICENSEE, LLC | ||
| WPBN LICENSEE, LLC | ||
| WPDE LICENSEE, LLC | ||
| WPEC LICENSEE, LLC | ||
| WPGH LICENSEE, LLC | ||
| WQMY LICENSEE, LLC | ||
| WRDC, LLC | ||
| WRGB LICENSEE, LLC | ||
| WRGT LICENSEE, LLC | ||
| WRLH LICENSEE, LLC | ||
| WSBT LICENSEE, LLC | ||
| WSTQ LICENSEE, LLC | ||
| WSTR ACQUISITION, LLC | ||
| WTGS LICENSEE, LLC | ||
| WTOV LICENSEE, LLC | ||
| WTTO LICENSEE, LLC | ||
| WTVC LICENSEE, LLC | ||
| WTVX LICENSEE, LLC | ||
| WTVZ LICENSEE, LLC | ||
| WTWC LICENSEE, LLC | ||
| WUCW, LLC | ||
| WUHF LICENSEE, LLC | ||
| WUPN LICENSEE, LLC | ||
| WUTV LICENSEE, LLC | ||
| WUXP LICENSEE, LLC | ||
| WWHO LICENSEE, LLC | ||
| WWMT LICENSEE, LLC | ||
| WXLV LICENSEE, LLC | ||
| WZTV LICENSEE, LLC | ||
| By: | Sinclair Communications, LLC, Sole Member | |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC | |
| SINCLAIR DIGITAL NEWS, LLC | ||
| --- | --- | |
| WEST COAST DIGITAL, LLC | ||
| By: | Sinclair Digital Group, LLC | |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Digital Group, LLC | |
| WCHS LICENSEE, LLC | ||
| WVAH LICENSEE, LLC | ||
| By: | Sinclair Media III, Inc., Sole Member | |
| SINCLAIR MEDIA LICENSEE, LLC | ||
| SINCLAIR TELEVISION OF ABILENE, LLC | ||
| SINCLAIR TELEVISION OF BRISTOL, LLC | ||
| SINCLAIR TELEVISION OF CALIFORNIA, LLC | ||
| SINCLAIR TELEVISION OF MONTANA, LLC | ||
| SINCLAIR TELEVISION OF NEW BERN, LLC | ||
| WCTI LICENSEE, LLC | ||
| By: | Sinclair Media VI, Inc., Sole Member | |
| KBSI LICENSEE L.P. | ||
| WMMP LICENSEE L.P. | ||
| By: | Sinclair Properties, LLC, General Partner | |
| By: | Sinclair Communications, LLC, Sole Member of Sinclair Properties, LLC | |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC | |
| WDKA LICENSEE, LLC | ||
| By: | Sinclair Properties, LLC, Sole Member | |
| By: | Sinclair Communications, LLC, Sole Member of Sinclair Properties, LLC | |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC | |
| ACTION TV, LLC | ||
| CHESAPEAKE MEDIA I, LLC | ||
| COMETTV, LLC | ||
| DRIVE SALES, LLC | ||
| FULL MEASURE, LLC | ||
| HUMMINGBIRD, LLC | ||
| HUNT VALLEY TRACKS, LLC | ||
| KDSM, LLC | ||
| NEST TV, LLC | ||
| SINCLAIR AUDIO, LLC | ||
| SINCLAIR COMMUNICATIONS, LLC | ||
| SINCLAIR DIGITAL GROUP, LLC | ||
| SINCLAIR GAMING SERVICES, LLC | ||
| --- | --- | |
| SINCLAIR NETWORKS GROUP, LLC | ||
| SINCLAIR PROGRAMMING COMPANY, LLC | ||
| SINCLAIR TELEVISION OF FRESNO, LLC | ||
| SINCLAIR TELEVISION OF OMAHA, LLC | ||
| TBD TV, LLC | ||
| THE NATIONAL DESK, LLC | ||
| By: | Sinclair Television Group, Inc., Sole Member | |
| SINCLAIR BAKERSFIELD LICENSEE, LLC | ||
| SINCLAIR BOISE LICENSEE, LLC | ||
| SINCLAIR BROADCASTING OF SEATTLE, LLC | ||
| SINCLAIR EUGENE LICENSEE, LLC | ||
| SINCLAIR LEWISTON LICENSEE, LLC | ||
| SINCLAIR MEDIA OF BOISE, LLC | ||
| SINCLAIR MEDIA OF WASHINGTON, LLC | ||
| SINCLAIR PORTLAND LICENSEE, LLC | ||
| SINCLAIR SEATTLE LICENSEE, LLC | ||
| SINCLAIR TELEVISION OF OREGON, LLC | ||
| SINCLAIR MEDIA OF SEATTLE, LLC | ||
| SINCLAIR TELEVISION OF PORTLAND, LLC | ||
| SINCLAIR YAKIMA LICENSEE, LLC | ||
| By: | Sinclair Television Media, Inc., Sole Member | |
| SINCLAIR-CALIFORNIA LICENSEE, LLC | ||
| By: | Sinclair Television of California, LLC, Sole Member | |
| By: | Sinclair Media VI, Inc., Sole Member of Sinclair Television of California, LLC | |
| KDBC LICENSEE, LLC | ||
| By: | Sinclair Television of El Paso, LLC, Sole Member | |
| By: | Sinclair Communications, LLC, Sole Member of | |
| Sinclair Television of El Paso, LLC | ||
| By: | Sinclair Television Group, Inc., Sole Member of | |
| Sinclair Communications, LLC | ||
| KFRE LICENSEE, LLC | ||
| KMPH LICENSEE, LLC | ||
| WJAC LICENSEE, LLC | ||
| By: | Sinclair Television of Fresno, LLC, Sole Member | |
| By: | Sinclair Television Group, Inc., Sole Member of | |
| Sinclair Television of Fresno, LLC | ||
| KPTM LICENSEE, LLC | ||
| By: | Sinclair Television of Omaha, LLC, Sole Member | |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Television of Omaha, LLC | |
| --- | --- | |
| SINCLAIR KENNEWICK LICENSEE, LLC | ||
| SINCLAIR LA GRANDE LICENSEE, LLC | ||
| By: | Sinclair Television of Washington, Inc., Sole Member | |
| ACC LICENSEE, LLC | ||
| KATV, LLC | ||
| KTUL, LLC | ||
| WBMA LICENSEE, LLC | ||
| WSET LICENSEE, LLC | ||
| By: | Sinclair Television Stations, LLC, Sole Member | |
| By: | Perpetual Corporation, Sole Member of Sinclair Television Stations, LLC | |
| WGME LICENSEE, LLC | ||
| By: | WGME, Inc., Sole Member | |
| KLGT LICENSEE, LLC | ||
| By: | WUCW, LLC, Sole Member | |
| By: | Sinclair Communications, LLC, Sole Member of WUCW, LLC | |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC | |
| By: | /s/ Christopher S. Ripley | |
| Christopher S. Ripley, in his capacity as President and<br><br><br>Chief Executive Officer | ||
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION (as successor in interest to U.S. Bank National Association) as Trustee and Notes Collateral Agent | ||
| --- | --- | |
| By: | /s/ Melody M. Scott | |
| Name: Melody M. Scott | ||
| Title: Assistant Vice President |
[Exhibits Intentionally Omitted. To be provided to the
Securities and Exchange Commission or its
staff upon request.]
EX-4.3
Exhibit 4.3
Execution Version
INDENTURE
Dated as of February 12, 2025
Among
SINCLAIR TELEVISION GROUP, INC.,
as Issuer,
THE GUARANTORS FROM TIME TO TIME PARTY HERETO
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee and Collateral Trustee
4.375% SECOND-OUT FIRST LIEN SECURED NOTES DUE 2032
TABLE OF CONTENTS
| Page | |||
|---|---|---|---|
| ARTICLE 1 | |||
| DEFINITIONS AND INCORPORATION BY REFERENCE | |||
| SECTION 1.01. | Definitions | 1 | |
| SECTION 1.02. | Other Definitions | 58 | |
| SECTION 1.03. | Incorporation by Reference of Trust Indenture Act | 59 | |
| SECTION 1.04. | Rules of Construction | 60 | |
| SECTION 1.05. | Acts of Holders | 60 | |
| SECTION 1.06. | Calculations | 62 | |
| ARTICLE 2 | |||
| THE NOTES | |||
| SECTION 2.01. | Form and Dating; Terms | 63 | |
| SECTION 2.02. | Execution and Authentication | 64 | |
| SECTION 2.03. | Registrar and Paying Agent | 65 | |
| SECTION 2.04. | Paying Agent to Hold Money in Trust | 65 | |
| SECTION 2.05. | Holder Lists | 66 | |
| SECTION 2.06. | Transfer and Exchange | 66 | |
| SECTION 2.07. | Replacement Notes | 77 | |
| SECTION 2.08. | Outstanding Notes | 77 | |
| SECTION 2.09. | Treasury Notes | 77 | |
| SECTION 2.10. | Temporary Notes | 77 | |
| SECTION 2.11. | Cancellation | 78 | |
| SECTION 2.12. | Defaulted Interest | 78 | |
| SECTION 2.13. | CUSIP Numbers | 78 | |
| ARTICLE 3 | |||
| REDEMPTION | |||
| SECTION 3.01. | Notices to Trustee | 79 | |
| SECTION 3.02. | Selection of Notes to Be Redeemed or Purchased | 79 | |
| SECTION 3.03. | Notice of Redemption | 79 | |
| SECTION 3.04. | Effect of Notice of Redemption or Purchase | 81 | |
| SECTION 3.05. | Deposit of Redemption or Purchase Price | 81 | |
| SECTION 3.06. | Notes Redeemed or Purchased in Part | 81 | |
| SECTION 3.07. | Optional Redemption | 81 | |
| SECTION 3.08. | Mandatory Redemption | 83 | |
| SECTION 3.09. | Offers to Repurchase by Application of Excess Proceeds | 83 |
i
| ARTICLE 4 | ||
|---|---|---|
| COVENANTS | ||
| SECTION 4.01. | Payment of Notes | 84 |
| SECTION 4.02. | Maintenance of Office or Agency | 85 |
| SECTION 4.03. | Reports and Other Information | 85 |
| SECTION 4.04. | Compliance Certificate | 87 |
| SECTION 4.05. | Taxes | 87 |
| SECTION 4.06. | Stay, Extension and Usury Laws | 87 |
| SECTION 4.07. | Limitation on Restricted Payments | 88 |
| SECTION 4.08. | Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries | 99 |
| SECTION 4.09. | Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock | 102 |
| SECTION 4.10. | Asset Sales | 112 |
| SECTION 4.11. | Transactions with Affiliates | 116 |
| SECTION 4.12. | Liens | 119 |
| SECTION 4.13. | Corporate Existence | 119 |
| SECTION 4.14. | Change of Control Triggering Event | 120 |
| SECTION 4.15. | Additional Note Guarantees | 122 |
| SECTION 4.16. | Covenant Suspension | 122 |
| SECTION 4.17. | Limitation on Priming Financing/ Liability Management Transactions | 124 |
| SECTION 4.18. | [Reserved] | 124 |
| SECTION 4.19. | After-Acquired Property | 124 |
| ARTICLE 5 | ||
| SUCCESSORS | ||
| SECTION 5.01. | Merger, Consolidation, Amalgamation or Sale of All or Substantially All Assets | 124 |
| SECTION 5.02. | Successor Corporation Substituted | 127 |
| ARTICLE 6 | ||
| DEFAULTS AND REMEDIES | ||
| SECTION 6.01. | Events of Default | 128 |
| SECTION 6.02. | Acceleration | 130 |
| SECTION 6.03. | Other Remedies | 131 |
| SECTION 6.04. | Waiver of Past Defaults | 131 |
| SECTION 6.05. | Control by Majority | 131 |
| SECTION 6.06. | Limitation on Suits | 132 |
| SECTION 6.07. | Rights of Holders of Notes to Receive Payment | 132 |
| SECTION 6.08. | Collection Suit by Trustee | 132 |
| SECTION 6.09. | Restoration of Rights and Remedies | 133 |
| SECTION 6.10. | Rights and Remedies Cumulative | 133 |
| SECTION 6.11. | Delay or Omission Not Waiver | 133 |
| SECTION 6.12. | Trustee May File Proofs of Claim | 133 |
| SECTION 6.13. | Priorities | 134 |
| SECTION 6.14. | Undertaking for Costs | 134 |
ii
| ARTICLE 7 | ||
|---|---|---|
| TRUSTEE | ||
| SECTION 7.01. | Duties of Trustee | 134 |
| SECTION 7.02. | Rights of Trustee | 135 |
| SECTION 7.03. | Individual Rights of Trustee | 136 |
| SECTION 7.04. | Trustee’s Disclaimer | 136 |
| SECTION 7.05. | Notice of Defaults | 137 |
| SECTION 7.06. | [Reserved] | 137 |
| SECTION 7.07. | Compensation and Indemnity | 137 |
| SECTION 7.08. | Replacement of Trustee | 138 |
| SECTION 7.09. | Successor Trustee by Merger, Etc. | 139 |
| SECTION 7.10. | Eligibility; Disqualification | 139 |
| SECTION 7.11. | Preferential Collection of Claims Against Issuer | 139 |
| SECTION 7.12. | [Reserved] | 139 |
| SECTION 7.13. | Security Documents; Intercreditor Agreements | 139 |
| ARTICLE 8 | ||
| LEGAL DEFEASANCE AND COVENANT DEFEASANCE | ||
| SECTION 8.01. | Option to Effect Legal Defeasance or Covenant Defeasance | 140 |
| SECTION 8.02. | Legal Defeasance and Discharge | 140 |
| SECTION 8.03. | Covenant Defeasance | 140 |
| SECTION 8.04. | Conditions to Legal or Covenant Defeasance | 141 |
| SECTION 8.05. | Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions | 142 |
| SECTION 8.06. | Repayment to Issuer | 142 |
| SECTION 8.07. | Reinstatement | 143 |
| ARTICLE 9 | ||
| AMENDMENT, SUPPLEMENT AND WAIVER | ||
| SECTION 9.01. | Without Consent of Holders of Notes | 143 |
| SECTION 9.02. | With Consent of Holders of Notes | 146 |
| SECTION 9.03. | [Reserved] | 148 |
| SECTION 9.04. | Revocation and Effect of Consents | 148 |
| SECTION 9.05. | Notation on or Exchange of Notes | 149 |
| SECTION 9.06. | Trustee and Collateral Trustee to Sign Amendments, Etc. | 149 |
| ARTICLE 10 | ||
| NOTE GUARANTEES | ||
| SECTION 10.01. | Note Guarantee | 149 |
| SECTION 10.02. | Limitation on Guarantor Liability | 151 |
| SECTION 10.03. | Execution and Delivery | 151 |
| SECTION 10.04. | Subrogation | 152 |
| SECTION 10.05. | Benefits Acknowledged | 152 |
| SECTION 10.06. | Release of Note Guarantees | 152 |
iii
| ARTICLE 11 | ||
|---|---|---|
| SATISFACTION AND DISCHARGE | ||
| SECTION 11.01. | Satisfaction and Discharge of Indenture | 154 |
| SECTION 11.02. | Application of Trust Money | 155 |
| ARTICLE 12 | ||
| COLLATERAL | ||
| SECTION 12.01. | Security Documents | 155 |
| SECTION 12.02. | Release of Collateral | 156 |
| SECTION 12.03. | Suits to Protect the Collateral | 158 |
| SECTION 12.04. | Authorization of Receipt of Funds by the Trustee Under the Security Documents | 158 |
| SECTION 12.05. | Purchaser Protected | 158 |
| SECTION 12.06. | Powers Exercisable by Receiver or Trustee | 158 |
| SECTION 12.07. | Release Upon Termination of the Issuer’s Obligations | 158 |
| SECTION 12.08. | Collateral Trustee | 159 |
| SECTION 12.09. | Other Limitations | 165 |
| ARTICLE 13 | ||
| MISCELLANEOUS | ||
| SECTION 13.01. | [Reserved] | 166 |
| SECTION 13.02. | Notices | 166 |
| SECTION 13.03. | Communication by Holders of Notes with Other Holders of Notes | 167 |
| SECTION 13.04. | Certificate and Opinion as to Conditions Precedent | 167 |
| SECTION 13.05. | Statements Required in Certificate or Opinion | 168 |
| SECTION 13.06. | Rules by Trustee and Agents | 168 |
| SECTION 13.07. | No Personal Liability of Directors, Managers, Officers, Employees and Stockholders | 168 |
| SECTION 13.08. | Governing Law; Submission to Jurisdiction | 168 |
| SECTION 13.09. | Waiver of Jury Trial | 169 |
| SECTION 13.10. | Force Majeure | 169 |
| SECTION 13.11. | Foreign Account Tax Compliance Act (FATCA) | 169 |
| SECTION 13.12. | No Adverse Interpretation of Other Agreements | 169 |
| SECTION 13.13. | Successors | 169 |
| SECTION 13.14. | Severability | 170 |
| SECTION 13.15. | Counterpart Originals | 170 |
| SECTION 13.16. | Table of Contents, Headings, Etc. | 170 |
| SECTION 13.17. | No Adverse Interpretation of Other Agreement | 170 |
| SECTION 13.18. | Intercreditor Agreements | 170 |
iv
| EXHIBITS | |
|---|---|
| Exhibit A | Form of Note |
| Exhibit B | Form of Certificate of Transfer |
| Exhibit C | Form of Certificate of Exchange |
| Exhibit D | Form of Supplemental Indenture |
| Exhibit E | Form of Security Agreement |
| Exhibit F | Form of Collateral Trust Agreement |
| Exhibit G | Form of First/Second/Third Lien Intercreditor Agreement |
| Exhibit H | Form of Certificate from Acquiring Institutional Accredited Investor |
i
INDENTURE, dated as of February 12, 2025, among Sinclair Television Group, Inc., a corporation organized under the laws of the State of Maryland (the “Issuer”), the Guarantors (as defined herein) from time to time party hereto, and U.S. Bank Trust Company, National Association, as trustee (in such capacity, the “Trustee”) and as collateral trustee (in such capacity, the “Collateral Trustee”).
W I T N E S S E T H
WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance of $267,229,000.00 aggregate principal amount of the Issuer’s 4.375% Second-Out First Lien Secured Notes due 2032 (the “Notes”) and any other Notes issued in exchange for the Issuer’s 4.125% Senior Secured 2030 tendered pursuant to the “Exchange Offer” as defined in the Offering Memorandum, prior to the date hereof; and
WHEREAS, all things necessary to make this Indenture a valid and legally binding agreement of the Issuer, in accordance with its terms, have been done.
NOW, THEREFORE, the Issuer and the Trustee and the Collateral Trustee agree as follows for the benefit of each other and, except as provided herein, for the equal and ratable benefit of the Holders of the Notes:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
“144A Global Note” means a Global Note substantially in the form of Exhibit A hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or not prohibited by this Indenture, bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.
“4.125% Unsecured Notes” means such Existing Secured Notes which, upon consummation of the Exchange Offer, the indenture related to which will be amended to release all collateral securing such notes and eliminate substantially all covenants, events of default and related definitions.
“5.125% Senior Unsecured Notes” means each series of 5.125% Senior Unsecured Notes due 2027 governed by the 5.125% Senior Unsecured Notes Indenture.
“5.125% Senior Unsecured Notes Indenture” means the indenture, dated as of August 30, 2016 (as in effect immediately prior to giving effect to any AHG Notes Repurchase), among the Issuer, the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee, as amended or supplemented from time to time.
“5.500% Senior Unsecured Notes” means each series of 5.500% Senior Unsecured Notes due 2030 governed by the 5.500% Senior Unsecured Notes Indenture.
“5.500% Senior Unsecured Notes Indenture” means the indenture, dated as of November 27, 2019 (as in effect immediately prior to the Issue Date), among the Issuer, the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee, as amended or supplemented from time to time.
1
“Accounting Change” has the meaning assigned to it in the definition of “GAAP”.
“Acquired Indebtedness” means, with respect to any specified Person,
(1) Indebtedness of any other Person existing at the time such other Person is merged, consolidated or amalgamated with or into or became a Restricted Subsidiary of such specified Person, including Indebtedness incurred or assumed in connection with, or in contemplation of, such other Person merging, consolidating or amalgamating with or into or becoming a Restricted Subsidiary of such specified Person, and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
“Acquisition Transaction” means any Investment by the Issuer or any of its Restricted Subsidiaries in a Person that is engaged in a Similar Business if as a result of such Investment, (a) such Person becomes a Restricted Subsidiary or (b) such Person, in one transaction or a series of related transactions, is merged, consolidated, or amalgamated with or into, or transfers or conveys all or substantially all of its assets (or all or substantially all the assets constituting a business unit, division, product line or line of business) to, or is liquidated into, the Issuer or a Restricted Subsidiary, and, in each case, any Investment held by such Person (including, for the avoidance of doubt, any TV/Radio Acquisition).
“Additional Assets” means (1) any property or other assets (other than current assets, except for current assets invested in acquired property, businesses or assets) used or useful in a Similar Business, (2) the Capital Stock of a Person that becomes a Restricted Subsidiary of the Issuer as a result of the acquisition of such Capital Stock by the Issuer or another Restricted Subsidiary or (3) Capital Stock constituting a minority interest in any Person that at such time is a Restricted Subsidiary of the Issuer; provided, however, that any Restricted Subsidiary described in clause (2) or (3) above is engaged in a Similar Business.
“Additional Notes” means additional Notes issued pursuant to the terms of any supplemental indenture (other than the Notes, any additional Notes issued pursuant to Sections 2.06, 2.07, 2.10 or 9.05 of this Indenture).
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
“Agent” means any Registrar or Paying Agent.
“AHG Notes Repurchase” has the meaning set forth under the “Summary—Recent developments—Transaction Support Agreement” section of the Offering Memorandum.
2
“Amended Credit Agreement” means the Existing Credit Agreement, as amended by the amendment to the Existing Credit Agreement dated as of the Issue Date, among Parent, as guarantor, the Issuer, as borrower, the lenders from time to time party thereto, certain other parties party thereto from time to time and JPMorgan Chase Bank, N.A. (or any successor thereto), as administrative agent, issuing bank and swingline lender, including any related notes, guarantees, security documents, instruments and agreements executed in connection therewith, and as such agreement, in whole or in part, in one or more instances, may be further amended, restated, renewed, extended, substituted, refinanced, restructured, replaced (whether or not upon termination, and whether with the original lenders or otherwise), supplemented or otherwise modified from time to time (including, in each case, by means of one or more credit agreements, note purchase agreements or sales of debt securities to institutional investors whether with the original agents and lenders or otherwise and including, without limitation, any successive renewals, extensions, substitutions, refinancings, restructurings, replacements, supplementations or other modifications of the foregoing) and including, without limitation, to increase the amount of available borrowings thereunder or to add Restricted Subsidiaries as additional borrowers or guarantors or otherwise, which Amended Credit Agreement shall provide for, as of the Issue Date, a junior lien revolving credit facility (the “Junior Lien Revolving Credit Facility”), the term loan B-3 facility (the “Junior Lien Term Loan B-3 Facility”), the term loan B-4 facility (the “Junior Lien Term Loan B-4 Facility” and, together with the Junior Lien Term Loan B-3 Facility, the “Junior Lien Term Loan Facilities” and, together with the Junior Lien Revolving Credit Facility, the “Junior Lien Credit Facilities”).
“Applicable Calculation Date” means the applicable date of determination for (i) Consolidated First Lien Secured Debt Ratio, (ii) Consolidated Secured Debt Ratio, (iii) Consolidated Total Debt Ratio, (iv) Fixed Charge Coverage Ratio, (v) Consolidated EBITDA or (vi) Total Assets.
“Applicable Measurement Period” means the most recently completed eight consecutive fiscal quarters of the Issuer immediately preceding the Applicable Calculation Date for which internal financial statements are available. When used in reference to (x) a measurement of Consolidated EBITDA, the Consolidated EBITDA for such Applicable Measurement Period shall be measured as the Consolidated EBITDA for such eight consecutive fiscal quarters, divided by two and (y) a measurement of the Consolidated First Lien Secured Debt Ratio, the Consolidated Secured Debt Ratio, the Consolidated Total Debt Ratio or the Fixed Charge Coverage Ratio, the applicable ratio shall be calculated using the Consolidated EBITDA (in the numerator or the denominator, as applicable) for such eight consecutive fiscal quarters, divided by two.
“Applicable Premium” means, with respect to any Note on any Redemption Date, the greater of:
(1) 1.0% of the principal amount of such Note; and
(2) the excess, if any, of (a) the present value at such Redemption Date of (i) the redemption price of such Note at December 1, 2025 (such redemption price being set forth in the table appearing in Section 3.07(b)) plus (ii) all required interest payments due on such Note through December 1, 2025 (excluding accrued but unpaid interest to the Redemption Date), computed by the Issuer on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) using a discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points; over (b) the principal amount of such Note.
Calculation of the Applicable Premium will be made by the Issuer; provided that such calculation or the correctness thereof shall not be a duty or obligation of the Trustee.
3
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and/or Clearstream that apply to such transfer or exchange.
“Asset Sale” means:
(1) the sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of property or assets (including by way of a Sale and Lease-Back Transaction) of the Issuer or any of its Restricted Subsidiaries; or
(2) the issuance or sale of Equity Interests of any Restricted Subsidiary (other than Preferred Stock or Disqualified Stock of Restricted Subsidiaries issued in compliance with Section 4.09), whether in a single transaction or a series of related transactions,
(each of the foregoing clauses (1) and (2) referred to in this definition as a “disposition”),
in each case, other than:
(a) any disposition of Cash Equivalents or Investment Grade Securities or obsolete, non-core, surplus, damaged, unnecessary, unsuitable or worn out property or equipment, inventory or other assets, in each case, in the ordinary course of business or consistent with industry or past practice or any disposition of inventory, immaterial assets or goods (or other assets), property or equipment held for sale or no longer used or useful, or economically practicable to maintain, in the conduct of the business of the Issuer and any of its Subsidiaries;
(b) the disposition of all or substantially all of the assets of the Issuer or any Restricted Subsidiary in a manner permitted pursuant to Section 5.01 or any disposition that constitutes a Change of Control pursuant to this Indenture;
(c) any disposition in connection with the making of any Restricted Payment that is permitted to be made under Section 4.07 or any Permitted Investment;
(d) any disposition of property or assets, or issuance or sale of Equity Interests of any Restricted Subsidiary, in any single transaction or series of related transactions with an aggregate fair market value not to exceed $75.0 million (such greater amounts, the “Specified Threshold”); provided that if the aggregate amount of all such individual dispositions or related series of dispositions that are less than or equal to the Specified Threshold in any fiscal year exceeds $150.0 million in the aggregate during such fiscal year, then the foregoing Specified Threshold shall refer to the purchase price of all such dispositions in such fiscal year in excess of the Specified Threshold;
(e) any disposition of property or assets or issuance of securities by a Restricted Subsidiary to the Issuer or by the Issuer or a Restricted Subsidiary to another Restricted Subsidiary (including any sale, transfer or other disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC so long as upon formation of such Delaware Divided LLC, such Delaware Divided LLC shall be a Restricted Subsidiary);
(f) any disposition of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property, (ii) an amount equal to the Net Proceeds of such disposition are promptly applied to the purchase price of similar replacement property or (iii) to the extent allowable under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
4
(g) the lease, assignment, sublease, license or sublicense of any real or personal property (including the provision of software under an open source license) in the ordinary course of business or consistent with past practice;
(h) any issuance, disposition or pledge of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary (or a Restricted Subsidiary which owns an Unrestricted Subsidiary so long as such Restricted Subsidiary owns no assets other than the Equity Interests of such Unrestricted Subsidiary);
(i) foreclosures, condemnation, expropriation, forced dispositions, eminent domain or any similar action (whether by deed in lieu of condemnation or otherwise) with respect to any property, assets, Equity Interests or Indebtedness, the granting of Liens permitted or not prohibited by this Indenture, and transfers of any property, asset, Equity Interests or Indebtedness that have been subject to a casualty to the respective insurer of such property, asset, Equity Interests or Indebtedness as part of an insurance settlement or upon receipt of the net proceeds of such casualty event;
(j) dispositions or discounts without recourse (including by way of assignment or participation) of (i) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (ii) receivables and related assets pursuant to any Permitted Receivables Financing or any participation therein;
(k) any financing transaction with respect to property built or acquired by the Issuer or any Restricted Subsidiary after the Issue Date, including Sale and Lease-Back Transactions and assets securitizations permitted or not prohibited by this Indenture;
(l) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business or consistent with industry or past practice;
(m) the sale, discount or other disposition, lease, assignment, license, sublease or discount of inventory, equipment, accounts receivable, notes receivable, equipment or other property, assets, Equity Interests or Indebtedness in the ordinary course of business or consistent with industry or past practice, and the conversion of accounts receivable or notes receivable or other dispositions of accounts receivable or notes receivable in connection with the collection or compromise thereof;
(n) the licensing, sub-licensing or cross-licensing of intellectual property or other general intangibles in the ordinary course of business or consistent with industry or past practice or that is immaterial;
(o) the unwinding or termination of any Hedging Obligations or Cash Management Obligations;
(p) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in binding joint venture or similar agreements or arrangements;
(q) the lapse, abandonment or invalidation of intellectual property rights that are not material to the conduct of the business of the Issuer and its Restricted Subsidiaries, taken as a whole, or that are no longer used or useful or no longer economically practicable or commercially reasonable to maintain, in each case as reasonably determined by the Issuer;
5
(r) the issuance of directors’ qualifying shares and shares issued to foreign nationals or other third parties as required by applicable law;
(s) the disposition of any property, assets, Equity Interests or Indebtedness (i) acquired in a transaction that are not used or useful in the core or principal business of the Issuer and its Restricted Subsidiaries as reasonably determined by the Issuer, or (ii) made in connection with the approval of any applicable antitrust authority or any other governmental authority or otherwise necessary or advisable to consummate any acquisition after the Issue Date, as determined by the Issuer;
(t) any disposition of property, assets, Equity Interests or Indebtedness of a Foreign Subsidiary the Net Proceeds of which the Issuer has reasonably determined that the repatriation of such Net Proceeds (i) is prohibited or subject to limitations under applicable law, orders, decrees or determinations of any arbitrator, court or governmental authority or (ii) would have a material adverse tax consequence; provided that when the Issuer determines that repatriation of any of such Net Proceeds (i) is no longer prohibited or subject to limitations under such applicable law, orders, decrees or determinations of any arbitrator, court or governmental authority or (ii) would no longer have a material adverse tax consequence, such amount at such time shall be considered the Net Proceeds in respect of an Asset Sale; and
(u) any disposition of property, assets, Equity Interests or Indebtedness that were acquired with Excluded Contributions if the proceeds of such disposition are used to make a Restricted Payment pursuant to clause (9)(b) of Section 4.07(b).
In the event that a transaction (or any portion thereof) meets the criteria of a permitted Asset Sale and would also be a permitted Restricted Payment or Permitted Investment, the Issuer, in its sole discretion, will be entitled to divide and classify such transaction (or a portion thereof) as an Asset Sale and/or one or more of the types of permitted Restricted Payments or Permitted Investments.
“Bankruptcy Code” means Title 11 of the United States Code, as amended.
“Bankruptcy Law” means the Bankruptcy Code and any similar federal, state or foreign law for the relief of debtors.
“Board” with respect to a Person means the board of directors (or similar body) of such Person or any committee thereof duly authorized to act on behalf of such board of directors (or similar body).
“Broadcast Licenses” means (a) the licenses, permits, authorizations or certificates to construct, own or operate the Stations granted by the FCC, and all extensions, additions and renewals thereto or thereof, and (b) the licenses, permits, authorizations or certificates which are necessary to construct, own or operate the Stations granted by administrative law courts or any state, county, city, town, village or other local governmental authority, and all extensions, additions and renewals thereto or thereof.
“Business Day” means each day which is not a Legal Holiday.
“Capital Stock” means:
(1) in the case of a corporation, corporate stock;
6
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
“Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by a Person and its Restricted Subsidiaries during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of a Person and its Restricted Subsidiaries.
“Cash Equivalents” means:
(1) United States dollars;
(2) (a) Canadian dollars, euro, pound sterling or any national currency of any participating member state of the EMU; or
(b) other currencies held by the Issuer and its Restricted Subsidiaries from time to time in the ordinary course of business;
(3) securities issued or directly and fully and unconditionally guaranteed or insured by the U.S. government or any agency or instrumentality thereof as a full faith and credit obligation of the U.S. government, with average maturities of 24 months or less from the date of acquisition;
(4) certificates of deposit, time deposits and eurodollar time deposits with average maturities of one year or less from the date of acquisition, demand deposits, bankers’ acceptances with average maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank having capital and surplus of not less than $100.0 million in the case of U.S. banks or other U.S. financial institutions and $100.0 million (or the U.S. dollar equivalent as of the date of determination) in the case of non-U.S. banks or other non-U.S. financial institutions;
(5) repurchase obligations for underlying securities of the types described in clauses (3), (4) and (10) entered into with any financial institution meeting the qualifications specified in clause (4) above;
(6) commercial paper rated at least P-2 by Moody’s, at least A-2 by S&P or at least F2 by Fitch (or, if at any time, none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another Rating Agency) and variable or fixed rate notes issued by any financial institution meeting the qualifications specified in clause (4) above, in each case, with average maturities of 36 months after the date of creation thereof;
(7) marketable short-term money market and similar securities having a rating of at least P-2, A-2 or F2 from either Moody’s, S&P or Fitch, respectively (or, if at any time none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another Rating Agency);
7
(8) investment funds investing at least 90% of their assets in securities of the types described in clauses (1) through (7) above and (9) through (12) below;
(9) securities issued or directly and fully and unconditionally guaranteed by any state, commonwealth or territory of the United States of America or any political subdivision or taxing authority of any such state, commonwealth or territory or any public instrumentality thereof having average maturities of not more than 36 months from the date of acquisition thereof;
(10) readily marketable direct obligations issued or directly and fully and unconditionally guaranteed by any foreign government or any political subdivision or public instrumentality thereof, in each case (other than in the case of such securities issued or guaranteed by any participating member state of the EMU) having an Investment Grade Rating from any of Moody’s, S&P or Fitch (or, if at any time none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another Rating Agency) with average maturities of 36 months or less from the date of acquisition;
(11) Indebtedness or Preferred Stock issued by Persons with a rating of A or higher from S&P, A2 or higher from Moody’s or F1 or higher from Fitch (or, if at any time none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another Rating Agency) with average maturities of 36 months or less from the date of acquisition;
(12) Investments with average maturities of 36 months or less from the date of acquisition in money market funds rated A or better by S&P, A2 or better by Moody’s or F1 or better by Fitch (or, if at any time none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another Rating Agency);
(13) in the case of investments by any Foreign Subsidiary of the Issuer, investments for cash management purposes of comparable tenor and credit quality to those described in the foregoing clauses (1) through (12) customarily utilized in countries in which such Foreign Subsidiary operates; and
(14) investments, classified in accordance with GAAP as current assets, in money market investment programs that are registered under the Investment Company Act of 1940 or that are administered by financial institutions meeting the qualifications specified in clause (4) above, and, in either case, the portfolios of which are limited such that substantially all of such investments are of the character, quality and maturity described in clauses (1) through (13) of this definition.
Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (1) and (2) above; provided that such amounts are converted into any currency listed in clauses (1) and (2) as promptly as practicable and in any event within ten Business Days following the receipt of such amounts.
For the avoidance of doubt, any items identified as Cash Equivalents under this definition will be deemed to be Cash Equivalents under this Indenture regardless of the treatment of such items under GAAP.
“Cash Management Obligations” means (1) obligations of the Issuer or any of its Restricted Subsidiaries in respect of any overdraft and related liabilities arising from treasury, depository, cash pooling arrangements and cash management or treasury services or any automated clearing house transfers of funds, (2) other obligations in respect of netting services, employee credit or purchase card programs and similar arrangements and (3) obligations in respect of any other services related, ancillary or complementary to the foregoing (including any overdraft and related liabilities arising from treasury, depository, cash pooling arrangements and cash management services, corporate credit and purchasing cards and related programs or any automated clearing house transfers of funds).
8
“Change of Control” means the occurrence of one or more of the following events after the Issue Date:
(1) the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the assets of the Issuer and its Subsidiaries, taken as a whole, to any Person other than any Permitted Holders; or
(2) the Issuer becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), including any group acting for the purpose of acquiring, holding or disposing of Equity Interests of the Issuer or Parent (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than any Permitted Holder or Permitted Holders, in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase, of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of more than 50% of the total voting power of the Voting Stock entitled to vote for the election of directors of the Issuer or Parent, as applicable, having a majority of the aggregate votes on the Board of the Issuer or Parent, as applicable, unless any Permitted Holder or Permitted Holders have the right (pursuant to contract, proxy or otherwise), directly or indirectly, to designate, nominate or appoint directors or other governing body of the Issuer or Parent, as applicable, having a majority of the aggregate votes on the Board of the Issuer or Parent or other governing body, as applicable.
Notwithstanding the preceding or any provision of Section 13d-3 of the Exchange Act, (i) a Person or group shall not for purposes of this definition beneficially own Voting Stock subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the Voting Stock in connection with the transactions contemplated by such agreement sufficient to otherwise be a Change of Control, (ii) if any group includes one or more Permitted Holders, the issued and outstanding Voting Stock of the Issuer or Parent, as applicable, owned, directly or indirectly, by any Permitted Holder or Permitted Holders that are part of such group shall not for purposes of this definition be beneficially owned by such group or any other member of such group for purposes of determining whether a Change of Control has occurred and (iii) a Person or group shall not for purposes of this definition beneficially own the Voting Stock of another Person as a result of its ownership of Voting Stock or other securities of such other Person’s Parent Entity (or related contractual rights) unless it owns more than 50% of the total voting power of the Voting Stock entitled to vote for the election of directors or other governing members of such Parent Entity. Notwithstanding anything to the contrary, if any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), including any group acting for the purpose of acquiring, holding or disposing of Equity Interests of the Issuer or Parent (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) that are not Permitted Holders has the right (directly or indirectly) to appoint or nominate (in the aggregate) the members of the Board of the Issuer or Parent (including through having voting rights over Voting Stock of Parent or the Issuer), in each case, having the right to vote a majority of the aggregate votes of the members on the Board of the Issuer or the Parent, a Change of Control will be deemed to have occurred.
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Rating Decline with respect to the Notes.
9
“Channel Sharing Agreement” means an agreement governing the shared use of a television channel or other similar contractual arrangement that constitutes a channel sharing agreement within the meaning of 47 C.F.R. § 73.3700(a)(5).
“Clearstream” means Clearstream Banking, Société Anonyme, or any successor securities clearance agency.
“Code” means the Internal Revenue Code of 1986, as amended, or any successor thereto.
“Collateral” means all of the assets and property (whether real or personal) of the Issuer or any Guarantor now owned or hereafter acquired securing or purporting to secure the Notes Obligations pursuant to the Security Documents.
“Collateral Trust Agreement” means the Collateral Trust Agreement, dated as of the Issue Date, among the Collateral Trustee, as collateral trustee for itself, the Holders, the Trustee and the other First Lien Secured Parties (as defined therein), JPMorgan Chase Bank, N.A., as administrative agent under the New Credit Agreement, the Trustee, U.S. Bank Trust Company, National Association, as trustee under the New First-Out Indenture, the Issuer and the Guarantors, substantially in the form of Exhibit F, as it may be amended or otherwise modified from time to time in accordance with the terms thereof and this Indenture.
“Collateral Trustee” means U.S. Bank Trust Company, National Association until a successor replaces it and, thereafter, means any such successor.
“Consolidated EBITDA” means, as of any Applicable Calculation Date, with respect to any Person for any period, the Consolidated Net Income of such Person for such period, plus:
(1) without duplication and to the extent already deducted (and not added back) in arriving at such Consolidated Net Income for such period, the sum of the following amounts for such period:
(a) Fixed Charges of such Person for such period and, to the extent not reflected in Fixed Charges, any losses on Hedging Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, net of interest income and gains on such Hedging Obligations or such derivative instruments, and bank and letter of credit fees and costs of surety bonds in connection with financing activities, plus items excluded from the definition of “Consolidated Interest Expense” pursuant to clauses (n) through (z) thereof,
(b) provision for taxes based on income, profits, revenue or capital, including federal, foreign and state income, franchise, excise, value added and similar taxes based on income, profits, revenue or capital, and foreign withholding taxes of such Person paid or accrued during such period (including in respect of repatriated funds), including any penalties and interest relating to such taxes or arising from any tax examinations, and (without duplication) any payments actually made to a Parent Entity pursuant to clause (13) of Section 4.07(b) in respect of such taxes,
(c) the total amount of depreciation and amortization expense (including amortization of deferred financing fees or costs, internal labor costs, debt issuance costs, commissions, fees and expenses, capitalized expenditures (including Capitalized Software Expenditures), customer acquisition costs and incentive payments, content (including film) and sports rights amortization, conversion costs and contract acquisition costs) of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP,
10
(d) any other non-cash charges, expenses or losses, including any write offs, write downs, expenses, losses or items (each, a “non-cash charge”), except that if any non-cash charge represents an accrual or reserve for potential cash items in any future period (A) such Person may elect not to add back such non-cash charge in such period and (B) to the extent such Person elects to add back such non-cash charge (other than amortization of a prepaid cash item that was paid in a prior period) in such period, the cash payment in respect thereof in any future period shall be subtracted from Consolidated EBITDA,
(e) (i) the amount of any non-controlling interest or minority interest expense consisting of income attributable to non-controlling or minority equity interests of third parties (other than the Issuer or any of its Subsidiaries) in any non-Wholly-Owned Subsidiary deducted (and not added back) in such period to Consolidated Net Income, and (ii) the amount of dividends or distributions or other payments to the Issuer or any of its Restricted Subsidiaries that are actually paid in cash or Cash Equivalents (or if not paid in cash or Cash Equivalents, but later converted into cash or Cash Equivalents, upon such conversion) by any Person during such period, in the case of each of clause (i) and (ii), without duplication of cash distributions in respect thereof which are included in Consolidated Net Income for such period,
(f) the amount of fees, expenses and indemnities paid to directors, including of the Issuer or any Parent Entity thereof,
(g) losses or discounts on sales or dispositions of receivables and related assets in connection with any Permitted Receivables Financing,
(h) cash receipts (or any netting arrangements resulting in reduced cash expenditures) not included in the calculation of Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to clause (4) below for any previous period and not added back,
(i) any costs or expenses incurred by such Person or any Restricted Subsidiary pursuant to any management equity plan or stock option plan or phantom equity plan or any other management or employee benefit plan or agreement, any severance agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are non-cash or otherwise funded with cash proceeds contributed to the capital of such Person or Net Proceeds of an issuance of Equity Interests of such Person (other than Disqualified Stock),
(j) any net pension or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at the date of initial application of FASB Accounting Standards Codification Topic 715—Compensation—Retirement Benefits, and any other items of a similar nature, plus
(k) adjustments used in connection with the calculation of “Adjusted EBITDA” as set forth in the reconciliation of net income to adjusted EBITDA of the Issuer, set forth in the section “Summary Consolidated Financial Information—Non-GAAP Measures” of the Offering Memorandum, to the extent such adjustments continue to be applicable during the period in which Consolidated EBITDA is being calculated and other adjustments of a similar nature to the foregoing, in each case applied in good faith by the Issuer; plus
11
(2) without duplication, the amount reasonably projected by such Person of “run rate” cost savings, expenses, operating expense reductions, synergies and contractual retransmission revenue (including from increased pricing, if any, determined on an aggregate basis across all existing customer contracts) and charges (including restructuring and integration charges) to be realized by such Person as a result of actions (including actions taken or initiated before, on or after the Issue Date) that have been taken or initiated or are expected to be taken or initiated in connection with, pursuant to or as contemplated by the Transactions, any Specified Event or any joint venture or other arrangement of such Person or any of its Restricted Subsidiaries (even if not accounted for on the financial statements of any such joint venture or such Person) occurring on or prior to the date that is 12 full months after the date of final consummation of any investment, disposition of assets, property, Capital Stock or Indebtedness, incurrence, prepayment or repayment of Indebtedness, Restricted Payment, Subsidiary designation, restructuring, cost saving initiative or other initiative (including any Acquisition Transactions) (each such investment, disposition, incurrence, prepayment, repayment, Restricted Payment and Subsidiary designation, a “Specified Event”). Such cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) 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 from such actions if such cost savings are reasonably identifiable and factually supportable; provided, that any such amounts attributable to actions taken or initiated after the Issue Date (other than such amounts that are already included in Consolidated EBITDA calculations for periods prior to the Issue Date and/or attributable to specifically identifiable and measurable contractual retransmission revenue from contracts acquired in connection with Acquisition Transactions and Investments in the broadcast industry but including any such cost savings, expenses, operating expense reductions, synergies, contractual retransmission revenue and charges that are otherwise included in the calculation of Consolidated EBITDA due to add-backs and exceptions specified in the definition of “Consolidated Net Income” and in other components of “Consolidated EBITDA”) shall not constitute more than twenty percent (20%) of Consolidated EBITDA for such period (before giving effect to add-backs pursuant to this clause (2)). No cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) shall be added pursuant to this clause (2) to the extent duplicative of any cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) that are included in clause (1) above (it being understood and agreed that “run rate” shall mean the full recurring cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) that are associated with any action taken) and the share of any such cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) with respect to a joint venture that are to be allocated to such Person shall not exceed the total amount thereof proportionate to such Person’s economic interest in such joint venture for the relevant Applicable Measurement Period; plus
(3) any Designated Parent Contribution; less
(4) without duplication and to the extent included in arriving at such Consolidated Net Income, the sum of the following amounts for such period:
(a) non-cash gains (excluding any non-cash gain to the extent it represents the reversal of an accrual or reserve for a potential cash item that reduced Consolidated Net Income or Consolidated EBITDA in any prior period),
(b) the amount of any non-controlling interest consisting of loss attributable to non-controlling interests of third parties in any non-Wholly-Owned Subsidiary added (and not deducted) in such period from Consolidated Net Income, and
12
(c) Film Cash Payments made during such period (and not deducted in such period from Consolidated Net Income),
in each case, as determined on a consolidated basis for such Person and its Restricted Subsidiaries; provided that there shall be excluded from Consolidated EBITDA any management fees paid by or on behalf of Diamond Sports Group, LLC to the Issuer or any of its Restricted Subsidiaries prior to the Issue Date pursuant to the management services agreement between Diamond Sports Group, LLC and the Issuer dated August 23, 2019.
For purposes of testing the covenants under this Indenture in connection with any transaction, the Consolidated EBITDA of such Person and its Restricted Subsidiaries shall be adjusted to reflect such pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio (other than as set forth in the third sentence of the first paragraph of such definition).
In addition, to the extent not already included in the Consolidated EBITDA of such Person and its Restricted Subsidiaries in any period, notwithstanding anything to the contrary in the foregoing, Consolidated EBITDA shall include additional adjustments evidenced by or contained in a due diligence or quality of earnings report prepared with respect to any Investment permitted under this Indenture that has been consummated (or, solely for purposes of determining the permissibility of any Investment that constitutes a Limited Condition Transaction, a definitive agreement or other binding obligation with respect to which has been entered into) and made available to the Trustee by an Independent Financial Advisor.
“Consolidated First Lien Secured Debt Ratio” means, as of any Applicable Calculation Date, with respect to any Person and its Restricted Subsidiaries, the ratio of (1) Consolidated Total Indebtedness of such Person and its Restricted Subsidiaries for borrowed money, unreimbursed drawings under letters of credit, Obligations in respect of Financing Lease Obligations, debt obligations evidenced by promissory notes and similar instruments that constitute First Lien Obligations, computed as of the end of the most recent fiscal quarter for which internal financial statements are available immediately preceding the Applicable Calculation Date to (2) such Person’s Consolidated EBITDA for the Applicable Measurement Period, in each case with such pro forma adjustments to Consolidated Total Indebtedness and Consolidated EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio (other than as set forth in the third sentence of the first paragraph of such definition); provided that, for purposes of the calculation of Consolidated First Lien Secured Debt Ratio, in connection with (x) the Incurrence of any Indebtedness pursuant to Section 4.09 or (y) the Incurrence of any Lien pursuant to clause (34) of the definition of “Permitted Liens”, such Person may elect, pursuant to an Officer’s Certificate delivered to the Trustee, to treat all or any portion of the commitment (such amount elected until revoked as described below, the “Elected Amount”) under any Indebtedness which is to be Incurred (or any commitment in respect thereof) or secured by such Lien, as the case may be, as being Incurred or secured, as the case may be, as of the Applicable Calculation Date and (i) any Incurrence of such Indebtedness under such commitment after such Applicable Calculation Date (so long as the total amount under such Indebtedness does not exceed the Elected Amount) shall not be for purposes of this calculation an Incurrence of additional Indebtedness or an additional Lien at any time, (ii) such Person may revoke an election of an Elected Amount pursuant to an Officer’s Certificate delivered to the Trustee and (iii) for purposes of calculations of the Consolidated First Lien Secured Debt Ratio, the Elected Amount (if any) shall be deemed to be outstanding, whether or not such amount is actually outstanding unless and to the extent revoked pursuant to the immediately preceding subclause (ii) of this definition.
13
“Consolidated Interest Expense” means, with respect to any Person for any period, without duplication, the sum of:
(1) consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (c) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in mark to market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP), (d) the interest component of Financing Lease Obligations and (e) net payments, if any, made (less net payments, if any, received), pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding (n) any interest expense attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto and with respect to the Transactions or any Specified Event, (o) annual agency or similar fees paid to the administrative agents, collateral trustees, collateral agents and other agents under any Credit Facilities, (p) any additional interest with respect to failure to comply with any registration rights agreement owing with respect to any securities, (q) costs associated with obtaining Hedging Obligations, (r) any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting in connection with any acquisition, (s) penalties and interest relating to taxes, (t) any “additional interest” or “liquidated damages” with respect to other securities for failure to timely comply with registration rights obligations, (u) amortization or expensing of deferred financing fees, amendment and consent fees, debt issuance costs, commissions, fees, expenses and discounted liabilities, (v) any expensing of bridge, commitment and other financing fees and any other fees related to the Transactions or any acquisitions after the Issue Date, (w) commissions, discounts, yield and other fees and charges (including any interest expense) related to any Permitted Receivables Financing, (x) any accretion of accrued interest on discounted liabilities and any prepayment, make whole or breakage premium, penalty or cost, (y) interest expense attributable to a Parent Entity resulting from push down accounting and (z) any lease, rental or other expense in connection with a Non-Financing Lease Obligation); plus
(2) consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less
(3) interest income of such Person and its Restricted Subsidiaries for such period.
For purposes of this definition, interest on a Financing Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Financing Lease Obligation in accordance with GAAP (or, if not implicit, as otherwise determined in accordance with GAAP).
“Consolidated Net Income” means, with respect to any Person for any period, the aggregate of the net income (loss) of such Person for such period, determined on a consolidated basis, excluding (and excluding the effect of), without duplication:
(1) extraordinary, exceptional, one-time, infrequent, non-recurring, non-operating or unusual gains or losses (less all fees and expenses relating thereto) and expenses (including any unusual or non-recurring operating expenses directly attributable to the implementation of cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) initiatives and any accruals or reserves in respect of any extraordinary, non-recurring or unusual items), severance, relocation costs, contract termination costs, system establishment charges, integration and facilities’ opening costs and other business optimization expenses (including related to new product
14
introductions and other strategic or cost savings initiatives), restructuring charges, accruals or reserves (including restructuring and integration costs related to acquisitions after the Issue Date and adjustments to existing reserves), whether or not classified as restructuring expense on the consolidated financial statements, recruiting and signing costs, retention or completion bonuses, other executive recruiting and retention costs, transition costs, charges or expenses attributable to legal or regulatory claims, suits, actions, disputes, hearings and other matters, asset divestitures, costs or cost inefficiencies related to labor, facility, property or broadcasting transmission slowdowns, shutdowns or disruptions (as applicable), costs related to closure/consolidation of facilities and curtailments or modifications to pension and post-retirement employee benefit plans (including any settlement of pension liabilities and charges resulting from changes in estimates, valuations and judgments),
(2) the cumulative effect of a change in accounting principles and changes as a result of adoption or modification of accounting policies during such period to the extent included in Consolidated Net Income,
(3) Transaction Expenses,
(4) the net income for such period of any Person that is an Unrestricted Subsidiary and any Person that is not a Subsidiary or that is accounted for by the equity method of accounting, except that Consolidated Net Income shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash or Cash Equivalents (or if not paid in cash or Cash Equivalents, but later converted into cash or Cash Equivalents, upon such conversion) by such Person to the referent Person or a Restricted Subsidiary thereof during such period,
(5) [reserved],
(6) any fees and expenses (including any transaction or retention bonus or similar payment) incurred during such period, or any amortization thereof for such period, in connection with any Specified Event, acquisition, Investment, recapitalization, asset disposition, issuance or repayment of indebtedness, issuance of equity securities, refinancing transaction or amendment or other modification of, or the rating by the Rating Agencies of, any debt instrument (in each case, including any such transaction consummated prior to the Issue Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction, in each case whether or not successful or abandoned (including, for the avoidance of doubt, the effects of expensing all transaction-related expenses in accordance with FASB Accounting Standards Codification Topic 805—Business Combinations and gains or losses associated with FASB Accounting Standards Codification Topic 460—Guarantees),
(7) any income (loss) for such period attributable to the early extinguishment of Indebtedness, Hedging Obligations or other derivative instruments (including deferred financing costs written off and premiums paid),
(8) [reserved],
(9) non-cash expenses and costs that result from the issuance of stock-based awards, partnership interest-based awards and similar incentive-based compensation awards or arrangements,
(10) any income (loss) attributable to deferred compensation plans or trusts,
15
(11) any income (loss) from investments recorded using the equity method of accounting (but including any cash dividends or distributions actually received by such Person or a Restricted Subsidiary thereof in respect of such investment),
(12) any gain (loss) on asset sales, disposals or abandonments (other than asset sales, disposals or abandonments in the ordinary course of business) or income (loss) from discontinued operations (but if such operations are classified as discontinued due to the fact that they are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually disposed of),
(13) any non-cash gain (loss) attributable to the mark to market movement in the valuation of Hedging Obligations or other derivative instruments pursuant to FASB Accounting Standards Codification Topic 815—Derivatives and Hedging or mark to market movement of other financial instruments pursuant to FASB Accounting Standards Codification Topic 825—Financial Instruments in such period; provided that any cash payments or receipts relating to transactions realized in a given period shall be taken into account in such period,
(14) any non-cash gain (loss) related to currency remeasurements of Indebtedness (including the net loss or gain resulting from Hedging Obligations for currency exchange risk and revaluations of intercompany balances and other balance sheet items),
(15) any non-cash expenses, accruals or reserves related to adjustments to historical tax exposures; provided, in each case, that the cash payment in respect thereof in such future period shall be subtracted from Consolidated Net Income for the period in which such cash payment was made,
(16) any impairment charge or asset write-off or write-down (including related to intangible assets (including goodwill), long-lived assets, investments in debt and equity securities, and write-offs and write-downs in connection with film and other programming costs),
(17) solely for the purpose of determining the amount available for Restricted Payments under clause (3)(a) of Section 4.07(a), the net income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded to the extent the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its net income is not at the date of determination wholly permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, is otherwise restricted by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived or released (or the Issuer reasonably believes such restriction could be waived or released and is using commercially reasonable efforts to pursue such waiver or release); provided that Consolidated Net Income of such Person will be increased by the amount of dividends or other distributions or other payments actually paid in cash or Cash Equivalents (or, if not paid in cash or Cash Equivalents, but later converted into cash or Cash Equivalents, upon such conversion) to such Person or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein,
(18) [reserved],
(19) costs associated with, or in anticipation of, or preparation for, compliance with the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and other costs and expenses attributable to any Parent Entity thereof being a public company, and
16
(20) any expenses, charges or losses to the extent covered by insurance or indemnity and actually reimbursed, or, so long as such Person has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the extent that such amount is in fact reimbursed within 365 days of the date of the insurable or indemnifiable event (net of any amount so added back in any prior period to the extent not so reimbursed within the applicable 365-day period).
There shall be excluded from Consolidated Net Income for any period the effects from applying acquisition method accounting, including applying acquisition method accounting to inventory, property and equipment, loans and leases, software and other intangible assets and deferred revenue (including deferred costs related thereto and deferred rent) required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to such Person and its Restricted Subsidiaries), as a result of any Specified Event, acquisition or Investment consummated prior to the Issue Date and any other Specified Event or acquisition (by merger, consolidation, amalgamation or otherwise) or other Investment or the amortization or write-off of any amounts thereof.
In addition, to the extent not already included in Consolidated Net Income, Consolidated Net Income shall include (i) the amount of proceeds received or due from business interruption insurance or reimbursement of expenses and charges that are covered by indemnification and other reimbursement provisions in connection with any acquisition or other Investment or any disposition of any asset permitted under this Indenture (net of any amount so added back in any prior period to the extent not so reimbursed within a two-year period) and (ii) the amount of any cash tax benefits related to the tax amortization of intangible assets in such period.
“Consolidated Secured Debt Ratio” means, as of any Applicable Calculation Date, with respect to any Person and its Restricted Subsidiaries, the ratio of (1) Consolidated Total Indebtedness of such Person and its Restricted Subsidiaries for borrowed money, unreimbursed drawings under letters of credit, Obligations in respect of Financing Lease Obligations, debt obligations evidenced by promissory notes and similar instruments that is secured by a Lien on the Collateral, computed as of the end of the most recent fiscal quarter for which internal financial statements are available immediately preceding the Applicable Calculation Date to (2) such Person’s Consolidated EBITDA for the Applicable Measurement Period, in each case with such pro forma adjustments to Consolidated Total Indebtedness and Consolidated EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio” (other than as set forth in the third sentence of the first paragraph of such definition); provided that, for purposes of the calculation of Consolidated Secured Debt Ratio, in connection with (x) the Incurrence of any Indebtedness pursuant to Section 4.09 or (y) the Incurrence of any Lien pursuant to clause (34) of the definition of “Permitted Liens”, such Person may elect, pursuant to an Officer’s Certificate delivered to the Trustee, to treat an Elected Amount under any Indebtedness which is to be Incurred (or any commitment in respect thereof) or secured by such Lien, as the case may be, as being Incurred or secured, as the case may be, as of the Applicable Calculation Date and (i) any Incurrence of such Indebtedness under such commitment after such Applicable Calculation Date (so long as the total amount under such Indebtedness does not exceed the Elected Amount) shall not be for purposes of this calculation an Incurrence of additional Indebtedness or an additional Lien at any time, (ii) such Person may revoke an election of an Elected Amount pursuant to an Officer’s Certificate delivered to the Trustee and (iii) for purposes of calculations of the Consolidated Secured Debt Ratio, the Elected Amount (if any) shall be deemed to be outstanding, whether or not such amount is actually outstanding, unless and to the extent revoked pursuant to the immediately preceding subclause (ii) of this definition.
17
“Consolidated Total Debt Ratio” means, as of any Applicable Calculation Date, with respect to any Person and its Restricted Subsidiaries, the ratio of (1) Consolidated Total Indebtedness of such Person and its Restricted Subsidiaries for borrowed money, unreimbursed drawings under letters of credit, Obligations in respect of Financing Lease Obligations, debt obligations evidenced by promissory notes and similar instruments, computed as of the end of the most recent fiscal quarter for which internal financial statements are available immediately preceding the Applicable Calculation Date to (2) such Person’s Consolidated EBITDA for the Applicable Measurement Period, in each case with such pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio” (other than as set forth in the third sentence of the first paragraph of such definition); provided that, for purposes of the calculation of Consolidated Total Debt Ratio, in connection with the Incurrence of any Indebtedness pursuant to Section 4.09, such Person may elect, pursuant to an Officer’s Certificate delivered to the Trustee, to treat an Elected Amount under any Indebtedness which is to be Incurred (or any commitment in respect thereof) as being Incurred as of the Applicable Calculation Date and (i) any Incurrence of such Indebtedness under such commitment after such Applicable Calculation Date (so long as the total amount under such Indebtedness does not exceed the Elected Amount) shall not be for purposes of this calculation an Incurrence of additional Indebtedness at any time, (ii) such Person may revoke an election of an Elected Amount pursuant to an Officer’s Certificate delivered to the Trustee and (iii) for purposes of calculations of the Consolidated Secured Debt Ratio, the Elected Amount (if any) shall be deemed to be outstanding, whether or not such amount is actually outstanding unless and to the extent revoked pursuant to the immediately preceding subclause (ii) of this definition.
“Consolidated Total Indebtedness” means, as of any date of determination, with respect to any Person and its Restricted Subsidiaries, an amount equal to (a) the sum of (1) the aggregate amount of all outstanding Indebtedness of such Person and its Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money, unreimbursed drawings under letters of credit, Obligations in respect of Financing Lease Obligations, debt obligations evidenced by promissory notes and similar instruments, but excluding (A) all undrawn amounts under revolving credit facilities, (B) Hedging Obligations, (C) performance bonds or any similar instruments, (D) the effects of any discounting of Indebtedness resulting from the application of recapitalization accounting or acquisition method accounting in connection with any Specified Event, acquisition (by merger, consolidation, amalgamation, dividend, distribution or otherwise), or other Investment, and (E) all Obligations (including any Non-Recourse Indebtedness) relating to Permitted Receivables Financings and (2) the aggregate amount of all outstanding Disqualified Stock of Person and all Preferred Stock of its Restricted Subsidiaries on a consolidated basis, with the amount of such Disqualified Stock and Preferred Stock equal to the greater of their respective voluntary or involuntary liquidation preferences and maximum fixed repurchase prices, in each case determined on a consolidated basis in accordance with GAAP; less (b) Unrestricted cash and Cash Equivalents of such Person and its Restricted Subsidiaries. For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Stock or Preferred Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock or Preferred Stock as if such Disqualified Stock or Preferred Stock were purchased on any date on which Consolidated Total Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the fair market value of such Disqualified Stock or Preferred Stock, such fair market value shall be determined in good faith by the Board or senior management of such Person.
“Contract Station” means (a) each television or radio station that is the subject of an Acquisition Transaction consummated by the Issuer or any Subsidiary on or after the Issue Date and (b) any television or radio station with which the Issuer or any Subsidiary has entered into any Program Services Agreement, Outsourcing Agreement or other similar agreement on or after the Issue Date, in each case until such time, if any, as the Issuer or any Subsidiary acquires the Broadcast License of such television or radio station and such station becomes an Owned Station.
18
“Controlled Investment Affiliate” means, as to any Person, any other Person, other than any Investor, which directly or indirectly controls, is controlled by, or is under common control with such Person and is organized by such Person (or any Person controlling such Person) primarily for making direct or indirect equity or debt investments in the Issuer and/or other Persons.
“Controlling Representative” has the meaning assigned to such term in the Collateral Trust Agreement.
“Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in Section 13.02 or such other address as to which the Trustee may give notice to the Holders and the Issuer.
“Credit Facility” means one or more debt facilities (including, without limitation, the Senior Credit Facilities (including the First-Out Senior Credit Facilities) or other financing arrangements (including, without limitation, commercial paper facilities or indentures)) providing for revolving credit loans, term loans, letters of credit or other Indebtedness, including any notes, mortgages, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements, refundings, replacements, exchanges or refinancings thereof, in whole or in part, and any financing arrangements that amend, supplement, modify, extend, renew, restate, refund, replace, exchange or refinance any part thereof, including, without limitation, any such amended, supplemented, modified, extended, renewed, restated, refunding, replacement, exchanged or refinancing financing arrangement that increases the amount permitted to be borrowed or issued thereunder or alters the maturity thereof if and to the extent that such increase in borrowings or issuance is permitted under Section 4.09 or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, trustee, lender or group of lenders, investors, holders or otherwise.
“Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.
“Default” means any event that is, or after notice or lapse of time or both would become, an Event of Default.
“Definitive Note” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06(c), substantially in the form of Exhibit A, or in such other form as shall be established in one or more supplemental indentures, in each case, with such appropriate insertions, omissions, substitutions and other variations as are required or not prohibited by this Indenture, except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.
“Delaware Divided LLC” means any Delaware LLC which has been formed upon the consummation of a Delaware LLC Division.
“Delaware LLC” means any limited liability company organized or formed under the laws of the State of Delaware.
“Delaware LLC Division” means the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act.
“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 as the Depositary with respect to the Notes, and any and all successors thereto appointed as Depositary hereunder and having become such pursuant to the applicable provision of this Indenture.
19
“Designated Non-cash Consideration” means the fair market value of non-cash consideration received by or owing to the Issuer or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officer’s Certificate, less the amount of cash or Cash Equivalents actually received in connection with a subsequent disposition of or collection on such Designated Non-cash Consideration. A particular item of Designated Non-cash Consideration will no longer be considered to be outstanding when and to the extent it has been paid, redeemed or otherwise retired or subject of a disposition in exchange for consideration in the form of cash or Cash Equivalents in compliance with Section 4.10.
“Designated Parent Contribution” means any cash equity contribution made by Parent to the Issuer and designated by the Issuer as a “Designated Parent Contribution.”
“Designated Parent Subsidiary” means each Subsidiary of Parent that is designated as a “Designated Parent Subsidiary” in accordance with the terms of this Indenture, in each case so long as such Subsidiary remains a Designated Parent Subsidiary under this Indenture. As of the Issue Date, there are no Designated Parent Subsidiaries.
“Designated Preferred Stock” means Preferred Stock of the Issuer or any Parent Entity (in each case other than Disqualified Stock) that is issued for cash (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Issuer or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an Officer’s Certificate executed by the principal financial officer of the Issuer or the applicable Parent Entity, as the case may be, on the issuance date thereof, the cash proceeds of which are excluded from the calculation set forth in clause (3) of Section 4.07(a).
“Designated Representative” means, with respect to any series of First-Out Priority Payment Obligations, Second-Out Priority Payment Obligations, Pari Passu Lien Obligations, Junior Lien Obligations or other Secured Indebtedness, the trustee, administrative agent, collateral trustee, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, Incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.
“Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely for Capital Stock of such Person or any Parent Entity thereof that would not otherwise constitute Disqualified Stock, and other than solely as a result of a change of control, asset sale, casualty, condemnation or eminent domain) pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than solely as a result of a change of control, asset sale, casualty, condemnation or eminent domain), in whole or in part, in each case prior to the date 91 days after the maturity date of the Notes; provided, however, that if such Capital Stock is issued to any plan for the benefit of employees of the Issuer or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Issuer or its Subsidiaries or Parent Entities in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability; provided further, that any Capital Stock held by any future, current or former employee, director, officer, manager or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer, any of its Subsidiaries or any Parent Entity or any other entity in which the Issuer or
20
a Restricted Subsidiary has an Investment and is designated in good faith as an “affiliate” by the Board of the Issuer shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Issuer or its Subsidiaries pursuant to any stockholders’ agreement, management equity plan, stock option plan or any other management or employee benefit plan or agreement or in order to satisfy applicable statutory or regulatory obligations.
“Domestic Subsidiary” means any Restricted Subsidiary (other than a Foreign Subsidiary) that is organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof.
“DSG Cash Tax Payments” means the cash tax payments to be paid by or on behalf of the Issuer and its Restricted Subsidiaries related to the Diamond Sports Group, LLC bankruptcy. As of the Issue Date, the DSG Cash Tax Payments were approximately $121 million.
“Elected Amount” has the meaning set forth in the definition of “Consolidated First Lien Secured Debt Ratio”.
“EMU” means economic and monetary union as contemplated in the Treaty on European Union.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock.
“Equity Offering” means any public or private sale or issuance of common equity or Preferred Stock of the Issuer or any Parent Entity (excluding Disqualified Stock), other than:
(1) public offerings with respect to the Issuer or any Parent Entity’s common stock registered on Form S-8;
(2) issuances to any Subsidiary of the Issuer; and
(3) any such public or private sale or issuance that constitutes an Excluded Contribution.
“euro” means the single currency of participating member states of the EMU.
“Euroclear” means Euroclear S.A./N.V., as operator of the Euroclear system, or any successor securities clearance agency.
“Exchange Act” means the Securities Exchange Act of 1934, as amended (with respect to the definitions of “Change of Control” and “Permitted Holders” only, as in effect on the Issue Date).
“Exchange Offer” has the meaning ascribed to such term in the Offering Memorandum.
“Excluded Assets” has the meaning assigned to that term in the Security Agreement.
“Excluded Contribution” means net cash proceeds, the fair market value of marketable securities or the fair market value of Qualified Proceeds received by the Issuer from:
(1) contributions to its common equity capital,
21
(2) dividends, distributions, fees and other payments from any Unrestricted Subsidiaries or joint ventures or Investments in entities that are not Restricted Subsidiaries, and
(3) the sale (other than to a Subsidiary of the Issuer or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of the Issuer) of Capital Stock (other than Disqualified Stock and Designated Preferred Stock) of the Issuer,
in each case designated as Excluded Contributions pursuant to an Officer’s Certificate executed by the principal financial officer of the Issuer within 30 days of the date such capital contributions are made, the date such dividends, distributions, fees or other payments are received or the date such Equity Interests are sold, as the case may be, which are (or were) excluded from the calculation set forth in clause (3) of Section 4.07(a); provided that any such dividends, distributions, fees or other payments so designated pursuant to clause (2) of this definition shall be excluded from the definition of “Consolidated Net Income” for all purposes under this Indenture.
“Existing Credit Agreement” means the Seventh Amended and Restated Credit Agreement dated as of August 23, 2019 (as in effect immediately prior to the Issue Date), by and among the Issuer, the Guarantors, the lenders party thereto, JPMorgan Chase Bank, N.A., in its capacity as administrative agent and collateral agent, and the other agents party thereto.
“Existing LMT Debt” has the meaning assigned to it in the definition of “Priming Financing/Liability Management Transaction”.
“Existing Notes” means, individually or collectively as the context so requires, the Existing Unsecured Notes, and, in the case of the Existing Secured Notes, to the extent such Existing Secured Notes are not exchanged for (i) Notes or Additional Notes pursuant to the Exchange Offer or (ii) New Second Lien Notes pursuant to the Private Exchanges.
“Existing Secured Notes” means the 4.125% Senior Secured Notes due 2030 governed by the Existing Secured Notes Indenture.
“Existing Secured Notes Indenture” means the indenture, dated as of December 4, 2020 (as in effect immediately prior to the Issue Date), among the Issuer, the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and collateral agent, as amended or supplemented from time to time.
“Existing Senior Credit Facilities” means, individual or collectively, as the context may require, the term loan facility and revolving credit facility under the Existing Credit Agreement, in each case, as in effect immediately prior to the Issue Date, including, in each case, any related notes, mortgages, letters of credit, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any appendices, exhibits, annexes or schedules to any of the foregoing (as the same are in effect immediately prior to the Issue Date).
“Existing Unsecured Notes” means, collectively, the 5.125% Senior Unsecured Notes and the 5.500% Senior Unsecured Notes.
“fair market value” means, with respect to any asset or liability, the fair market value of such asset or liability as determined in good faith by the Board or senior management of the Issuer.
“FCC” means the Federal Communications Commission or any governmental authority substituted therefor.
22
“FCC License” means any license, authorization, approval, or permit granted by the FCC pursuant to the Communications Act of 1934, as amended, and the rules, regulations, published orders and published and promulgated policy statements of the FCC, all as may be amended from time to time, to the Issuer or any of its Restricted Subsidiaries, or assigned or transferred to the Issuer or any Subsidiary Guarantor pursuant to FCC consent.
“Film Cash Payments” means, for any period, the sum (determined on a consolidated basis and without duplication) of all payments by the Issuer and its Restricted Subsidiaries made during such period in respect of Film Obligations, which were previously reflected in the consolidated balance sheet with the Issuer and its Restricted Subsidiaries as a liability; provided that amounts applied to the prepayment of Film Obligations owing under any contract evidencing a Film Obligation under which the amount owed by the Issuer or any of its Restricted Subsidiaries exceeds the remaining value of such contract to the Issuer or such Subsidiary, as reasonably determined by the Issuer, shall not be deemed to be Film Cash Payments.
“Film Obligations” means obligations in respect of the purchase, use, license or acquisition of programs, programming materials, films, and similar assets used in connection with the business and operations of the Issuer and its Subsidiaries.
“Financing Lease Obligation” means, at the time any determination thereof is to be made, an obligation that is required to be accounted for as a financing or capital lease (and, for the avoidance of doubt, not a straight-line or operating lease) on both the balance sheet and income statement for financial reporting purposes in accordance with GAAP. At the time any determination thereof is to be made, the amount of the liability in respect of a financing or capital lease would be the amount required to be reflected as a liability on such balance sheet (excluding the footnotes thereto) in accordance with GAAP.
“First/Second/Third Lien Intercreditor Agreement” means the First/Second/Third Lien Intercreditor Agreement, dated as of the Issue Date, among the Collateral Trustee, U.S. Bank Trust Company, National Association, as notes collateral agent under the Second Lien Indenture, and the collateral agent under the Amended Credit Agreement, the Issuer and the Guarantors party thereto, substantially in the form of Exhibit G, as it may be amended or otherwise modified from time to time in accordance with the terms thereof, this Indenture and the Collateral Trust Agreement.
“First Lien Debt Documents” has the meaning assigned to such term in the Collateral Trust Agreement.
“First Lien Obligations” means, collectively, the First-Out Priority Payment Obligations and the Second-Out Priority Payment Obligations.
“First Lien Senior Credit Facilities” has the meaning assigned to it in the definition of “New Credit Agreement”.
“First-Out Bank Representative” means JPMorgan Chase Bank, N.A., in its capacity as administrative agent for the lenders holding First-Out Senior Credit Facilities Indebtedness (and commitments in respect thereof) and the other secured parties under each of the First Lien Senior Credit Facilities holding First-Out Priority Payment Obligations, together with its respective successors and permitted assigns under each of the First Lien Senior Credit Facilities acting in such capacity.
23
“First-Out Indebtedness” means the Indebtedness under the New First-Out First Lien Notes, the First-Out Senior Credit Facilities Indebtedness and any other Indebtedness that is permitted by this Indenture and the other then-outstanding First Lien Debt Documents to have Liens on the Collateral pari passu with the Liens securing the New First-Out First Lien Notes and the guarantees thereof and with payment priority as to the application of proceeds with respect to, and distributions made on account of, any Collateral pari passu with the New First-Out First Lien Notes and the First-Out Senior Credit Facilities Indebtedness; provided that the holders of such Indebtedness or their Designated Representative shall have entered into the Collateral Trust Agreement and such Indebtedness shall constitute “First-Out First Lien Debt Obligations” as defined therein.
“First-Out Priority Payment Obligations” means the payment Obligations in respect of any First-Out Indebtedness.
“First-Out Revolving Credit Facility” has the meaning assigned to it in the definition of “New Credit Agreement”.
“First-Out Senior Credit Facilities” has the meaning assigned to it in the definition of “New Credit Agreement”.
“First-Out Senior Credit Facilities Indebtedness” means, collectively, the First-Out Senior Credit Facilities Revolving Indebtedness.
“First-Out Senior Credit Facilities Revolving Indebtedness” means the Indebtedness in respect of the Revolving Loans and Letters of Credit (as each such term is defined in the New Credit Agreement as in effect in the Issue Date), which Indebtedness may only be Incurred pursuant to a bona fide revolving facility (i) that is provided by one or more commercial banks, (ii) whose use of proceeds shall be for working capital and other ordinary course uses (including debt interest payments and permitted parent overhead costs), ordinary course distributions and dividends, Permitted Investments and Restricted Payments permitted under this Indenture; provided that (x) draws may be made to make Restricted Payments described in clause (III) of the definition thereof only as long as such Restricted Payments are made pursuant to clause (8), (16)(b), (24), (25) or (26) of Section 4.07(b), and (y) draws may be made in connection with a Permitted Junior Lien Revolving Facility Refinancing.
“First-Out Term Loan Facility” has the meaning assigned to it in the definition of “New Credit Agreement”.
“Fitch” means Fitch Ratings, a part of the Fitch Group and a subsidiary of FIMALAC and Hearst Corporation, or any successor entity to its rating agency business.
“Fixed Charge Coverage Ratio” means, with respect to any Person as of any Applicable Calculation Date, the ratio of Consolidated EBITDA of such Person for the Applicable Measurement Period to the Fixed Charges of such Person for such Applicable Measurement Period. In the event that such Person or any Restricted Subsidiary incurs, assumes, guarantees, redeems, repays, retires or extinguishes any Indebtedness or issues or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the Applicable Measurement Period but on or prior to the Applicable Calculation Date, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee, redemption, repayment, retirement or extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred Stock (in each case, including a pro forma application of the net proceeds therefrom), as if the same had occurred at the beginning of the Applicable Measurement Period, except as provided in Section 1.06. Such pro forma calculation shall not give effect to any Indebtedness Incurred on the Applicable Calculation Date pursuant to Section 4.09(b) (other than pursuant to clause (14) thereof). For purposes of the calculation of the Fixed Charge Coverage Ratio, in connection with the Incurrence of any Indebtedness pursuant to Section 4.09(a), such Person may elect, pursuant to an Officer’s Certificate delivered to the Trustee, to treat an Elected Amount
24
under any Indebtedness which is to be Incurred (or any commitment in respect thereof) as being Incurred as of the Applicable Calculation Date and (i) any Incurrence of such Indebtedness under such commitment after such Applicable Calculation Date (so long as the total amount under such Indebtedness does not exceed the Elected Amount) shall not be for purposes of this calculation an Incurrence of additional Indebtedness at any time, (ii) such Person may revoke an election of an Elected Amount pursuant to an Officer’s Certificate delivered to the Trustee and (iii) for purposes of calculations of the Fixed Charge Coverage Ratio, the Elected Amount (if any) shall be deemed to be outstanding, whether or not such amount is actually outstanding unless and to the extent revoked pursuant to the immediately preceding subclause (ii) of this definition.
For purposes of making the computation referred to above, Specified Events, Investments, acquisitions, dispositions, mergers, amalgamations, consolidations and disposed operations (as determined in accordance with GAAP) and operational changes that have been made by the Issuer or any of its Restricted Subsidiaries during the Applicable Measurement Period or subsequent to such Applicable Measurement Period and on or prior to or simultaneously with the Applicable Calculation Date shall be calculated on a pro forma basis assuming that all such Specified Events, Investments, acquisitions, dispositions, mergers, amalgamations, consolidations, disposed operations and operational changes (and the change in any associated fixed charge obligations and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day of the Applicable Measurement Period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged or amalgamated with or into the Issuer or any of its Restricted Subsidiaries since the beginning of such period shall have made any Investment, acquisition, disposition, merger, amalgamation, consolidation or disposed operation that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such Applicable Measurement Period as if such Investment, acquisition, disposition, merger, amalgamation, consolidation or disposed operation had occurred at the beginning of the Applicable Measurement Period.
For purposes of this definition, whenever pro forma effect is to be given to a transaction, the pro forma calculations shall be made reasonably by a responsible financial or accounting officer of the Issuer (and may include cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) resulting from the Transactions, any Specified Event, Asset Sale or other disposition or such Investment, acquisition, disposition, merger, amalgamation or consolidation or other transaction, in each case calculated in accordance with and permitted by clause (2) of the definition of “Consolidated EBITDA” herein). If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Applicable Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness). Interest on a Financing Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Issuer to be the rate of interest implicit in such Financing Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period or, if lower, the maximum commitments under such revolving credit facility as of the Applicable Calculation Date. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Issuer may designate.
25
“Fixed Charges” means, with respect to any Person for any period, the sum of (without duplication):
(1) Consolidated Interest Expense of such Person for such period;
(2) all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Preferred Stock of such Person during such period; and
(3) all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Disqualified Stock of such Person during such period.
“Foreign Subsidiary” means any Restricted Subsidiary that is not organized under the laws of the United States of America or any state thereof or the District of Columbia and any Restricted Subsidiary of such Foreign Subsidiary.
“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time; provided that all terms of an accounting or financial nature used in this Indenture shall be construed, and all computations of amounts and ratios referred to in this Indenture shall be made without giving effect to any election under FASB Accounting Standards Codification Topic 825—Financial Instruments, or any successor thereto (including pursuant to the FASB Accounting Standards Codification), to value any Indebtedness of the Issuer or any Subsidiary at “fair value”, as defined therein.
If there occurs a change in generally accepted accounting principles occurring after the Issue Date and such change would cause a change in the method of calculation of any term or measure used in this Indenture (an “Accounting Change”), then the Issuer may elect, as evidenced by a written notice of the Issuer to the Trustee, that such term or measure shall be calculated as if such Accounting Change had not occurred; provided that, with respect to any Accounting Change (other than an Accounting Change in respect of the treatment of leases), in the Issuer’s good faith determination, the Issuer’s election to calculate such term or measure as if such Accounting Change had not occurred will not be less favorable to the Holders in any material respect than the method of calculation of such term or measure as in effect on the Issue Date.
“Global Note Legend” means the legend set forth in Section 2.06(f)(ii), which is required to be placed on all Global Notes issued under this Indenture.
“Global Notes” means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes, substantially in the form of Exhibit A.
“guarantee” means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including a pledge of assets (other than a non-recourse pledge of the Equity Interests of a Receivables Subsidiary to secure a Permitted Receivables Financing), letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness or other obligations. The term “guarantee” used as a verb has a corresponding meaning.
The amount of any guarantee shall be deemed to be an amount equal to the lesser of (a) the stated or determinable amount of the primary payment obligation in respect of which such guarantee is made and (b) the maximum amount for which the guaranteeing Person may be liable pursuant to the terms of the instrument embodying such guarantee unless such primary payment obligation and the maximum amount for which such guaranteeing Person may be liable are not stated or determinable, in which case the amount of the guarantee shall be such guaranteeing Person’s maximum reasonably possible liability in respect thereof as reasonably determined by Parent in good faith.
26
“Guarantors” means Parent and each Subsidiary of the Issuer that executes this Indenture as a Guarantor on the Issue Date and each other Affiliate of Parent (including, for the avoidance of doubt, any Designated Parent Subsidiary) that thereafter guarantees the Notes in accordance with the terms of this Indenture, until, in each case, such Person is released from its Note Guarantee with respect to the Notes in accordance with the terms of this Indenture. “Hedging Obligations” means, with respect to any Person, the obligations of such Person with respect to (1) any rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, 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 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 (2) 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 (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“holder” means, with reference to any Indebtedness or other Obligations, any holder or lender of, or trustee or collateral agent or other authorized representative with respect to, such Indebtedness or Obligations, and, in the case of Hedging Obligations, any counter-party to such Hedging Obligations.
“Holder” means the Person in whose name a Note is registered on the Registrar’s books; provided, however, that in connection with the giving any consent, instruction or authorization for purposes of the provisions of Article 6, Article 9 and Sections 7.08 and 12.08(f), beneficial owners of interests in a Note may constitute “Holders”, and in connection therewith, the Issuer, the Trustee, the Collateral Trustee, any Officer signing an Officer’s Certificate and any counsel delivering an Opinion of Counsel shall be permitted to rely in good faith on customary certificates of beneficial ownership as evidence of holdings of such interests (without, for the avoidance of doubt, DTC proxies, medallion-stamped guarantees or other similar evidence).
“IAI Global Note” means a Global Note substantially in the form of Exhibit A hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or not prohibited by this Indenture, bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes transferred to Institutional Accredited Investors in compliance with the Securities Act.
“Immediate Family Members” means with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, qualified domestic partner, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law (including adoptive relationships), and any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals or any private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which any such individual is the donor.
27
“Incur” means issue, assume, guarantee, incur or otherwise become liable for; provided, however, that any Indebtedness of a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Person at the time it becomes a Restricted Subsidiary. The term “Incurrence” when used as a noun shall have a correlative meaning.
“Indebtedness” means, with respect to any Person on any date of determination, the principal in respect of indebtedness of such Person (a) in respect of borrowed money, including indebtedness for borrowed money evidenced by notes, debentures, bonds or other similar instruments or reimbursement obligations in respect of letters of credit, (b) representing any balance deferred and unpaid portion of the purchase price of any property (including pursuant to Financing Lease Obligations), except (i) any such balance that constitutes a trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary course of business or consistent with industry or past practice, (ii) purchase price holdbacks to satisfy warranty or other unperformed obligations of the seller, (iii) obligations attributable to the exercise of appraisal rights and the settlement of any claims or actions with respect thereto and (iv) any earn-out obligations until, after 120 days of becoming due and payable, such earn-out obligation has not been paid or satisfied and such obligation is reflected as a liability on the balance sheet of such Person in accordance with GAAP, (c) Non-Financing Lease Obligations, and (d) representing any net Hedging Obligations, but only if and to the extent that any of the foregoing Indebtedness in clauses (a) through (d) (other than net Hedging Obligations) would appear as a liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP. If any Indebtedness of any Parent Entity would appear on the balance sheet of the Issuer solely by reason of push down accounting under GAAP, such Indebtedness shall be excluded. All guarantees in respect of Indebtedness specified in clause (a) through (d) of this definition (other than any exclusion therefrom) of another Person shall be included. To the extent not otherwise included, the obligations of the type referred to in clauses (a) through (d) of this definition (other than any exclusion therefrom) of another Person secured by a consensual Lien (other than a Permitted Lien) on any assets owned by such Person, whether or not such Indebtedness is assumed by such Person shall be included to such extent, but the amount of such Indebtedness will be the lesser of (x) the fair market value of such assets at such date of determination and (y) the amount of such Indebtedness of such other Person (it being understood, however, that Indebtedness shall in no event include any amounts payable or other liabilities to trade creditors (including undrawn letters of credit) arising in the ordinary course of business or consistent with industry or past practice). Indebtedness of the Issuer and its Restricted Subsidiaries shall exclude (i) intercompany liabilities arising from their cash management and accounting operations and intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any rollover or extensions of terms) and made in the ordinary course of business or consistent with industry or past practice, (ii) deferred or prepaid revenues, (iii) accrued expenses and royalties, (iv) any liabilities for taxes, (v) Capital Stock and Disqualified Stock, (vi) Film Obligations, (vii) obligations under any Program Services Agreement, Outsourcing Agreement or other similar agreement, (viii) any Put Obligations, (ix) any liability shown on the balance sheet of such Person solely as a result of the application of FASB Accounting Standards Codification Topic 810 and for which such Person is not primarily or contingently liable for payment, (x) accounts payable in connection with the sale of programming or advertising time owing by such Persons and (xi) obligations in respect of the lease or other use of spectrum space relating to sub-channels owing by such Person.
“Indenture” means this Indenture, as amended, supplemented or otherwise modified from time to time with respect to the Notes.
“Independent Financial Advisor” means an accounting, appraisal, investment banking firm or consultant of nationally recognized standing that is, in the good faith judgment of the Issuer, qualified to perform the task for which it has been engaged.
28
“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.
“Institutional Accredited Investor” means an institution that is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, that is not also a QIB.
“Intercreditor Agreements” means, collectively, the Collateral Trust Agreement and the First/Second/Third Lien Intercreditor Agreement.
“Interest Payment Date”, when used with respect to any Note, means the Stated Maturity of an installment of interest on such Note.
“Investment Grade Event” means (1) the Issuer has obtained a rating or, to the extent any Rating Agency will not provide a rating, an advisory, prospective or indicative rating or rating confirmation or reaffirmation (or comparable term used by such Rating Agency for such type of rating or evaluation) from either Rating Agency in the event two Rating Agencies provide ratings referred to in clauses (i) and (ii) below at such time, or from any two of three Rating Agencies in the event three Rating Agencies provide ratings referred to in clauses (i) and (ii) below at such time that reflect an Investment Grade Rating (i) for the corporate rating of the Issuer (or any Parent Guarantor) and (ii) with respect to the Notes after giving effect to the proposed release of all of the Note Guarantees to be released in connection therewith; and (2) no Event of Default shall have occurred and be continuing with respect to the Notes.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s, BBB- (or the equivalent) by S&P and BBB- (or the equivalent) by Fitch, or the equivalent investment grade credit rating from any other Rating Agency substituted for Moody’s, S&P or Fitch pursuant to clause (2) of the definition of “Rating Agency.”
“Investment Grade Securities” means:
(1) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Cash Equivalents);
(2) debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Issuer and its Subsidiaries;
(3) investments in any fund that invests at least 90% of its assets in investments of the type described in clauses (1) and (2) which fund may also hold immaterial amounts of cash pending investment or distribution; and
(4) corresponding instruments in countries other than the United States customarily utilized for high quality investments.
“Investments” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, trade credit, advances to customers, commission, travel and similar advances to officers, directors, managers, employees and consultants, in each case made in the ordinary course of business or consistent with industry or past practice), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet (excluding the footnotes) of the Issuer in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property.
29
For purposes of the definition of “Unrestricted Subsidiary” and Section 4.07:
(1) “Investments” shall include the portion (proportionate to such Person’s economic interest in such Subsidiary) of the fair market value of the net assets of a Subsidiary of such Person at the time that such Subsidiary becomes an Unrestricted Subsidiary. Upon a redesignation of such Subsidiary as a Restricted Subsidiary, such Person shall be deemed to continue to have an “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to:
(a) such Person’s “Investment” in such Subsidiary at the time of such redesignation, less
(b) the portion (proportionate to such Person’s economic equity interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation;
(2) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer, in each case as determined by the Issuer; and
(3) a Restricted Subsidiary ceasing to be a Restricted Subsidiary shall be deemed to be an Investment at such time in an amount equal to the portion of the fair market value (as determined in good faith by the Issuer) of the Issuer’s retained ownership interest, if any, in such Restricted Subsidiary that ceased to be a Restricted Subsidiary.
The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash or Cash Equivalents by the Issuer or a Restricted Subsidiary in respect of such Investment.
“Investors” means each of (1) (i) David D. Smith, Frederick G. Smith, J. Duncan Smith and Robert E. Smith, (ii) Immediate Family Members of the Persons described in clause (1)(i), (iii) any Affiliates, related estate plan and trusts created for the benefit of the Persons described in clause (1)(i), (ii) or (iv) or any trust for the benefit of any such Affiliate, estate plan or trust, or (iv) in the event of the incompetence of death of any of the Persons described in clause (1)(i) and (ii), such Persons’ estate, executor, administrator, committee or other personal representative or beneficiaries, in each case who at any particular date shall beneficially own or have the right to acquire, directly or indirectly, Equity Interests of the Issuer, any Parent Entity of the Issuer or any Subsidiary thereof and their respective Affiliates, and any funds, partnerships or other co-investment vehicles managed, advised or controlled by the foregoing or their respective Affiliates and (2) Parent.
“Issue Date” means February 12, 2025.
“Issuer” means Sinclair Television Group, Inc., a Maryland corporation.
“Issuer Order” means a written request or order signed on behalf of the Issuer by an Officer of the Issuer and delivered to the Trustee.
“Junior Lien Credit Facilities” is defined in the term “Amended Credit Agreement.”
30
“Junior Lien Indebtedness” means the New Second Lien Notes and the Indebtedness under the Amended Credit Agreement and any other Indebtedness secured by Liens only on all or a portion of the Collateral that is permitted under this Indenture to have Liens on the Collateral on a junior Lien basis relative to the Notes and the Note Guarantees pursuant to the First/Second/Third Lien Intercreditor Agreement; provided that the holders of such Indebtedness or their Designated Representative shall have entered into the First/Second/Third Lien Intercreditor Agreement and such Indebtedness shall constitute “Junior Lien Obligations” as defined therein.
“Junior Lien Obligations” means the Obligations in respect of the Junior Lien Indebtedness.
“Junior Lien Priority” means, with respect to specified Indebtedness, such Indebtedness is secured by a Lien that is junior in priority to the Liens on the Collateral that secures the Notes and the Notes Guarantees and is subject to the First/Second/Third Lien Intercreditor Agreement (or such other intercreditor agreement having substantially similar terms as the First/Second/Third Lien Intercreditor Agreement, taken as a whole).
“Junior Lien Revolving Credit Facility” is defined in the term “Amended Credit Agreement.”
“Junior Lien Term Loan B-3 Facility” has the meaning assigned to it in the term “Amended Credit Agreement.”
“Junior Lien Term Loan B-4 Facility” has the meaning assigned to it in the term “Amended Credit Agreement.”
“Junior Lien Term Loan Facilities” is defined in the term “Amended Credit Agreement.” “Legal Holiday” means a Saturday, a Sunday or a day on which commercial banking institutions are not required to be open in the State of New York or the city in which the Trustee’s corporate trust office is located.
“License Subsidiaries” means (a) with respect to each Station that is an Owned Station on the Issue Date, the Subsidiary of the Issuer that is the holder of the Broadcast Licenses for such Owned Station and (b) with respect to any Owned Station hereafter acquired by the Issuer or any of its Subsidiaries, the Subsidiary of the Issuer formed, created, or acquired after the Issue Date that holds the Broadcast Licenses for such Owned Station, and in each case any other Subsidiary into which any such License Subsidiary may be merged to the extent not prohibited by Section 5.01.
“Lien” means, with respect to any asset, (1) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (2) the interest of a vendor or a lessor under any conditional sale agreement, Financing Lease Obligation or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset; provided that in no event shall Non-Financing Lease Obligations be deemed to constitute a Lien.
“Limited Condition Transaction” means (1) any Investment or acquisition (whether by merger, amalgamation, consolidation or other business combination or the acquisition of Capital Stock or otherwise), whose consummation is not conditioned on the availability of, or on obtaining, third-party financing, (2) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Stock or Preferred Stock requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment, (3) any Restricted Payment requiring irrevocable notice in advance thereof, and (4) any Asset Sale or a disposition excluded from the definition of “Asset Sale.”
31
“Local Marketing Agreement” means a local marketing arrangement, sale agreement, time brokerage agreement, management agreement, outsourcing agreement, joint sale agreement, shared services agreement, program services agreement or similar arrangement pursuant to which a Person (i) obtains the right to sell at least a majority of the advertising inventory of a television station on behalf of a third party, (ii) purchases at least a majority of the air time of a television station to exhibit programming and sell advertising time, (iii) manages the selling operations of a television station with respect to at least a majority of the advertising inventory of such station, (iv) manages or controls the acquisition of programming for a television station, (v) acts as a program consultant for a television station, (vi) manages the operation of a television station generally, (vii) obtains the right to negotiate retransmission consent on behalf of a third party, (viii) provides non-programming related management and/or consulting services to a television station, (ix) consults, manages, sells or negotiates uses of excess spectrum or (x) any put or option agreement entered into in connection with any agreement referred to in clauses (i) through (ix) above that provides a right to acquire or sell the license or non-license assets of a television station.
“Management Investors” means current and/or former directors, officers and employees of the Issuer and/or any of its subsidiaries who are (directly or indirectly through one or more investment vehicles) Investors on the Issue Date.
“Material FCC License” means an FCC License that is, in the reasonable, good faith determination of the Issuer, material to the operation of the business of the Issuer and its Restricted Subsidiaries, taken as a whole.
“Material Intellectual Property” means any intellectual property that is, in the reasonable, good faith determination of the Issuer, material to the operation of the business of the Issuer and its Restricted Subsidiaries, taken as a whole.
“Material Subsidiary” means (a) each Wholly-Owned Subsidiary that is a Restricted Subsidiary that, as of the last day of the fiscal quarter of the Issuer most recently ended for which financial statements are available, had revenues or total assets for such quarter in excess of 2.5% of the consolidated revenues or total assets, as applicable, of the Issuer for such quarter or that is designated by the Issuer as a Material Subsidiary and (b) any group comprising Wholly-Owned Subsidiaries that are Restricted Subsidiaries that each would not have been a Material Subsidiary under clause (a) but that, taken together, as of the last day of the fiscal quarter of the Issuer most recently ended for which financial statements are available, had revenues or total assets for such quarter in excess of 10.0% of the consolidated revenues or total assets, as applicable, of the Issuer for such quarter.
“Maturity”, when used with respect to any Note, means the date on which the principal of such Note or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, exercise of option for repayment or otherwise.
“Media for Equity Transactions” means a transaction in the ordinary course of business in which the Issuer or any Restricted Subsidiary sells or exchanges advertising and/or other media inventory for consideration in the form of Equity Interests in, or Indebtedness issued by, the purchaser or an Affiliate (including a parent entity) of the purchaser.
“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
32
“Net Proceeds” means the aggregate cash proceeds received by the Issuer and any of its Restricted Subsidiaries in respect of any Asset Sale, including any cash received upon the sale or other disposition of any Designated Non-cash Consideration received in any Asset Sale, net of (1) the fees, out- of-pocket expenses and other direct costs relating to such Asset Sale or the sale or disposition of such Designated Non-cash Consideration (including, without limitation, legal, accounting, consulting, investment banking and other customary fees, underwriting discounts and commissions, survey costs, title and recordation expenses, title insurance premiums, payments made in order to obtain a necessary consent or required by applicable law, brokerage and sales commissions and any relocation expenses incurred as a result thereof), (2) all federal, state, provincial, foreign and local taxes (including tax distributions paid or payable to a Parent Entity pursuant to clause (13) of Section 4.07(b)) paid or reasonably estimated to be payable as a result thereof (including transfer taxes, deed or mortgage recording taxes and estimated taxes payable in connection with any repatriation of funds and after taking into account any available tax credits or deductions and any tax sharing arrangements), (3) amounts required to be applied to the repayment of principal, premium, if any, and interest on Senior Indebtedness (other than any unsecured Indebtedness or Junior Lien Indebtedness) required (other than required by Section 4.10(b)) to be paid as a result of such transaction, (4) the pro rata portion of Net Proceeds thereof (calculated without regard to this clause (4)) attributable to minority interests and not available for distribution to or for the account of the Issuer and the Restricted Subsidiaries as a result thereof, (5) any costs associated with unwinding any related Hedging Obligations in connection with such transaction, (6) any deduction of appropriate amounts to be provided by the Issuer or any of its Restricted Subsidiaries as a reserve in accordance with GAAP against any liabilities associated with the asset disposed of in such transaction and retained by the Issuer or any of its Restricted Subsidiaries after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction, (7) any portion of the purchase price from an Asset Sale placed in escrow, whether as a reserve for adjustment of the purchase price, for satisfaction of indemnities in respect of such Asset Sale or otherwise in connection with such Asset Sale; provided that upon the termination of that escrow (other than in connection with a payment in respect of any such adjustment or satisfaction of indemnities), Net Proceeds will be increased by any portion of funds in the escrow that are released to the Issuer or any of its Restricted Subsidiaries, (8) the amount of any liabilities (other than Indebtedness in respect of the Senior Credit Facilities, the New First-Out First Lien Notes, the Existing Notes, the New Second Lien Notes and the Notes) directly associated with such asset being sold and retained by the Issuer or any of its Restricted Subsidiaries and (9) any amounts paid by the Issuer and any of its Subsidiaries in connection with any Channel Sharing Agreement related to the asset that is the subject of such event or any option agreement related thereto. Any non-cash consideration received in connection with any Asset Sale that is subsequently converted to cash shall become Net Proceeds only at such time as it is so converted.
“New Credit Agreement” means the credit agreement, dated as of the Issue Date, among the Parent, as guarantor, the Issuer, as borrower, the lenders from time to time party thereto, certain other parties party thereto from time to time and JPMorgan Chase Bank, N.A., as administrative agent, issuing bank and swingline lender, including any related notes, guarantees, security documents, instruments and agreements executed in connection therewith, and as such agreement, in whole or in part, in one or more instances, may be further amended, restated, renewed, extended, substituted, refinanced, restructured, replaced (whether or not upon termination, and whether with the original lenders or otherwise), supplemented or otherwise modified from time to time (including, in each case, by means of one or more credit agreements, note purchase agreements or sales of debt securities to institutional investors whether with the original agents and lenders or otherwise and including, without limitation, any successive renewals, extensions, substitutions, refinancings, restructurings, replacements, supplementations or other modifications of the foregoing) and including, without limitation, to increase the amount of available borrowings thereunder or to add Restricted Subsidiaries as additional borrowers or guarantors or otherwise, which credit agreement shall provide for, as of the Issue Date, a “first-out” priority revolving credit facility (the “First-Out Revolving Credit Facility” or the “First-Out Senior Credit Facilities”), a “second-out” priority term loan B-6 facility (with the term loans thereunder referred to herein as the “Term B-6 Loans”) and a “second-out” priority term loan B-7 facility (together with such “second-out” priority term loan B-6 facility (with the term loans thereunder referred to herein as the “Term B-7 Loans”), the “Second-Out Term Loan Facility” and together with the First-Out Senior Credit Facilities, the “First Lien Senior Credit Facilities”).
33
“New First-Out First Lien Notes” means the 8.125% First-Out First Lien Secured Notes due 2033 governed by the New First-Out Indenture in an aggregate principal amount not to exceed the amount permitted pursuant to subclause (a) of clause (1) of Section 4.09(b).
“New First-Out First Lien Notes Obligations” means the Obligations in respect of the New First-Out First Lien Notes, the guarantees in respect thereof, the New First-Out Indenture and the security documents relating to the foregoing.
“New First-Out Indenture” means the indenture, dated as of the Issue Date, among the Issuer, the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and collateral trustee, which indenture governs the New First-Out First Lien Notes, as amended or supplemented from time to time.
“New LMT Debt” has the meaning assigned to it in the definition of “Priming Financing/Liability Management Transaction”.
“New Second Lien Notes” means each series of 9.750% Senior Second Lien Secured Notes due 2033 governed by the Second Lien Indenture, and issued in connection with the Private Exchanges.
“New Second Lien Notes Obligations” means the Obligations in respect of the New Second Lien Notes, the guarantees in respect thereof, the Second Lien Indenture and the security documents relating to the foregoing.
“Non-Financing Lease Obligation” means a lease obligation that is not required to be accounted for as a financing or capital lease on both the balance sheet and the income statement for financial reporting purposes in accordance with GAAP. For the avoidance of doubt, a straight-line or operating lease shall be considered a Non-Financing Lease Obligation.
“Non-Recourse Indebtedness” means Indebtedness that is non-recourse to the Issuer and its Restricted Subsidiaries (except for customary representations, warranties, covenants and indemnities made in connection with applicable facilities of such type).
“Non-U.S. Person” means a Person who is not a U.S. Person.
“Note Guarantee” means the guarantee by any Guarantor of the Issuer’s Obligations under this Indenture and the Notes.
“Notes” means the Notes and any Additional Notes.
“Notes Obligations” means Obligations in respect of the Notes, this Indenture, the Note Guarantees and the Security Documents relating to the foregoing.
“Obligations” means any principal, interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, federal or foreign law), premium, penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other liabilities, and guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any Indebtedness.
34
“Offering Memorandum” means the Confidential Offering Memorandum, Offer to Exchange and Consent Solicitation Statement, dated January 27, 2025, as supplemented by Supplement No. 1, dated January 30, 2025, relating to the offer by the Issuer to exchange Notes for Existing Secured Notes.
“Officer” means the Chairman of the Board, any Manager or Director, the Chief Executive Officer, the Chief Financial Officer, the Chief Operating Officer, the Chief Accounting Officer, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer, the Controller or the Secretary or any other officer designated by any such individuals of the Issuer or any other Person, as the case may be.
“Officer’s Certificate” means a certificate signed on behalf of the Issuer by an Officer of the Issuer or on behalf of any other Person, as the case may be, that meets the requirements set forth in this Indenture.
“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee (which opinion may be subject to customary assumptions and exclusions). The counsel may be an employee of or counsel to the Issuer.
“Outsourcing Agreements” means (a) any agreement to which the Issuer or any of its Subsidiaries is a party which provides for the Issuer or any of its Subsidiaries to deliver or receive non-programming related management and/or consulting services of any television station, and (b) any put or option agreement entered into in connection with any agreement referred to in clause (a) above that provides for the Issuer or any of its Subsidiaries to acquire or sell the license or non-license assets of the related television station.
“Owned Station” means any television or radio station the Broadcast Licenses of which are owned or held by the Issuer or any of its Subsidiaries on or after the Issue Date.
“Parent” means Sinclair Broadcast Group, LLC, a Maryland limited liability company, and the direct parent of the Issuer, or any successor thereto.
“Parent Entity” means any Person that, with respect to another Person, owns (directly or indirectly) 50% or more of the total voting power of the Voting Stock entitled to vote for the election of directors of such other Person having a majority of the aggregate votes on the Board of such other Person. Unless the context requires otherwise, any references to a Parent Entity refer to a Parent Entity of the Issuer (including Parent or Sinclair).
“Parent Guarantor” means a Guarantor that is a Parent Entity of the Issuer.
“Pari Passu Lien Obligations” means the First Lien Obligations and any other Indebtedness that is permitted to have Pari Passu Lien Priority and is not secured by any assets other than the Collateral; provided that the holders of such Indebtedness or their Designated Representative shall have entered into Collateral Trust Agreement. For the avoidance of doubt, Pari Passu Lien Obligations shall not include New Second Lien Notes Obligations or other Junior Lien Obligations.
35
“Pari Passu Lien Priority” means, with respect to any Indebtedness, such Indebtedness is secured by a Lien that is pari passu in priority to the Liens on specified Collateral that secures the Notes and the Note Guarantees (without regard to control of remedies or payment priority as to the application of proceeds with respect to, and distributions made on account of, any such Collateral) and is subject to the Collateral Trust Agreement and the First/Second/Third Lien Intercreditor Agreement (or such other intercreditor agreement having substantially similar terms as the Collateral Trust Agreement or the First/Second/Third Lien Intercreditor Agreement, as applicable, taken as a whole).
“Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).
“Permitted Asset Swap” means the substantially concurrent purchase and sale or exchange, including as a deposit for future purchases, of Related Business Assets or a combination of Related Business Assets and cash or Cash Equivalents between the Issuer or any of its Restricted Subsidiaries and another Person; provided that any cash or Cash Equivalents received must be applied in accordance with Section 4.10.
“Permitted Holders” means (1) each of the Investors, (2) the Management Investors and their Permitted Transferees, (3) any Person who is acting solely as an underwriter in connection with a public or private offering of Capital Stock of the Issuer or any Parent Entity, acting in such capacity, (4) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) of which any of the foregoing Persons described in clauses (1) and (2) or any Permitted Holder specified in the last sentence of this definition are members and any member of such group; provided that such Persons, without giving effect to the existence of such group or any other group, collectively own, directly or indirectly, more than 50% of the total voting power of the Voting Stock entitled to vote for the election of directors of the Issuer having a majority of the aggregate votes on the Board of the Issuer held by such group, (5) any Permitted Parent and (6) any Permitted Plan, in each case of the foregoing clauses (1) through (6), whether holding Equity Interests of the Issuer directly or indirectly. Any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) whose acquisition of beneficial ownership constitutes a Change of Control Triggering Event in respect of which a Change of Control Offer is made in accordance with the requirements of this Indenture will thereafter, together with its Affiliates, constitute an additional Permitted Holder.
“Permitted Investments” means:
(1) any Investment in the Issuer or any of its Restricted Subsidiaries;
(2) any Investment in cash and Cash Equivalents or Investment Grade Securities;
(3) any Investment by the Issuer or any of its Restricted Subsidiaries in a Person (including, to the extent constituting an Investment, in assets of a Person that represent substantially all of its assets or a division, business unit, product line or line of business, including research and development and related assets in respect of any product) that is engaged, directly or indirectly, in a Similar Business if as a result of such Investment:
(a) such Person is or becomes a Restricted Subsidiary; or
(b) such Person, in one transaction or a series of related transactions, is merged, amalgamated or consolidated with or into, or transfers or conveys substantially all of its assets (or such division, business unit, product line or line of business) to, or is liquidated into, the Issuer or a Restricted Subsidiary,
36
and, in each case, any Investment held by such Person if and to the extent such Investment was not acquired by such Person in contemplation of such acquisition, merger, amalgamation, consolidation, transfer or conveyance;
(4) any Investment in securities or other assets (including earn-outs) not constituting cash, Cash Equivalents or Investment Grade Securities and received in connection with an Asset Sale made pursuant to Section 4.10 or any other disposition of assets not constituting an Asset Sale;
(5) any Investment existing on the Issue Date or made pursuant to binding commitments in effect on the Issue Date or an Investment consisting of any extension, modification, replacement, reinvestment or renewal of any such Investment existing on the Issue Date or binding commitment in effect on the Issue Date; provided that the amount of any such Investment may be increased in such extension, modification, replacement, reinvestment or renewal only (a) as required by the terms of such Investment or binding commitment as in existence on the Issue Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or (b) as otherwise permitted under this Indenture;
(6) any Investment acquired by the Issuer or any of its Restricted Subsidiaries:
(i) in exchange for any other Investment or accounts receivable, endorsements for collection or deposit held by the Issuer or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the Issuer of such other Investment or accounts receivable;
(ii) in satisfaction or release of judgments against other Persons;
(iii) as a result of a foreclosure or other remedy by the Issuer or any of its Restricted Subsidiaries with respect to any Investment or other transfer of title or ownership interest with respect to any Investment; or
(iv) received in compromise or resolution of (A) obligations of trade creditors, suppliers or customers of the Issuer or any Restricted Subsidiary that were incurred in the ordinary course of business or consistent with industry or past practice, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency or reorganization of any trade creditor, supplier or customer, or (B) litigation, arbitration or other disputes or claims, actions or proceedings in law or equity;
(7) Hedging Obligations permitted under clause (10) of Section 4.09(b);
(8) Investments made in connection with any Media for Equity Transaction; provided that any such Investment is made and is held at all times by the Issuer or any Restricted Subsidiary, and is not used in connection with or in furtherance of a Priming Financing/Liability Management Transaction;
(9) Investments the payment for which consists of Equity Interests (exclusive of Disqualified Stock) of the Issuer or any Parent Entity to the extent that issuance of such Equity Interests did not prior thereto increase the amount available for Restricted Payments under clause (3) of Section 4.07(a);
37
(10) guarantees of Indebtedness permitted (and permitted to be guaranteed) under Section 4.09 and Investments consisting of Liens permitted under Section 4.12; provided that this clause (10) shall not be used in connection with or in furtherance of a Priming Financing/Liability Management Transaction;
(11) any transaction to the extent it constitutes an Investment that is permitted by and made in accordance with Section 4.11(b) (except transactions described in clauses (2), (5) and (9) of Section 4.11(b));
(12) any Investments consisting of purchases and acquisitions of inventory, supplies, material or equipment or other similar assets, or the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons;
(13) additional Investments having an aggregate fair market value measured at the time of committing, declaring or determining to make such Investment and without giving effect to subsequent changes in value, when aggregated with all other Investments outstanding under this clause (13), does not exceed at the time of such Investment the greater of (x) $150.0 million and (y) 20.0% of Consolidated EBITDA of the Issuer for the Applicable Measurement Period; provided that if any Investment pursuant to this clause (13) is made in any Person that is not a Restricted Subsidiary of the Issuer at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (13); provided further, that Investments made pursuant to this clause (13) shall not be used in connection with or in furtherance of a Priming Financing/Liability Management Transaction;
(14) Investments in Subsidiaries in the form of receivables and related assets required in connection with a Permitted Receivables Financing (including the contribution or lending of cash and Cash Equivalents to Subsidiaries to finance the purchase of such assets from the Issuer or any Restricted Subsidiary or to otherwise fund required reserves);
(15) loans and advances to, or guarantees of Indebtedness of, officers, directors, managers, employees and consultants not in excess of the greater of (x) $25.0 million and (y) 3.6% of Consolidated EBITDA of the Issuer for the Applicable Measurement Period, in the aggregate, outstanding at the time of such Investment;
(16) loans and advances to officers, directors, managers, employees, consultants and independent contractors for business-related travel expenses, moving or relocation expenses, entertainment, payroll advances and other analogous or similar expenses or payroll expenses;
(17) advances, loans or extensions of trade credit (including the creation of receivables) or prepayments to suppliers or lessors or loans or advances made to distributors, and performance guarantees, in each case in the ordinary course of business or consistent with past practice by the Issuer or any of its Restricted Subsidiaries;
(18) Investments consisting of purchases and acquisitions of assets or services in the ordinary course of business or consistent with industry or past practice and any earnest money deposits in connection therewith;
(19) repurchases of the Notes or any Refinancing Indebtedness in respect thereof;
38
(20) Investments in the ordinary course of business or consistent with industry or past practice consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers consistent with past practices;
(21) Investments (i) made after the Issue Date in joint ventures of the Issuer or any Restricted Subsidiary existing on the Issue Date or (ii) in Unrestricted Subsidiaries having an aggregate fair market value measured at the time of committing, declaring or determining to make such Investment and without giving effect to subsequent changes in value, in the case of clauses (i) and (ii), when aggregated with all other Investments outstanding under this clause (21), do not exceed, at the time of such Investment, $50.0 million; provided that if any Investment pursuant to this clause (21) is made in any Person that is an Unrestricted Subsidiary at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (21); provided, further, that Investments made pursuant to this clause (21) shall not be used (x) in connection with or in furtherance of a Priming Financing/Liability Management Transaction or (y) for Restricted Payments described in clause (I) (II) or (III) of the definition thereof;
(22) Investments made as part of, or in connection with, the Transactions;
(23) Investments of assets relating to non-qualified deferred payment plans in the ordinary course of business or consistent with industry or past practice;
(24) intercompany current liabilities owed to Unrestricted Subsidiaries or joint ventures incurred in the ordinary course of business or consistent with industry or past practice in connection with cash management operations of the Issuer and its Subsidiaries;
(25) any Investment in any Subsidiary or any joint venture in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business or consistent with industry or past practice;
(26) contributions to a “rabbi” trust for the benefit of employees, directors, consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the case of a bankruptcy of the Issuer or any Restricted Subsidiary;
(27) non-cash Investments in connection with tax planning and reorganization activities;
(28) any other Investment; provided that on the date of such Investment, on a pro forma basis after giving effect to such Investment, the Consolidated First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period would be equal to or less than 3.75 to 1.0 and no Event of Default under clause (1), (2), (6) or (7) of Section 6.01(a) shall have occurred and be continuing or would occur as a consequence thereof; provided further, that Investments made pursuant to this clause (28) shall not be used in connection with or in furtherance of a Priming Financing/Liability Management Transaction;
(29) Investments made in the ordinary course of business, on ordinary terms or consistent with industry or past practice in connection with obtaining, maintaining or renewing vendor contracts;
(30) Investments consisting of promissory notes issued by the Issuer or any Guarantor to future, present or former employees, directors, officers, managers, members, partners, independent contractors or consultants of the Issuer or any of its Subsidiaries or their respective estates, spouses or former spouses to finance the redemption of Equity Interests of the Issuer or any direct or indirect parent thereof, to the extent the applicable Restricted Payment is permitted by Section 4.07;
39
(31) Investments made from casualty insurance proceeds in connection with the replacement, substitution, restoration or repair of assets on account of a casualty event;
(32) Investments in Local Marketing Agreement purchase options (other than purchase options in existence as of the Issue Date) in an amount of up to $300.0 million in the aggregate plus customary closing fees and expenses;
(33) if otherwise permitted pursuant to FCC rules and regulations and the terms and conditions of the then extant Senior Credit Facilities, the acquisition of any television station which is subject to an option agreement, merger agreement or any similar agreement existing between Parent, the Issuer and any of their respective Subsidiaries and the owners of such television station; and
(34) any Investment with respect to purchase options relating to the purchase of Stations by the Issuer and its Subsidiaries; provided that at the time any such Investment is made, the aggregate outstanding amount of all Investments made in reliance on this clause (34), when aggregated with all other Investments outstanding under this clause (34), shall not exceed the greater of (x) $100.0 million and (y) 14.5% of Consolidated EBITDA of the Issuer for the most recently ended Applicable Measurement Period after giving pro forma effect to the making of such Investment.
“Permitted Junior Lien Revolving Facility Refinancings” means any refinancings, refundings, replacements, exchanges, and/or permanent prepayments of any Junior Lien Revolving Credit Facility (accompanied by permanent commitment reductions of the amounts so refinanced, refunded, replaced, exchanged and/or prepaid) with (x) the proceeds of any drawing of First-Out Senior Credit Facilities Revolving Indebtedness and/or refinancing, replacement or exchange into First-Out Senior Credit Facilities Revolving Indebtedness, to the extent so permitted under Section 4.09, or (y) with the use of proceeds other than First-Out Senior Credit Facilities Revolving Indebtedness, to the extent permitted under Section 4.07, other than pursuant to clause (27) of Section 4.07(b), in each case that occurs within 15 months before the applicable final maturity of such Junior Lien Revolving Credit Facility; provided that any such Indebtedness shall have a later maturity date than the Junior Lien Revolving Credit Facility.
“Permitted Liens” means:
(1) Liens for taxes, assessments or other governmental charges that are not overdue for a period of more than 60 days or not yet payable or subject to penalties for nonpayment or that are being contested in good faith by appropriate actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of the Issuer or any of its Restricted Subsidiaries in accordance with GAAP, or for property taxes on property that the Issuer or any of its Restricted Subsidiaries has determined to abandon if the sole recourse for such tax, assessment, charge, levy or claim is to such property;
(2) Liens imposed by law or regulation, such as landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, architects’ or construction contractors’ Liens and other similar Liens that secure amounts not overdue for a period of more than 60 days or, if more than 60 days overdue, are unfiled and no other action has been taken to enforce such Liens or that are being contested in good faith by appropriate actions or other Lien arising out of judgments or awards against the Issuer or any of its Restricted Subsidiaries with respect to which the Issuer or such Restricted Subsidiary shall then be proceeding with an appeal or other proceeding for review, if adequate reserves with respect thereto are maintained on the books of the Issuer or such Restricted Subsidiary in accordance with GAAP;
40
(3) Liens incurred or deposits made in the ordinary course of business or consistent with industry or past practice (a) in connection with workers’ compensation, unemployment insurance, employers’ health tax, and other social security or similar legislation or other insurance related obligations (including, but not limited to, in respect of deductibles, self-insured retention amounts and premiums and adjustments thereto) and (b) securing reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) insurance carriers providing property, casualty or liability insurance to the Issuer or any of its Restricted Subsidiaries or otherwise supporting the payment of items set forth in the foregoing clause (a);
(4) Liens incurred or deposits made to secure the performance of bids, tenders, trade contracts, governmental contracts, leases, public or statutory obligations, surety, indemnity, warranty, release, appeal or similar bonds or with respect to other regulatory requirements, completion guarantees, stay, customs and appeal bonds, performance bonds, bankers’ acceptance facilities and other obligations of a like nature (including those to secure health, safety and environmental obligations), deposits as security for contested taxes or import duties or for payment of rent, performance and return of money bonds and obligations in respect of letters of credit, bank guarantees or similar instruments that have been posted to support the same, incurred in the ordinary course of business or consistent with industry or past practice;
(5) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, rights-of-way, restrictions, encroachments, protrusions, servitudes, sewers, electric lines, drains, telegraph, telephone and cable television lines and other similar purposes, or zoning, building codes or other restrictions (including minor defects and irregularities in title and similar encumbrances) affecting real properties or Liens incidental to the conduct of the business of the Issuer and its Subsidiaries or to the ownership of their respective properties which were not incurred in connection with Indebtedness and which do not in any case materially interfere with the ordinary conduct of the business of the Issuer and its Subsidiaries, taken as a whole;
(6) Liens securing Indebtedness permitted to be incurred pursuant to clause (5)(b) of Section 4.09(b); provided, that such Liens shall not secure First-Out Indebtedness;
(7) Liens on goods the purchase price of which is financed by a documentary letter of credit issued for the account of the Issuer or any of its Restricted Subsidiaries or Liens on bills of lading, drafts or other documents of title arising by operation of law or pursuant to the standard terms of agreements relating to letters of credit, bank guarantees and other similar instruments; provided that such Lien secures only the obligations of the Issuer or such Restricted Subsidiaries in respect of such letter of credit to the extent such obligations are permitted under Section 4.09;
(8) (a) rights of set-off, banker’s liens, netting agreements and other Liens arising by operation of law or by the terms of documents of banks or other financial institutions in relation to the maintenance of administration of deposit accounts, securities accounts, cash management arrangements or in connection with the issuance of letters of credit, bank guarantees or other similar instruments and (b) Liens securing, or otherwise arising from, judgments but not constituting an Event of Default under clause (5) of Section 6.01(a);
(9) Liens arising from Uniform Commercial Code financing statements, including precautionary financing statements, or any similar filings made in respect of operating leases or consignments entered into by the Issuer or any of its Restricted Subsidiaries;
41
(10) Liens securing Indebtedness and other Obligations, including any letter of credit facility relating thereto, that was, at the time such Indebtedness is deemed to be incurred, permitted to be incurred pursuant to clauses (1) or (16) of Section 4.09(b); provided, that the Liens securing such Indebtedness (a) as First-Out Priority Payment Obligations shall not exceed the aggregate principal amounts permitted under subclause (a) (in respect of term indebtedness, including the New First-Out First Lien Notes and any guarantees thereof) or (b) (in respect of revolving indebtedness) of such clause (1) and Obligations in respect thereof shall be subject to the Collateral Trust Agreement (with first-out priority); (b) as Second-Out Priority Payment Obligations shall not exceed the aggregate principal amount permitted under subclause (c) of such clause (1) and Obligations in respect thereof shall be subject to the Collateral Trust Agreement (with second-out priority); and (c) as Junior Lien Obligations shall not exceed the aggregate principal amount permitted under subclause (d) of such clause (1) (unless incurred in reliance on subclause (b) of such clause (1)) and Obligations in respect thereof shall be subject to the First/Second/Third Lien Intercreditor Agreement (with Junior Lien Priority relative to the First Lien Obligations), respectively;
(11) Liens existing on the Issue Date after giving effect to the Transactions (other than (a) Liens securing Indebtedness incurred pursuant to clause (1) or (2) of Section 4.09(b) and (b) Liens securing the New Second Lien Notes and the Junior Lien Term Loan Facilities incurred pursuant to clause (3) of Section 4.09(b));
(12) Liens securing Indebtedness permitted to be incurred pursuant to clauses (4)(a) or (b), (12), (14), (15) and (28) of Section 4.09(b); provided that (a) Liens securing Indebtedness permitted to be incurred pursuant to such clause (4)(a) extend only to the property or assets purchased or acquired with the proceeds of such Indebtedness, accessions to such assets and the proceeds and products thereof, and any lease of such assets (including accessions thereto), the proceeds and the products thereof and customary security deposits in respect thereof; provided, however, that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender, (b) Liens securing Indebtedness permitted to be incurred pursuant to such clause (4)(b) extend only to the property or assets subject to the Sale and Lease-Back Transaction related thereto, accessions to such property or assets and the proceeds and products thereof, and any lease of such property or assets (including accessions thereto) and the proceeds and the products thereof, (c) Liens securing Indebtedness permitted to be incurred pursuant to such clause (12) shall only secure Junior Lien Indebtedness, (d) Liens securing Indebtedness permitted to be incurred pursuant to such clause (14) shall only be permitted if such Liens are limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof, or replacements of any thereof) acquired, or of any Person acquired or merged, amalgamated or consolidated with or into the Issuer or any Restricted Subsidiary (including designating an Unrestricted Subsidiary as a Restricted Subsidiary), in any transaction to which such Indebtedness relates and (e) Liens securing Indebtedness permitted to be incurred pursuant to such clause (28) extend only to the property or assets of, or Equity Interests issued by, Restricted Subsidiaries that are not Guarantors;
(13) Leases (including leases of aircraft), licenses, subleases or sublicenses granted to others that do not (a) interfere in any material respect with the business of the Issuer and its Restricted Subsidiaries, taken as a whole or (b) secure any Indebtedness;
(14) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
42
(15) Liens (a) of a collection bank arising under Section 4-210 of the Uniform Commercial Code or any comparable or successor provision on items in the course of collection, (b) attaching to pooling, commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business or consistent with industry or past practice and (c) in favor of a banking or other financial institution or electronic payment service providers arising as a matter of law or under general terms and conditions encumbering deposits (including the right of setoff) and that are within the general parameters customary in the banking or finance industry;
(16) Liens (a) on cash advances or escrow deposits in favor of the seller of any property to be acquired in an Investment permitted under this Indenture to be applied against the purchase price for such Investment or otherwise in connection with any escrow arrangements with respect to any such Investment (including any letter of intent or purchase agreement with respect to such investment), and (b) consisting of an agreement to sell, transfer, lease or otherwise dispose of any property in a transaction permitted under Section 4.10, in each case, solely to the extent such Investment or sale, disposition, transfer or lease, as the case may be, would have been permitted on the date of the creation of such Lien;
(17) Liens existing on property or assets at the time of acquisition thereof by the Issuer or any of its Subsidiaries (by a merger, consolidation or amalgamation or otherwise) or existing on the property or assets of, or Equity Interests issued by, any Person at the time such Person becomes a Restricted Subsidiary (including designating an Unrestricted Subsidiary as a Restricted Subsidiary), in each case after the Issue Date if (a) such Lien was not created in contemplation of such acquisition (by a merger, consolidation or amalgamation or otherwise) or such Person becoming a Restricted Subsidiary (including designating an Unrestricted Subsidiary as a Restricted Subsidiary), (b) such Lien does not extend to or cover any other property or assets of the Issuer or any of its other Restricted Subsidiaries, except that individual financings of equipment provided by one lender may be cross-collateralized to other financings of equipment provided by such lender and (c) the Indebtedness secured thereby is permitted under Section 4.09;
(18) any interest or title of a lessor under leases (other than leases constituting Financing Lease Obligations) entered into by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business or consistent with industry or past practice;
(19) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale or purchase of goods by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business or consistent with industry or past practice;
(20) Liens deemed to exist in connection with Investments in repurchase agreements permitted under clause (5) of the definition of “Cash Equivalents”;
(21) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business or consistent with industry or past practice and not for speculative purposes;
(22) Liens that are contractual rights of setoff or rights of pledge (a) relating to the establishment of depository relations with banks not given in connection with the incurrence of Indebtedness, (b) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business or consistent with industry or past practice or (c) relating to purchase orders and other agreements entered into with customers of the Issuer or any of its Restricted Subsidiaries in the ordinary course of business or consistent with industry or past practice;
(23) ground leases, subleases, licenses or sublicenses in respect of real property on which facilities owned or leased by the Issuer or any of its Restricted Subsidiaries are located;
43
(24) (a) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto or (b) deposits made or other security provided to secure liabilities to insurance carriers under insurance or self-insurance arrangements in the ordinary course of business or consistent with industry or past practice;
(25) Liens on cash and any Cash Equivalents used to satisfy or discharge Indebtedness;
(26) Liens on receivables and related assets incurred in connection with Permitted Receivables Financings;
(27) (A) receipt of progress payments and advances from customers in the ordinary course of business or consistent with industry or past practice to the extent the same creates a Lien on the related inventory and proceeds thereof and (B) Liens on specific items of inventory or other goods and proceeds of the Issuer or any of its Restricted Subsidiaries securing the Issuer’s or such Restricted Subsidiary’s accounts payable or similar trade obligations in respect of bankers’ acceptances or documentary or trade letters of credit issued or created for the account of the Issuer or such Restricted Subsidiary to facilitate the purchase, shipment or storage of such inventory or other goods;
(28) Liens securing Hedging Obligations; provided that with respect to Hedging Obligations relating to Indebtedness, such Indebtedness is permitted under this Indenture;
(29) Liens securing Obligations relating to any Indebtedness or other obligations of a Restricted Subsidiary owing to the Issuer or a Guarantor permitted to be incurred in accordance with Section 4.09;
(30) Liens in favor of the Issuer or any Guarantor or the Trustee;
(31) Liens on vehicles or equipment of the Issuer or any of its Restricted Subsidiaries granted in the ordinary course of business or consistent with past practice;
(32) Liens to secure any modification, refinancing, refunding, restatement, exchange, extension, renewal or replacement (or successive refinancing, refunding, restatement, exchange, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in clauses (6), (11), (12), (16), (17), (32), (33) and (34) of this definition; provided that (a) such new Lien shall be limited to all or part of the same property that secured the original Lien, plus accessions, additions and improvements on such property and after-acquired property that by the terms of such Indebtedness require or include a pledge of after-acquired property, (b) such new Lien shall have a Lien priority equal or junior to the original Lien, other than any such new Liens created, incurred, assumed or existing as a result of a Permitted LM Transaction or Indebtedness incurred or issued in accordance with clause (13) of Section 4.09(b) (and, for the avoidance of doubt, the Indebtedness secured by such new Lien shall not be First-Out Indebtedness unless the Indebtedness secured by the original Lien was First-Out Indebtedness) and (c) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (x) the outstanding principal amount or, if greater, committed amount of the Indebtedness under clauses (6), (11), (12), (16), (17), (32), (33) and (34) of this definition at the time the original Lien became a Permitted Lien under this Indenture, and (y) an amount necessary to pay accrued but unpaid interest on such Indebtedness and any dividend, premium (including tender premiums), defeasance costs, underwriting discounts and any fees, costs and expenses (including upfront fees, original issue discount (in lieu of upfront fees) or similar fees) incurred in connection with such modification, refinancing, refunding, extension, renewal or replacement;
44
(33) other Liens securing outstanding Indebtedness in an aggregate principal amount not to exceed, together with any Liens securing any modification, refinancing, refunding, restatement, exchange, extension, renewal or replacement (or successive modification, refinancing, refunding, restatement, exchange, extensions, renewals or replacements) under clause (32) above, $25.0 million; provided that Liens incurred under this clause (33) shall only secure Second-Out Indebtedness or Junior Lien Indebtedness;
(34) Liens incurred to secure Obligations in respect of any Indebtedness (other than First-Out Indebtedness) permitted to be incurred pursuant to Section 4.09; provided that, with respect to Liens securing Obligations permitted under this clause (34) and described in any such clause, at the time of incurrence of such Obligations and after giving pro forma effect thereto:
(a) in the case of any Second-Out Indebtedness incurred by the Issuer or any Subsidiary Guarantor, the Consolidated First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period would be equal to or less than 3.75 to 1.0; and
(b) in the case of any Junior Lien Indebtedness incurred by the Issuer or any Subsidiary Guarantor, the Consolidated Secured Debt Ratio of the Issuer for the Applicable Measurement Period would be equal to or less than 5.00 to 1.0.
(35) (a) any encumbrance or restriction (including put and call arrangements) with respect to capital stock of any joint venture or similar arrangement pursuant to any joint venture or similar arrangement, (b) Liens on Equity Interests in joint ventures or similar arrangements; provided that any such Lien is in favor of a creditor of such joint venture and such creditor is not an Affiliate of any partner to such joint venture or similar arrangement and (c) purchase options, calls, and similar rights of, and restrictions for the benefit of, a third party with respect to Equity Interests held by the Issuer or any of its Subsidiaries in joint ventures or similar arrangements;
(36) Liens on Capital Stock of an Unrestricted Subsidiary that secure Indebtedness or other obligations of the Issuer, any of its Subsidiaries or such Unrestricted Subsidiary;
(37) agreements to subordinate any interest of the Issuer or any Restricted Subsidiary in any accounts receivable or other proceeds arising from inventory consigned by the Issuer or any Restricted Subsidiary pursuant to an agreement entered into in the ordinary course of business or consistent with industry or past practice;
(38) Liens on property or assets used to defease or to irrevocably satisfy and discharge Indebtedness;
(39) (a) Liens securing the Notes, any Additional Notes and the related Note Guarantees incurred pursuant to clause (2) of Section 4.09(b) and (b) Liens securing the New Second Lien Notes, the Junior Lien Term Loan Facilities and any guarantees with respect thereto incurred pursuant to clause (3) of Section 4.09(b) (provided, that such Liens securing the New Second Lien Notes, the Junior Lien Term Loan Facilities and any guarantees with respect thereto and Obligations in respect thereof shall be of Junior Lien Priority relative to the First Lien Obligations pursuant to the First/Second/Third Lien Intercreditor Agreement);
(40) Liens on deposits taken by a Restricted Subsidiary that constitutes a regulated bank incurred in connection with the taking of such deposits;
45
(41) Liens created in connection with a project financed with, and created to secure, Non-Recourse Indebtedness;
(42) Liens relating to future escrow arrangements securing Indebtedness, including (i) Liens on escrowed proceeds from the issuance of Indebtedness for the benefit of the related holders of debt securities or other Indebtedness (or the underwriters, arrangers, trustee or collateral agent thereof) and (ii) Liens on cash or Cash Equivalents set aside at the time of the incurrence of any Indebtedness, in either case to the extent such cash or Cash Equivalents prefund the payment of interest or premium or discount on such Indebtedness (or any costs related to the issuance of such Indebtedness) and are held in an escrow account or similar arrangement to be applied for such purpose;
(43) [reserved];
(44) security given to a public utility or any municipality or governmental authority when required by such utility or authority in connection with the operations of the Issuer or any of its Restricted Subsidiaries in the ordinary course of business or consistent with industry or past practice;
(45) Liens securing Cash Management Obligations owed by the Issuer or any of its Restricted Subsidiaries to any lender under the Senior Credit Facilities or any Affiliate of such a lender; and
(46) Liens solely on any cash earnest money deposits made by the Issuer or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement.
For purposes of determining compliance with this definition, (i) a Lien need not be incurred solely by reference to one category of Permitted Liens described in this definition but is permitted to be incurred in part under any combination thereof and of any other available exemption, (ii) in the event that a Lien (or any portion thereof) meets the criteria of one or more of the categories of Permitted Liens, the Issuer may, in its sole discretion, divide or classify (or later divide, classify or reclassify in whole or in part in its sole discretion ) such Lien (or any portion thereof) in any manner that complies with this definition and (iii) in the event that a portion of Indebtedness secured by a Lien could be classified as secured in part pursuant to clause (34) above (giving pro forma effect only to the incurrence of such portion of such Indebtedness), the Issuer, in its sole discretion, may divide or classify (or later divide, classify or reclassify in whole or in part in its sole discretion) such portion of such Indebtedness (and any Obligations in respect thereof) as having been secured pursuant to clause (34) above and thereafter the remainder of the Indebtedness as having been secured pursuant to one or more of the other clauses of this definition.
For purposes of this definition, the term “Indebtedness” shall be deemed to include interest on such Indebtedness.
“Permitted LM Transactions” means (i) the transactions permitted under (a) clause (3) (but solely with respect to Junior Lien Term Loan Facilities and Existing Notes and subject to the limitations set forth in the proviso at the end of such clause), (8), (23), (24), (25) or (26) of Section 4.07(b) or (b) clause (1)(c)(II), (2) or (3)(b) of Section 4.09(b), or (ii) transactions constituting Permitted Junior Lien Revolving Facility Refinancings.
“Permitted Parent” means any Parent Entity that at the time it became a Parent Entity of the Issuer was a Permitted Holder pursuant to clause (1) of the definition thereof and was not formed in connection with, or in contemplation of, a transaction that (assuming such parent was not formed) would otherwise constitute a Change of Control.
46
“Permitted Plan” means any employee benefits plan of the Issuer or its Affiliates and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan.
“Permitted Receivables Financing” means, collectively, (a) a financing (including any factoring program) of accounts receivable and related accounts receivable collections, proceeds, records and other similar assets (or interests therein) are sold, contributed and/or financed in an aggregate outstanding amount under this clause (a) not to exceed the greater of (x) $375.0 million and (y) 40.0% of Consolidated EBITDA of the Issuer for the Applicable Measurement Period (the “Permitted Receivables Financing Cap”) (provided that with respect to Permitted Receivables Financings incurred in the form of a factoring program under this clause (a), the outstanding amount of such Permitted Receivables Financing for the purposes of this definition shall be deemed to be equal to the Permitted Receivables Net Investment for the Applicable Measurement Period), so long as such financings are non-recourse to the Issuer and its Restricted Subsidiaries, other than any Receivables Subsidiary (except for customary representations, warranties, covenants and indemnities made in connection with such facilities), (b) any modifications, refinancings, renewals, replacements or extensions thereof; provided that, in the case of this clause (b), the terms of the applicable Permitted Receivables Financing, after giving effect to any modifications, refinancings, renewals, replacements or extensions thereof would satisfy the requirements set forth in clause (a) above and (c) the financings and factoring facilities existing on the Issue Date (if any) and any modifications, refinancings, renewals, replacements or extensions thereof; provided that any recourse to the Issuer and its Restricted Subsidiaries (other than any Receivables Subsidiary) is not expanded in any material respect by any such modification, refinancing, renewal, replacement or extension and the aggregate outstanding amount of such facilities is not increased after the Issue Date, in each case, except to the extent such recourse or increase would otherwise be permitted by clause (a) above (and is deemed a usage thereof); provided further, that (A) no Permitted Receivables Financing shall be effectuated in connection with or in furtherance of a Priming Financing/Liability Management Transaction; and (B) no “whole business” or intellectual property securitization shall constitute a Permitted Receivables Financing.
“Permitted Receivables Financing Cap” has the meaning assigned to such term in the definition of the term “Permitted Receivables Financing.”
“Permitted Receivables Net Investment” means the aggregate cash amount paid by the purchasers under any Permitted Receivables Financing in the form of a factoring program in connection with their purchase of accounts receivable and related accounts receivable collections, proceeds, records and other similar assets (or interests therein), as the same may be reduced from time to time by collections with respect to such accounts receivable and related assets or otherwise in accordance with the terms of such Permitted Receivables Financing (but excluding any such collections used to make payments of commissions, discounts, yield and other fees and charges incurred in connection with any Permitted Receivables Financing in the form of a factoring program which are payable to any Person other than the Issuer or a Restricted Subsidiary).
“Permitted Transferees” means, with respect to any Person that is a natural person (and any Permitted Transferee of such Person), (a) such Person’s Immediate Family Members, including his or her spouse, ex-spouse, children, step-children and their respective lineal descendants and (b) without duplication with any of the foregoing, such Person’s successors, heirs, executors and/or administrators upon the death of such Person and any other Person who was an Affiliate of such Person upon the death of such Person and who, upon such death, directly or indirectly owned Equity Interests in the Issuer.
“Person” means any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
47
“Preferred Stock” means any Equity Interest with preferential rights of payment of dividends or upon liquidation, dissolution, or winding up.
“Priming Debt” has the meaning assigned to such term in the definition of the term “Priming Financing/Liability Management Transaction.”
“Priming Financing/Liability Management Transaction” means (i) any exchange, refinancing, amendment or extension transaction (or any transaction specifically designed to circumvent the restrictions set forth under Section 4.17) of any existing Indebtedness of the Issuer or any of its Restricted Subsidiaries (the “Existing LMT Debt”) with any other Indebtedness or Preferred Stock (including that of the Issuer or any of its Affiliates or of any other Person) (the “New LMT Debt”) in a transaction that is designed to directly or indirectly “uptier”, or has the effect of, “uptiering”, holders of such Existing LMT Debt into contractually, effectively (including as to lien priority or recourse to additional assets or through a “double dip” or “pari plus” structure), temporally (i.e., having a shorter maturity than the Existing LMT Debt) or structurally senior New LMT Debt (“Priming Debt”) or (ii) the issuance of any Priming Debt in each case, other than the following:
(1) Permitted LM Transactions;
(2) the incurrence of Indebtedness to finance an acquisition secured by the acquired assets and/or guaranteed by an acquired entity, so along as such Indebtedness and the acquisition are permitted under this Indenture and any acquired assets that constitute Collateral are pledged to the lenders and holders of the Issuer’s other Indebtedness (including the Notes) and any acquired entity that is or becomes a Restricted Subsidiary grants a guarantee of the Notes and such other Indebtedness in each case to the extent required (and within the periods required) under this Indenture; and
(3) the refinancing of Financing Lease Obligations incurred in the ordinary course or of other Indebtedness secured by assets not constituting Collateral with other Indebtedness permitted under this Indenture secured by such assets not constituting Collateral.
“Private Exchanges” means the issuance to certain holders of Existing Secured Notes of up to $432.0 million aggregate principal amount of New Second Lien Notes in exchange for up to $432.0 million aggregate principal amount of Existing Secured Notes, together with accrued and unpaid interest to, but excluding, the Issue Date on the exchanged amount of Existing Secured Notes being paid in cash at the time of such exchange; provided, however, that any New Second Lien Notes issued in connection with such exchange after the Issue Date shall be issued with pre-accrued interest from the Issue Date.
“Private Placement Legend” means the legend set forth in Section 2.06(f)(i) to be placed on all Notes issued under this Indenture, except where otherwise permitted by the provisions of this Indenture.
“Program Services Agreements” means any agreement entered into by the Issuer or any of its Subsidiaries (other than License Subsidiaries) relating to a Contract Station, pursuant to which agreement the Issuer or any of its Subsidiaries (other than License Subsidiaries) will obtain the right to program and/or sell advertising on a substantial portion of such Contract Station’s inventory of broadcast time.
“Purchase Money Obligations” means any Indebtedness incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets (other than Capital Stock), and whether acquired through the direct acquisition of such property or assets, or otherwise (including through the purchase of Capital Stock of any Person owning such property or assets).
48
“Put Obligations” means the obligations of the Issuer or any of its Subsidiaries to purchase certain assets of any Station with respect to which the Issuer or such Subsidiary shall have entered into an Outsourcing Agreement.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Qualified Proceeds” means assets that are used or useful in, or Capital Stock of any Person engaged in, a Similar Business.
“Rating Agency” means (1) S&P, Moody’s and Fitch or (2) if S&P, Moody’s or Fitch or each of them shall not make a corporate rating with respect to the Issuer or a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Issuer, which shall be substituted for any or all of S&P, Moody’s or Fitch, as the case may be, with respect to such corporate rating or the rating of the Notes, as the case may be.
“Rating Decline” means, with respect to the Notes, the occurrence of a decrease in the rating of the Notes by one or more gradations by either Rating Agency in the event the Notes are rated by two Rating Agencies, or from any two of three Rating Agencies in the event the Notes are rated by three Rating Agencies (in each case, including gradations within the rating categories, as well as between categories), within 60 days before or after the earlier of (x) a Change of Control, (y) the date of public notice of the occurrence of a Change of Control or (z) public notice of the intention of the Issuer or Parent to effect a Change of Control (which 60-day period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by either of such Rating Agencies); provided, however, that a Rating Decline otherwise arising by virtue of a particular reduction in rating will not be deemed to have occurred in respect of a particular Change of Control (and thus will not be deemed a Rating Decline for purposes of the definition of Change of Control Triggering Event) unless each of such Rating Agencies making the reduction in rating to which this definition would otherwise apply announces or publicly confirms or informs the Trustee in writing that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control has occurred at the time of the Rating Decline); provided further, that notwithstanding the foregoing, a Rating Decline shall not be deemed to have occurred so long as the Notes have an Investment Grade Rating from both Rating Agencies in the event the Notes are rated by two Rating Agencies, or from at least two of three Rating Agencies in the event the Notes are rated by three Rating Agencies.
“Receivables Fees” means distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Receivables Subsidiary in connection with, any Permitted Receivables Financing.
“Receivables Subsidiary” means any Special Purpose Entity established in connection with a Permitted Receivables Financing.
“Record Date” means (i) a record date set by the Issuer for purposes of determining the identity of Holders entitled to give any request, demand, authorization, notice, consent, waiver or take any other act, or to vote or consent to any action by vote or consent authorized or permitted to be given or taken by Holders, or (ii) for the interest, if any, payable on any Interest Payment Date on the Notes means the date specified for that purpose as contemplated by Article 2 of the Notes.
49
“Redemption Price”, when used with respect to any Note to be redeemed, means the price at which such Note is to be redeemed pursuant to this Indenture.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Global Note” means a Regulation S Temporary Global Note or Regulation S Permanent Global Note, as applicable.
“Regulation S Permanent Global Note” means, with respect to the Notes, a permanent Global Note substantially in the form of Exhibit A hereto, bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the corresponding Regulation S Temporary Global Note representing the Notes upon expiration of the Restricted Period.
“Regulation S Temporary Global Note” means, with respect to the Notes, a temporary Global Note substantially in the form of Exhibit A hereto, bearing the Global Note Legend, the Private Placement Legend and the Regulation S Temporary Global Note Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes initially sold in reliance on Rule 903.
“Regulation S Temporary Global Note Legend” means the legend set forth in Section 2.06(f)(iii).
“Related Business Assets” means assets (other than cash or Cash Equivalents) used or useful in a Similar Business; provided that any assets received by the Issuer or a Restricted Subsidiary in exchange for assets transferred by the Issuer or a Restricted Subsidiary shall not be deemed to be Related Business Assets if they consist of securities of a Person, unless upon receipt of the securities of such Person, such Person would become a Restricted Subsidiary.
“Responsible Officer” means, when used with respect to the Trustee, any officer of the Trustee within its corporate trust department, including any vice president, assistant secretary, senior associate, associate, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such Person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.
“Restricted Global Note” means a Global Note bearing the Private Placement Legend.
“Restricted Investment” means an Investment other than a Permitted Investment.
“Restricted Period” means the 40-day distribution compliance period as defined in Regulation S.
“Restricted Subsidiary” means, at any time, with respect to any Person, any direct or indirect Subsidiary of such Person (including any Foreign Subsidiary or Designated Parent Subsidiary) that is not then an Unrestricted Subsidiary; provided, however, that upon the occurrence of an Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be included in the definition of “Restricted Subsidiary.” Unless the context requires otherwise, any references to Restricted Subsidiary refer to a Restricted Subsidiary of the Issuer.
50
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“Rule 903” means Rule 903 promulgated under the Securities Act.
“Rule 904” means Rule 904 promulgated under the Securities Act.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and any successor to its rating agency business.
“Sale and Lease-Back Transaction” means any arrangement with any Person providing for the leasing by the Issuer or any of its Restricted Subsidiaries of any real property or tangible personal property, which property has been or is to be sold or transferred by the Issuer or such Restricted Subsidiary to a third Person in contemplation of such leasing.
“SEC” means the U.S. Securities and Exchange Commission.
“Second Lien Indenture” means the indenture, dated as of the Issue Date, among the Issuer, the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and notes collateral agent, which indenture governs the New Second Lien Notes, as amended or supplemented from time to time.
“Second-Out Indebtedness” means the Indebtedness (including guarantees in respect thereof) under the Notes, the Second-Out Senior Credit Facilities Indebtedness and any other Indebtedness that is permitted by this Indenture and the other then-outstanding First Lien Debt Documents to have Liens on the Collateral pari passu with the Liens securing the Notes and the Note Guarantees and with payment priorities pari passu with the Notes and the Second-Out Senior Credit Facilities Indebtedness provided in the Collateral Trust Agreement; provided that the holders of such Indebtedness or their Designated Representative shall have entered into the Collateral Trust Agreement and such Indebtedness shall constitute “Second-Out First Lien Debt Obligations” as defined therein.
“Second Lien Obligations” means the Obligations in respect of any Second Lien Debt (as defined in the First/Second/Third Lien Intercreditor Agreement).
“Second-Out Priority Payment Obligations” means the payment Obligations in respect of any Second-Out Indebtedness.
“Second-Out Senior Credit Facilities Indebtedness” means the Indebtedness in respect of the Term B-6 Loans and the Term B-7 Loans (as each such term is defined in the New Credit Agreement as in effect in the Issue Date).
“Secured Indebtedness” means any Indebtedness of the Issuer or any of its Restricted Subsidiaries secured by a Lien.
“Second-Out Term Loan Facility” has the meaning assigned to it in the definition of “New Credit Agreement”.
51
“Securities Act” means the U.S. Securities Act of 1933, as amended.
“Security Agreement” means that certain Collateral Agreement, dated as of the Issue Date, among the Issuer, the Guarantors and the Collateral Trustee, substantially in the form of Exhibit E, as it may be amended or otherwise modified from time to time in accordance with the terms thereof, this Indenture and the Collateral Trust Agreement.
“Security Documents” means, collectively, the Security Agreement, the Collateral Trust Agreement, the First/Second/Third Lien Intercreditor Agreement, other security or intercreditor agreements relating to the Collateral to preserve and protect the Liens on the Collateral (including, without limitation, financing statements under the Uniform Commercial Code of the relevant states applicable to the Collateral), each for the benefit of the Collateral Trustee in such capacity for itself, the Trustee and the Holders, as amended, amended and restated, modified, renewed or replaced from time to time.
“Senior Credit Facilities” means, individual or collectively, as the context may require, the First-Out Revolving Credit Facility, the First-Out Term Loan Facility and the Second-Out Term Loan Facility under the New Credit Agreement and the Junior Lien Revolving Credit Facility and the Junior Lien Term Loan Facility under the Amended Credit Agreement, in each case, as the same may be in effect from time to time, including, in each case, any related notes, mortgages, letters of credit, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any appendices, exhibits, annexes or schedules to any of the foregoing (as the same may be in effect from time to time) and any amendments, supplements, modifications, extensions, renewals, restatements, refundings, replacements, exchanges or refinancings thereof, in whole or in part, and any financing arrangements that amend, supplement, modify, extend, renew, restate, refund, replace, exchange or refinance any part thereof, including, without limitation, any such amended, supplemented, modified, extended, renewed, restated, refunding, replacement, exchanged or refinancing financing arrangement that increases the amount permitted to be borrowed or issued thereunder or alters the maturity thereof or adds Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, trustee, lender or group of lenders, investors, holders or otherwise.
“Senior Credit Facility Obligations” means the “Secured Obligations” (as defined in each of the Senior Credit Facilities).
“Senior Indebtedness” means:
(1) all Indebtedness of the Issuer or any Guarantor outstanding under the Senior Credit Facilities, the Existing Notes, the New First-Out First Lien Notes, the New Second Lien Notes or the Notes and related Note Guarantees (including interest accruing on or after the filing of any petition in bankruptcy or similar proceeding or for reorganization of the Issuer or any Guarantor (at the rate provided for in the documentation with respect thereto, regardless of whether or not a claim for post-filing interest is allowed in such proceedings)), and any and all other fees, expense reimbursement obligations, indemnification amounts, penalties, and other amounts (whether existing on the Issue Date or thereafter created or incurred) and all obligations of the Issuer or any Guarantor to reimburse any bank or other Person in respect of amounts paid under letters of credit, acceptances or other similar instruments;
(2) all (a) Hedging Obligations (and guarantees thereof) and (b) Cash Management Obligations (and guarantees thereof); provided that such Hedging Obligations and Cash Management Obligations, as the case may be, are permitted to be incurred under the terms of this Indenture;
52
(3) any other Indebtedness of the Issuer or any Guarantor permitted to be incurred under the terms of this Indenture, unless the instrument under which such Indebtedness is incurred expressly provides that it is subordinated in right of payment to the Notes or any related Note Guarantee; and
(4) all Obligations with respect to the items listed in the preceding clauses (1), (2) and (3);
provided, however, that Senior Indebtedness shall not include:
(a) any obligation of such Person to the Issuer or any of its Subsidiaries;
(b) any liability for federal, state, local or other taxes owed or owing by such Person;
(c) any accounts payable or other liability to trade creditors arising in the ordinary course of business;
(d) any Indebtedness or other Obligation of such Person which is subordinate or junior in right of payment to any other Indebtedness or other Obligation of such Person; or
(e) that portion of any Indebtedness which at the time of incurrence is incurred in violation of this Indenture.
“Significant Subsidiary” means any Restricted Subsidiary that would be a “Significant Subsidiary” of the Issuer within the meaning under Rule 1-02 of Regulation S-X promulgated by the SEC.
“Similar Business” means any business conducted or proposed to be conducted by the Issuer and its Restricted Subsidiaries on the Issue Date or any business that is similar (including, without limitation, (a) the business of owning and operating the Stations (and related retransmission facilities), (b) the commercial utilization of frequencies licensed, granted or leased to the Issuer or any of its Subsidiaries by the FCC, any other governmental authority or any other Person in connection with the television or radio broadcasting businesses, including using or leasing spectrum for the distribution of data and/or ancillary and supplementary services, (c) the production of streaming programming, programming broadcast on television stations or syndicated to others, (d) the utilization of digital media, including, but not limited to, websites, mobile applications, podcasts, channel sharing, spectrum datacasting and social media, to promote or distribute programming and to assist other businesses to reach audiences, customers and consumers, (e) the business of broadcasting in a mobile environment, (f) the business of managing and/or consulting to television stations other than the Owned Stations and/or (g) from the technology, media and telecommunications industries, including sports team broadcasting, ownership or management and any sports gaming or wagering business), complementary, reasonably related, synergistic, incidental or ancillary thereto, or is a reasonable extension, development or expansion thereof, including using or leasing spectrum for the distribution of data and/or ancillary or supplementary services.
“Sinclair” means Sinclair, Inc., a Maryland corporation, and, as of the Issue Date, the direct or indirect parent of each of the Parent and the Issuer, or any successor thereto.
“Special Purpose Entity” means a direct or indirect subsidiary of the Issuer, whose organizational documents contain restrictions on its purpose and activities and impose requirements intended to preserve its separateness from the Issuer and/or one or more Subsidiaries of the Issuer.
53
“Specified Event” has the meaning given to such term in the definition of “Consolidated EBITDA.”
“Stated Maturity”, when used with respect to any Note or any installment of principal thereof or interest thereon, means the date specified in such Note as the fixed date on which the principal of such Note or such installment of principal or interest is due and payable. The Stated Maturity of the Notes is December 31, 2032.
“Stations” means the Owned Stations and Contract Stations.
“Subordinated Film Indebtedness” means Film Obligations of the Issuer and its Subsidiaries that are Subordinated Indebtedness of the Issuer and the Guarantors.
“Subordinated Indebtedness” means, with respect to the Notes or any Note Guarantee,
(1) any Indebtedness of the Issuer which is by its terms subordinated in right of payment to the Notes, or
(2) any Indebtedness of any Guarantor which is by its terms subordinated in right of payment to the Note Guarantee of such entity of the Notes.
“Subsidiary” means, with respect to any Person:
(1) any corporation, association or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof; or
(2) any partnership, joint venture, limited liability company or similar entity of which,
(a) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise, and
(b) such Person or any Restricted Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
For the avoidance of doubt, any entity that is owned at a 50% or less level (as described above) shall not be a “Subsidiary” for any purpose under this Indenture, regardless of whether such entity is consolidated on the Issuer’s or any of its Restricted Subsidiaries’ financial statements. Notwithstanding anything to the contrary in the foregoing, however, each Designated Parent Subsidiary shall be deemed to be a “Subsidiary” of the Issuer for all purposes of the Notes and this Indenture (unless the context requires otherwise). Unless otherwise specified, “Subsidiary” means a Subsidiary of the Issuer.
“Subsidiary Guarantor” means a Guarantor that is a Subsidiary of the Issuer (including, for the avoidance of doubt, any Designated Parent Subsidiary).
54
“Term B-6 Loans” has the meaning assigned to it in the definition of “New Credit Agreement”.
“Term B-7 Loans” has the meaning assigned to it in the definition of “New Credit Agreement”.
“Total Assets” means, as of any Applicable Calculation Date, with respect to any Person and its Restricted Subsidiaries, the total assets of such Person and its Restricted Subsidiaries on a consolidated basis, as shown on the most recent consolidated balance sheet of such Person and its Restricted Subsidiaries as of the end of the most recent fiscal quarter for which internal financial statements are available immediately preceding the Applicable Calculation Date; provided that, for purposes of testing the covenants under this Indenture in connection with any transaction, the Total Assets of such Person and its Restricted Subsidiaries shall be adjusted to reflect such pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio.”
“Transaction Expenses” means any fees or expenses incurred or paid by the Issuer, its Restricted Subsidiaries, any Parent Entity and any of their Affiliates and any Investors in connection with the Transactions (including, without limitation, expenses in connection with hedging transactions and any original issue discount or upfront fees, as well as any legal, filing, auditing and printing fees and expenses), this Indenture, the Notes, the New First-Out First Lien Notes, the New Second Lien Notes and the Senior Credit Facilities, and the transactions contemplated hereby and thereby.
“Transactions” means (i) the offering and sale of the New First-Out First Lien Notes and the New Second Lien Notes and the use of proceeds therefrom, including, without limitation, the repayment of certain of the term loans outstanding under the Existing Senior Credit Facilities and the repurchase or repayment of certain of the Existing Secured Notes on the Issue Date, (ii) the issuance of the revolving commitments under the First-Out Senior Credit Facilities and the use of proceeds therefrom, (iii) the issuance of the Second-Out Term Loan Facility and the use of proceeds therefrom, (iv) the issuance of the Notes, (v) the amendment of the Existing Secured Notes Indenture in respect of the Existing Secured Notes issued thereunder, and (vi) the amendment of the Existing Credit Agreement in respect of the revolving credit facility and term loans thereunder, each as described in the Offering Memorandum.
“Treasury Rate” means, as obtained by the Issuer, as of any Redemption Date, the yield to maturity as of such Redemption Date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 that has become publicly available at least two Business Days prior to the Redemption Date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such Redemption Date to December 1, 2025; provided, however, that if the period from such Redemption Date to December 1, 2025 is less than one year, the weekly average yield on actively traded United States Treasury securities adjusted to a constant maturity of one year will be used.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.
“Trustee” means U.S. Bank Trust Company, National Association until a successor replaces it and, thereafter, means any such successor.
55
“TV/Radio Acquisition” means (a) the acquisition by the Issuer or any of its Subsidiaries in accordance with the terms hereof of substantially all of the assets (including Broadcast Licenses) of a television or radio station in the United States in a single transaction (i.e., not by means of the acquisition of an option for such assets and the subsequent exercise of such option), (b) (i) the acquisition by the Issuer or any of its Subsidiaries in accordance with the terms hereof of (x) substantially all of the assets (other than Broadcast Licenses and other property required pursuant to the rules and regulations of the FCC to be sold in connection with the transfer of such Broadcast Licenses) of a television or radio station in the United States and (y) an option to acquire the Broadcast Licenses and such other assets of such television or radio station and (ii) the entering into by the Issuer or any of its Subsidiaries of a Program Services Agreement with respect to such station and (c) the consummation of the acquisition of assets by the Issuer or any of its Subsidiaries pursuant to the exercise of an option referred to in the preceding clause (b)(i)(y), together with the termination of the related Program Services Agreement referred to in the preceding clause (b)(ii). As used in this definition, the acquisition of assets shall be deemed to include reference to the acquisition of the voting Capital Stock of the Person that owns such assets, and references to the acquisition and exercise of an option to acquire assets shall be deemed to include the acquisition and exercise of the option to acquire voting Capital Stock of the Person that owns such assets.
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction.
“Unrestricted” means, when referring to cash and Cash Equivalents of the Issuer and its Restricted Subsidiaries, that such cash and Cash Equivalents (a) do not appear or would not be required to appear as “restricted” on the financial statements of the Issuer or any such Restricted Subsidiary (unless related to the Collateral Trust Agreement and the other Security Documents or the Liens created thereunder), (b) are not the proceeds of long-term Indebtedness (it being understood revolving facility draws are not long-term Indebtedness for these purposes) incurred to finance the relevant transaction for which a relevant ratio under this Indenture, including incurrence of Indebtedness, is being tested and (c) are not otherwise unavailable to the Issuer or such Restricted Subsidiary; provided, that the aggregate amount of Unrestricted cash and Cash Equivalents as of any date of determination shall be deemed to be reduced by the amount of the then unpaid DSG Cash Tax Payments but, in any event, to an amount not less than $0.
“Unrestricted Definitive Note” means one or more Definitive Notes that do not bear and are not required to bear the Private Placement Legend.
“Unrestricted Global Note” means with respect to the Notes, a permanent Global Note, substantially in the form of Exhibit A, or in such other form as shall be established in one or more supplemental indentures, in each case, with such appropriate insertions, omissions, substitutions and other variations as are required or not prohibited by this Indenture, that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, and that is deposited with or on behalf of and registered in the name of the Depositary, representing Notes that do not bear the Private Placement Legend.
“Unrestricted Subsidiary” means:
(1) any Subsidiary of the Issuer which at the time of determination is an Unrestricted Subsidiary (as designated by the Issuer, as provided below); and
(2) any Subsidiary of an Unrestricted Subsidiary.
56
The Issuer may designate any Subsidiary (including any existing Subsidiary and any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on, any property of, the Issuer or any Restricted Subsidiary (other than solely any Subsidiary of the Subsidiary to be so designated); provided that:
(1) any Unrestricted Subsidiary must be an entity of which the Equity Interests entitled to cast at least a majority of the votes that may be cast by all Equity Interests having ordinary voting power for the election of directors or Persons performing a similar function are owned, directly or indirectly, by the Issuer;
(2) such designation complies with Section 4.07;
(3) each of (a) the Subsidiary to be so designated and (b) its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of the Issuer or any Restricted Subsidiary (other than Equity Interests in the Unrestricted Subsidiary); and
(4) such Subsidiary is established or designated for a legitimate business purpose and not in connection with or in furtherance of a Priming Financing/Liability Management Transaction.
The Issuer may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that immediately after giving effect to any such designation, no Event of Default under clause (1), (2), (6) or (7) of Section 6.01(a) shall have occurred and be continuing or would occur as a consequence thereof and either:
(1) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); or
(2) the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such designation, in each case on a pro forma basis taking into account such designation.
Any such designation by the Issuer shall be notified by the Issuer to the Trustee by promptly filing with the Trustee an Officer’s Certificate certifying that such designation complied with the foregoing provisions.
“Unsecured Indebtedness” means Senior Indebtedness or Subordinated Indebtedness of the Issuer or any of its Restricted Subsidiaries that is not secured by a Lien.
“Unsecured Notes” means, collectively, the Existing Unsecured Notes and the 4.125% Unsecured Notes.
“U.S. Government Obligations” means securities that are:
(1) direct obligations of, or obligations guaranteed by, the United States of America for the timely payment of which its full faith and credit is pledged; or
(2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America,
57
which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government Obligations or a specific payment of principal of or interest on any such U.S. Government Obligations held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligations or the specific payment of principal of or interest on the U.S. Government Obligations evidenced by such depository receipt.
“U.S. Person” means a U.S. person as defined in Rule 902(k) under the Securities Act.
“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, at any date, the quotient obtained by dividing:
(1) the sum of the products of the number of years (calculated to the nearest one-twelfth) from the date of determination to the date of each successive scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Disqualified Stock or Preferred Stock multiplied by the amount of such payment; by
(2) the sum of all such payments.
“Wholly-Owned Subsidiary” of any Person means a Subsidiary of such Person, 100% of the outstanding Equity Interests of which (other than directors’ qualifying shares and shares issued to foreign nationals as required by applicable law) shall at the time be owned by such Person or by one or more Wholly-Owned Subsidiaries of such Person. Notwithstanding anything to the contrary in the foregoing, however, each Designated Parent Subsidiary that is a Wholly-Owned Subsidiary of Parent shall be deemed to be a “Wholly-Owned Subsidiary” of the Issuer for all purposes of the Notes and this Indenture (unless the context requires otherwise).
SECTION 1.02. Other Definitions.
| Term | Defined in<br>Section |
|---|---|
| “Acceptable Commitment” | 4.10(b) |
| “Action” | 12.08(v) |
| “Advance Offer” | 4.10(c) |
| “Advance Portion” | 4.10(c) |
| “Affiliate Transaction” | 4.11(a) |
| “Applicable Law” | 13.11 |
| “Asset Sale Offer” | 4.10(c) |
| “Asset Sale Proceeds Application Period” | 4.10(b) |
| “Authentication Order” | 2.02 |
| “CERCLA” | 12.08(q) |
| “Change of Control Offer” | 4.14(a) |
| “Change of Control Payment” | 4.14(a) |
| “Change of Control Payment Date” | 4.14(a)(2) |
| “Collateral Trustee” | Preamble |
| “Covenant Defeasance” | 8.03 |
58
| Term | Defined in<br>Section |
|---|---|
| “Covenant Suspension Event” | 4.16(a) |
| “Declined Proceeds” | 4.10(d) |
| “DTC” | 2.03 |
| “Event of Default” | 6.01(a) |
| “Excess Proceeds” | 4.10(c) |
| “Increased Amount” | 4.12(c) |
| “Issuer” | Preamble |
| “LCT Election” | 1.06(b) |
| “LCT Test Date” | 1.06(b) |
| “Legal Defeasance” | 8.02 |
| “Material Indebtedness” | 6.01(a)(4) |
| “MD&A” | 4.03(a) |
| “Note Register” | 2.03 |
| “Notes” | Recitals |
| “Offer Amount” | 3.09(b) |
| “Offer Period” | 3.09(b) |
| “Parent Guarantee Release Date” | 10.06(7) |
| “Paying Agent” | 2.03 |
| “Purchase Date” | 3.09(b) |
| “Redemption Date” | 3.07(a) |
| “refinance” | 4.09(b)(13) |
| “Refinancing Indebtedness” | 4.09(b)(13) |
| “Refunding Capital Stock” | 4.07(b)(2) |
| “Registrar” | 2.03 |
| “Related Person” | 12.08(b) |
| “Reserved Indebtedness Amount” | 4.09(c)(5) |
| “Restricted Payments” | 4.07(a) |
| “Reversion Date” | 4.16(b) |
| “Second Change of Control Payment Date” | 4.14(e) |
| “Security Document Order” | 12.08(r) |
| “Subject Lien” | 4.12(a) |
| “Successor Company” | 5.01(a)(1) |
| “Successor Guarantor” | 5.01(c)(1)(a) |
| “Suspended Covenants” | 4.16(a) |
| “Suspension Date” | 4.16(a) |
| “Suspension Period” | 4.16(b) |
| “Treasury Capital Stock” | 4.07(b)(2) |
| “Trustee” | Preamble |
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
The Issuer and the Guarantors, if any, shall not be required to qualify this Indenture under the Trust Indenture Act. Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and made a part of this Indenture.
59
The following Trust Indenture Act term used in this Indenture has the following meaning:
“obligor” on the Notes and the Note Guarantees means the Issuer and the Guarantors, respectively, and any successor obligor upon the Notes and the Note Guarantees, respectively.
All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by SEC rule under the Trust Indenture Act have the meanings so assigned to them.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or” is not exclusive;
(d) words in the singular include the plural, and in the plural include the singular;
(e) “will” shall be interpreted to express a command;
(f) provisions apply to successive events and transactions;
(g) references to sections of, or rules under, the Securities Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time;
(h) unless otherwise specifically indicated, the term “consolidated” with respect to any Person refers to such Person on a consolidated basis in accordance with GAAP but excluding from such consolidation any Unrestricted Subsidiary as if such Unrestricted Subsidiary were not an Affiliate of such Person;
(i) unless the context otherwise requires, any reference to an “Article”, “Section”, “clause” or “Exhibit” refers to an Article, Section, clause or Exhibit, as the case may be, of this Indenture; and
(j) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not any particular Article, Section, clause, other subdivision or Exhibit.
SECTION 1.05. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Issuer. Proof of execution of any such instrument or of a writing appointing any such agent, or the holding by any Person of a Note, shall be sufficient for any purpose of this Indenture and (subject to Section 7.01) conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Section 1.05.
60
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by or on behalf of any legal entity other than an individual, such certificate or affidavit shall also constitute proof of the authority of the Person executing the same. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that the Trustee deems sufficient.
(c) Subject to the proviso in the definition of “Holder” in Section 1.01 regarding beneficial owners, ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of any action taken, suffered or omitted by the Trustee or the Issuer in reliance thereon, whether or not notation of such action is made upon such Note.
(e) The Issuer may set a Record Date for purposes of determining the identity of Holders entitled to give any request, demand, authorization, direction, notice, consent, waiver or take any other act, or to vote or consent to any action by vote or consent authorized or permitted to be given or taken by Holders. Unless otherwise specified, if not set by the Issuer prior to the first solicitation of a Holder made by any Person in respect of any such action, or in the case of any such vote, prior to such vote, any such Record Date shall be the later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders furnished to the Trustee prior to such solicitation.
(f) Without limiting the foregoing, a Holder entitled to take any action hereunder with regard to any particular Note may do so with regard to all or any part of the principal amount of such Note or by one or more duly appointed agents, each of which may do so pursuant to such appointment with regard to all or any part of such principal amount. Any notice given or action taken by a Holder or its agents with regard to different parts of such principal amount pursuant to this Section 1.05(f) shall have the same effect as if given or taken by separate Holders of each such different part.
(g) Without limiting the generality of the foregoing, a Holder, including DTC that is the Holder of a Global Note, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and DTC that is the Holder of a Global Note may provide its proxy or proxies to the beneficial owners of interests in any such Global Note through such depositary’s standing instructions and customary practices.
(h) The Issuer may fix a Record Date for the purpose of determining the Persons who are beneficial owners of interests in any Global Note held by DTC entitled under the procedures of such depositary to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders. If such a Record Date is fixed, the Holders on such Record Date or their duly appointed proxy or proxies, and only such Persons, shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other action, whether or not such Holders remain Holders after such Record Date. No such request, demand, authorization, direction, notice, consent, waiver or other action shall be valid or effective if made, given or taken more than 90 days after such Record Date.
61
SECTION 1.06. Calculations.
(a) So long as there is a Parent Guarantor that is a Parent Entity of the Issuer and does not hold any material assets other than, directly or indirectly, the Equity Interests of the Issuer (as determined in good faith by the Board or senior management of such Parent Guarantor), any calculations or measure that is determined with reference to the Issuer’s consolidated financial statements (including, without limitation, Applicable Measurement Period, Consolidated EBITDA, Consolidated Interest Expense, Consolidated Net Income, Consolidated First Lien Secured Debt Ratio, Consolidated Secured Debt Ratio, Consolidated Total Debt Ratio, Fixed Charge Coverage Ratio, Fixed Charges, Permitted Receivables Financing, Total Assets and clause (3)(a) of Section 4.07(a)) may be determined with reference to such Parent Guarantor’s consolidated financial statements instead.
(b) When determining compliance with, or inapplicability of, any provision or term of this Indenture in connection with or related to any Limited Condition Transaction and any actions or transactions related or appurtenant thereto, at the option of the Issuer (such election, an “LCT Election”), the date of determination of compliance with, or inapplicability of, such provision or term shall be deemed to be the first date (the “LCT Test Date”) any of the definitive agreements for such Limited Condition Transaction are entered into. If after giving pro forma effect to the Limited Condition Transaction and any actions or transactions related or appurtenant thereto, the Issuer or any of its Restricted Subsidiaries would have been permitted or not prohibited to consummate such Limited Condition Transaction and any actions or transactions related or appurtenant thereto on the relevant LCT Test Date in compliance with such term or provision, such term or provision shall be deemed to have been complied with (or satisfied) for all purposes; provided that (a) if financial statements are available for one or more fiscal quarters after such LCT Test Date, the Issuer may elect in its sole discretion to determine such compliance or inapplicability of such terms or provisions on the basis of such financial statements, and the LCT Test Date shall be the date of determination of such compliance or inapplicability after the date of availability of such financial statements, (b) no determination of compliance or inapplicability of any such term or provision shall be required at any time after the applicable LCT Test Date for such Limited Condition Transaction and any actions or transactions related or appurtenant thereto and (c) Consolidated Interest Expense for purposes of the Fixed Charge Coverage Ratio will be calculated using an assumed interest rate as reasonably determined by the Issuer.
For the avoidance of doubt, if the Issuer has made an LCT Election, (1) if any term or provision of this Indenture for which compliance was determined or tested as of the LCT Test Date would at any time after the LCT Test Date otherwise not be complied with for any reason, such terms and provisions will nevertheless continue to be determined to be complied with; (2) no such determination of compliance or inapplicability of any such term or provision of this Indenture shall be affected by any subsequent Default or Event of Default and such Default or Event of Default shall be deemed not to have occurred or be continuing solely for purposes of such compliance or inapplicability; and (3) all determinations of compliance with or inapplicability of any term or provision of this Indenture for any action or inaction that are not comprised within the action or inaction contemplated or related to such Limited Condition Transaction after the LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that such Limited Condition Transaction is terminated, expires or is abandoned, shall be determined after giving pro forma effect to such Limited Condition Transaction.
In the event an action or transaction is undertaken by the Issuer or any of its Restricted Subsidiaries that may rely on a ratio basket based on the Fixed Charge Coverage Ratio, Consolidated First Lien Secured Debt Ratio, Consolidated Secured Debt Ratio or Consolidated Total Debt Ratio or any other basket, each such action and transaction will be deemed to have been taken first, to the extent available, pursuant to the relevant Fixed Charge Coverage Ratio, Consolidated First Lien Secured Debt Ratio, Consolidated Secured Debt Ratio or Consolidated Total Debt Ratio test.
62
ARTICLE 2
THE NOTES
SECTION 2.01. Form and Dating; Terms.
(a) General. The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A, or in such other form as shall be established in one or more supplemental indentures, in each case, with such appropriate insertions, omissions, substitutions and other variations as are required or not prohibited by this Indenture. The Notes may have notations, legends or endorsements required by law, stock exchange rules or usage. Each Note shall be dated the date of its authentication. The Notes shall be in denominations of $2,000 and integral multiples of $1,000 thereof.
(b) Global Notes. Notes issued in global form shall be substantially in the form of Exhibit A, or in such other form as shall be established in one or more supplemental indentures, in each case, with such appropriate insertions, omissions, substitutions and other variations as are required or not prohibited by this Indenture (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes issued in definitive form shall be substantially in the form of Exhibit A, or in such other form as shall be established in one or more supplemental indentures, in each case, with such appropriate insertions, omissions, substitutions and other variations as are required or not prohibited by this Indenture (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note shall represent such of the outstanding Notes as shall be specified in the “Schedule of Exchanges of Interests in the Global Note” attached thereto and each shall provide that it shall represent up to the aggregate principal amount of Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as applicable, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06.
(c) Temporary Global Notes. Notes offered and sold in reliance on Regulation S shall be issued initially in the form of the Regulation S Temporary Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for the Depositary, and registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated agents holding on behalf of Euroclear or Clearstream, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided.
Following the termination of the Restricted Period, beneficial interests in the Regulation S Temporary Global Note shall be exchanged for beneficial interests in the Regulation S Permanent Global Note pursuant to the Applicable Procedures. Simultaneously with the authentication of the Regulation S Permanent Global Note, the Trustee shall cancel the Regulation S Temporary Global Note. The aggregate principal amount of the Regulation S Temporary Global Note and the Regulation S Permanent Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee, as the case may be, in connection with transfers of interest as hereinafter provided.
63
(d) Terms. The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture, and the Issuer, the Guarantors and the Trustee, by their execution and delivery of this Indenture (or, any other Guarantor from time to time party hereto, by its execution and delivery of a supplemental indenture to this Indenture).
The Notes shall be subject to repurchase by the Issuer pursuant to an Asset Sale Offer as provided in Section 4.10 or a Change of Control Offer as provided in Section 4.14. The Notes shall not be redeemable, other than as provided in Article 3.
Additional Notes ranking pari passu with the Notes may be created and issued from time to time by the Issuer and shall be consolidated with and form a single class with the Notes and shall have the same terms as to status, redemption or otherwise as the Notes; provided that the Issuer’s ability to issue Additional Notes shall be subject to the Issuer’s compliance with Section 4.09 and Section 4.12; provided further that any Additional Notes issued for the primary purpose of influencing the provision of, or in connection with obtaining, the requisite consents of Holders of Notes for any modification, amendment, release or waiver under this Indenture shall be disregarded in the calculation of the requisite consents for such modification, amendment, release or waiver; provided further that if any Additional Notes are not fungible with the Notes for U.S. federal income tax purposes, such Additional Notes will have a separate CUSIP number and ISIN from the Notes.
(e) Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream shall be applicable to transfers of beneficial interests in the Regulation S Temporary Global Note and the Regulation S Permanent Global Notes that are held by Participants through Euroclear or Clearstream.
SECTION 2.02. Execution and Authentication.
At least one Officer shall execute the Notes on behalf of the Issuer by manual, facsimile or electronic (including “.pdf”) signature.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be entitled to any benefit under this Indenture or be valid or obligatory for any purpose until authenticated substantially in the form of Exhibit A by the manual signature of the Trustee. The signature shall be conclusive evidence that the Note has been duly authenticated and delivered under this Indenture.
At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Notes executed by the Issuer to the Trustee for authentication and delivery and the Trustee shall, upon receipt of an Issuer Order (an “Authentication Order”), authenticate and deliver the Notes for an aggregate principal amount specified in such Authentication Order for the Notes.
In authenticating the Notes, and accepting the additional responsibilities under this Indenture in relation to the Notes, the Trustee shall receive, and, subject to Section 7.01, shall be fully protected in relying upon:
(a) an Officer’s Certificate delivered in accordance with Sections 13.04 and 13.05; and
64
(b) an Opinion of Counsel, delivered in accordance with Sections 13.04 and 13.05, and which shall also state:
(1) that the form of the Notes has been established in conformity with this Indenture;
(2) that the terms of the Notes have been established by this Indenture; and
(3) that the Notes, when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Issuer, enforceable in accordance with their terms, subject to customary exceptions, limitations, qualifications and other assumptions.
The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Issuer.
SECTION 2.03. Registrar and Paying Agent.
The Issuer shall maintain with respect to the Notes an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar shall keep a register with respect to the Notes (“Note Register”) and of their transfer and exchange. The Issuer may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar, and the term “Paying Agent” includes any additional paying agent. The Issuer may change any Paying Agent or Registrar without prior notice to any Holder. The Issuer shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Issuer fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. the Issuer or any of its Subsidiaries may act as Paying Agent or Registrar.
The Issuer initially appoints The Depository Trust Company (“DTC”) to act as Depositary with respect to the Global Notes.
The Issuer initially appoints the Trustee to act as the Paying Agent and Registrar for the Notes and to act as Custodian with respect to the Global Notes.
SECTION 2.04. Paying Agent to Hold Money in Trust.
The Issuer shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders of any Notes or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or interest, if any, on the Notes, and will notify the Trustee of any default by the Issuer in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it with respect to the Notes to the Trustee. The Issuer at any time may require a Paying Agent to pay all money held by it with respect to the Notes to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Issuer or a Subsidiary of the Issuer) shall have no further liability for the money. If the Issuer or a Subsidiary of the Issuer acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuer, the Trustee shall serve as Paying Agent for the Notes.
65
SECTION 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least two Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes.
SECTION 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. Except as otherwise set forth in this Section 2.06, a Global Note may be transferred, in whole and not in part, only to another nominee of the Depositary or to a successor Depositary or a nominee of such successor Depositary. A beneficial interest in a Global Note may not be exchanged for a Definitive Note unless (i) the Depositary (x) notifies the Issuer that it is unwilling or unable to continue as Depositary for such Global Note or (y) has ceased to be a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Issuer within 90 days, (ii) the Issuer, at its option, notifies the Trustee that it elects to cause the issuance of Definitive Notes, and any Participant requests a Definitive Note in accordance with the Applicable Procedures or (iii) there shall have occurred and be continuing an Event of Default with respect to the Notes. Upon the occurrence of any of the preceding events in (i) or (ii) above, Definitive Notes delivered in exchange for any Global Note or beneficial interests therein will be registered in the names, and issued in any approved denominations, requested by or on behalf of the Depositary (in accordance with its customary procedures). Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10, shall be authenticated and delivered in the form of, and shall be, a Global Note, except for Definitive Notes issued subsequent to any of the preceding events in (i) or (ii) above and pursuant to Section 2.06(b)(ii)(B) and Section 2.06(c). A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a); provided, however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b) or (c).
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also shall require compliance with either subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend; provided, however, that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Regulation S Temporary Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person. Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(i).
66
(ii) All Other Transfers and Exchanges of Beneficial Interests in GlobalNotes. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(i), the transferor of such beneficial interest must deliver to the Registrar either (A) (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase or (B) (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (1) above; provided that in no event shall Definitive Notes be issued upon the transfer or exchange of beneficial interests in a Regulation S Temporary Global Note prior to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar of any certificates required pursuant to Rule 903. Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(h).
(iii) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.06(b)(ii) and the Registrar receives the following:
(A) if the transferee will take delivery in the form of a beneficial interest in a 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B, including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a beneficial interest in a Regulation S Global Note, then the transferor must deliver a certificate in the form of Exhibit B, including the certifications in item (2) thereof; or
(C) if the transferee will take delivery in the form of a beneficial interest in the IAI Global Note, then the transferor must deliver a certificate in the form of Exhibit B, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an UnrestrictedGlobal Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.06(b)(ii) and the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit C, including the certifications in item (1)(a) thereof; or
67
(2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (iv), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (iv) above at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to subparagraph (iv) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon the occurrence of any of the events in paragraph (i), (ii) or (iii) of Section 2.06(a) and receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder substantially in the form of Exhibit C, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate substantially in the form of Exhibit B, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate substantially in the form of Exhibit B, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(a) thereof;
68
(E) if such beneficial interest is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in clauses (B) through (D) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3)(d) thereof;
(F) if such beneficial interest is being transferred to the Issuer or any of the Restricted Subsidiaries or any Guarantor, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h), and the Issuer shall execute and the Trustee shall authenticate and mail or otherwise deliver to the Person designated in the instructions a Definitive Note in the applicable principal amount. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall mail such Definitive Notes to the Persons in whose names the Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.
(ii) Beneficial Interests in Regulation S Temporary Global Note to Definitive Notes. Notwithstanding Sections 2.06(c)(i)(A) and (C), a beneficial interest in the Regulation S Temporary Global Note may not be exchanged for a Definitive Note or transferred to a Person who takes delivery thereof in the form of a Definitive Note prior to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) of the Securities Act, except in the case of a transfer pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted GlobalNotes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only upon the occurrence of any of the events in subsection (i), (ii) or (iii) of Section 2.06(a) and if the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder substantially in the form of Exhibit C, including the certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder substantially in the form of Exhibit B, including the certifications in item (4) thereof;
69
and, in each such case set forth in this subparagraph (iii), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(iv) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon the occurrence of any of the events in subsection (i), (ii) or (iii) of Section 2.06(a) and satisfaction of the conditions set forth in Section 2.06(b)(ii), the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h), and the Issuer shall execute and the Trustee shall, upon receipt of an Authentication Order, authenticate and mail or otherwise deliver to the Person designated in the instructions a Definitive Note in the applicable principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from or through the Depositary and the Participant or Indirect Participant. The Trustee shall mail such Definitive Notes to the Persons in whose names the Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder substantially in the form of Exhibit C, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate substantially in the form of Exhibit B, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate substantially in the form of Exhibit B, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(a) thereof;
70
(E) if such Restricted Definitive Note is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in clauses (B) through (D) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3)(d) thereof;
(F) if such Restricted Definitive Note is being transferred to the Issuer or any of the Restricted Subsidiaries or any Guarantor, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the applicable Restricted Global Note, in the case of clause (B) above, the applicable 144A Global Note, and in the case of clause (C) above, the applicable Regulation S Global Note, and in all other cases, the IAI Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if the Registrar receives the following:
(1) if the Holder of such Definitive Notes proposes to exchange the Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit C, including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes proposes to transfer the Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit B, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (ii), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.
71
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to clause (ii) or (iii) above at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e):
(i) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of Persons who take delivery thereof if the Registrar receives the following:
(A) if the transfer will be made pursuant to a QIB in accordance with Rule 144A, then the transferor must deliver a certificate substantially in the form of Exhibit B, including the certifications in item (1) thereof;
(B) if the transfer will be made to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904 then the transferor must deliver a certificate in the form of Exhibit B, including the certifications in item (2) thereof;
(C) if the transfer will be made to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in clauses (A) and (B) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3)(d) thereof; or
(D) if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B, including the certifications required by item (3) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if the Registrar receives the following:
(A) if the Holder of such Restricted Definitive Notes proposes to exchange the Notes for an Unrestricted Definitive Note, a certificate from such Holder substantially in the form of Exhibit C, including the certifications in item (1)(d) thereof; or
(B) if the Holder of such Restricted Definitive Notes proposes to transfer the Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder substantially in the form of Exhibit B, including the certifications in item (4) thereof;
72
and, in each such case set forth in this subparagraph (ii), if the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Notes toUnrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer the Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Legends. The following legends shall appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture:
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:
“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR (IN THE CASE OF NOTES SOLD PURSUANT TO RULE 144A) OR 40 DAYS (IN THE CASE OF NOTES SOLD PURSUANT TO REGULATION S) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
73
SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.”
(B) Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii) or (e)(iii) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) shall not bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in substantially the following form:
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06(h) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK,
74
NEW YORK) (“DTC”) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
(iii) Regulation S Temporary Global Note Legend. The Regulation S Temporary Global Note shall bear a legend in substantially the following form:
“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).”
(g) [Reserved].
(h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.11. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 or at the Registrar’s request.
(ii) No service charge shall be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.07, 2.10, 3.06, 3.09, 4.10, 4.14 and 9.05).
75
(iii) Neither the Registrar nor the Issuer shall be required to register the transfer of or exchange any Note selected for redemption or tendered (and not withdrawn) for repurchase in whole or in part, except the unredeemed or unpurchased portion of any Note being redeemed or repurchased in part.
(iv) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(v) The Issuer shall not be required (A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 and ending at the close of business on the day of selection, (B) to register the transfer of or to exchange any Note so selected for redemption or tendered (and not withdrawn) for repurchase in connection with a Change of Control Offer, an Asset Sale Offer or other tender offer, in whole or in part, except the unredeemed portion of any Note being redeemed in part or (C) to register the transfer of or to exchange a Note between a Record Date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuer may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of (and premium, if any) and interest on the Notes and for all other purposes, and none of the Trustee, any Agent or the Issuer shall be affected by notice to the contrary.
(vii) Upon surrender for registration of transfer of any Note at the office or agency of the Issuer designated pursuant to Section 4.02, the Issuer shall execute, and the Trustee shall authenticate and mail or otherwise deliver, in the name of the designated transferee or transferees, one or more replacement Notes of any authorized denomination or denominations of a like aggregate principal amount.
(viii) At the option of the Holder, Notes may be exchanged for other Notes of any authorized denomination or denominations of a like aggregate principal amount upon surrender of the Notes to be exchanged at such office or agency. Whenever any Global Notes or Definitive Notes are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and mail or otherwise deliver, the replacement Global Notes and Definitive Notes which the Holder making the exchange is entitled to in accordance with the provisions of Section 2.02.
(ix) All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by electronic transmission.
(x) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Participants or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
(xi) Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not taken by the Depositary.
76
SECTION 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee, the Registrar or the Issuer and the Trustee receives evidence to its satisfaction of the ownership and destruction, loss or theft of any Note, the Issuer shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Issuer, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuer to protect the Issuer, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuer may charge for its expenses in replacing a Note.
Every replacement Note is a contractual obligation of the Issuer and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.
SECTION 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.08 as not outstanding. Except as set forth in Section 2.09, a Note does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note.
If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section 4.01, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of any thereof) holds, on a Redemption Date or the Maturity, money sufficient to pay Notes payable on that date, then on and after that date the Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.
SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer, or by any Affiliate of the Issuer, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee knows are so owned shall be so disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to deliver any such direction, waiver or consent with respect to the Notes and that the pledgee is not the Issuer or any obligor upon the Notes or any Affiliate of the Issuer or of such other obligor.
SECTION 2.10. Temporary Notes.
Until certificates representing Notes are ready for delivery, the Issuer may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of certificated Notes but may have variations that the Issuer considers appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate Definitive Notes in exchange for temporary Notes.
77
Holders and beneficial holders, as the case may be, of temporary Notes shall be entitled to all of the benefits accorded to Holders, or beneficial holders, respectively, of Notes under this Indenture.
SECTION 2.11. Cancellation.
The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee or, at the direction of the Trustee, the Registrar or the Paying Agent and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of cancelled Notes (subject to the record retention requirement of the Exchange Act). Certification of the disposal of all cancelled Notes shall be delivered to the Issuer upon its written request. The Issuer may not issue new Notes to replace Notes that have been paid or that have been delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest.
If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest to the Persons who are Holders on a subsequent special Record Date, in each case at the rate provided in the Notes and in Section 4.01. The Issuer shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such defaulted interest as provided in this Section 2.12. The Trustee shall fix or cause to be fixed each such special Record Date and payment date; provided that no such special Record Date shall be less than 10 days prior to the related payment date for such defaulted interest. The Trustee shall promptly notify the Issuer of such special Record Date. At least 5 days before the special Record Date, the Issuer (or, upon the written request of the Issuer, the Trustee in the name and at the expense of the Issuer) shall send or cause to be sent to each Holder of such Notes a notice at his or her address as it appears in the Note Register that states the special Record Date, the related payment date and the amount of such interest to be paid.
Subject to the foregoing provisions of this Section 2.12 and for greater certainty, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 2.13. CUSIP Numbers.
The Issuer in issuing the Notes may use CUSIP or ISIN numbers or both numbers (if then generally in use) and, if so, the Trustee shall use CUSIP or ISIN numbers or both numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will as promptly as practicable notify the Trustee of any change in the CUSIP or ISIN numbers of any Notes.
78
ARTICLE 3
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Issuer elects to redeem Notes pursuant to the optional redemption terms set forth in this Indenture, it shall furnish to the Trustee, at least 5 Business Days (or such shorter time period as the Trustee may agree) before notice of redemption is required to be sent or caused to be sent to Holders pursuant to Section 3.03, an Officer’s Certificate setting forth (i) the paragraph or subparagraph of such Note and/or Section of this Indenture governing the Notes, as applicable, pursuant to which the redemption shall occur, (ii) the Redemption Date, (iii) the principal amount of the Notes to be redeemed and (iv) the Redemption Price.
SECTION 3.02. Selection of Notes to Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any time, the Notes shall be selected for redemption or repurchase by lot, pro rata, or by such other method the Trustee considers fair and appropriate; provided that if the Notes are represented by Global Notes, interests in the Notes shall be selected for redemption or repurchase by DTC in accordance with its standard procedures therefor. The Notes to be redeemed or purchased shall be selected, unless otherwise provided herein, not less than 15 nor more than 60 days prior to the Redemption Date from the outstanding Notes not previously called for redemption or purchase.
The Trustee shall promptly notify the Issuer in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected shall be in amounts of $2,000 or whole multiples of $1,000 in excess thereof; no Notes in denominations of less than $2,000 can be redeemed or repurchased in part, except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except as provided in the preceding sentence, provisions of this Indenture that apply to the Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.
SECTION 3.03. Notice of Redemption.
Subject to Section 3.09, the Issuer shall deliver electronically, mail or cause to be mailed by first-class mail, postage prepaid, notices of redemption at least 15 days (which 15-day period shall include the day on which such notice is mailed or otherwise delivered) but, except as set forth in the last paragraph of this Section 3.03, not more than 60 days before the Redemption Date or purchase date to each Holder of Notes to be redeemed at such Holder’s registered address or otherwise in accordance with the procedures of DTC, except that redemption notices may be delivered or mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with Article 8 or Article 11. Notices of redemption may be conditional.
The notice shall identify the Notes to be redeemed and shall state:
(a) the Redemption Date;
79
(b) the Redemption Price;
(c) if any Note is to be redeemed or purchased in part only, the portion of the principal amount of that Note that is to be redeemed or purchased and that, with respect to the Notes represented by Definitive Notes after the Redemption Date upon surrender of such Note, a new Note or Notes in a principal amount equal to the unredeemed or unpurchased portion of the original Note representing the same indebtedness to the extent not redeemed or repurchased will be issued in the name of the Holder of the Notes upon cancellation of the original Note; provided that the new Notes will be only issued in denominations of $2,000 and any integral multiple of $1,000 in excess thereof;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price;
(f) that, unless the Issuer defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the Redemption Date;
(g) the paragraph or subparagraph of the Notes and/or Section of this Indenture governing the Notes, as applicable, pursuant to which the Notes called for redemption are being redeemed;
(h) that no representation is made as to the correctness or accuracy of the CUSIP or ISIN number, if any, listed in such notice or printed on the Notes; and
(i) if in connection with a redemption of Notes pursuant to Section 3.07, any condition to such redemption.
A notice of redemption need not set forth the exact Redemption Price but only the manner of calculation thereof.
Notice of any redemption of, or any offer to purchase, the Notes may, at the Issuer’s discretion, be given in connection with an Equity Offering, other transaction (or series of related transactions) or an event that constitutes a Change of Control and prior to the completion or the occurrence thereof, and any such redemption or purchase may, at the Issuer’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion or occurrence of the related Equity Offering, transaction or event, as the case may be. In addition, if such redemption or purchase is subject to satisfaction of one or more conditions precedent, such notice shall describe each such condition, and if applicable, shall state that, in the Issuer’s discretion, the redemption or purchase date may be delayed until such time (including more than 60 days after the date the notice of redemption or offer to purchase was mailed or delivered, including by electronic transmission) as any or all such conditions shall be satisfied (or waived by the Issuer in its sole discretion), or such redemption or purchase may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied (or waived by the Issuer in its sole discretion) by the redemption or purchase date or by the redemption or purchase date as so delayed, or such notice or offer may be rescinded at any time in the Issuer’s discretion if the Issuer reasonably believes that any or all of such conditions will not be satisfied (or waived). In addition, the Issuer may provide in such notice that payment of the redemption or purchase price and performance of the Issuer’s obligations with respect to such redemption or offer to purchase may be performed by another Person.
80
SECTION 3.04. Effect of Notice of Redemption or Purchase.
Once a notice of redemption is sent (including electronically) in accordance with Section 3.03, Notes called for redemption or purchase become irrevocably due and payable on the Redemption Date or purchase date, as applicable, at the Redemption Price or purchase price, as applicable, unless such redemption or purchase is conditioned on the happening of a future event. The notice, if sent in a manner herein provided (including electronically), shall be conclusively presumed to have been given, whether or not the Holder receives such notice. In any case, failure to give such notice or any defect in the notice to the Holder of any Note designated for redemption or purchase in whole or in part shall not affect the validity of the proceedings for the redemption or purchase of any other Note or portions thereof. Subject to Section 3.05, on and after the Redemption Date or purchase date, as applicable, interest shall cease to accrue on Notes or portions of Notes called for redemption or purchase.
SECTION 3.05. Deposit of Redemption or Purchase Price.
Prior to noon (New York City time) on the Redemption Date or purchase date, the Issuer shall deposit with the Trustee or with the Paying Agent money sufficient to pay the Redemption Price or purchase price of and accrued and unpaid interest on all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent shall promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the Redemption Price of, and accrued and unpaid interest on, all Notes to be redeemed or purchased.
If the Issuer complies with the provisions of the preceding paragraph, on and after the Redemption Date or purchase date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after a Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest to the Redemption Date or purchase date shall be paid to the Person in whose name such Note was registered at the close of business on such Record Date. If any Note called for redemption or purchase shall not be so paid upon surrender for redemption or purchase because of the failure of the Issuer to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the Redemption Date or purchase date until such principal is paid, and to the extent lawful on any interest accrued to the Redemption Date or purchase date not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01.
SECTION 3.06. Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the Issuer shall issue and the Trustee shall authenticate for the Holder at the expense of the Issuer a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered representing the same indebtedness to the extent not redeemed or purchased; provided that each new Note will be issued in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. It is understood that, notwithstanding anything in this Indenture to the contrary, only an Authentication Order and not an Opinion of Counsel or Officer’s Certificate is required for the Trustee to authenticate such new Note.
SECTION 3.07. Optional Redemption.
(a) At any time prior to December 1, 2025, the Issuer may, at its option and on one or more occasions, redeem all or a part of the Notes, upon notice as set forth in Section 3.03, at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any, to, but excluding, the date of redemption (any applicable date of redemption hereunder, the “Redemption Date”), subject to the rights of Holders of Notes on the relevant Record Date to receive interest due on the relevant Interest Payment Date falling on or prior to the Redemption Date.
81
(b) On and after December 1, 2025, the Issuer may, at its option and on one or more occasions, redeem the Notes, in whole or in part, upon notice as set forth in Section 3.03, at the redemption prices (expressed as percentages of the principal amount of the Notes to be redeemed) set forth in this Section 3.07(b), plus accrued and unpaid interest thereon, if any, to, but excluding, the applicable Redemption Date, subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date falling on or prior to the Redemption Date, if redeemed during the twelve-month period beginning on December 1 of each of the years indicated below:
| Year | Percentage | ||
|---|---|---|---|
| 2025 | 102.063 | % | |
| 2026 | 101.375 | % | |
| 2027 | 100.688 | % | |
| 2028 and thereafter | 100.000 | % |
(c) [reserved].
(d) [reserved].
(e) Notwithstanding the foregoing, in connection with any tender offer for the Notes, if Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in such tender offer and the Issuer, or any third party approved in writing by the Issuer making such tender offer in lieu of the Issuer, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer or such third party will have the right upon not less than 15 nor more than 60 days’ prior notice, given not more than 60 days following any such purchase date, to redeem (with respect to the Issuer) or purchase (with respect to a third party) all Notes that remain outstanding following such purchase at a price equal to the price paid to each other Holder in such tender offer (which may be less than par) plus, to the extent not included in the tender offer payment, accrued and unpaid interest, if any, thereon, to, but excluding, the Redemption Date or purchase date, subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date falling on or prior to the Redemption Date or purchase date.
(f) The Notes may be redeemed under the circumstances and in accordance with Section 4.14(e).
(g) Notice of any redemption of the Notes may, at the Issuer’s discretion, be given in connection with an Equity Offering, one or more other transactions or series of related transactions or an event that constitutes a Change of Control and prior to the completion or the occurrence thereof and any such redemption or notice may, at the Issuer’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion or occurrence of the related transaction(s) or event(s), as the case may be, in accordance with Section 3.03.
(h) [Reserved].
(i) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06.
(j) The Issuer and its affiliates may acquire Notes by means other than a redemption, whether by a tender offer, open market purchases, negotiated transactions or otherwise.
82
SECTION 3.08. Mandatory Redemption.
The Issuer shall not be required to make any mandatory redemption or sinking fund payments with respect to any Notes.
SECTION 3.09. Offers to Repurchase by Application of Excess Proceeds.
(a) In the event that, pursuant to Section 4.10, the Issuer shall be required to commence an Asset Sale Offer, it shall follow the procedures specified below.
(b) The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than five Business Days after the termination of the Offer Period (the “Purchase Date”), the Issuer shall apply all Excess Proceeds (the “Offer Amount”) to the purchase of all Notes and, if required, other First Lien Obligations (on a pro rata basis, if applicable), or, if less than the Offer Amount has been tendered, all Notes and such other First Lien Obligations tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made.
(c) If the Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest, if any, up to but excluding the Purchase Date, shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
(d) Upon the commencement of an Asset Sale Offer, the Issuer shall send, electronically or by first-class mail, a notice to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders and holders of such other First Lien Obligations. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(1) that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 and the length of time the Asset Sale Offer shall remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment shall continue to accrue interest;
(4) that, unless the Issuer defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in amounts of $2,000 or whole multiples of $1,000 in excess thereof only;
(6) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Note completed, or transfer by book-entry transfer, to the Issuer, the Depositary, if appointed by the Issuer, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
83
(7) that Holders shall be entitled to withdraw their election if the Issuer, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, electronic transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes and such other First Lien Obligations surrendered by the holders thereof exceeds the Offer Amount, the Notes and such other First Lien Obligations shall be selected to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such other First Lien Obligations tendered (with such adjustments so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased; provided that no Notes of $2,000 or less can be redeemed in part, except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes of such Holder, even if not a multiple of $1,000, shall be redeemed or purchased); and
(9) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer) representing the same indebtedness to the extent not repurchased.
(e) On or before the Purchase Date, the Issuer shall, to the extent lawful, (1) accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof validly tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered and (2) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof so tendered.
(f) The Issuer, the Depositary or the Paying Agent, as the case may be, shall promptly mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes properly tendered by such Holder and accepted by the Issuer for purchase, and the Issuer shall promptly issue a new Note, and the Trustee, upon receipt of an Authentication Order, shall authenticate and mail or deliver (or cause to be transferred by book-entry) such new Note to such Holder (it being understood that, notwithstanding anything in this Indenture to the contrary, no Opinion of Counsel or Officer’s Certificate is required for the Trustee to authenticate and mail or deliver such new Note) in a principal amount equal to any unpurchased portion of the Note surrendered representing the same indebtedness to the extent not repurchased; provided, that each such new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Any Note not so accepted shall be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Purchase Date.
Other than as specifically provided in this Section 3.09 or Section 4.10, any purchase pursuant to this Section 3.09 shall be made pursuant to the applicable provisions of Sections 3.01 through 3.06.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Notes.
The Issuer shall pay or cause to be paid the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes; provided that all payments of principal,
84
premium, if any, and interest with respect to the Notes represented by one or more Global Notes registered in the name of or held by DTC or its nominee will be made in accordance with DTC’s applicable procedures. Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent (other than the Issuer or a Subsidiary thereof) holds as of noon (New York City time) on the due date money deposited by the Issuer in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due. If an Interest Payment Date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is a Business Day, and no interest on such payment will accrue in respect of the delay.
The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to the interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest at the same rate to the extent lawful.
SECTION 4.02. Maintenance of Office or Agency.
The Issuer shall maintain an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served. The Issuer shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The Issuer may also from time to time designate one or more other offices or agencies where Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency for such purposes. The Issuer shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
The Issuer hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Issuer in accordance with Section 2.03.
SECTION 4.03. Reports and Other Information.
(a) So long as any Notes are outstanding, Parent shall have its annual consolidated financial statements audited by a nationally recognized firm of independent auditors and its interim consolidated financial statements reviewed by a nationally recognized firm of independent auditors in accordance with Statement on Auditing Standards No. 100 issued by the American Institute of Certified Public Accountants (or any similar replacement standard). In addition, so long as any Notes are outstanding, whether or not Parent is subject to Section 13(a) or 15(d) of the Exchange Act, Parent shall furnish to the Holders (x) all annual and quarterly financial statements substantially in forms that would be required to be contained in a filing with the SEC on Forms 10-K and 10-Q of Parent, plus a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” (“MD&A”) with respect to the Issuer and (y) with respect to the annual financial statements only, a report on the annual financial statements by the Parent’s independent registered public accounting firm; provided, however, that (i) in no event shall such reports be required to comply with Rule 3-09, 3-10, 3-16, 13-01 or 13-02 of Regulation S-X promulgated by the SEC from time to time and (ii) in no event shall such reports be required to comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K
85
promulgated by the SEC with respect to any non-GAAP financial measures contained therein; and provided further that the Issuer shall not be required to furnish to the Holders a separate MD&A of the Issuer and the Guarantors if and to the extent that the MD&A of any Parent Entity (including Parent) includes a discussion of the Issuer (in the form of segment reporting or otherwise), which includes financial information not materially different (in the good faith judgment of the Issuer) than the financial information required pursuant to clause (x) above for the relevant period. In addition, the quarterly and annual financial information required by this clause (a) shall include the percentages of the total assets, total revenue and total operating income of Parent and its Subsidiaries represented by (i) all Restricted Subsidiaries of Parent and Issuer that are not Guarantors and (ii) all Unrestricted Subsidiaries.
(b) All such annual reports (commencing with the fiscal year ending December 31, 2024) shall be furnished within 120 days after the end of the fiscal year to which they relate, and all such quarterly reports (commencing with the fiscal quarter ending March 31, 2025) shall be furnished within 60 days after the end of the fiscal quarter to which they relate.
(c) Parent or the Issuer shall make available such information and such reports to the Trustee under this Indenture, to any Holder of the Notes and, upon request, to any beneficial owner of the Notes, in each case by posting such information on its website, or on Intralinks or on any comparable password-protected online data system which shall require a confidentiality acknowledgment, and shall make such information readily available to any Holder of the Notes, any bona fide prospective investor in the Notes, any securities analyst (to the extent providing analysis of investment in the Notes) or any market maker in the Notes who agrees to treat such information as confidential or accesses such information on Intralinks or on any comparable password-protected online data system which will require a confidentiality acknowledgment; provided that Parent or the Issuer shall post such information thereon and make readily available any password or other login information to any such Holder of the Notes, bona fide prospective investor, securities analyst or market maker; provided further, that Parent or the Issuer, as applicable, may deny access to any competitively-sensitive information otherwise to be provided pursuant to this Section 4.03 to any such Holder, bona fide prospective investor, security analyst or market maker that is a competitor of Parent or the Issuer, as applicable and its Subsidiaries to the extent that Parent or the Issuer determines in good faith that the provision of such information to such Person would be competitively harmful to the Issuer and its Subsidiaries.
(d) To the extent not satisfied by the foregoing, Parent or the Issuer, as the case may be, shall furnish to prospective investors of the Notes, upon their request, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely transferable under the Securities Act.
(e) Any Parent Entity may satisfy the obligations of Parent set forth in this Section 4.03 by providing the requisite financial and other information of such Parent Entity instead of Parent; provided that to the extent such Parent Entity either (i) holds assets (other than its direct or indirect interest in Parent and its Subsidiaries) that exceeds 1.0% of the Total Assets of such Parent Entity and its Subsidiaries or (ii) has revenue (other than revenue from its direct or indirect interest in Parent and its Subsidiaries) that exceeds 1.0% of the total revenue for the preceding fiscal year of such Parent Entity and its Subsidiaries, then such information related to such Parent Entity shall be accompanied by consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information of such Parent Entity, on the one hand, and the information relating to the Issuer and its Subsidiaries on a stand-alone basis, on the other hand.
86
(f) Parent and the Issuer shall be deemed to have furnished the financial statements referred to in Section 4.03(a) if Parent, the Issuer or any Parent Entity of Parent or the Issuer, as applicable, has filed reports containing such information (or any such information of a Parent Entity in accordance with Section 4.03(e)) with the SEC.
(g) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
SECTION 4.04. Compliance Certificate.
(a) The Issuer shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Issuer, an Officer’s Certificate from the principal executive officer, principal financial officer or principal accounting officer stating that a review of the activities of the Issuer and its Restricted Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Issuer and its Restricted Subsidiaries have kept, observed, performed and fulfilled their obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best of his or her knowledge the Issuer and its Restricted Subsidiaries have kept, observed, performed and fulfilled each and every condition and covenant contained in this Indenture and are not in default in the performance or observance of any of the terms, provisions, covenants and conditions of this Indenture (or, if a Default shall have occurred, describing all such Defaults of which he or she may have knowledge and what action the Issuer is taking or proposes to take with respect thereto).
(b) If the Issuer becomes aware of any Default, it shall, within thirty (30) days, deliver to the Trustee an Officer’s Certificate specifying such Default and what action the Issuer proposes to take with respect thereto.
SECTION 4.05. Taxes.
The Issuer shall pay, and shall cause each of its Restricted Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies except such as are contested in good faith and by appropriate negotiations or proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes.
SECTION 4.06. Stay, Extension and Usury Laws.
The Issuer and each of the Guarantors covenant (to the extent that they may lawfully do so) that they shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Issuer and each of the Guarantors (to the extent that they may lawfully do so) hereby expressly waive all benefit or advantage of any such law, and covenant that they shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.
87
SECTION 4.07. Limitation on Restricted Payments.
(a) From and after the Issue Date, the Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(I) declare or pay any dividend or make any payment or distribution on account of the Issuer’s or any of its Restricted Subsidiaries’ Equity Interests, including any dividend or distribution payable in connection with any merger, amalgamation or consolidation other than:
(a) dividends, payments or distributions by the Issuer payable solely in Equity Interests (other than Disqualified Stock) of the Issuer or in options, warrants or other rights to purchase such Equity Interests (other than Disqualified Stock); or
(b) dividends, payments or distributions by a Restricted Subsidiary so long as, in the case of any dividend, payments or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly-Owned Subsidiary, the Issuer or a Restricted Subsidiary receives at least its pro rata share of such dividend, payment or distribution as required by its Equity Interests in such class or series of securities;
(II) purchase, redeem, defease or otherwise acquire or retire for value any Equity Interests of the Issuer or any Parent Entity, including in connection with any merger, amalgamation or consolidation, in each case, owned by a Person other than the Issuer or a Restricted Subsidiary;
(III) make any principal payment on, or redeem, repurchase, defease, discharge or otherwise acquire or retire for value in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Junior Lien Indebtedness, Unsecured Indebtedness or Subordinated Indebtedness, other than:
(a) Indebtedness permitted to be incurred or issued under any or all of clauses (7), (8) or (9) of Section 4.09(b); or
(b) the redemption, defeasance, purchase, repurchase, discharge or other acquisition of Junior Lien Indebtedness, Unsecured Indebtedness or Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of redemption, defeasance, purchase, repurchase, discharge or acquisition; or
(IV) make any Restricted Investment
(all such payments and other actions set forth in clauses (I) through (IV) above (other than any exceptions thereto) being collectively referred to as “Restricted Payments”), unless, at the time of such Restricted Payment:
(1) no Event of Default under clause (1), (2), (6) or (7) of Section 6.01(a) shall have occurred and be continuing or would occur as a consequence thereof;
(2) on a pro forma basis after giving effect to such Restricted Payment and the incurrence of any Indebtedness the proceeds of which are used to make such Restricted Payment, the Consolidated First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period would be equal to or less than (a) in the case where such Restricted Payment is a Restricted Payment described in clause (I) or (II) of the definition thereof, 3.50 to 1.0 and (b) in the case where such Restricted Payment is a Restricted Payment described in clause (III) of the definition thereof, 3.75 to 1.0; and
88
(3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Issuer and its Restricted Subsidiaries after the Issue Date (including Restricted Payments permitted by clauses (1) and (6)(c) of Section 4.07(b), but excluding all other Restricted Payments permitted by Section 4.07(b)), is less than the sum of (without duplication):
(a) 100% of the (i) Consolidated EBITDA of the Issuer for the period (taken as one accounting period) beginning on the first day of the fiscal quarter during which the Issue Date occurs to the end of the Issuer’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment, or, in the case such Consolidated EBITDA of the Issuer for such period is a negative figure, minus 100% of such negative figure, less (ii) 1.4 times Fixed Charges of the Issuer for the period (taken as one accounting period) described in clause (i); plus
(b) 100% of the aggregate net cash proceeds and the fair market value of marketable securities or other property received by the Issuer and its Restricted Subsidiaries since immediately after the Issue Date (other than net cash proceeds to the extent such net cash proceeds have been used to incur Indebtedness or issue Disqualified Stock or Preferred Stock pursuant to clause (12)(a) of Section 4.09(b)) from the issue or sale of:
(i) (A) Equity Interests of the Issuer, including Treasury Capital Stock, but excluding cash proceeds and the fair market value of marketable securities or other property received from the sale of:
(x) Equity Interests to any employee, director or consultant of the Issuer, its Subsidiaries or any Parent Entity after the Issue Date to the extent such amounts have been applied to Restricted Payments made in accordance with clause (4) of Section 4.07(b); and
(y) Designated Preferred Stock; and
(B) Equity Interests of Parent Entities, to the extent such net cash proceeds and the fair market value of marketable securities or other property are contributed to the Issuer (excluding contributions to the extent such amounts have been applied to Restricted Payments made in accordance with clause (4) of Section 4.07(b)); or
(ii) Indebtedness or Disqualified Stock of the Issuer or any Restricted Subsidiary that has been converted into or exchanged for or satisfied with such Equity Interests (other than Disqualified Stock) of the Issuer or a Parent Entity;
provided, however, that this clause (b) of Section 4.07(a)(3) shall not include the proceeds from (W) Refunding Capital Stock applied in accordance with Section 4.07(b)(2), (X) Equity Interests (or Indebtedness that has been converted or exchanged for Equity Interests) of the Issuer sold to a Restricted Subsidiary, (Y) Disqualified Stock or debt securities that have been converted or exchanged into Disqualified Stock or (Z) Excluded Contributions; plus
89
(c) 100% of the aggregate amount of cash or Cash Equivalents and the fair market value of marketable securities or other property contributed to the capital of the Issuer or a Restricted Subsidiary, or that becomes part of the capital of the Issuer or a Restricted Subsidiary through consolidation or merger, following the Issue Date (other than net cash proceeds to the extent such net cash proceeds (i) have been used to incur Indebtedness or issue Disqualified Stock or Preferred Stock pursuant to clause (12)(a) of Section 4.09(b), (ii) are contributed by a Restricted Subsidiary or (iii) constitute Excluded Contributions); plus
(d) 100% of the aggregate amount received in cash or Cash Equivalents and the fair market value of marketable securities or other property received by the Issuer or a Restricted Subsidiary by means of:
(i) the sale or other disposition (other than to the Issuer or a Restricted Subsidiary) of, or other returns on Investments from, Restricted Investments made by the Issuer or its Restricted Subsidiaries (including repurchases and redemptions of such Restricted Investments and cash distributions or cash interest received in respect thereof) and repayments of loans or advances, and releases of guarantees, which constitute Restricted Investments made by the Issuer or its Restricted Subsidiaries, in each case, after the Issue Date; or
(ii) the issuance, sale or other disposition (other than to the Issuer or a Restricted Subsidiary) of the Equity Interests of, or a dividend or distribution from, an Unrestricted Subsidiary (other than to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment, but including cash and the fair market value of marketable securities or other property to the extent exceeding the amount of such Investment); plus
(e) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger, amalgamation or consolidation of an Unrestricted Subsidiary into the Issuer or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Issuer or a Restricted Subsidiary after the Issue Date, the fair market value of the Investment in such Unrestricted Subsidiary (or the net assets transferred) at the time of the redesignation, merger, amalgamation, consolidation or transfer of such Unrestricted Subsidiary as a Restricted Subsidiary (other than to the extent such Investment constituted a Permitted Investment made after the Issue Date, but including cash and the fair market value of marketable securities or other property to the extent exceeding the amount of such Investment); plus
(f) the aggregate amount of Declined Proceeds since the Issue Date.
(b) The foregoing provisions of Section 4.07(a) shall not prohibit:
(1) the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration thereof or the giving of such irrevocable notice, as applicable, if, at the date of declaration or the giving of such notice, such payment would have complied with the provisions of this Indenture (assuming, in the case of a redemption payment, the giving of the notice of such redemption payment would have been deemed to be a Restricted Payment at such time);
90
(2) (a) the prepayment, redemption, repurchase, defeasance, discharge, retirement or other acquisition of any Equity Interests of the Issuer (“Treasury Capital Stock”) (including any accrued and unpaid dividends thereon), Junior Lien Indebtedness, Unsecured Indebtedness or Subordinated Indebtedness or any Equity Interests of any Parent Entity, in exchange for, or in an amount equal to or less than the proceeds of a sale or issuance (other than to a Restricted Subsidiary) made within 120 days of such sale of Equity Interests of the Issuer or any Parent Entity to the extent such amount was contributed to the Issuer (in each case, other than any Disqualified Stock) (“Refunding Capital Stock”) and (b) if immediately prior to the retirement of Treasury Capital Stock, the declaration and payment of dividends thereon was permitted under clauses (6)(a) or (b) of this Section 4.07(b), the declaration and payment of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Equity Interests of any Parent Entity) in an aggregate amount per year no greater than the aggregate amount of dividends per annum that were declarable and payable on such Treasury Capital Stock immediately prior to such retirement;
(3) the prepayment, redemption, defeasance, repurchase, retirement, discharge, exchange or other acquisition of (i) Junior Lien Indebtedness, Unsecured Indebtedness or Subordinated Indebtedness made in exchange for, or out of the proceeds of, an incurrence of new Indebtedness of the Issuer or a Subsidiary Guarantor or (ii) Disqualified Stock of the Issuer or a Subsidiary Guarantor made in exchange for, or out of the proceeds of, an incurrence of Disqualified Stock of the Issuer or a Subsidiary Guarantor that, in any case is made within 120 days of such incurrence in compliance with Section 4.09 so long as:
(a) the principal amount (or accreted value, if applicable) of such new Indebtedness or the liquidation preference of such new Disqualified Stock does not exceed the principal amount of (or accreted value, if applicable), plus any accrued and unpaid interest on, the Junior Lien Indebtedness, Unsecured Indebtedness or Subordinated Indebtedness or the liquidation preference of, plus any accrued and unpaid dividends on, the Disqualified Stock being so prepaid, redeemed, defeased, repurchased, acquired, retired, discharged or exchanged, plus the amount of any premium (including tender premiums), defeasance costs, underwriting discounts and any fees, costs and expenses incurred in connection with the issuance of such new Indebtedness or Disqualified Stock and such prepayment, redemption, defeasance, repurchase, acquisition, retirement, discharge or exchange;
(b) in the case of the prepayment, redemption, defeasance, repurchase, retirement, discharge, exchange or other acquisition of (i) Junior Lien Indebtedness or Unsecured Indebtedness, such new Indebtedness is Junior Lien Indebtedness, Unsecured Indebtedness or Subordinated Indebtedness and (ii) Subordinated Indebtedness, such new Indebtedness is subordinated in right of payment to the Notes or the applicable Note Guarantee at least to the same extent as such Subordinated Indebtedness so prepaid, redeemed, defeased, repurchased, acquired, retired, discharged or exchanged;
(c) the amount of such new Indebtedness or Disqualified Stock has a final scheduled maturity date or mandatory redemption date, as applicable, equal to or later than the final scheduled maturity date or mandatory redemption date of the amount of Junior Lien Indebtedness, Unsecured Indebtedness, Subordinated Indebtedness or Disqualified Stock being so prepaid, redeemed, defeased, repurchased, acquired, retired, discharged or exchanged (or if earlier, such date that is at least 91 days after the maturity date of the Notes);
91
(d) the encumbrances and restrictions in respect of such new Indebtedness are not materially more restrictive, taken as a whole, than those set forth under this Article 4 (as determined in the good faith determination of the Issuer); and
(e) the amount of such new Indebtedness or Disqualified Stock has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the amount of Junior Lien Indebtedness, Unsecured Indebtedness, Subordinated Indebtedness or Disqualified Stock being so prepaid, redeemed, defeased, repurchased, acquired, retired, discharged or exchanged (or requires no or nominal payments in cash (other than interest payments) prior to the date that is 91 days after the maturity date of the Notes);
provided, however, that notwithstanding the foregoing, in the case of Junior Lien Indebtedness consisting of (x) Junior Lien Term Loan Facilities or (y) following the termination or completion of the Exchange Offer or Private Exchanges, as the case may be, Existing Notes, such Junior Lien Term Loan Facilities and Existing Notes, as the case may be, may be prepaid, redeemed, defeased, repurchased, retired, discharged, exchanged or otherwise acquired with the proceeds of (i) Junior Lien Indebtedness or Unsecured Indebtedness which (A) has a final stated maturity after the applicable Junior Lien Term Loan Facilities or such Existing Notes, as the case may be, (B) is not provided by an Affiliate of the Issuer, (C) bears interest at then-prevailing market rates for similarly situated borrowers or issuers (as determined in the good faith determination of the Issuer) and (D) has encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those set forth in this Article 4 (as determined in the good faith determination of the Issuer) or (ii) solely in the case of Junior Lien Term Loan Facilities, Second-Out Indebtedness that has encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those set forth in this Article 4 (as determined in the good faith determination of the Issuer) if incurred within 15 months before the applicable final maturity of such Junior Lien Term Loan Facilities and so long as the Consolidated First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period (determined on a pro forma basis) would be equal to or less than 4.00 to 1.0;
(4) Restricted Payments to pay for the repurchase, redemption, retirement or other acquisition of Equity Interests (other than Disqualified Stock) of the Issuer or any Parent Entity held by any future, present or former employee, director, officer, manager or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer, any of its Subsidiaries or any Parent Entity upon the death, disability, retirement, resignation or termination of employment of any such Person or otherwise pursuant to any management, director and/or employee equity plan or equity option plan, stock appreciation rights plan, or any other management, director and/or employee benefit plan or agreement or any equity subscription or equity holder agreement or any employment termination agreement (including, for the avoidance of doubt, any principal and interest payable on any Indebtedness issued by the Issuer or any Parent Entity in connection with such repurchase, retirement or other acquisition), including any Equity Interests rolled over by management, directors or employees of the Issuer, any of its Subsidiaries or any Parent Entity in connection with any corporate transaction; provided, that the aggregate amount of Restricted Payments made under this clause (4) do not exceed in any fiscal year an amount equal to:
(a) the cash proceeds from the sale of Equity Interests (other than Disqualified Stock) of the Issuer and, to the extent contributed to the Issuer, the cash proceeds from the sale of Equity Interests of any Parent Entity, in each case, to any future, present or former employees, directors, officers, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Issuer, any of its Subsidiaries or any Parent Entity that occurs on or after the Issue Date, to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments by virtue of clause (3) of Section 4.07(a); plus
92
(b) the cash proceeds of key man life insurance policies received by the Issuer or its Restricted Subsidiaries (or any Parent Entity to the extent contributed to the Issuer) after the Issue Date; plus
(c) the amount of any cash bonuses otherwise payable to future, present or former employees, directors, officers, managers, members, partners or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Issuer, any of its Subsidiaries or any Parent Entity that are foregone in exchange for the receipt of Equity Interests of the Issuer or any Parent Entity pursuant to any compensation arrangement, including any deferred compensation plan; plus
(d) the amount of cash dividends that would have been permitted to be made pursuant to clause (29) of this Section 4.07(b) as if such cash dividends were made (and the record date referred to in such clause (29) were), in each case, on the date such Restricted Payments to pay for the repurchase, redemption, retirement or other acquisition of Equity Interests were made; less
(e) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (a), (b), (c) and (d) of this clause (4);
provided that the Issuer may elect to apply all or any portion of the net aggregate increase contemplated by clauses (a) through (e) of this clause (4) in any fiscal year; and provided further, that cancellation of Indebtedness owing to the Issuer or any Restricted Subsidiary from any future, present or former employees, directors, officers, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer, any of its Restricted Subsidiaries or any Parent Entity in connection with a repurchase of Equity Interests of the Issuer or any Parent Entity is not a Restricted Payment under this Section 4.07 or any other provision of this Indenture;
(5) the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Issuer or any of its Restricted Subsidiaries or any class or series of Preferred Stock of any Restricted Subsidiary in each case issued in accordance with Section 4.09 to the extent such dividends are included in the definition of “Fixed Charges”;
(6) (a) the declaration and payment of dividends or distributions to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) issued by the Issuer after the Issue Date; provided that the amount of dividends or distributions made pursuant to this clause (a) shall not exceed the net cash proceeds received by the Issuer from the issuance of such Designated Preferred Stock;
(b) the declaration and payment of dividends or distributions to a Parent Entity, the proceeds of which will be used to fund the payment of dividends or distributions to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) of such Parent Entity issued after the Issue Date; provided that the amount of dividends or distributions made pursuant to this clause (b) shall not exceed the aggregate amount of cash contributed to the Issuer from the issuance of such Designated Preferred Stock; or
93
(c) the declaration and payment of dividends or distributions on Refunding Capital Stock that is Preferred Stock in excess of the dividends or distributions declarable and payable thereon pursuant to clause (2) of this Section 4.07(b); provided that the amount of dividends or distributions made pursuant to this clause (c) shall not exceed the net cash proceeds received by the Issuer from the issuance of such Preferred Stock;
provided, however, in the case of each of clause (a) and clause (c) of this clause (6), that for the Applicable Measurement Period at the date of issuance of such Designated Preferred Stock or the declaration of such dividends or distributions on Refunding Capital Stock that is Preferred Stock, after giving effect to such issuance or declaration on a pro forma basis, the Issuer would have had either (x) a Fixed Charge Coverage Ratio of at least 2.0 to 1.0 or (y) a Consolidated Total Debt Ratio of equal to or less than 7.0 to 1.0;
(7) payments made or expected to be made by the Issuer or any Restricted Subsidiary in respect of withholding or similar taxes payable in connection with the exercise or vesting of Equity Interests or any other equity award by any future, present or former employee, director, officer, manager or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee or any legatee or distributee thereof) of the Issuer, any of its Restricted Subsidiaries or any Parent Entity and repurchases or withholdings of Equity Interests in connection with the exercise or vesting of any stock or other equity options, warrants or other incentive interests or the grant, vesting or delivery of equity awards if such Equity Interests represent all or a portion of the exercise price thereof or payments in lieu of the issuance of fractional Equity Interests, or withholding obligations with respect to, such options, warrants or other incentive interests or other Equity Interests or equity awards;
(8) the prepayment, redemption, defeasance, repurchase, retirement, discharge, exchange or other acquisition at a discount to par of Junior Lien Indebtedness (other than obligations under the Junior Lien Term Loan Facilities) or Unsecured Indebtedness for consideration not to exceed, in the aggregate, $125.0 million;
(9) Restricted Payments that are made (a) in an amount not to exceed the amount of Excluded Contributions received following the Issue Date and (b) without duplication with clause (a), in an amount not to exceed the net cash proceeds from any sale or disposition of Investments acquired after the Issue Date, to the extent the acquisition of such Investments was financed with Excluded Contributions;
(10) other Restricted Payments in an aggregate amount taken together with all other Restricted Payments made and outstanding under this clause (10) (in the case of Restricted Investments, at the time outstanding (without giving effect to the sale of an Investment to the extent the proceeds of such sale do not consist of, or have not been converted to, Cash Equivalents)) not to exceed $25.0 million (in the case of a Restricted Investment, determined on the date such Investment is made, with the fair market value of such Investment being measured at the time made and without giving effect to subsequent changes in value); provided, however, that if any Restricted Payment pursuant to this clause (10) consists of an Investment made in any Person that is not a Restricted Subsidiary of the Issuer at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) of the definition of “Permitted Investments” and shall cease to have been made pursuant to this clause (10);
94
(11) any Restricted Payment on or after the Issue Date made in connection with or in order to consummate the Transactions and the fees and expenses related thereto or used to fund amounts owed in connection with the Transactions;
(12) the repurchase, redemption, defeasance, acquisition, retirement or discharge of any Junior Lien Indebtedness, Unsecured Indebtedness or Subordinated Indebtedness, Disqualified Stock or Preferred Stock (i) in accordance with the provisions similar to those set forth in Section 4.10 and Section 4.14, or (ii) after completion of an Asset Sale Offer, from any remaining Excess Proceeds (assuming such Excess Proceeds were not reset at zero upon completion of an Asset Sale Offer); provided that (x) at or prior to such repurchase, redemption, defeasance, acquisition, retirement or discharge, a Change of Control Offer or Asset Sale Offer, as the case may be, with respect to the Notes to the extent required as a result of such Change of Control Triggering Event or Asset Sale, as the case may be, has been made and (y) all Notes required to be repurchased, redeemed, defeased, acquired, retired or discharged in connection with the relevant Change of Control Offer or Asset Sale Offer, as applicable, have been so repurchased, redeemed, defeased, acquired, retired or discharged;
(13) the declaration and payment of dividends or distributions by the Issuer to, or the making of loans to, any Parent Entity in amounts required for any Parent Entity to pay or cause to be paid, in each case without duplication,
(a) franchise, excise and similar taxes and other fees, taxes and expenses, in each case, required to maintain their corporate or other legal existence;
(b) for any taxable period for which the Issuer and/or any of its Subsidiaries are members of a consolidated, combined or unitary tax group for U.S. federal and/or applicable state, local or foreign income tax purposes of which a direct or indirect parent of the Issuer is the common parent (a “Tax Group”), the portion of any U.S. federal, state, local or foreign taxes (as applicable) of such Tax Group for such taxable period that are attributable to the income of the Issuer and/or its Subsidiaries; provided that Restricted Payments made pursuant to this clause (13)(b) of Section 4.07(b) shall not exceed the tax liability that the Issuer and/or its Subsidiaries (as applicable) would have incurred were such taxes determined as if such entity(ies) were a stand-alone taxpayer or stand-alone group;
(c) customary salary, incentive compensation, bonus, severance and other benefits payable to, and indemnities provided on behalf of, future, current or former officers, employees, directors, managers, independent contractors and consultants of any Parent Entity to the extent such salaries, bonuses, severance and other benefits and indemnities are attributable to the ownership or operation of the Issuer and its Restricted Subsidiaries, including (without limitation) the Issuer’s or its Restricted Subsidiaries’ proportionate share of such amount relating to such Parent Entity being a public company;
(d) general corporate, operating, overhead, management costs and expenses and other costs and expenses (including, without limitation, expenses related to the maintenance of corporate or other existence, auditing or other accounting or tax reporting matters), listing fees, other costs and expenses attributable to being a public company of the Issuer, and other fees, costs and expenditures related to the foregoing that are attributable to the ownership or operation of the Issuer and its Restricted Subsidiaries by such Parent Entity (including such attributable amounts payable in respect of such Parent Entity’s lease for its corporate headquarters);
95
(e) fees and expenses related to any equity or debt offering, financing transaction, acquisitions, divestitures, investments or other non-ordinary course transaction (whether or not successful or abandoned) of such Parent Entity on or after the Issue Date; provided that any such transaction was intended to be for the benefit of the Issuer and its Restricted Subsidiaries;
(f) amounts (including fees and expenses) that would otherwise be permitted to be paid directly by the Issuer pursuant to Section 4.11 (except transactions described in clause (2) of Section 4.11(b));
(g) cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Issuer or any Parent Entity;
(h) any Restricted Payments permitted by clause (4) or (11) of this Section 4.07(b); and
(i) any Investment that would otherwise be permitted to be made pursuant to this Section 4.07 if made by the Issuer or any Restricted Subsidiary; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment, (B) such Parent Entity shall cause (1) all property acquired (whether assets or Equity Interests but not including any loans or advances made pursuant to clause (15) or (16) of the definition of “Permitted Investments”) to be contributed to the capital of the Issuer or one of its Restricted Subsidiaries (which contribution shall not be designated as an Excluded Contribution) or (2) the Person formed or acquired to merge into, or amalgamate or consolidate with, the Issuer or one of its Restricted Subsidiaries (to the extent not prohibited by Section 5.01) in order to consummate such Investment, (C) to the extent constituting an Investment, such Investment shall be deemed to have been made by the Issuer or such Restricted Subsidiary in a manner permitted or not prohibited by this Indenture and (D) any property received by the Issuer or a Restricted Subsidiary in excess thereof shall not increase amounts available for Restricted Payments pursuant to clause (3) of Section 4.07(a);
(14) the repurchase, redemption, or other acquisition of Equity Interests of the Issuer or any Restricted Subsidiary deemed to occur in connection with paying cash in lieu of fractional shares of such Equity Interests in connection with a share dividend, distribution, share split, reverse share split, merger, consolidation, amalgamation or other business combination of the Issuer or any Restricted Subsidiary, in each case, permitted or not prohibited by this Indenture;
(15) [reserved];
(16) any other Restricted Payment; provided that, on the date of such Restricted Payment on a pro forma basis after giving effect to such Restricted Payment and the incurrence of any Indebtedness the proceeds of which are used to make such Restricted Payment, the Consolidated First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period would be equal to or less than (a) in the case where such other Restricted Payment is a Restricted Payment described in clause (I) or (II) of the definition thereof, 3.00 to 1.0 and (b) in the case where such other Restricted Payment is a Restricted Payment described in clause (III) of the definition thereof, 3.25 to 1.0; provided that any Restricted Payment under this clause (16) may not be made in connection with or in furtherance of a Priming Financing/Liability Management Transaction;
96
(17) payments or distributions to satisfy dissenters’ or appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, pursuant to or in connection with a consolidation, amalgamation, merger or transfer of assets that complies with Section 5.01;
(18) distributions or payments of Receivables Fees and purchases of receivables in connection with any Permitted Receivables Financing or any repurchase obligation in connection therewith;
(19) [reserved];
(20) mandatory redemptions of Disqualified Stock;
(21) to the extent constituting Restricted Payments, the acquisition of Equity Interests held by joint venture partners pursuant to put and call or similar arrangements under any joint venture or similar agreement;
(22) payments, distributions or other Restricted Payments made in connection with transactions among the Issuer and any of its Restricted Subsidiaries, on the one hand, and Parent and any of its direct or indirect Subsidiaries and/or any joint venture partners, customers and/or clients, on the other hand, entered into in the ordinary course of business or consistent with industry or past practice, including, without limitation, any cash management and treasury activities and any shared services, offices or facilities, including back office, accounting, books and record-keeping or similar functions, and shared production or other facilities, branch offices and other shared spaces and licensing or similar arrangements related thereto;
(23) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of obligations under the 5.125% Senior Unsecured Notes, including any Restricted Payment deemed to occur upon the refinancing of such 5.125% Senior Unsecured Notes permitted under Section 4.09;
(24) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of obligations under (i) the Junior Lien Term Loan Facilities or (ii) the 4.125% Unsecured Notes, in each case, to the extent such Restricted Payments are financed with or exchanged for Refinancing Indebtedness permitted under clause (13) of Section 4.09(b);
(25) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of obligations under the Junior Lien Term Loan Facilities, at a purchase price lower than the then prevailing trading price of each series of Second-Out Senior Credit Facilities Indebtedness then outstanding, for consideration not to exceed, in the aggregate, $100.0 million;
(26) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of obligations under (i) Junior Lien Indebtedness or (ii) Unsecured Indebtedness in an aggregate principal amount not to exceed the sum of (x) any Excluded Contribution and (y) any net cash proceeds from the issuance of Junior Lien Indebtedness or Unsecured Indebtedness received by the Issuer after the Issue Date; provided that such Excluded Contributions and net cash proceeds shall not increase the amount available for Restricted Payments pursuant to clause (3) of this Section 4.07(b);
97
(27) to the extent constituting Restricted Payments, Permitted Junior Lien Revolving Facility Refinancings;
(28) [reserved]; and
(29) payments of cash dividends to Parent in connection with the payment of cash dividends on Sinclair’s shares of common stock in the aggregate amount per fiscal quarter not to exceed $0.25 (or $0.30 if at the time that Sinclair makes such cash dividends, on a pro forma basis after giving effect to the making thereof and the incurrence of any Indebtedness the proceeds of which are used to make such cash dividends, the Consolidated First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period would be equal to or less than 3.25 to 1.0) per share for each share of common stock of Sinclair outstanding as of the one record date for dividends payable in respect of such fiscal quarter (as such amount shall be appropriately adjusted for any stock splits, stock dividends, reverse stock splits, stock consolidations and similar transactions); provided, that the amount of such cash dividends that may be made pursuant to this clause (29) shall be reduced by the amount of Restricted Payments made to pay for the repurchase, redemption, retirement or other acquisition of any Equity Interests in such fiscal quarter pursuant to clause (4)(d) of this Section 4.07(b);
provided, however, that at the time of, and after giving effect to, any Restricted Payment permitted under clauses (10) and (16) of this Section 4.07(b), no Event of Default under clause (1), (2), (6) or (7) of Section 6.01(a) shall have occurred and be continuing or would occur as a consequence thereof.
(c) For purposes of determining compliance with this Section 4.07, in the event that a Restricted Payment or Permitted Investment (or a portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in clauses (1) through (29) of Section 4.07(b) and/or is entitled to be made pursuant to Section 4.07(a) and/or one or more of the clauses contained in the definition of “Permitted Investments”, the Issuer will be entitled to divide or classify (or later divide, classify or reclassify in whole or in part in its sole discretion) such Restricted Payment or Investment (or a portion thereof) among such clauses (1) through (29) (other than clause (16)) of Section 4.07(b) and/or Section 4.07(a) and/or one or more of the clauses contained in the definition of “Permitted Investments” (other than clause (28) of the definition thereof) in a manner that otherwise complies with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the assets or securities proposed to be transferred or issued by the Issuer or any Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
(d) As of the Issue Date, all of the Issuer’s Subsidiaries will be Restricted Subsidiaries, other than ONE Media Technologies, LLC, HealthyBest, LLC, Circa, LLC, Highwoods Joint Venture, Holdco RCC, LLC, Holdco RCK, LLC and Heartland Tower Company, LLC. The Issuer shall not permit any Unrestricted Subsidiary to become a Restricted Subsidiary except pursuant to the second to last paragraph of the definition of “Unrestricted Subsidiary.” For purposes of designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the Issuer and its Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so designated shall be deemed to be Restricted Payments or Permitted Investments in an amount determined as set forth in clause (1) of the second paragraph of the definition of “Investments.” Such designation shall be permitted only if a Restricted Payment or Permitted Investment in such amount would be permitted at such time, pursuant to this Section 4.07 or pursuant to the definition of “Permitted Investments”, and if such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
98
(e) Notwithstanding anything to the contrary in this Indenture:
(1) in no event shall any Persons that are not the Issuer or any Guarantor hold Material Intellectual Property or Material FCC Licenses or any other assets owned by the Issuer or any such Guarantor that are, in the reasonable, good faith determination of the Issuer, material to the business operations, assets, financial condition or prospects of the Issuer and its Restricted Subsidiaries, taken as a whole (collectively, “Covered Assets”), and in no event shall Issuer or any of its Restricted Subsidiaries sell, transfer or otherwise dispose of any Covered Assets (in each case, whether pursuant to a sale, lease, license, transfer, Investment, Restricted Payment, dividend or otherwise or relating to the exclusive rights thereto) to any Person that is neither a Guarantor nor the Issuer; provided, however, that in no event shall this clause (a) prohibit the Issuer or any Guarantor from (i) selling, transferring or otherwise disposing any Covered Assets in connection with (A) a bona-fide sale for cash or Cash Equivalents to an unaffiliated third party or (B) a bona-fide joint venture with an unaffiliated third party in the ordinary course of business, in each case, to the extent not otherwise prohibited by this Indenture, (ii) entering into non-exclusive licensing arrangements or (iii) selling, transferring or otherwise disposing of accounts receivable and related accounts receivable collections, proceeds, records and other similar assets (or interests therein) sold to any Receivables Subsidiary or otherwise pledged, factored, transferred or sold in connection with any Permitted Receivables Financing that is otherwise permitted by this Indenture; and
(2) the Issuer shall not permit any of its Unrestricted Subsidiaries to make any dividend or other distribution declared or paid on any Capital Stock of such Unrestricted Subsidiary on a greater than pro rata basis to any holder of the Capital Stock of such Unrestricted Subsidiary (other than to the extent any of the Issuer or any of its Restricted Subsidiaries receives a greater than pro rata share of such dividend or other distribution).
(f) For the avoidance of doubt, this Section 4.07 shall not restrict the making of any “AHYDO catch up payment” with respect to, and required by the terms of, any Indebtedness of the Issuer or any of its Restricted Subsidiaries permitted to be incurred under the terms of this Indenture.
SECTION 4.08. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.
(a) From and after the Issue Date, the Issuer shall not, and shall not permit any of its Restricted Subsidiaries that is not a Subsidiary Guarantor to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Subsidiary Guarantor to:
(1) (A) pay dividends or make any other distributions to the Issuer or any of its Restricted Subsidiaries on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or (B) pay any Indebtedness owed to the Issuer or any Guarantor;
(2) make loans or advances to the Issuer or any Guarantor; or
(3) sell, lease or transfer any of its properties or assets to the Issuer or a Guarantor.
99
(b) The restrictions in Section 4.08(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Issue Date, including pursuant to any of the Senior Credit Facilities, the New First-Out First Lien Notes, the New Second Lien Notes, the Existing Notes and, in each case, related documentation and related Hedging Obligations;
(2) this Indenture, the Notes, the Note Guarantees and the Security Documents;
(3) Purchase Money Obligations for property acquired in the ordinary course of business or consistent with industry or past practice, and Financing Lease Obligations that at the relevant time otherwise would not be permitted by clause (3) of Section 4.08(a) on the property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(5) (i) any agreement, arrangement, Indebtedness or Capital Stock of any Person or its affiliates that is acquired by or merged, consolidated or amalgamated with or into any of the Issuer or any Restricted Subsidiary that applies to such Person or its affiliates or any assets acquired in any such acquisition, merger, consolidation or amalgamation or acquisition of assets in existence at the time thereof, or assumed in connection therewith (unless and to the extent created in contemplation thereof), which encumbrance or restriction is not applicable to the Issuer or any of its Restricted Subsidiaries or its properties or assets, other than any such Person or its affiliates or such assets, or any Unrestricted Subsidiary; and (ii) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger, amalgamation or consolidation of an Unrestricted Subsidiary into the Issuer or a Restricted Subsidiary or the transfer of all, substantially all or any of the assets of an Unrestricted Subsidiary to the Issuer or a Restricted Subsidiary, any such encumbrance or restriction existing or assumed (unless and to the extent created in contemplation thereof);
(6) contracts, including sale-leaseback agreements, for the sale or disposition of assets, including customary restrictions with respect to a Subsidiary of the Issuer pursuant to an agreement that has been entered into for the sale or disposition of Capital Stock or assets of such Subsidiary;
(7) Secured Indebtedness permitted to be incurred pursuant to Section 4.09 and Section 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash, Cash Equivalents or other deposits under contracts or customary net worth provisions contained in real property leases, in each case, entered into in the ordinary course of business or consistent with industry or past practice and restrictions on cash, Cash Equivalents or other deposits permitted under Section 4.12 or arising in connection with any Permitted Liens;
(9) other Indebtedness, Disqualified Stock or Preferred Stock of Restricted Subsidiaries that are not Guarantors permitted to be incurred or issued subsequent to the Issue Date pursuant to the provisions of Section 4.09;
(10) provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to such joint venture;
100
(11) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course or consistent with industry or past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary party thereto, the payment rights arising thereunder or the proceeds thereof;
(12) any encumbrance or restriction with respect to any Unrestricted Subsidiary or any of its affiliates or their respective properties or assets that existed before the date that such Subsidiary became a Restricted Subsidiary if such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary unless and to the extent otherwise permitted by this Indenture;
(13) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Issue Date pursuant to Section 4.09; if (A) in the judgment of the Issuer, such incurrence will not materially impair the Issuer’s ability to make payments on the Notes when due, (B) the encumbrances and restrictions in such Indebtedness, Disqualified Stock or Preferred Stock otherwise not permitted by this Indenture apply only so long as a default in respect of a payment or financial maintenance covenant relating to such Indebtedness, Disqualified Stock or Preferred Stock is not cured or waived or (C) the encumbrances and restrictions in such Indebtedness, Disqualified Stock or Preferred Stock either are not materially more restrictive, taken as a whole, than those contained in this Article 4 or are not materially more disadvantageous, taken as a whole, to the Holders than is ordinary or customary at the time and under the circumstances for financings for similarly situated borrowers or issuers or available to the Issuer and its Subsidiaries (as determined by the Issuer);
(14) restrictions contained in any documentation relating to, or otherwise required or necessary to consummate, any Permitted Receivables Financing;
(15) customary provisions in leases, subleases, licenses, sublicenses and other contracts restricting the assignment or other transfer thereof (or the assets subject thereto), including with respect to intellectual property; and
(16) any encumbrances and restrictions of the type referred to in clauses (1), (2) and (3) of Section 4.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (15) of this Section 4.08(b) if such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the judgment of the Issuer, not materially more restrictive with respect to such encumbrances and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing or are not materially more disadvantageous, taken as a whole, to the Holders than is ordinary or customary at the time and under the circumstances for financings for similarly situated borrowers or issuers or available to the Issuer and its Subsidiaries (as determined by the Issuer).
(c) For purposes of determining compliance with this Section 4.08, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (2) the subordination of loans and advances made to the Issuer or a Restricted Subsidiary to other Indebtedness incurred by the Issuer or such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
101
SECTION 4.09. Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock.
(a) From and after the Issue Date, the Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Issuer shall not issue any shares of Disqualified Stock and shall not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or Preferred Stock; provided, however, that the Issuer may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock, and any of the Subsidiary Guarantors may incur Indebtedness (including Acquired Indebtedness), and issue shares of Disqualified Stock or Preferred Stock, if either (i) the Fixed Charge Coverage Ratio of the Issuer for the Applicable Measurement Period would have been at least 2.0 to 1.0 or (ii) the Consolidated Total Debt Ratio of the Issuer for the Applicable Measurement Period would have been equal to or less than 7.0 to 1.0, in each case, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock or Preferred Stock had been issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of the Applicable Measurement Period.
(b) The provisions of Section 4.09(a) shall not apply to:
(1) Indebtedness owed and outstanding by the Issuer or any of the Subsidiary Guarantors and the issuance and creation of letters of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the face amount thereof) consisting of:
(a) First-Out Indebtedness (including under New First-Out First Lien Notes issued on the Issue Date) in the aggregate principal amount of up to $1,430.0 million (which amount shall not be reborrowed after repayment and shall be reduced by the amount of any mandatory prepayments and voluntary permanent prepayments of principal thereof), provided that a “refinancing” of such First-Out Indebtedness may be Incurred under this clause (a) if such refinancing First-Out Indebtedness (i) has a longer Weighted Average Life to Maturity and later stated maturity than the refinanced First-Out Indebtedness and (ii) does not increase the principal amount of such refinanced First-Out Indebtedness (or accreted value of any such Indebtedness issued with original issue discount), other than reasonable and customary refinancing fees, unpaid and accrued interest, and call premiums and closing costs and expenses;
(b) up to $650.0 million aggregate outstanding principal amount of First-Out Senior Credit Facilities Revolving Indebtedness (which amount shall be reduced by the amount of any permanent reduction of the commitments in respect thereof resulting from or accompanying any mandatory prepayments and voluntary permanent prepayments of principal thereof (other than in connection with any refinancing thereof)); provided that, notwithstanding anything to the contrary herein, any Indebtedness incurred in the form of Permitted Junior Lien Revolving Facility Refinancings and shall be incurred solely in reliance on this subclause (b);
102
(c) Second-Out Indebtedness in an aggregate outstanding principal amount of up to (I) the greater of (x) the aggregate outstanding principal amount of Second-Out Senior Credit Facilities Indebtedness issued or incurred as of the Issue Date (which amount shall be reduced by the amount of any mandatory prepayments of principal thereof in connection with certain asset sale, casualty or condemnation events) and (y) such other aggregate principal amount so long as the Consolidated First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period (determined on a pro forma basis) would be equal to or less than 3.75 to 1.0, plus (II) an amount equal to the then outstanding principal amount of the 5.125% Senior Unsecured Notes at the time of incurrence of Indebtedness (solely to the extent the proceeds of such Indebtedness are used to refinance an equal or greater principal amount of 5.125% Senior Unsecured Notes) using the capacity under this clause (c)(II); and
(d) Junior Lien Indebtedness in an aggregate outstanding principal amount so long as the Consolidated Secured Debt Ratio of the Issuer for the Applicable Measurement Period (determined on a pro forma basis) would be equal to or less than 5.00 to 1.0;
provided that (A) (I) any Indebtedness incurred pursuant to subclauses (a), (b) and (c) above shall be treated as First Lien Obligations in all calculations of the Consolidated First Lien Secured Debt Ratio and the Consolidated Secured Debt Ratio, and (II) any Indebtedness incurred pursuant to subclause (d) above shall be treated as being secured by a Lien on the Collateral in all calculations of the Consolidated Secured Debt Ratio, (B) any Indebtedness incurred pursuant to this clause (1) (I) shall not, directly or indirectly, be borrowed from or provided by, an Affiliate of the Issuer, (II) shall bear interest at then-prevailing market rates for similar debt of similarly situated borrowers or issuers (as determined in the good faith determination of the Issuer), (III) shall not have guarantors or obligors (other than the Issuer or any Guarantor) and (IV) shall not be secured by any assets other than the Collateral and (C) any Indebtedness incurred pursuant to subclauses (c) and (d) above shall not have a stated maturity earlier than any then-outstanding Second-Out Senior Credit Facilities Indebtedness (but may be coterminous with such Second-Out Senior Credit Facilities Indebtedness in the case of incremental facility increases with respect thereto and, for the avoidance of doubt, the “second-out” priority term loan B-6 facility and any incremental facility thereto constituting Second-Out Senior Credit Facilities Indebtedness may mature earlier than any “second-out” priority term loan B-7 facility and any incremental facility thereto constituting Second-Out Senior Credit Facilities Indebtedness);
(2) the incurrence by the Issuer and any Guarantor of Indebtedness represented by (a) the Notes, including any Note Guarantees thereof, issued on the Issue Date (excluding, for the avoidance of doubt, any Additional Notes, if any, or Note Guarantees with respect thereto, issued upon final settlement of the Exchange Offer) and (b) Additional Notes, including any Note Guarantees thereof, issued upon final settlement of the Exchange Offer after the Issue Date;
(3) (a) Indebtedness, Disqualified Stock and Preferred Stock (other than Indebtedness described in clauses (1) and (2) above and clause (b) below) of the Issuer and its Restricted Subsidiaries in existence on, and in an amount not to exceed the amount outstanding on, the Issue Date, including the Existing Notes and any guarantees with respect thereto and the Junior Lien Term Loan Facilities and any guarantees with respect thereto and (b) (i) the New Second Lien Notes, including any guarantees thereof, issued on the Issue Date (excluding, for the avoidance of doubt, any additional New Second Lien Notes, including any guarantees thereof, issued upon final settlement of the Private Exchanges after the Issue Date) and (ii) any additional New Second Lien Notes, including any guarantees thereof, issued upon final settlement of the Private Exchanges after the Issue Date;
103
(4) (a) Indebtedness (including Financing Lease Obligations and Purchase Money Obligations), Disqualified Stock and Preferred Stock incurred or issued by the Issuer or any of its Restricted Subsidiaries, to finance the purchase, lease, expansion, construction, development, replacement, maintenance, upgrade, installation, replacement, repair or improvement of property (real or personal), equipment or any other asset, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets, so long as such Indebtedness exists at the date of such purchase, lease or improvement or is created within 12 months thereafter, (b) Indebtedness in the form of Financing Lease Obligations arising out of any Sale and Lease-Back Transactions and (c) Subordinated Film Indebtedness of the Issuer and its Restricted Subsidiaries, if the aggregate amount of Indebtedness, Disqualified Stock and Preferred Stock outstanding under this clause (4), when aggregated with all Indebtedness outstanding under clause (13) of this Section 4.09(b) incurred to refinance such Indebtedness, does not at the time of any incurrence under this clause (4) exceed $150.0 million; provided, that such Indebtedness, Disqualified Stock and Preferred Stock is incurred for such bona fide business purposes and not in connection with or in furtherance of any Priming Financing/Liability Management Transaction; provided further, however, that any Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to this clause (4) shall, at the Issuer’s election, cease to be deemed incurred or outstanding for purposes of this clause (4) but shall be deemed incurred pursuant to Section 4.09(a) from and after the first date on which the Issuer or such Restricted Subsidiary could have incurred or issued such Indebtedness, Disqualified Stock or Preferred Stock under Section 4.09(a) without reliance on this clause (4);
(5) (a) Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit, bankers’ acceptances, bank guarantees, warehouse receipts or similar instruments issued or entered into, or relating to obligations or liabilities incurred, in the ordinary course of business or consistent with industry or past practice, including letters of credit in favor of suppliers or trade creditors or in respect of workers’ compensation claims, performance, completion or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to obligations regarding workers’ compensation claims, performance, completion or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance and (b) Indebtedness of the Issuer or any of its Restricted Subsidiaries as an account party in respect of letters of credit, bank guarantees or similar instruments in favor of suppliers, customers or other creditors issued in the ordinary course of business or consistent with industry or past practice if the aggregate amount outstanding under this subclause (b) of this clause (5), when aggregated with all Indebtedness outstanding under clause (13) of this Section 4.09(b) incurred to refinance such Indebtedness, does not exceed on a pro forma basis at the time of incurrence of such Indebtedness the greater of (x) $100.0 million and (y) 14.5% of Consolidated EBITDA of the Issuer for the Applicable Measurement Period, except that any Indebtedness incurred pursuant to this clause (5) shall, at the Issuer’s election, cease to be deemed incurred or outstanding for purposes of this clause (5) but shall be deemed incurred pursuant to Section 4.09(a) from and after the first date on which the Issuer or such Restricted Subsidiary could have incurred or issued such Indebtedness under Section 4.09(a) without reliance on this clause (5);
(6) Indebtedness arising from agreements of the Issuer or any of its Restricted Subsidiaries providing for indemnification, adjustment of purchase price, earn out or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary or Investment, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
104
(7) Indebtedness, Disqualified Stock and Preferred Stock of the Issuer owing to a Restricted Subsidiary; provided that any such Indebtedness, Disqualified Stock and Preferred Stock owing to a Restricted Subsidiary that is not the Issuer or a Subsidiary Guarantor, excluding any Indebtedness, Disqualified Stock and Preferred Stock in respect of accounts payable incurred in connection with goods and services rendered in the ordinary course of business or consistent with industry or past practice (and not in connection with the borrowing of money), is expressly subordinated in right of payment (but only to the extent permitted by applicable law and does not result in material adverse tax consequences as determined by the Issuer) to the Notes; provided further, that if any such Restricted Subsidiary ceases to be a Restricted Subsidiary or any such Indebtedness, Disqualified Stock and Preferred Stock is not held by a Restricted Subsidiary, thereupon the then outstanding principal amount of such Indebtedness, Disqualified Stock and Preferred Stock shall no longer be permitted by this clause (7);
(8) Indebtedness of a Restricted Subsidiary owing to the Issuer or another Restricted Subsidiary; provided that if the Issuer or a Subsidiary Guarantor incurs such Indebtedness owing to a Restricted Subsidiary that is neither the Issuer nor a Subsidiary Guarantor, excluding any Indebtedness in respect of accounts payable incurred in connection with goods and services rendered in the ordinary course of business or consistent with past practice (and not in connection with the borrowing of money), such Indebtedness is expressly subordinated in right of payment (but only to the extent permitted by applicable law and does not result in material adverse tax consequences as determined by the Issuer) to the Notes or the Note Guarantee of the Notes of such Guarantor; provided further, that if any such Restricted Subsidiary ceases to be a Restricted Subsidiary or any such Indebtedness is not owned by the Issuer or another Restricted Subsidiary, thereupon the then outstanding principal amount of such Indebtedness shall no longer be permitted by this clause (8);
(9) shares of Preferred Stock or Disqualified Stock of a Restricted Subsidiary issued to the Issuer or another Restricted Subsidiary; provided that if any such Restricted Subsidiary ceases to be a Restricted Subsidiary or any such Preferred Stock or Disqualified Stock is not held by the Issuer or another Restricted Subsidiary, thereupon the then outstanding amount of such capital stock shall no longer be permitted by this clause (9);
(10) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes);
(11) obligations in respect of self-insurance and obligations in respect of stays, customs, performance, indemnity, bid, appeal, judgment, surety and other similar bonds or instruments and performance, bankers’ acceptance facilities and completion guarantees and similar obligations provided by the Issuer or any of its Restricted Subsidiaries or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business or consistent with industry or past practice;
(12) (a) Indebtedness that is Junior Lien Indebtedness or unsecured Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or any of the Guarantors in an aggregate principal amount or liquidation preference then outstanding under this subclause (a) of this clause (12) of up to 100.0% of the net cash proceeds received by the Issuer since immediately after the Issue Date from the issue or sale of Equity Interests of the Issuer or cash contributed to the capital of the Issuer and (b) Indebtedness that is Junior Lien Indebtedness or unsecured Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or any of its Restricted Subsidiaries if the aggregate principal amount or liquidation preference outstanding Indebtedness under this subclause (b) of this clause (12), when aggregated with and all outstanding Indebtedness under
105
clause (13) of this Section 4.09(b) incurred to refinance such Indebtedness outstanding under this subclause (b) of this clause (12), does not exceed at the time of such incurrence or issuance of $125.0 million; provided that with respect to any such Indebtedness, Disqualified Stock or Preferred Stock incurred under subclause (b) of this clause (12), (i) such Indebtedness shall not have a stated maturity that is earlier than the 91st day following the stated maturity of the Notes, (ii) the pricing for such Indebtedness, including the interest rate margins, fees, premiums, funding discounts, and amortization of such Indebtedness are at then-prevailing market rates for similarly situated borrowers or issuers (as determined in the good faith determination of the Issuer), (iii) the encumbrances and restrictions in respect of such Indebtedness cannot be materially more restrictive, taken as a whole, than those set forth in this Article 4 (as determined in the good faith determination of the Issuer) and (iv) such Indebtedness cannot be provided by an Affiliate of the Issuer or any of its Restricted Subsidiaries; provided further, that subclauses (i) through (iii) of the immediately preceding proviso shall not apply with respect to any such Indebtedness which is incurred or issued for purposes or transactions in the ordinary course of business and so long as the outstanding aggregate principal amount of such Indebtedness does not exceed $50.0 million at the time of such incurrence or issuance; provided further, that (I) no such Indebtedness, Disqualified Stock or Preferred Stock may be incurred under this clause (12) in connection with or in furtherance of any Priming Financing/Liability Management Transaction; (II) subclause (a) of this clause (12) shall not include Excluded Contributions or proceeds of Disqualified Stock or sales of Equity Interests to the Issuer or any of its Subsidiaries as determined in accordance with clauses (3)(b) and (3)(c) of Section 4.07(a) to the extent such proceeds have been applied pursuant to such clauses to make Restricted Payments or to make other Investments, payments or exchanges pursuant to Section 4.07(b) or to make Permitted Investments (other than Permitted Investments specified in clauses (1), (2) and (3) of the definition thereof) and (III) any Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to subclause (b) of this clause (12) shall, at the election of the Issuer, cease to be deemed incurred or outstanding for purposes of subclause (b) of this clause (12) but shall be deemed incurred pursuant to Section 4.09(a) from and after the first date on which the Issuer or such Restricted Subsidiary could have incurred or issued such Indebtedness, Disqualified Stock or Preferred Stock under Section 4.09(a) without reliance on subclause (b) of this clause (12);
(13) the incurrence or issuance by the Issuer or any of its Restricted Subsidiaries of Indebtedness, Disqualified Stock or Preferred Stock which serves to refund, refinance, replace, renew, extend or defease (collectively, “refinance” with “refinances”, “refinanced” and “refinancing” having a correlative meaning) any Indebtedness, Disqualified Stock or Preferred Stock incurred or issued as permitted under Section 4.09(a) and clauses (2), (3), (4), (5)(b) and (12) of this Section 4.09(b), this clause (13) and clauses (14) and (28) of this Section 4.09(b) or any Indebtedness, Disqualified Stock or Preferred Stock incurred or issued to so refinance such Indebtedness, Disqualified Stock or Preferred Stock, including additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay accrued but unpaid interest, dividends, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including upfront fees, original issue discount (in lieu of customary upfront fees) or similar fees) in connection with such refinancing (the “Refinancing Indebtedness”) on or prior to its respective maturity; provided, however, that such Refinancing Indebtedness:
(A) has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is incurred which is not less than the remaining Weighted Average Life to Maturity of the Indebtedness, Disqualified Stock or Preferred Stock being refinanced (or requires no or nominal payments in cash (other than interest payments) prior to the date that is 91 days after the maturity date of the Notes);
106
(B) to the extent such Refinancing Indebtedness refinances (i) Subordinated Indebtedness, such Refinancing Indebtedness is subordinated in right of payment to the Notes or the applicable Note Guarantee at least to the same extent as the Indebtedness being refinanced and also complies with the terms of the immediately succeeding clause (ii), (ii) Unsecured Indebtedness, such Refinancing Indebtedness shall constitute Unsecured Indebtedness or Junior Lien Indebtedness or (iii) Disqualified Stock or Preferred Stock, such Refinancing Indebtedness is Disqualified Stock or Preferred Stock for Disqualified Stock, or Preferred Stock for Preferred Stock;
(C) shall not include:
(i) Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary of the Issuer that is not a Guarantor that refinances Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or a Guarantor; or
(ii) Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or a Restricted Subsidiary of the Issuer that refinances Indebtedness, Disqualified Stock or Preferred Stock of an Unrestricted Subsidiary; and
(D) to the extent such Refinancing Indebtedness refinances Secured Indebtedness, (i) the Liens securing such Refinancing Indebtedness have a Lien priority equal or junior to the Liens securing the Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased, or such Refinancing Indebtedness is unsecured Indebtedness and (ii) such Refinancing Indebtedness shall not be secured by a Lien on any asset or property that did not secure the Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased; provided, however, that if such Secured Indebtedness is Junior Lien Indebtedness, such clause (i) and (ii) shall not apply so long as such Refinancing Indebtedness constitutes Junior Lien Indebtedness (which, for the avoidance of doubt, shall be subject to the First/Second/Third Lien Intercreditor Agreement and not be secured by any assets not constituting Collateral) or Unsecured Indebtedness;
provided further, however, that notwithstanding anything contrary in the foregoing, (x) Refinancing Indebtedness in respect of any Junior Lien Term Loan Facilities that is incurred within 15 months before the applicable final maturity of such Junior Lien Term Loan Facilities may constitute Second-Out Indebtedness if (A) such Refinancing Indebtedness is not, directly or indirectly, borrowed from or provided by an Affiliate of the Issuer, (B) bears interest at then-prevailing market rates for similar Indebtedness of similar issuers or borrowers (as determined in good faith by the Issuer), (C) has encumbrances and restrictions that are not materially more restrictive to the Issuer, taken as a whole, than those applicable to any Second-Out Senior Credit Facilities Indebtedness then outstanding (as determined in the good faith by the Issuer) and (D) the Consolidated First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period (determined on a pro forma basis) would be equal to or less than 4.00 to 1.0 and (y) notwithstanding anything to the contrary in the immediately preceding clause (x) or otherwise herein, Existing Secured Notes incurred under clause (3)(a) of this Section 4.09(b) may be refinanced with (A) Additional Notes to be issued upon final settlement of the Exchange Offer after the Issue Date in accordance with clause (2) of this Section 4.09(b) and (B) New Second Lien Notes to be issued upon final settlement of the Private Exchanges after the Issue Date in accordance with clause (3)(c) of this Section 4.09(b);
107
(14) Indebtedness (other than First-Out Indebtedness), Disqualified Stock or Preferred Stock of (x) the Issuer or a Subsidiary Guarantor incurred or issued to finance an acquisition or Investment, (y) any Person that is acquired by or merged or consolidated with or into the Issuer or a Subsidiary Guarantor, or (z) any Unrestricted Subsidiary which becomes a Subsidiary Guarantor; provided that after giving pro forma effect thereto, in the case of:
(a) the incurrence of any such Indebtedness that is Second-Out Indebtedness by (i) the Issuer or any Subsidiary Guarantor, (ii) any Person that is acquired by or merged or consolidated with or into the Issuer or a Subsidiary Guarantor, or (iii) any Unrestricted Subsidiary which becomes a Subsidiary Guarantor, either (A) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Consolidated First Lien Secured Debt Ratio test set forth in clause (1)(c) of this Section 4.09(b) or (B) the Consolidated First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period is no more than such ratio immediately prior to such event;
(b) the incurrence of any such Indebtedness that is Junior Lien Indebtedness by (i) the Issuer or any Subsidiary Guarantor, (ii) any Person that is acquired by or merged or consolidated with or into the Issuer or a Subsidiary Guarantor, or (iii) any Unrestricted Subsidiary which becomes a Subsidiary Guarantor, either (A) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Secured Debt Ratio test set forth in clause (1)(d) of this Section 4.09(b) or (B) the Consolidated Secured Debt Ratio of the Issuer for the Applicable Measurement Period is no more than such ratio immediately prior to such event; and
(c) (i) the incurrence of any such Indebtedness that is unsecured Indebtedness by (A) the Issuer or any Subsidiary Guarantor, (B) any Person that is acquired by or merged or consolidated with or into the Issuer or a Subsidiary Guarantor, or (C) any Unrestricted Subsidiary which becomes a Subsidiary Guarantor, (ii) the issuance of any such Disqualified Stock by the Issuer or (iii) the issuance of any such Disqualified Stock or Preferred Stock by (A) any Subsidiary Guarantor, (B) any Person that is acquired by or merged or consolidated with or into the Issuer or a Subsidiary Guarantor, or (C) any Unrestricted Subsidiary which becomes a Subsidiary Guarantor, either (I) (aa) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in clause (i) of Section 4.09(a) or (bb) the Fixed Charge Coverage Ratio of the Issuer for the Applicable Measurement Period is at least equal to such ratio immediately prior to such event; or (II) (aa) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Total Debt Ratio test set forth in clause (ii) of Section 4.09(a) or (bb) the Consolidated Total Debt Ratio of the Issuer for the Applicable Measurement Period is no more than such ratio immediately prior to such event;
(15) (a) Cash Management Obligations and (b) Indebtedness in respect of netting services, overdraft protections and similar arrangements and other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds (including Indebtedness owed on a short term basis of no longer than 30 days to banks and other financial institutions incurred in the ordinary course of business or consistent with past practice of the Issuer and its Restricted Subsidiaries with such banks or financial institutions that arises in connection with ordinary banking arrangements to manage cash balances of the Issuer and its Restricted Subsidiaries);
108
(16) Indebtedness of the Issuer or any of its Restricted Subsidiaries supported by a letter of credit issued pursuant to a Credit Facility permitted under clause (1) of this Section 4.09(b), in a principal amount not in excess of the face amount of such letter of credit, bank guarantee or such other instrument;
(17) any guarantee or co-issuance by the Issuer or any Restricted Subsidiary of Indebtedness or other obligations of the Issuer or any Restricted Subsidiary if the incurrence of such Indebtedness incurred by the Issuer or such Restricted Subsidiary is permitted or not prohibited by this Indenture;
(18) [reserved];
(19) [reserved];
(20) Indebtedness of the Issuer or any of its Restricted Subsidiaries consisting of (a) the financing of insurance premiums or (b) take-or-pay obligations contained in supply arrangements, in each case, incurred in the ordinary course of business or consistent with past practice;
(21) Indebtedness consisting of Indebtedness issued by the Issuer or any of its Restricted Subsidiaries to future, current or former officers, directors, employees, managers, consultants or independent contractors thereof (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer, any Restricted Subsidiary or any Parent Entity, in each case to finance the purchase or redemption of Equity Interests of the Issuer or any Parent Entity to the extent described in clause (4) of Section 4.07(b);
(22) Indebtedness in respect of Permitted Receivables Financings;
(23) Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries to the extent that the net proceeds thereof are promptly deposited with the Trustee to satisfy and discharge the Notes or exercise the Issuer’s legal defeasance or covenant defeasance option pursuant to Article 8, in each case, in accordance with this Indenture;
(24) [reserved];
(25) Indebtedness attributable to (but not incurred to finance) the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, in each case with respect to any acquisition (by merger, consolidation or amalgamation or otherwise) permitted or not prohibited by the terms of this Indenture;
(26) Indebtedness representing deferred compensation or stock-based compensation to directors, employees, consultants or independent contractors of any Parent Entity, the Issuer or any Restricted Subsidiary incurred in the ordinary course of business or consistent with industry or past practice;
(27) Indebtedness consisting of obligations under deferred compensation or any other similar arrangements incurred in connection with any Investment or any acquisition (by merger, consolidation or amalgamation or otherwise) permitted under this Indenture;
109
(28) Indebtedness of any Restricted Subsidiary that is not a Guarantor if the aggregate principal amount of such Indebtedness outstanding under this clause (28), when aggregated with all outstanding Indebtedness under clause (13) of this Section 4.09(b) incurred to refinance such Indebtedness, shall not exceed, at the time of incurrence thereof, $25.0 million; provided that (a) no such Indebtedness may be incurred in connection with or in furtherance of a Priming Financing/Liability Management Transaction; provided further, however, that except that any Indebtedness incurred pursuant to this clause (28) shall, at the election of the Issuer, cease to be deemed incurred or outstanding for purposes of this clause (28) but shall be deemed incurred pursuant to Section 4.09(a) from and after the first date on which the Issuer or such Restricted Subsidiary could have incurred or issued such Indebtedness under Section 4.09(a) without reliance on this clause (28);
(29) to the extent constituting Indebtedness, customer deposits and advance payments (including progress premiums) received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business or consistent with past practice;
(30) unfunded pension fund and other employee benefits plan obligations and liabilities incurred in the ordinary course of business or consistent with past practice;
(31) [reserved]; and
(32) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (1) through (31) of this Section 4.09(b).
(c) For purposes of determining compliance with this Section 4.09:
(1) in the event that an item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) meets the criteria of more than one of the categories of permitted Indebtedness, Disqualified Stock or Preferred Stock described in clauses (2) through (32) of Section 4.09(b) or is entitled to be incurred pursuant to Section 4.09(a), the Issuer, in its sole discretion, may divide or classify (or later divide, classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) in any manner that complies with this Section 4.09 and shall only be required to include the amount and type of such Indebtedness, Disqualified Stock or Preferred Stock (or portion thereof) in one or more of the clauses in Section 4.09(b) or under Section 4.09(a); provided that (i) all Indebtedness under the First-Out Revolving Credit Facility and any Junior Lien Revolving Credit Facility and any guarantees related to any of the foregoing (and any “refinancing” of any of the foregoing) shall be Incurred only under clause (1)(b) of Section 4.09(b) and may not later be reclassified, (ii) all First-Out Indebtedness (including that Incurred or existing on the Issue Date under any New First-Out First Lien Notes or any First-Out Senior Credit Facilities) and any guarantees related thereto (and any “refinancing” of any of the foregoing), other than that described in the preceding clause (i), shall be Incurred only under clause (1)(a) of Section 4.09(b), and may not later be reclassified, (iii) all Second-Out Indebtedness (other than any Notes and Note Guarantees Incurred on the Issue Date and any Additional Notes and Note Guarantees issued upon final settlement of the Exchange Offer after the Issue Date under clause (2) of Section 4.09(b)) and any guarantees related thereto (and any “refinancing” of any of the foregoing) Incurred on the Issue Date (including Second-Out Senior Credit Facilities Indebtedness Incurred on the Issue Date) shall be Incurred only under clause (1)(c)(x) of Section 4.09(b) and may not later be reclassified, and (iv) all Notes and Note Guarantees Incurred on the Issue Date and any Additional Notes and Note Guarantees issued upon final settlement of the Exchange Offer after the Issue Date shall be Incurred only under clause (2) of Section 4.09(b) and may not later be reclassified;
110
(2) at the time of incurrence, the Issuer will be entitled to divide or classify (or later divide, classify or reclassify in whole in part in its sole discretion) an item of Indebtedness in more than one of the types of Indebtedness, Disqualified Stock or Preferred Stock described in Section 4.09(a) or Section 4.09(b) above; provided that this clause (2) shall be subject to the proviso at the end of clause (1) of this Section 4.09;
(3) the principal amount of Indebtedness, Disqualified Stock or Preferred Stock outstanding under any clause of this Section 4.09 shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness;
(4) the principal amount of any Disqualified Stock of the Issuer or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary, will be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof; and
(5) for purposes of calculating the Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Debt Ratio, the Consolidated Secured Debt Ratio or the Consolidated Total Debt Ratio, as applicable, in connection with the incurrence of any Indebtedness pursuant to Section 4.09(a) or Section 4.09(b) or the creation or incurrence of any Lien pursuant to the definition of “Permitted Liens”, the Issuer may elect, at its option, to treat all or any portion of the committed amount of any Indebtedness (and the issuance and creation of letters of credit and bankers’ acceptances thereunder) which is to be incurred (or any commitment in respect thereof) or secured by such Lien, as the case may be (any such committed amount elected until revoked as described below, the “Reserved Indebtedness Amount”), as being incurred as of such election date, and, if such Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Debt Ratio, Consolidated Secured Debt Ratio or Consolidated Total Debt Ratio, as applicable, is satisfied with respect thereto on such election date, any subsequent borrowing or reborrowing thereunder (and the issuance and creation of letters of credit and bankers’ acceptances thereunder) will be deemed to be permitted under this Section 4.09 or the definition of “Permitted Liens”, as applicable, whether or not the Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Debt Ratio, the Consolidated Secured Debt Ratio or the Consolidated Total Debt Ratio, as applicable, at the actual time of any subsequent borrowing or reborrowing (or issuance or creation of letters of credit or bankers’ acceptances thereunder) is met; provided that for purposes of subsequent calculations of the Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Debt Ratio, the Consolidated Secured Debt Ratio or the Consolidated Total Debt Ratio, as applicable, the Reserved Indebtedness Amount shall be deemed to be outstanding, whether or not such amount is actually outstanding, for so long as such commitments are outstanding or until the Issuer revokes an election of a Reserved Indebtedness Amount.
(d) Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Indebtedness, Disqualified Stock or Preferred Stock shall not be deemed to be an incurrence of Indebtedness, Disqualified Stock or Preferred Stock for purposes of this Section 4.09. If Indebtedness, Disqualified Stock or Preferred Stock originally incurred in reliance upon the Consolidated First Lien Secured Debt Ratio of the Issuer or the Consolidated Secured Debt Ratio of the Issuer under any subclause of clause (1) of Section 4.09(b) is being refinanced under such subclause of clause (1) of Section 4.09(b) and such refinancing would cause the maximum amount of Indebtedness, Disqualified Stock or Preferred Stock thereunder to be exceeded at such time, then such refinancing shall nevertheless
111
be permitted thereunder and such additional Indebtedness, Disqualified Stock or Preferred Stock shall be deemed to have been incurred under such subclause of clause (1) of Section 4.09(b) so long as the principal amount of such refinancing Indebtedness, Disqualified Stock or Preferred Stock does not exceed the principal amount of Indebtedness, Disqualified Stock or Preferred Stock being refinanced plus amounts permitted by the next sentence. Any Indebtedness, Disqualified Stock or Preferred Stock incurred to refinance Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to Section 4.09 shall be permitted to include additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay accrued but unpaid interest, dividends, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including upfront fees, original issue discount (in lieu of upfront fees) or similar fees) incurred in connection with such refinancing.
(e) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, Disqualified Stock or Preferred Stock, the U.S. dollar-equivalent principal amount of Indebtedness, Disqualified Stock or Preferred Stock denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness, Disqualified Stock or Preferred Stock was deemed to be incurred, in the case of term debt, or first committed, in the case of revolving credit debt, for purposes of this Section 4.09; provided that if such Indebtedness, Disqualified Stock or Preferred Stock is incurred to refinance other Indebtedness, Disqualified Stock or Preferred Stock denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness, Disqualified Stock or Preferred Stock does not exceed the principal amount of such Indebtedness, Disqualified Stock or Preferred Stock being refinanced plus the aggregate amount of accrued but unpaid interest, dividends, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including upfront fees, original issue discount (in lieu of upfront fees) or similar fees) incurred in connection with such refinancing.
The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.
(f) For the purposes of this Indenture, (1) Indebtedness that is unsecured is deemed not to be subordinated or junior in right of payment to Secured Indebtedness merely because such Indebtedness is unsecured, and (2) Indebtedness is deemed not to be subordinated or junior in right of payment to any other Indebtedness solely because such Indebtedness has a junior priority with respect to shared collateral or because it is guaranteed by other obligors.
SECTION 4.10. Asset Sales.
(a) From and after the Issue Date, the Issuer shall not, and shall not permit any Restricted Subsidiary to, consummate, directly or indirectly, an Asset Sale unless:
(1) the Issuer or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (measured at the time of agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration (measured at the time of agreeing to such Asset Sale) for such Asset Sale, together with all other Asset Sales since the Issue Date (on a cumulative basis), received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents.
112
(b) Within 365 days after the later of (A) the date of any Asset Sale and (B) the receipt of any Net Proceeds from any Asset Sale (the “Asset Sale Proceeds Application Period”), the Issuer or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to the extent such Net Proceeds are from an Asset Sale of Collateral, to repay (i) Obligations under the Notes, (ii) First-Out Priority Payment Obligations, and in the case of First-Out Priority Payment Obligations consisting of revolving obligations, to correspondingly reduce commitments with respect thereto and/or (iii) other First Lien Obligations, and in the case of other First Lien Obligations consisting of revolving obligations, to correspondingly reduce commitments with respect thereto; provided that if the Issuer or any Restricted Subsidiary shall so reduce any such other First Lien Obligations pursuant to clause (iii), the Issuer or such Restricted Subsidiary shall either (A) reduce Obligations under the Notes on a pro rata basis with such other First Lien Obligations by, at its option, (x) redeeming Notes as described pursuant to Section 3.07 or (y) purchasing Notes through open market purchases or in privately negotiated transactions at market prices (which may be below par), or (B) make an offer (in accordance with the procedures for an Asset Sale Offer set forth in Section 3.09 and this Section 4.10) to all Holders to purchase their Notes on a ratable basis with such other First Lien Obligations for no less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon up to the principal amount of Notes to be repurchased;
(2) to the extent such Net Proceeds are from an Asset Sale that does not constitute Collateral, to repay Obligations under any Senior Indebtedness, and in the case of revolving obligations, to correspondingly reduce commitments with respect thereto; provided that the Issuer or such Restricted Subsidiary shall either (A) reduce the aggregate principal amount of Obligations under the Notes on an equal or ratable basis with any Senior Indebtedness repaid pursuant to this clause (2) by, at its option, (x) redeeming Notes as pursuant to Section 3.07 and/or (y) purchasing Notes through open-market purchases or in privately negotiated transactions at market prices (which may be below par) and/or (B) make an offer (in accordance with Section 3.09 and this Section 4.10) to all Holders to purchase their Notes on an equal or ratable basis with any Senior Indebtedness repaid pursuant to this clause (2) (which offer shall be deemed to be an Asset Sale Offer for purposes hereof);
(3) to invest in the business of the Issuer and its Subsidiaries, including (i) any investment in Additional Assets and (ii) making capital expenditures; provided that to the extent such Net Proceeds are from an Asset Sale of Collateral, such Net Proceeds shall be invested in Additional Assets that are substantially concurrently added to the Collateral in the manner and to the extent required under this Indenture and the Security Documents;
(4) to the extent such Net Proceeds are from an Asset Sale that does not constitute Collateral, to repay Indebtedness of any Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Issuer or a Guarantor, and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto; or
(5) any one or more combinations of the foregoing;
113
provided that, in the case of clause (3) above, any agreement shall be treated as a permitted application of the Net Proceeds from the date of such agreement so long as the Issuer or such Restricted Subsidiary enters into such agreement with the good faith expectation that such Net Proceeds will be applied to satisfy such agreement within 180 days of the expiration of the Asset Sale Proceeds Application Period (an “Acceptable Commitment”) and such Net Proceeds are actually applied substantially in such manner within 180 days of the expiration of the Asset Sale Proceeds Application Period, and, in the event any Acceptable Commitment is later cancelled or terminated for any reason after the expiration of the Asset Sale Proceeds Application Period and before the Net Proceeds are applied in connection therewith, then such Net Proceeds shall constitute Excess Proceeds.
(c) Any Net Proceeds from the Asset Sale covered by this Section 4.10 that are not invested or applied as provided and within the time period set forth in this Section 4.10 will be deemed to constitute “Excess Proceeds”; provided that any amount of Net Proceeds offered to Holders of the Notes pursuant to clauses (1) and (2) of Section 4.10(b) shall not be deemed to be Excess Proceeds without regard to whether such offer is accepted by any Holders. No later than 30 Business Days after the date that the aggregate amount of Excess Proceeds, after giving effect to the operation of the immediately following sentence, exceeds $200.0 million, the Issuer shall make an offer to purchase to all Holders and, if required by the terms of other Indebtedness that constitutes First Lien Obligations, to repay or offer to repay such Indebtedness (an “Asset Sale Offer”) the maximum aggregate principal amount (or accreted value, as applicable) of the Notes and such Indebtedness (in the case of the Notes only, equal to minimum denominations of $2,000 or an integral multiple of $1,000 thereof) that may be purchased or repaid out of the Excess Proceeds (at an offer price in cash in the case of the Notes in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date fixed for the repurchase of such Notes pursuant to such offer) in accordance with the procedures set forth in this Indenture and, if applicable, the documents governing such applicable First Lien Obligations. With respect to the Notes only, the Issuer shall commence an Asset Sale Offer by sending the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. The Issuer may satisfy the foregoing obligation with respect to such Net Proceeds from an Asset Sale by making an Asset Sale Offer in advance of being required to do so by this Indenture (an “Advance Offer”) with respect to all or part of the available Net Proceeds (the “Advance Portion”).
(d) To the extent that the aggregate principal amount (or accreted value, as applicable) of Notes and, if applicable, such First Lien Obligations tendered, purchased or repaid pursuant to an Asset Sale Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, any remaining Advance Portion), the Issuer may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) (“Declined Proceeds”) in any manner permitted or not prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes or such other Indebtedness tendered, purchased or repaid, pursuant to an Asset Sale Offer exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Trustee shall select the Notes (subject to applicable DTC procedures as to Global Notes) and the Issuer or the representative of such First Lien Obligations shall select such First Lien Obligations to be purchased or repaid on a pro rata basis based on the accreted value or principal amount of the Notes and such First Lien Obligations tendered, purchased or repaid, with adjustments as necessary so that no Notes or First Lien Obligations, as the case may be, will be repurchased in an unauthorized denomination; provided that no Notes of $2,000 or less shall be repurchased in part. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero (regardless of whether there are any remaining Excess Proceeds upon such completion), and in the case of an Advance Offer, the Advance Portion shall be excluded in subsequent calculations of Excess Proceeds.
(e) An Asset Sale Offer or an Advance Offer may be made at the same time as consents are solicited with respect to an amendment, supplement or waiver of this Indenture, the Notes, the Security Documents and/or Note Guarantees (but the Asset Sale Offer or Advance Offer may not condition tenders on the delivery of such consents).
114
(f) Pending the final application of an amount equal to the Net Proceeds pursuant to this Section 4.10, the holder of such Net Proceeds may apply any Net Proceeds to reduce indebtedness outstanding under a revolving credit facility (including under the Senior Credit Facilities) or otherwise invest such Net Proceeds in any manner permitted or not prohibited by this Indenture.
(g) For purposes of this Section 4.10 only, the following shall be deemed to be cash or Cash Equivalents:
(1) the greater of the principal amount and the carrying value of any liabilities (as reflected on the most recent balance sheet of the Issuer or such Restricted Subsidiary or in the footnotes thereto, or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Issuer or such Restricted Subsidiary or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Issuer) of the Issuer or such Restricted Subsidiary, other than liabilities that are unsecured or are by their terms subordinated to the Notes or have Junior Lien Priority on the Collateral, that are assumed, prepaid or repaid by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Asset Sale) pursuant to a written agreement which releases or indemnifies the Issuer or such Restricted Subsidiary from such liabilities;
(2) any securities, notes or other obligations or assets received by the Issuer or such Restricted Subsidiary from such transferee that are converted by the Issuer or such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within 180 days following the closing of such Asset Sale;
(3) any Designated Non-cash Consideration received by the Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value (with the fair market value of such item of Designated Non-cash Consideration being measured at the date of agreement for the related Asset Sale) and without giving effect to subsequent changes in value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (3) that is at that time outstanding, not to exceed $40.0 million; provided that this clause (3) shall not be used in connection with or in furtherance of a Priming Financing/Liability Management Transaction; and
(4) the fair market value of any Local Marketing Agreement entered into in connection with, or received as consideration for, any Asset Sale.
(h) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the procedures for an Asset Sale Offer set forth in Section 3.09 and this Section 4.10, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under either Section 3.09 or this Section 4.10 by virtue of such compliance.
(i) The provisions of Section 3.09 and this Section 4.10 relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the Notes.
115
SECTION 4.11. Transactions with Affiliates.
(a) From and after the Issue Date, the Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Issuer (each of the foregoing, an “Affiliate Transaction”) involving aggregate payments or consideration in respect of such Affiliate Transaction in excess of the greater of (x) $50.0 million and (y) 7.2% of Consolidated EBITDA of the Issuer for the Applicable Measurement Period, unless:
(1) such Affiliate Transaction is on terms, taken as a whole, that are not materially less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person on an arm’s-length basis or, if in the good faith judgment of the Issuer, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Issuer or such Restricted Subsidiary from a financial point of view and when such transaction is taken in its entirety; and
(2) the Issuer delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $100.0 million, a resolution adopted by the Board of the Issuer approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (1) of this Section 4.11(a).
(b) The provisions of Section 4.11(a) shall not apply to the following:
(1) (a) transactions between or among Parent, the Issuer and a Restricted Subsidiary or between or among Restricted Subsidiaries or, in any case, any entity that becomes a Restricted Subsidiary as a result thereof and (b) any merger, amalgamation or consolidation of the Issuer into any Parent Entity; provided that such merger, amalgamation or consolidation is otherwise consummated in compliance with the terms of this Indenture and effected for a bona fide business purpose as determined by the Issuer;
(2) Restricted Payments permitted by Section 4.07 (other than pursuant to clause (13)(f) of Section 4.07(b)) and the definition of “Permitted Investments”;
(3) the payment or settlement of management, consulting, monitoring, transaction, advisory and other fees and related expenses to the Investors, indemnification and other similar amounts to the Investors and reimbursement of expenses of the Investors, in each case, approved by, or pursuant to arrangements approved by, the Board of the Issuer;
(4) the payment or settlement of reasonable and customary fees and compensation paid to, and indemnities and reimbursements and employment, consulting, compensation and severance benefit arrangements provided to or on behalf of, or for the benefit of, former, current or future employees, directors, officers, managers, members, partners, independent contractors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Issuer, any Restricted Subsidiary or any Parent Entity;
(5) transactions in which the Issuer or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable, when taken as a whole, to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person on an arm’s length basis;
116
(6) any agreement or arrangement as in effect or disclosed as of the Issue Date (other than any agreement or arrangement of the type described in clause (3) of this Section 4.11(b)) or any amendment, modification, waiver, consent or replacement (so long as the totality of all such amendments, modifications, waivers, consents or replacements is not materially more disadvantageous in the judgment of the Board of the Issuer or the senior management of the Issuer to the Holders when taken as a whole as compared to the totality of such agreements or arrangements as in effect on the Issue Date);
(7) the existence of, or the performance or satisfaction by the Issuer or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders, investor rights or similar agreement or the equivalent (including any registration rights agreement or purchase agreement related thereto) to which it (or any Parent Entity) is a party as of the Issue Date and any similar agreements which it (or any Parent Entity) may enter into thereafter; provided, however, that the existence of, or the performance or satisfaction by the Issuer or any of its Restricted Subsidiaries (or such Parent Entity) of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (7) to the extent that the terms of any such amendment or new agreement are not materially more disadvantageous in the judgment of the Board of the Issuer or the senior management of the Issuer to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date;
(8) the Transactions and the payment of all fees and expenses related to the Transactions, including Transaction Expenses;
(9) transactions with customers, clients, suppliers, contractors, joint venture partners or purchasers or sellers of goods or services or providers of employees or other labor that are Affiliates, in each case in the ordinary course of business or consistent with industry or past practice and otherwise in compliance with the terms of this Indenture that in the determination of the Board of the Issuer or the senior management thereof, or are on terms, taken as a whole, that are not materially less favorable as reasonably could have been obtained at such time from an unaffiliated party;
(10) the issuance or transfer of (a) Equity Interests (other than Disqualified Stock) of the Issuer and the granting and performing of customary registration rights to any Parent Entity or to any Permitted Holder or to any former, current or future director, manager, officer, employee or consultant (or their respective Controlled Investments Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer or any of its Subsidiaries or any Parent Entity and (b) directors’ qualifying shares and shares issued to foreign nationals as required by applicable law;
(11) transactions related to or in connection with Permitted Receivables Financings;
(12) payments by the Issuer or any of its Restricted Subsidiaries made for any financial advisory, consulting, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures if approved or ratified by the Board of the Issuer or the senior management of the Issuer;
117
(13) payments, loans, advances or guarantees (or cancellation of loans, advances or guarantees) to future, current or former employees, directors, officers, managers, members, partners, independent contractors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer, any of its Subsidiaries or any Parent Entity and employment agreements, stock option plans and other compensatory or severance arrangements (and any successor plans thereto) and any supplemental executive retirement benefit plans or similar arrangements with any such future, present or former employees, directors, officers, managers, members, partners, independent contractors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) (including salary or guaranteed payments and bonuses) if approved or ratified by the Board of the Issuer or the senior management of the Issuer;
(14) (A) investments by Affiliates in securities or loans of the Issuer or any of its Restricted Subsidiaries (and any payment of out-of-pocket expenses incurred by such Affiliate or Permitted Holders in connection therewith) so long as the investment is being offered generally to other investors on the same or more favorable terms, and (B) payments to Affiliates in respect of securities or loans of the Issuer or any of its Restricted Subsidiaries contemplated in the foregoing subclause (A) or that were acquired from Persons other than the Issuer and its Restricted Subsidiaries, in each case, in accordance with the terms of such securities or loans;
(15) transactions with a Person that is an Affiliate of the Issuer arising solely because the Issuer or any Restricted Subsidiary owns any Equity Interest in, or controls, such Person;
(16) any lease entered into between the Issuer or any Restricted Subsidiary, on the one hand, and any Affiliate of the Issuer, on the other hand, if approved or ratified by the Board of the Issuer or the senior management of the Issuer in good faith;
(17) intellectual property licenses entered into in the ordinary course of business or consistent with industry or past practice;
(18) transactions between the Issuer or any Restricted Subsidiary and any other Person that would constitute an Affiliate Transaction solely because a director of such other Person is also a director of the Issuer or any Parent Entity; provided, however, that such director abstains from voting as a director of the Issuer or such Parent Entity, as the case may be, on any matter including such other Person;
(19) payment or satisfaction by the Issuer (and any Parent Entity) and its Subsidiaries pursuant to, or the entry into, any tax sharing agreement or arrangement among Parent (and any such Parent Entity) and its Subsidiaries, to the extent such payments are permitted under clause (13) of Section 4.07(b);
(20) payment or satisfaction of reasonable out of pocket costs and expenses relating to registration rights and indemnities provided to equity holders of the Issuer or any Parent Entity thereof pursuant to any equity holders, registration rights or similar agreements;
(21) intercompany transactions undertaken in good faith for the purpose of improving the consolidated tax efficiency of the Issuer and its Restricted Subsidiaries and not for the purpose of circumventing any covenant set forth in this Indenture; and
118
(22) pledges of Equity Interests of Unrestricted Subsidiaries.
SECTION 4.12. Liens.
(a) From and after the Issue Date, the Issuer shall not, and shall not permit any Subsidiary Guarantor to, directly or indirectly, create, incur, assume or suffer to exist any Lien that is not a Permitted Lien (each, a “Subject Lien”) that secures Obligations under any Indebtedness on any asset or property of the Issuer or any Subsidiary Guarantor, unless:
(1) in the case of Subject Liens on any Collateral, (i) such Subject Lien expressly has Junior Lien Priority on the Collateral or (ii) such Subject Lien is a Permitted Lien; and
(2) in the case of any Subject Lien on any asset or property that is not Collateral, (i) the Notes (or a Note Guarantee in the case of Subject Liens on assets or property of a Subsidiary Guarantor) are or will be substantially contemporaneously equally and ratably secured with (or, at the Issuer’s option or if such Subject Lien secures Subordinated Indebtedness, on a senior basis to) the Obligations secured by such Subject Lien until such time as such Obligations are no longer secured by such Subject Lien or (ii) such Subject Lien is a Permitted Lien.
(b) Any Lien created for the benefit of the Holders pursuant to Section 4.12(a)(2) shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged and a nullity upon and to the extent the release and discharge of the Subject Lien that gave rise to the obligation to secure the Notes. In addition, in the event that a Subject Lien at any time qualifies as a Permitted Lien, the Issuer may, at its option and without consent from any Holder, elect to release and discharge any Lien created for the benefit of the Holders pursuant to Section 4.12(a) in respect of such Subject Lien.
(c) With respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the Incurrence of such Indebtedness, such Lien shall also be permitted to secure any Increased Amount of such Indebtedness. The “Increased Amount” of any Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortization of original issue discount, the payment of interest in the form of additional Indebtedness with the same terms, accretion of original issue discount or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Indebtedness.
SECTION 4.13. Corporate Existence.
Subject to Article 5, the Issuer shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) its corporate, partnership or other existence, and the corporate, partnership or other existence of each of its Restricted Subsidiaries, in accordance with the respective organizational documents (as the same may be amended from time to time) of the Issuer or such Restricted Subsidiary, as applicable, and (ii) the rights (charter and statutory), licenses and franchises of the Issuer and its Restricted Subsidiaries; provided that the Issuer shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Restricted Subsidiaries (other than the Issuer), if the Issuer in good faith shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Issuer and its Subsidiaries, taken as a whole.
119
SECTION 4.14. Change of Control Triggering Event.
(a) If a Change of Control Triggering Event occurs with respect to the Notes, unless, prior to the time the Issuer is required to make a Change of Control Offer, the Issuer has previously or concurrently mailed or delivered, or otherwise sent through electronic transmission, a redemption notice with respect to all of the outstanding Notes pursuant to Section 3.07 or Section 11.01, the Issuer shall make an offer to purchase all of the Notes pursuant to the offer described below (the “Change of Control Offer”) at a price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date falling on or prior to the Change of Control Payment Date. Within 60 days following any Change of Control Triggering Event, the Issuer shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, to each Holder of the Notes to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Section 4.14 and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Issuer;
(2) the purchase price and the purchase date, which will be no earlier than 20 Business Days nor later than 60 days from the date such notice is sent (the “Change of Control Payment Date”); provided that the Change of Control Payment Date may be delayed, at the Issuer’s discretion, until such time (including more than 60 days after the date such notice is sent) as any or all such conditions referred to in clause (8) below shall be satisfied;
(3) that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on the Change of Control Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third (3^rd^) Business Day preceding the Change of Control Payment Date;
(6) that Holders shall be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives, not later than the expiration time of the Change of Control Offer, a facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of the Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that if the Issuer is redeeming less than all of the Notes, the Holders of the remaining Notes will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered (the unpurchased portion of the Notes must be equal to minimum denominations of $2,000 or an integral multiple of $1,000 in excess thereof);
120
(8) if such notice is sent prior to the occurrence of a Change of Control Triggering Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Triggering Event or such other conditions specified therein and shall describe each such condition and, if applicable, shall state that in the Issuer’s discretion the Change of Control Payment Date may be delayed until such time as any or all such conditions shall be satisfied or that such purchase shall not occur and such notice shall be rescinded in the event that any or all such conditions shall not have been satisfied by the Change of Control Payment Date, or by the Change of Control Payment Date as so delayed, unless such conditions are waived by the Issuer in its discretion; and
(9) the other instructions, as determined by the Issuer, consistent with this Section 4.14, that a Holder must follow.
The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.14, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.14 by virtue thereof.
(b) On the Change of Control Payment Date, the Issuer shall, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer.
(c) The Issuer shall not be required to make a Change of Control Offer if a third party approved by the Issuer makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.14 applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer. In addition, a Change of Control Offer may be made in advance of a Change of Control Triggering Event, conditional upon such Change of Control Triggering Event or such other conditions specified therein, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
(d) A Change of Control Offer may be made at the same time as consents are solicited with respect to an amendment, supplement or waiver of the provisions of this Indenture, the Notes, the Security Documents and/or the Note Guarantees; provided that such Change of Control Offer shall not include the delivery of such consents as a condition precedent.
(e) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Issuer, or any third party approved in writing by the Issuer making a Change of Control Offer in lieu of the Issuer as set forth in clause (c) of this Section 4.14, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer or such third party shall have the right, upon not less than 15 nor more than 60 days’
121
prior notice, given not more than 60 days following such purchase pursuant to the Change of Control Offer as set forth in this Section 4.14, to redeem (with respect to the Issuer) or purchase (with respect to a third party) all Notes that remain outstanding following such purchase on a date (the “Second Change of Control Payment Date”) at a price in cash equal to the Change of Control Payment in respect of the Second Change of Control Payment Date.
(f) Other than as specifically provided in this Section 4.14, any purchase pursuant to this Section 4.14 shall be made pursuant to the provisions of Sections 3.02, 3.05 and 3.06.
(g) The provisions of this Section 4.14 relating to the Issuer’s obligation to make a Change of Control Offer with respect to the Notes upon a Change of Control Triggering Event may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the Notes.
SECTION 4.15. Additional Note Guarantees.
From and after the Issue Date, the Issuer shall not permit any of its Domestic Subsidiaries that is a Wholly-Owned Subsidiary that is a Restricted Subsidiary (other than the Guarantors and any Receivables Subsidiary), to become an obligor with respect to any Indebtedness owed and outstanding for the Obligations under the Senior Credit Facilities or any other Indebtedness of the Issuer or the Guarantors in an aggregate principal amount in excess of $100.0 million or (ii) to incur Indebtedness in an aggregate principal amount in excess of $100.0 million that is guaranteed (including via a pledge of assets) by the Issuer or any Guarantor, in each case of clause (i) and (ii), unless such Subsidiary within 60 days executes and delivers a supplemental indenture to this Indenture providing for a Note Guarantee by such Subsidiary and joinders to the Security Documents or new Security Documents together with any other filings and agreements required by the Security Documents to create or perfect the security interests for the benefit of the Holders of the Notes in the Collateral of such Subsidiary.
SECTION 4.16. Covenant Suspension.
(a) If on any date following the Issue Date, (i) the Notes have Investment Grade Ratings from both Rating Agencies in the event the Notes are rated by two Rating Agencies, or from any two of three Rating Agencies in the event the Notes are rated by three Rating Agencies, and (ii) no Default has occurred and is continuing under this Indenture with respect to the Notes (the occurrence of the events described in the foregoing clauses (i) and (ii), a “Covenant Suspension Event” and the date thereof, the “Suspension Date”), then, beginning on the Suspension Date, Parent, the Issuer and its Restricted Subsidiaries will not be subject to Section 4.07, Section 4.08, Section 4.09, Section 4.10, Section 4.11, Section 4.15 and clause (4) of Section 5.01(a) (collectively, the “Suspended Covenants”) until the occurrence of the Reversion Date (as defined below).
(b) In the event that Parent, the Issuer and its Restricted Subsidiaries are not subject to the Suspended Covenants under this Indenture for any period as a result of the foregoing, and on any subsequent date (the “Reversion Date”), any Rating Agency withdraws its Investment Grade Rating or downgrades the rating assigned to the Notes below an Investment Grade Rating (in each case, to the extent given an Investment Grade Rating by such Rating Agency and after giving effect to such downgrade or withdrawal, the Notes no longer have an Investment Grade Rating from at least two Rating Agencies), then Parent, the Issuer and its Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants under this Indenture with respect to future events. The period of time between the Suspension Date and the Reversion Date is referred to in this description as the “Suspension Period.” The Note Guarantees of the Subsidiary Guarantors will be suspended during the Suspension Period, and the Liens on the Collateral securing the Notes and the Notes Guarantees will be released. Additionally, upon the occurrence of a Covenant Suspension Event, the amount of Excess Proceeds from any Asset Sales shall be reset to zero.
122
(c) During the Suspension Period, the Issuer and its Restricted Subsidiaries will be entitled to incur Liens permitted under Section 4.12 (including, without limitation, Permitted Liens) with respect to the Notes. To the extent Section 4.12 and any Permitted Liens refer to one or more Suspended Covenants, such covenant or definition shall be interpreted as though such applicable Suspended Covenant(s) continued to be applicable during the Suspension Period (but solely for purposes of Section 4.12 and the definition of “Permitted Liens” and for no other covenant in this Indenture).
(d) Notwithstanding the foregoing, in the event of any such reinstatement, no action taken or omitted to be taken by Parent, the Issuer or any of its Restricted Subsidiaries prior to such reinstatement will give rise to a Default or Event of Default under this Indenture with respect to the Notes, and no Default or Event of Default will be deemed to exist or have occurred as a result of any failure by Parent, the Issuer or any Restricted Subsidiary to comply with any of the Suspended Covenants during the Suspension Period; provided that (1) with respect to Restricted Payments made after such reinstatement, the amount available to be made as Restricted Payments will be calculated as though Section 4.07 had been in effect prior to, but not during, the Suspension Period (including with respect to a Limited Condition Transaction entered into during the Suspension Period); (2) all Indebtedness incurred, or Disqualified Stock or Preferred Stock issued, during the Suspension Period (or deemed incurred or issued in connection with a Limited Condition Transaction entered into during the Suspension Period) will be classified to have been incurred or issued pursuant to clause (3) of Section 4.09(b); (3) any Affiliate Transaction entered into after such reinstatement pursuant to an agreement entered into during any Suspension Period shall be deemed to be permitted pursuant to clause (6) of Section 4.11(b); (4) any encumbrance or restriction on the ability of any Restricted Subsidiary that is not a Guarantor to take any action described in clauses (1) through (3) of Section 4.08(a) that becomes effective during any Suspension Period shall be deemed to be permitted pursuant to clause (1) of Section 4.08(b); (5) no Subsidiary of Parent or the Issuer shall be required to comply with Section 4.15 after such reinstatement with respect to any guarantee or obligation entered into by such Subsidiary during any Suspension Period, other than any Senior Credit Facilities in effect on the Reversion Date; and (6) all Investments made during the Suspension Period (or deemed made in connection with a Limited Condition Transaction entered into during the Suspension Period) will be classified to have been made under clause (5) of the definition of “Permitted Investments.”
(e) Upon the Reversion Date, the Issuer, the Guarantors and the Collateral Trustee will enter into Security Documents that establish the terms of the security interests with respect to the Collateral on terms consistent with those set forth in the Security Documents as of the Issue Date.
(f) Notwithstanding that the Suspended Covenants may be reinstated after the Reversion Date, (1) no Default, Event of Default or breach of any kind will be deemed to exist under this Indenture, the Notes or the Note Guarantees with respect to the Suspended Covenants, and none of Parent, the Issuer or any of its Subsidiaries shall bear any liability for any actions taken or events occurring during the Suspension Period, or any actions taken at any time pursuant to any contractual obligation arising during any Suspension Period, in each case as a result of a failure to comply with the Suspended Covenants during the Suspension Period (or, upon termination of the Suspension Period or after that time based solely on any action taken or event that occurred during the Suspension Period), and (2) following a Reversion Date, Parent, the Issuer and each Restricted Subsidiary will be permitted, without causing a Default or Event of Default, to honor, comply with or otherwise perform any contractual commitments or obligations arising during any Suspension Period and to consummate the transactions contemplated thereby.
123
(g) During any period that the foregoing covenants have been suspended, the Issuer shall not designate any Subsidiary as an Unrestricted Subsidiary unless such designation would have complied with Section 4.07 as if Section 4.07 were in effect for the purposes of designating Unrestricted Subsidiaries from the Issue Date to the date of such designation.
(h) The Issuer shall deliver promptly to the Trustee an Officer’s Certificate notifying it of any such Covenant Suspension Event or other occurrence under this Section 4.16.
SECTION 4.17. Limitation on Priming Financing/ Liability Management Transactions.
The Issuer shall not, and shall not permit any of its Subsidiaries to, enter into or effect any Priming Financing/Liability Management Transaction or make any Investment, sale, transfer or disposition of assets or Restricted Payment in connection with or in furtherance of a Priming Financing/Liability Management Transaction.
SECTION 4.18. [Reserved].
SECTION 4.19. After-Acquired Property.
From and after the Issue Date, and subject to the applicable limitations set forth in the Security Documents and this Indenture (including with respect to Excluded Assets), if the Issuer or any Guarantor creates any additional security interest upon any property or asset that would constitute Collateral to secure any First Lien Obligations, it must concurrently grant a first-priority perfected security interest (subject to Permitted Liens and the terms of the Intercreditor Agreements) upon any such Collateral, as security for the Notes Obligations.
ARTICLE 5
SUCCESSORS
SECTION 5.01. Merger, Consolidation, Amalgamation or Sale of All or Substantially All Assets.
(a) From and after the Issue Date, the Issuer, Parent and any Subsidiary of Parent that is a Parent Guarantor shall not merge, consolidate or amalgamate with or into or wind up into (whether or not the Issuer, Parent or such Parent Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless:
(1) the Issuer, Parent or a Subsidiary of Parent that is a Parent Guarantor, as the case may be, is the surviving Person or the Person formed by or surviving any such merger, consolidation or amalgamation (if other than the Issuer, Parent or a Subsidiary of Parent that is a Parent Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited partnership, limited liability company, trust or other entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (the Issuer, Parent, such Subsidiary of Parent that is a Parent Guarantor or such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the Successor Company is not a corporation, a co-issuer of the Notes is a corporation;
124
(2) the Successor Company, if other than the Issuer, Parent or a Subsidiary of Parent that is a Parent Guarantor, expressly assumes, in the case of Parent or a Subsidiary of Parent that is a Parent Guarantor, all the obligations of Parent or such Parent Guarantor, as the case may be, under this Indenture, its Note Guarantee and the applicable Security Documents and, in the case of the Issuer, all of the obligations of the Issuer under this Indenture, the Security Documents and the Notes, in each case, pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee (provided that, in making such determination, the Trustee may rely on, and shall be fully protected in relying on an Officer’s Certificate and an Opinion of Counsel, each stating that such merger, consolidation, amalgamation, sale, assignment, transfer, lease, conveyance or disposition and such supplemental indentures and other documents or instruments, if any, comply with this Indenture);
(3) immediately after such transaction, no Event of Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the Applicable Measurement Period,
(a) the Successor Company could incur at least $1.00 of additional Indebtedness pursuant to either (x) the Fixed Charge Coverage Ratio test or (y) the Consolidated Total Debt Ratio test, in each case, set forth in Section 4.09(a), or
(b) either (x) the Fixed Charge Coverage Ratio of the Successor Company for the Applicable Measurement Period would be no less than the Fixed Charge Coverage Ratio of the Issuer for the Applicable Measurement Period immediately prior to such transaction or (y) the Consolidated Total Debt Ratio of the Successor Company for the Applicable Measurement Period would be no more than the Consolidated Total Debt Ratio of the Issuer for the Applicable Measurement Period immediately prior to such transaction;
(5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such merger, consolidation, amalgamation, sale, assignment, transfer, lease, conveyance or disposition and such supplemental indentures, and/or other documents or instruments, if any, comply with this Indenture;
(6) to the extent any assets of the Person which is merged, consolidated or amalgamated with or into the Issuer, Parent or a Subsidiary of Parent that is a Parent Guarantor, as applicable, are assets of the type which would constitute Collateral under the Security Documents, the Issuer, Parent, such Parent Guarantor or the Successor Company, as applicable, will take such action, if any, as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the applicable Security Documents in the manner and to the extent required in this Indenture or the applicable Security Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the applicable Security Documents; and
(7) the Collateral owned by or transferred to the Successor Company shall: (i) continue to constitute Collateral under this Indenture and the Security Documents, (ii) be subject to the Lien in favor of the Collateral Trustee for the benefit of itself, the Trustee and the Holders of the Notes, and (iii) not be subject to any Lien other than Permitted Liens.
125
(b) The Successor Company shall succeed to, and be substituted for the Issuer, Parent or a Subsidiary of Parent that is a Parent Guarantor, as the case may be, under this Indenture, the Note Guarantees, the Notes and the Security Documents, as applicable, and such Issuer, Parent or such Parent Guarantor, as applicable, shall automatically be released and discharged from its obligations under this Indenture, the Note Guarantees, the Security Documents and the Notes.
Notwithstanding Sections 5.01(a)(3) and 5.01(a)(4),
(1) any Restricted Subsidiary may merge, consolidate or amalgamate with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Issuer or any Restricted Subsidiary,
(2) the Issuer, Parent or a Subsidiary of Parent that is a Parent Guarantor may merge, consolidate or amalgamate with or into an Affiliate of the Issuer, Parent or such Parent Guarantor, as the case may be, solely for the purpose of reincorporating the Issuer, Parent or such Parent Guarantor in the United States, any state thereof, the District of Columbia or any territory thereof; and
(3) any License Subsidiary may be merged or consolidated with or into (i) any other License Subsidiary or (ii) a newly formed Subsidiary of the Issuer (which may be organized as a limited liability company) established for the purpose of becoming a License Subsidiary; provided that such newly formed Subsidiary, if it is the continuing or surviving entity, shall have assumed all of the obligations of such Subsidiary under this Indenture, the Note Guarantees, the Security Documents and the Notes, as applicable.
(c) From and after the Issue Date and other than as permitted or not prohibited by Section 10.06 upon the sale, disposition or transfer of Capital Stock of a Subsidiary Guarantor, no Subsidiary Guarantor shall, and the Issuer shall not permit a Subsidiary Guarantor to, merge, consolidate or amalgamate with or into or wind up into (whether or not the Issuer or a Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1)
(a) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such merger, consolidation or amalgamation (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited partnership, limited liability company, trust or other entity organized or existing under the laws of the jurisdiction of organization of such Subsidiary Guarantor or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor”);
(b) the Successor Guarantor, if other than such Subsidiary Guarantor, expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and such Subsidiary Guarantor’s related Note Guarantee and the applicable Security Documents pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee (provided that, in making such determination, the Trustee may rely on, and shall be fully protected in relying on, an Officer’s Certificate and an Opinion of Counsel, each stating that such merger, consolidation, amalgamation, sale, assignment, transfer, lease, conveyance or disposition and such supplemental indentures and/or other documents or instruments, if any, comply with this Indenture);
126
(c) immediately after such transaction, no Event of Default exists;
(d) to the extent any assets of the Person which is merged, consolidated or amalgamated with or into such Subsidiary Guarantor are assets of the type which would constitute Collateral under the Security Documents, such Subsidiary Guarantor or the Successor Company will take such action, if any, as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the applicable Security Documents in the manner and to the extent required in this Indenture or the applicable Security Documents and shall take all reasonably necessary action so that such Lien in perfected to the extent required by the applicable Security Documents; and
(e) the Collateral owned by or transferred to the Successor Guarantor shall: (A) continue to constitute Collateral under this Indenture and the Security Documents, (B) be subject to the Lien in favor of the Collateral Trustee for the benefit of itself, the Trustee and the Holders of the Notes, and (C) not be subject to any Lien other than Permitted Liens; or
(2) the transaction is permitted or not prohibited by Section 4.10 and the release of such Subsidiary Guarantor is permitted under Section 10.06.
(d) The Successor Guarantor shall succeed to, and be substituted for, such Subsidiary Guarantor under this Indenture, and such Subsidiary Guarantor’s Note Guarantee and the applicable Security Documents and such Subsidiary Guarantor shall automatically be released and discharged from its obligations under this Indenture, such Subsidiary Guarantor’s Note Guarantee and the applicable Security Documents. Notwithstanding the foregoing, any Subsidiary Guarantor may (i) merge, consolidate or amalgamate with or into, wind up into or transfer all or part of its properties and assets to another Subsidiary Guarantor, Parent or the Issuer, (ii) merge, consolidate or amalgamate with or into any Subsidiary of the Issuer solely for the purpose of reincorporating or reorganizing the Subsidiary Guarantor in the United States, any state thereof, the District of Columbia or any territory thereof, (iii) convert into a corporation, partnership, limited partnership, limited liability company, trust or other entity organized or existing under the laws of the jurisdiction of organization of such Subsidiary Guarantor or a jurisdiction in the United States or (iv) liquidate or dissolve or change its legal form if the Board of the Issuer or the senior management of the Issuer determines in good faith that such action is in the best interests of the Issuer and is not materially disadvantageous to the Holders, in each case, without regard to the requirements set forth in Section 5.01(c).
SECTION 5.02. Successor Corporation Substituted.
Upon any consolidation, merger or amalgamation, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets of the Issuer in accordance with Section 5.01, the successor corporation formed by such consolidation or into or with which the Issuer is merged or amalgamated or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, amalgamation, sale, lease, conveyance or other disposition, the provisions of this Indenture referring to the Issuer shall refer instead to the successor corporation and not to the Issuer), and may exercise every right and power of the Issuer under this Indenture with the same effect as if such Successor Guarantor had been named as the Issuer herein; provided that the Issuer shall not be relieved from the obligation to pay the principal of and interest, if any, on the Notes except in the case of a sale, assignment, transfer, conveyance or other disposition of all of the Issuer’s assets that meets the requirements of Section 5.01.
127
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
(a) An “Event of Default” wherever used herein with respect to the Notes, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) the failure to pay the principal of (or premium, if any, on) the Notes when due and payable and such failure remains uncured;
(2) the failure to pay any interest installment on the Notes when due and payable, which failure continues for more than 30 days;
(3) the failure by the Issuer or any Guarantor to comply with or remedy a breach of any covenant in this Indenture applicable to the Notes for more than 90 consecutive days after receipt of written notice given to the Issuer by the Trustee or the Holders of not less than 30% in principal amount of the outstanding Notes (other than those described in clauses (1) through (2) above), except that a failure to comply with Section 4.03 shall only be an Event of Default if it shall have existed and not been remedied for more than 180 consecutive days after written notice given to the Issuer by the Trustee or the Holders of not less than 30% in principal amount of the outstanding Notes;
(4) default under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any existing or future Indebtedness for money borrowed or owed by the Issuer or any of its Wholly-Owned Subsidiaries that are Restricted Subsidiaries or the payment of which is guaranteed by the Issuer or any of its Wholly-Owned Subsidiaries that are Restricted Subsidiaries (other than Indebtedness owed to the Issuer or a Restricted Subsidiary or any Permitted Receivables Financing) if both:
(a) such default either results from the failure to pay any principal of such Indebtedness at its stated final maturity (after giving effect to any applicable grace periods) or relates to an obligation other than the obligation to pay principal of any such Indebtedness at its stated final maturity and results in the holder or holders of such Indebtedness causing such Indebtedness to become due prior to its stated maturity and is not rescinded; and
(b) the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness in default for failure to pay principal at its stated final maturity (after giving effect to any applicable grace periods), or the maturity of which has become due, aggregate $150.0 million (or its foreign currency equivalent) or more at any one time outstanding (such Indebtedness, “Material Indebtedness”);
128
(5) failure by the Issuer or any Significant Subsidiary (or group of Restricted Subsidiaries that together (as determined as of the most recent consolidated financial statements of the Issuer for a fiscal quarter end provided as required under Section 4.03) would constitute a Significant Subsidiary) to pay final judgments aggregating in excess of $150.0 million (net of (x) amounts covered by insurance policies issued by reputable insurance companies as determined by the Issuer and (y) amounts covered by valid third party indemnification obligations from a third party that is solvent and has been notified of the claim under such indemnification obligation and has not disputed that it is liable for such claim), which final judgments remain unpaid, undischarged and unstayed for a period of more than 60 days after such judgment becomes final, and, in the event such judgment is covered by insurance, an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly stayed;
(6) Parent, any Parent Guarantor, the Issuer or any Significant Subsidiary (or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary), pursuant to or within the meaning of any Bankruptcy Law:
(a) commences proceedings to be adjudicated bankrupt or insolvent;
(b) consents to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under applicable Bankruptcy Law;
(c) consents to the appointment of a receiver, liquidator, assignee, trustee, sequestrator or other similar official of it or for all or substantially all of its property;
(d) makes a general assignment for the benefit of its creditors; or
(e) generally is not paying its debts as they become due;
(7) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(a) is for relief against Parent, any Parent Guarantor, the Issuer or any Significant Subsidiary (or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary), in a proceeding in which Parent, any Parent Guarantor, the Issuer, or any Significant Subsidiary (or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary) is to be adjudicated bankrupt or insolvent;
(b) appoints a receiver, liquidator, assignee, trustee, sequestrator or other similar official of Parent, any Parent Guarantor, the Issuer or any Significant Subsidiary (or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary), or for all or substantially all of the property of Parent, any Parent Guarantor, the Issuer or any Significant Subsidiary (or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary); or
(c) orders the liquidation of Parent, any Parent Guarantor, the Issuer or any Significant Subsidiary (or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary);
and the order or decree remains unstayed and in effect for 60 consecutive days;
129
(8) any Note Guarantee of Parent, any Parent Guarantor, or any Subsidiary Guarantor that is a Significant Subsidiary (or Note Guarantees of any group of Subsidiary Guarantors that, taken together, would constitute a Significant Subsidiary) ceases to be in full force and effect (other than in accordance with the terms of such Note Guarantee) or Parent, any Parent Guarantor, or any such Subsidiary Guarantor or such group of Subsidiary Guarantors denies or disaffirms its obligations under its Note Guarantee (other than by reason of the satisfaction in full of all obligations under this Indenture and discharge of this Indenture or the release of such Note Guarantee in accordance with the terms of this Indenture);
(9) (i) the Liens created by the Security Documents shall at any time not constitute a valid and perfected Lien on any material portion of the Collateral intended to be covered thereby (unless perfection is not required by this Indenture or the Security Documents) other than (A) in accordance with the terms of the relevant Security Document and this Indenture, (B) the satisfaction in full of all Obligations under this Indenture or (C) any loss of perfection that results from the failure of the Collateral Trustee to maintain possession of certificates delivered to it representing securities pledged under the Security Documents or to file Uniform Commercial Code continuation statements and (ii) such default continues for 30 days after receipt of written notice given by the Trustee or the Holders of not less than 30% in aggregate principal amount of the then outstanding Notes; or
(10) the Issuer or any Subsidiary Guarantor that is a Significant Subsidiary (or any group of Subsidiary Guarantors that together (determined as of the most recent consolidated financial statements of the Issuer for a fiscal quarter or fiscal year end provided as required under Section 4.03 would constitute a Significant Subsidiary)) shall assert, in any pleading in any court of competent jurisdiction, that any security interest in any Security Document on any material portion of the Collateral is invalid or unenforceable.
(b) In the event of any Event of Default specified in clause (4) of Section 6.01(a), such Event of Default and all consequences thereof (excluding any resulting payment default, other than as a result of acceleration of the Notes) shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 30 days after the Issuer becomes aware of such Event of Default:
(1) the Indebtedness or guarantee that is the basis for such Event of Default has been discharged; or
(2) holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default; or
(3) the default that is the basis for such Event of Default has been cured or waived.
SECTION 6.02. Acceleration.
If any Event of Default (other than an Event of Default specified in clauses (6) and (7) of Section 6.01(a) (with respect to the Issuer, any Subsidiary of Parent that is a Parent Guarantor or Parent)) with respect to the Notes at the time outstanding occurs and is continuing under this Indenture, the Trustee or the Holders of at least 30% in aggregate principal amount of the then total outstanding Notes may by a notice in writing to the Issuer (and to the Trustee if given to the Holders) declare the principal of and premium, if any, interest and any other monetary obligations on all the then outstanding Notes to be due and payable immediately. Upon the effectiveness of such declaration, such principal, premium, if any, and interest with respect to the Notes shall be due and payable immediately. The Trustee shall have no obligation to accelerate the Notes if and so long as a committee of its Responsible Officers in good faith determines acceleration is not in the best interest of the Holders of the Notes.
130
Notwithstanding the foregoing, in the case of an Event of Default arising under clause (6) or (7) of Section 6.01(a) that has occurred and is continuing under this Indenture (with respect to the Issuer, any Subsidiary of Parent that is a Parent Guarantor), all outstanding Notes shall be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
In the event of a declaration of acceleration with respect to the Notes, the Holders of a majority in aggregate principal amount of the then total outstanding Notes by written notice to the Issuer and the Trustee may on behalf of all of the Holders of the Notes rescind and annul such declaration of acceleration and its consequences if the rescission and annulment would not conflict with any judgment or decree and if all existing Events of Default with respect to the Notes (except nonpayment of principal, interest, if any, or premium, if any, that has become due solely because of the acceleration) have been cured or waived.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing with respect to the Notes at the time outstanding, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture with respect to the Notes.
The Trustee may maintain a proceeding even if it does not possess any Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default with respect to the Notes shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of the then total outstanding Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default with respect to the Notes and its consequences hereunder, except a continuing Default in the payment of the principal of, premium, if any, or interest on, any Note held by a non-consenting Holder of the Notes (including in connection with an Asset Sale Offer or a Change of Control Offer); provided, subject to Section 6.02, that the Holders of a majority in aggregate principal amount of the then total outstanding Notes may rescind a declaration of acceleration and its consequences, including any related payment default that resulted from such acceleration. Upon any such waiver, such Default with respect to the Notes shall cease to exist, and any Event of Default with respect to the Notes arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
SECTION 6.05. Control by Majority.
Subject to the terms of the Collateral Trust Agreement and Section 6.06, the Holders of a majority in aggregate principal amount of the outstanding Notes will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or the Collateral Trustee or of exercising any trust or power conferred on the Trustee or the Collateral Trustee with respect to the Notes, and, subject to Article 7, the Trustee and the Collateral Trustee may act at the direction of the Holders without liability. The Trustee and the Collateral Trustee, however, may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee or the Collateral Trustee, as the case may be, determines is unduly prejudicial to the rights of any other Holder of a Note or that would involve the Trustee or the Collateral Trustee, as the case may be, in personal liability.
131
SECTION 6.06. Limitation on Suits.
Subject to the terms of the Collateral Trust Agreement and Section 6.07, no Holder of a Note shall have any right to institute any proceeding with respect to this Indenture or the Notes or for any remedy thereunder unless:
(1) such Holder has previously given the Trustee and the Issuer written notice that a Default or an Event of Default with respect to the Notes is continuing with respect to the Notes;
(2) Holders of at least 30% in aggregate principal amount of the total outstanding Notes have requested that the Trustee to pursue the remedy in writing;
(3) Holders of the Notes have offered and, if requested, provided to the Trustee for the Notes indemnity or security reasonably satisfactory to the Trustee against any cost, loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days after the receipt thereof and the offer of security or indemnity; and
(5) Holders of a majority in aggregate principal amount of the outstanding Notes have not given the Trustee a direction inconsistent with such request within such 60-day period;
provided that the foregoing limitation shall not apply to a suit instituted by a Holder of a Note for the enforcement of payment of the principal of, premium, if any, or interest on such Note on or after the respective due date expressed in such Note.
A Holder of Notes may not use this Indenture to prejudice the rights of another Holder of Notes or to obtain a preference or priority over another Holder of Notes.
SECTION 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal, premium, if any, and interest on such Note, on or after the respective due dates expressed in such Note (including in connection with an Asset Sale Offer or a Change of Control Offer), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a)(1) or (2) with respect to the Notes occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Issuer for the whole amount of principal of, premium, if any, and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
132
SECTION 6.09. Restoration of Rights and Remedies.
If the Trustee or any Holder of Notes has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceedings, the Issuer, the Guarantors, the Trustee and the Holders of Notes shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders of Notes shall continue as though no such proceeding has been instituted.
SECTION 6.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.07, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article 6 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 6.12. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Issuer (or any other obligor upon the Notes including the Guarantors), its creditors or its property and shall be entitled and empowered to participate as a member in any official committee of creditors appointed in such matter and to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
133
SECTION 6.13. Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order:
(i) to the Trustee, its agents and attorneys for amounts due under Section 7.07, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;
(ii) to Holders of the Notes for amounts due and unpaid on the Notes for principal, premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively; and
(iii) to the Issuer or to such party as a court of competent jurisdiction shall direct, including a Guarantor, if applicable.
The Trustee may fix a Record Date and payment date for any payment to Holders of Notes pursuant to this Section 6.13.
SECTION 6.14. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.14 does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default with respect to the Notes has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b) Except during the continuance of an Event of Default with respect to the Notes:
(i) the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture.
134
However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this Section 7.01(c) does not limit the effect of Section 7.01(b);
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved in a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05; and
(iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it.
(d) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) The Trustee shall be under no obligation to exercise any of its rights or powers under this Indenture at the request or direction of any of the Holders of the Notes unless the Holders of the Notes have offered to the Trustee indemnity or security reasonably satisfactory to the Trustee against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
SECTION 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney at the sole cost of the Issuer and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(b) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
135
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if signed by an Officer of the Issuer.
(f) The Trustee shall not be deemed to have notice of any Default or Event of Default unless written notice of any event which is in fact such a Default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.
(g) In no event shall the Trustee be responsible or liable for special, indirect, punitive, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(h) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder, including the Collateral Trustee.
(i) The Trustee may request that the Issuer and any Guarantor deliver an Officer’s Certificate setting forth the names of the individuals and/or titles of Officers (with specimen signatures) authorized at such times to take specific actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person specified as so authorized in any certificate previously delivered and not superseded.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days or resign as Trustee. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11.
SECTION 7.04. Trustee’s Disclaimer.
The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.
136
SECTION 7.05. Notice of Defaults.
If a Default with respect to the Notes occurs and is continuing and if the Trustee has received written notice thereof, the Trustee shall send to each Holder of Notes a notice of the Default within 90 days of having received such notice. Except in the case of a Default relating to the payment of principal, premium, if any, or interest on any Note, the Trustee may withhold from the Holders of Notes notice of any continuing Default if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of Notes. The Trustee shall not be deemed to have received notice of any Default unless written notice of any event which is such a Default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee.
SECTION 7.06. [Reserved].
SECTION 7.07. Compensation and Indemnity.
The Issuer and any Guarantors shall pay to the Trustee from time to time such compensation for its acceptance of this Indenture and services hereunder as the parties shall agree in writing from time to time. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer and any Guarantors shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it (including the reasonable compensation and the expenses and disbursements of its agents and counsel) in addition to the compensation for its services.
The Issuer and the Guarantors, jointly and severally, shall indemnify the Trustee for, and hold the Trustee harmless against, any and all loss, damage, claim, liability or expense (including attorneys’ fees) incurred by it in connection with the acceptance or administration of this trust and the performance of its duties hereunder (including the costs and expenses of enforcing this Indenture against the Issuer or any of the Guarantors (including this Section 7.07) or defending itself against any claim whether asserted by any Holder, the Issuer or any Guarantor, or liability in connection with the acceptance, exercise or performance of any of its powers or duties hereunder). The Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer shall defend the claim and the Trustee may have separate counsel and the Issuer shall pay the fees and expenses of such counsel. The Issuer need not reimburse any expense or indemnify against any loss, liability or expense determined to have been caused by the Trustee’s own willful misconduct, negligence or bad faith.
The obligations of the Issuer and the Guarantors, if any, under this Section 7.07 shall survive the satisfaction and discharge of this Indenture or the earlier resignation or removal of the Trustee.
To secure the payment obligations of the Issuer and the Guarantors in this Section 7.07, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(a)(6) or (7) occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
137
The Trustee shall comply with the provisions of Trust Indenture Act Section 313(b)(2) to the extent applicable.
SECTION 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08. The Trustee may resign with respect to the Notes in writing at any time and be discharged from the trust hereby created by so notifying the Issuer. At any time, the Holders of at least a majority in aggregate principal amount of the Notes then outstanding shall have the right to require the resignation of the Trustee and immediately appoint a successor thereto. The Trustee shall be permitted to rely in good faith on customary certificates of beneficial ownership as evidence of holdings (and shall not require the provision of DTC proxies, medallion-stamped guarantees or other similar evidence) in connection with any determination with respect to the Holders of Notes giving any consent, instruction or authorization under this Indenture. The Issuer may remove the Trustee with respect to the Notes if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed with respect to the Notes or if a vacancy exists in the office of Trustee for any reason, the Issuer shall promptly appoint a successor Trustee.
If a successor Trustee with respect to the Notes does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee (at the Issuer’s expense), the Issuer or the Holders of at least 10% in aggregate principal amount of the then total outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has been a Holder of Notes for at least six months, fails to comply with Section 7.10, such Holder may petition any court of competent jurisdiction for the removal of the Trustee with respect to the Notes and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee with respect to the Notes. The successor Trustee shall send a notice of its succession to Holders of Notes. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuer’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.
138
SECTION 7.09. Successor Trustee by Merger, Etc.(a)
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50.0 million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements of Trust Indenture Act Sections 310(a)(1), (2) and (5). The Trustee is subject to Trust Indenture Act Section 310(b).
SECTION 7.11. Preferential Collection of Claims Against Issuer.
The Trustee is subject to Trust Indenture Act Section 311(a), excluding any creditor relationship listed in Trust Indenture Act Section 311(b). A Trustee who has resigned or been removed shall be subject to Trust Indenture Act Section 311(a) to the extent indicated therein.
SECTION 7.12. [Reserved].
SECTION 7.13. Security Documents; Intercreditor Agreements.
By their acceptance of the Notes, the Holders hereby authorize and direct the Trustee and Collateral Trustee, as the case may be, to execute and deliver the Intercreditor Agreements and any other Security Documents in which the Trustee or the Collateral Trustee, as applicable, is named as a party, including any Security Documents executed after the Issue Date. It is hereby expressly acknowledged and agreed that, in doing so, the Trustee and the Collateral Trustee are not responsible for the terms or contents of such agreements, or for the validity or enforceability thereof, or the sufficiency thereof for any purpose. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under, the Intercreditor Agreements or any other Security Documents, the Trustee and the Collateral Trustee each shall have all of the rights, immunities, indemnities and other protections granted to it under this Indenture (in addition to those that may be granted to it under the terms of such other agreement or agreements).
139
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuer may, at its option and at any time, elect to have either Section 8.02 or 8.03 applied to all outstanding Notes upon compliance with the conditions set forth below in this Article 8.
SECTION 8.02. Legal Defeasance and Discharge.
Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.02, the Issuer and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be deemed to have been discharged from their obligations with respect to all outstanding Notes, the related Note Guarantees and the Security Documents on the date the conditions set forth below are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 and the other Sections of this Indenture referred to in (a) and (b) below, to have the Liens on the Collateral released and to have satisfied all their other obligations under the Notes, this Indenture and the Security Documents, including the obligations of the Guarantors (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same, in each case, with respect to the Notes) except for the following provisions which shall survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of Notes to receive payments in respect of the principal of, premium, if any, and interest, if any, on the Notes when such payments are due solely out of the trust created pursuant to this Indenture referred to in Section 8.04;
(b) the Issuer’s obligations with respect to the Notes concerning issuing temporary Notes, registration of the Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust;
(c) the rights, powers, trusts, duties and immunities of the Trustee, and the Issuer’s obligations in connection therewith; and
(d) this Section 8.02.
Subject to compliance with this Article 8, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03.
SECTION 8.03. Covenant Defeasance.
Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03, the Issuer and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be released from their obligations under the covenants contained in Sections 4.03, 4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.14, 4.15 and 4.17 and Section 5.01(a)(4), Section 5.01(c) (except as such section relates to Parent or any other Parent Guarantor) and Section 5.01(d) (except as such section relates to Parent or any other Parent Guarantor) with respect to the Notes and to have the Liens on the Collateral released on and after the date the conditions set forth in Section 8.04 are satisfied (“Covenant Defeasance”), and Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders of Notes (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the Notes, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default with respect to the Notes under Section 6.01, but, except as specified above, the remainder of this Indenture and Notes shall be unaffected thereby. In addition, upon the Issuer’s exercise under Section 8.01 of the option
140
applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04, Sections 6.01(a)(3) (with respect to the covenants contained in the sections of this Indenture specified in this Section 8.03), 6.01(a)(4), 6.01(a)(5), 6.01(a)(6) (solely with respect to Restricted Subsidiaries that are Significant Subsidiaries and any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary), 6.01(a)(7) (solely with respect to Restricted Subsidiaries that are Significant Subsidiaries and any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary), 6.01(a)(8) (except as such section relates to Parent or any other Parent Guarantor), 6.01(a)(9) and 6.01(a)(10) shall not constitute Events of Default with respect to the Notes.
SECTION 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section 8.02 or 8.03 to the Notes:
(1) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, U.S. Government Obligations (that through the scheduled payment of principal and interest in accordance with their terms will provide money in an amount), or a combination thereof, in such amounts as will be sufficient, in the opinion of an Independent Financial Advisor (insofar as any U.S. Government Obligations are so included), to pay the principal of, premium, if any, and interest due on the Notes on the Stated Maturity date or on the Redemption Date, as the case may be, of such principal, premium, if any, or interest on the Notes, and the Issuer must specify whether the Notes are being defeased to Maturity or to a particular Redemption Date;
(2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions,
(a) the Issuer has received from, or there has been published by, the United States Internal Revenue Service a ruling, or
(b) since the issuance of the Notes, there has been a change in the applicable U.S. federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, subject to customary assumptions and exclusions, the beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes, as applicable, as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit;
141
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is bound (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith);
(6) the Issuer shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuer or any Guarantor or others; and
(7) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions) each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
SECTION 8.05. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 in respect of the Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer or a Guarantor acting as Paying Agent) as the Trustee may determine, to the Holders of Notes of all sums due and to become due thereon in respect of principal, premium and interest, but such money need not be segregated from other funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or U.S. Government Obligations deposited pursuant to Section 8.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon the request of the Issuer any money or U.S. Government Obligations held by it as provided in Section 8.04 which, in the opinion of an Independent Financial Advisor expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(2)), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance of the Notes.
SECTION 8.06. Repayment to Issuer.
Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of, premium or interest on any Note and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Issuer on its request or (if then held by the Issuer) shall be discharged from such trust; and the Holder of such Note shall thereafter look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, shall thereupon cease.
142
SECTION 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States dollars or U.S. Government Obligations in accordance with Section 8.02 or 8.03, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuer’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03, as the case may be; provided that, if the Issuer makes any payment of principal of, premium or interest on any Note following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of the Notes to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. Without Consent of Holders of Notes.
Notwithstanding Section 9.02, the Issuer, any Guarantor (with respect to a Note Guarantee) and the Trustee and/or the Collateral Trustee may amend or supplement this Indenture, the Security Documents, the Notes and any related Note Guarantee without the consent of any Holder:
(1) to cure any ambiguity or omission or correct any defect or inconsistency;
(2) to convey, transfer, assign, mortgage or pledge any property to or with the Trustee, or to make such other provisions in regard to matters or questions arising under this Indenture, in each case as shall not adversely affect the interests of any Holders of the Notes in any material respect;
(3) to evidence the succession of another Person to the Issuer or any Guarantor and the assumption by any such successor of the covenants, agreements and obligations of the Issuer or Guarantor, as the case may be, under the Notes, the Note Guarantees, the Security Documents or this Indenture pursuant to Section 5.01;
(4) to surrender any right or power conferred upon the Issuer or to add further covenants, restrictions, conditions or provisions relating to the Issuer or the Guarantors for the protection of the Holders of the Notes, and to add any additional defaults or Events of Default for the Issuer’s or any Guarantor’s failure to comply with any such further covenants, restrictions, conditions or provisions;
(5) to modify or amend this Indenture in such a manner to permit the qualification of this Indenture or any supplemental indenture thereto under the Trust Indenture Act; provided, that no such modification or amendment shall adversely affect the Holders rights under Section 7.08 or otherwise adversely affect the interests of any Holders of the Notes in any material respect;
(6) to add Note Guarantees with respect to any or all of the Notes or to release any Guarantor or Note Guarantee when permitted or required by this Indenture;
143
(7) to add Collateral with respect to any or all the Notes or to release Collateral from the Lien securing the Notes when permitted or required by the Security Documents, this Indenture or the Intercreditor Agreements (including, for the avoidance of doubt, the release of Collateral that becomes an Excluded Asset and, following the occurrence of an Investment Grade Event, the release of Collateral that was not at such time required under this Indenture to be pledged as security for the Notes);
(8) to release and discharge any Lien securing the Notes when permitted or required by this Indenture (including pursuant to Section 4.12(b));
(9) to provide for the issuance of Additional Notes in accordance with the terms of this Indenture;
(10) to modify or amend the terms of this Indenture in a manner that does not adversely affect the rights of any Holder of the Notes;
(11) to evidence and provide for the acceptance of appointment by a successor or separate Trustee or Collateral Trustee with respect to the Notes;
(12) to comply with the rules of any applicable securities depositary;
(13) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(14) to conform the text of this Indenture, the Notes, any Note Guarantee or the Security Documents to any provision of the “Description of Exchange Second-Out Notes” section of the Offering Memorandum to the extent that such provisions in the “Description of Exchange Second-Out Notes” section of the Offering Memorandum were intended to be a verbatim recitation of a provision in this Indenture, the Notes, such Note Guarantee or the Security Documents;
(15) to modify or amend any of the provisions of this Indenture relating to the transfer and legending of the Notes; provided, however, that (a) compliance with this Indenture as so amended would not result in the Notes being transferred in violation of the Securities Act or any other applicable securities law and (b) such amendment does not adversely affect the rights of Holders to transfer the Notes;
(16) in the case of any Security Document, to include therein any legend required to be set forth therein pursuant to the Intercreditor Agreements or to modify any such legend as required by the Intercreditor Agreements;
(17) to enter into any intercreditor agreement having substantially similar terms with respect to the Holders as those set forth in the Collateral Trust Agreement or the First/Second/Third Lien Intercreditor Agreement, taken as a whole, or any joinder thereto;
(18) with respect to the Security Documents, as provided in the relevant Security Document and the Intercreditor Agreements (including to add or replace the secured parties or their respective Designated Representatives and/or to provide for the succession of any parties to the Security Documents and other amendments that are administrative or ministerial in nature, including in connection with an amendment, renewal, extension, substitution, refinancing, restructuring, replacement, supplementing or other modification from time to time of any of the Senior Credit Facilities, the New Second Lien Notes, the New First-Out First Lien Notes, the Existing Secured Notes or any other agreement that is not prohibited by this Indenture); or
144
(19) to modify any of the provisions of this Indenture, the Notes, any Note Guarantee or the Security Documents in accordance with clause (c)(ii) or clause (c)(iii) of the last paragraph of Section 9.02 or the immediately following two paragraphs below.
In addition, to the extent an affirmative or negative covenant applicable to the Second-Out Senior Credit Facilities Indebtedness is amended, waived or modified in accordance with the terms of the New Credit Agreement, the corresponding affirmative or negative covenant under this Indenture shall, automatically and without any further action by the Issuer, the Guarantors, the Holders or the Trustee, be deemed to have been amended, waived or modified in an identical fashion (and in which case such amendment, waiver or modification may be effected without the consent of any of the Holders being required), except where (i) such amendment, waiver or modification has a disproportionately adverse impact on the Holders of Notes, as compared to the lenders under the Second-Out Senior Credit Facilities Indebtedness, (ii) such amendment, waiver or modification would require the consent of each affected Holder of Notes or (iii) such amendment, waiver or modification would be effected in connection with or in furtherance of a Priming Financing/Liability Management Transaction in which all Holders are not provided an opportunity to have the principal amount of their Notes treated in such Priming Financing/Liability Management Transaction in substantially the same manner as the principal amount of loans under the Second-Out Term Loan Facility. The Issuer shall be deemed to have provided notice of any such amendment, waiver or modification in the annual or quarterly report furnished pursuant to Section 4.03(a) for the period in which such amendment, modification, release or waiver occurs, or otherwise by delivering notice of such amendment, modification, release or waiver to the Trustee and the Holders in a manner consistent with that for making available information and reports under Section 4.03 or providing a description of such amendment, modification, release or waiver in a current report filed with the SEC. For the avoidance of doubt, no amendment, waiver or modification requiring the consent of each affected Holder of Notes may be made pursuant to the preceding sentence.
For the avoidance of doubt, the Holders will be deemed to have consented for purposes of (i) the Collateral Trust Agreement and the other Security Documents to any amendments, waivers or other modifications to the Collateral Trust Agreement and the other Security Documents, as applicable, (1) to add other parties (or any authorized agent thereof or trustee therefor) holding Obligations that have Pari Passu Lien Priority that are incurred in compliance with this Indenture and the Security Documents and (2) to establish that the Liens on any Collateral securing such Obligations shall rank equally under the Collateral Trust Agreement with the Liens on such Collateral securing the obligations under this Indenture and the Notes (including, if such Obligations are permitted to constitute First-Out Priority Payment Obligations in accordance with this Indenture and the Collateral Trust Agreement, having a payment priority as to the application of proceeds with respect to, and distributions made on account of, any such Collateral on a senior basis with the Notes Obligations; or otherwise, if not in respect of First-Out Priority Payment Obligations, having a payment priority as to the application of proceeds with respect to, and distributions made on account of, any such Collateral on an equal basis to the Notes Obligations), all on the terms provided for in the Collateral Trust Agreement as in effect immediately prior to such amendment and (ii) the First/Second/Third Lien Intercreditor Agreement and the other Security Documents to any amendments, waivers or other modifications to the First/Second/Third Lien Intercreditor Agreement and the other Security Documents, as applicable, (1) to add other parties (or any authorized agent thereof or trustee therefor) holding Obligations constituting Junior Lien Indebtedness that are incurred in compliance with this Indenture and the Security Documents and (2) to establish that the Liens on any Collateral securing such Obligations shall rank junior under the First/Second/Third Lien Intercreditor Agreement to the Liens on such Collateral securing the obligations under this Indenture and the Notes, all on the terms provided for in the First/Second/Third Lien Intercreditor Agreement as in effect immediately prior to such amendment. Any such additional party and the Trustee and the Collateral Trustee shall be entitled to rely upon an Officer’s Certificate certifying that such Obligations as having Pari Passu Lien Priority or Junior Lien Priority, as the case may be, were issued or borrowed in compliance with this Indenture and the Security Documents.
145
Upon the request of the Issuer accompanied by a resolution of its Board authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 7.02 and Section 9.06, the Trustee and/or the Collateral Trustee shall join with the Issuer and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture or the Security Documents and to make any further appropriate agreements and stipulations that may be therein contained; provided that the Trustee and/or the Collateral Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture or Security Documents that affect its own rights, duties or immunities under this Indenture or otherwise. The consent of the Holders is not necessary under this Indenture to approve the particular form of any proposed amendment. It is sufficient if such consent approves the substance of the proposed amendment.
SECTION 9.02. With Consent of Holders of Notes.
Except as provided below in this Section 9.02 with respect to the Notes, the Issuer, any Guarantor (with respect to a Note Guarantee), or the Trustee and/or the Collateral Trustee may modify, amend or supplement this Indenture, the Notes, the Note Guarantees, the Intercreditor Agreements and the Security Documents with the consent of the Holders of at least a majority in aggregate principal amount of the Notes (including Additional Notes, if any) then outstanding and affected thereby (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes) and, subject to Sections 6.04 and 6.07, any existing Default or Event of Default with respect to the Notes (other than a Default or Event of Default in the payment of the principal of, premium or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded or annulled) or compliance in respect of the Notes with any provision of this Indenture, Security Documents, the Intercreditor Agreements, the Note Guarantees of the Notes may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes (including Additional Notes, if any) (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes). Section 2.08 and Section 2.09 shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.02.
Upon the request of the Issuer accompanied by a resolution of its Board authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 and Section 9.06, the Trustee and/or the Collateral Trustee shall join with the Issuer in the execution of such amended or supplemental indenture, Intercreditor Agreements or Security Documents unless such amended or supplemental indenture, Intercreditor Agreements or Security Documents directly affects the Trustee’s and/or the Collateral Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee and/or the Collateral Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture, Intercreditor Agreement or Security Document.
It shall not be necessary for the consent of the Holders of Notes under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.
146
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuer shall deliver to the Holders of Notes affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuer to deliver such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver.
Without the consent of each Holder of Notes affected thereby, an amendment or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):
(1) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any such Note (or implement a grace period with respect to any such Stated Maturity);
(2) reduce the principal amount of, or the rate of interest on, any such Note;
(3) reduce any premium, if any, or alter the time at which Notes may be redeemed (or implement a grace period with respect to any such Stated Maturity) or the Redemption Price payable upon the redemption of any such Note pursuant to Section 3.07;
(4) reduce the amount of the principal of an original discount Note that would be due and payable upon a declaration of acceleration of the Maturity thereof;
(5) change any place of payment where, or the coin or currency in which, the principal of, premium, if any, or interest on any such Note is payable;
(6) eliminate the contractual right expressly set forth in this Indenture or any Note of any Holder to institute suit for the enforcement of any payment of principal of, premium, if any, or interest on such Note on or after the Stated Maturity or Redemption Date of any such Note;
(7) reduce the percentage in principal amount of the outstanding Notes, the consent of whose Holders is required to approve any such modification or amendment or for any waiver of compliance with, or Defaults under, this Indenture;
(8) modify or amend any of the provisions of Section 6.04 or this Section 9.02, except to increase any percentage vote required or to provide that certain other provisions of this Indenture may not be modified or waived without the consent of the Holder of each Note affected thereby;
(9) waive a Default in the payment of principal of or premium, if any, or interest on any Note (except a rescission or annulment of acceleration of such Note by the Holders of at least a majority in aggregate principal amount of the Notes and a waiver of the payment default that resulted from such acceleration), or in respect of a covenant or provision contained in this Indenture or any Note Guarantee that cannot be amended or modified without the consent of all Holders of such Note;
(10) modify or amend the ranking as to the right of payment of any Note in a manner that would adversely affect the Holders of such Note;
(11) except as expressly permitted by this Indenture, modify or amend the Note Guarantees of any Parent Guarantor or Significant Subsidiary in any manner materially adverse to the Holders of any Note; or
147
(12) modify or amend any of the provisions of this Section 9.02 (except as provided for herein).
Notwithstanding the foregoing, without the consent of the Holders of at least 90% in aggregate principal amount of the Notes then-outstanding, no amendment or waiver may (a) (i) make any change or have the effect of making any change in any Security Document, the Intercreditor Agreements or the provisions in this Indenture dealing with Collateral or application of trust proceeds of the Collateral with the effect of releasing the Liens on all or substantially all of the Collateral which secure the Obligations in respect of the Notes and the Note Guarantees or (ii) change, alter or have the effect of changing or otherwise altering the priority of the Liens securing the Obligations in respect of the Notes or the Note Guarantees or the priority of the Notes or the Note Guarantees as to the application of proceeds with respect to, and distributions made on account of, any Collateral, in each case, in any material portion of the Collateral in any way adverse to the Holders of the Notes in any material respect, other than, in each case, as provided under the terms of the Security Documents or the Intercreditor Agreements, (b) amend, otherwise modify or have the effect of amending or otherwise modifying Section 4.17 or the definition of the term “Priming Financing/Liability Management Transaction” or “Permitted LM Transaction” in any way adverse to the Holders of the Notes in any material respect or (c) amend, otherwise modify or have the effect of amending or otherwise modifying the provisions set forth in clause (1) of Section 4.07(e), except where (i) all Holders are provided an opportunity to provide a pro rata share of any “senior” Indebtedness (including any Priming Debt) on the same terms and for the same fees and benefits, (ii) in the case of clause (a) above, where a corresponding amendment, modification, release or waiver has been made with respect to the Collateral and Liens securing the Second-Out Senior Credit Facilities Indebtedness in accordance with the relevant provisions of the New Credit Agreement (in which case such amendment, modification, release or waiver may be effected without the consent of any of the Holders being required), or (iii) in the case of clause (b) or (c) above, where a corresponding amendment, modification, release or waiver has been made, in accordance with the relevant provisions of the New Credit Agreement, with respect to or the corresponding covenants or provisions in the New Credit Agreement that are applicable to the Second-Out Senior Credit Facilities Indebtedness (in which case such amendment, modification, release or waiver may be effected without the consent of any of the Holders being required unless such amendment, modification, release or waiver would be effected in connection with or in furtherance of a Priming Financing/Liability Management Transaction in which all Holders are not provided an opportunity to have the principal amount of their Notes treated in such Priming Financing/Liability Management Transaction in substantially the same manner as the principal amount of loans under the Second-Out Senior Credit Facilities). The Issuer shall be deemed to have provided notice of any such amendment, waiver or modification pursuant to clause (ii) or (iii) of the preceding sentence in the annual or quarterly report furnished pursuant to Section 4.03(a) for the period in which such amendment, modification, release or waiver occurs, or otherwise by delivering notice of such amendment, modification, release or waiver to the Trustee and the Holders in a manner consistent with that for making available information and reports under Section 4.03 or providing a description of such amendment, modification, release or waiver in a current report filed with the SEC.
SECTION 9.03. [Reserved].
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
148
The Issuer may, but shall not be obligated to, fix a Record Date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver. If a Record Date is fixed, then, notwithstanding the preceding paragraph, those Persons who were Holders at such Record Date (or their duly designated proxies), and only such Persons, shall be entitled to consent to such amendment, supplement, or waiver or to revoke any consent previously given, whether or not such Persons continue to be Holders after such Record Date. No such consent shall be valid or effective for more than 120 days after such Record Date unless the consent of the requisite number of Holders has been obtained.
SECTION 9.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuer in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. Trustee and Collateral Trustee to Sign Amendments, Etc..
The Trustee and the Collateral Trustee, as applicable, shall sign any amendment, supplement or waiver authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee and the Collateral Trustee. The Issuer may not sign an amendment, supplement or waiver until its Board approves it. In executing any amendment, supplement or waiver, the Trustee shall receive and (subject to Section 7.01) shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture and that such amendment, supplement or waiver is the legal, valid and binding obligation of the Issuer and any Guarantors party thereto, enforceable against them in accordance with its terms, subject to customary exceptions, and complies with the provisions hereof.
ARTICLE 10
NOTE GUARANTEES
SECTION 10.01. Note Guarantee.
Subject to this Article 10, each of (i) the Guarantors hereby and (ii) any other Guarantors from time to time, upon the execution and delivery of any other supplemental indenture to this Indenture, hereby, jointly and severally, fully and unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (a) the principal of, premium, if any, or interest on the Notes shall be promptly paid in full when due, whether at Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Issuer to the Holders or the Trustee and the Collateral Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or
149
renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that this Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.
Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Collateral Trustee, the Trustee or any Holder in enforcing any rights under this Section 10.01.
If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Guarantors, any amount paid either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the Maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantees.
Each Note Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation or reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Note Guarantees, whether as a “voidable preference”, “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
150
In case any provision of any Note Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
The Note Guarantee issued by any Guarantor shall be a general senior obligation of such Guarantor and shall be pari passu in right of payment with all existing and future Senior Indebtedness of such Guarantor (including the guarantee of all Obligations of such Guarantor in respect of the Second-Out Senior Credit Facilities Indebtedness, the New Second Lien Notes, the Junior Lien Credit Facilities, the Unsecured Notes and, subject to the payment priorities set forth in the Collateral Trust Agreement, the First-Out Senior Credit Facilities Indebtedness and the New First-Out First Lien Notes).
Each payment to be made by a Guarantor in respect of its Note Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
SECTION 10.02. Limitation on Guarantor Liability.
Subject to this Article 10, each of (i) the Guarantors and (ii) any other Guarantors from time to time, upon the execution and delivery of any other supplemental indenture to this Indenture, and, by its acceptance of Notes, each Holder, confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors irrevocably agree that the obligations of each Subsidiary Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Subsidiary Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Subsidiary Guarantor under its Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Note Guarantee shall be entitled upon payment in full of all guaranteed Obligations under this Indenture to a contribution from each other Guarantor in an amount equal to such other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP.
SECTION 10.03. Execution and Delivery.
To evidence its Note Guarantee set forth in Section 10.01, (i) each Guarantor as of the Issue Date shall execute and deliver this Indenture on the Issue Date and (ii) each other Guarantor from time to time shall execute and deliver a supplemental indenture to this Indenture (which may be substantially in the form of the supplemental indenture set forth in Exhibit D).
Upon the execution and delivery of this Indenture or any supplemental indenture to this Indenture, each Guarantor who executes this Indenture or such supplemental indenture agrees that its Note Guarantee set forth in Section 10.01 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
If an Officer whose signature is on a supplemental indenture to this Indenture no longer holds that office at the time the Trustee authenticates the Note, the Note Guarantee shall be valid nevertheless.
151
The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.
If required by Section 4.15, the Issuer shall cause any of its Domestic Subsidiaries that is a Wholly-Owned Subsidiary and is a Restricted Subsidiary (other than the Guarantors or a Receivables Subsidiary) to comply with the provisions of Section 4.15 and this Article 10, to the extent applicable.
SECTION 10.04. Subrogation.
Upon the execution and delivery of this Indenture, each Guarantor and, upon the execution and delivery of any supplemental indenture to this Indenture, each other Guarantor, as applicable, shall be subrogated to all rights of Holders of Notes against the Issuer in respect of any amounts paid by any Guarantor pursuant to the provisions of Section 10.01; provided that, if an Event of Default has occurred and is continuing, no Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Issuer under this Indenture or the Notes shall have been paid in full.
SECTION 10.05. Benefits Acknowledged.
Upon the execution and delivery of this Indenture, each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
Upon the execution and delivery of any supplemental indenture to this Indenture, each other Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
SECTION 10.06. Release of Note Guarantees.
Each Note Guarantee of the Notes by a Guarantor shall provide by its terms that such Guarantor’s Obligations under this Indenture with respect to such Note Guarantee shall be automatically and unconditionally released and discharged, and no further action by such Guarantor, the Issuer or the Trustee is required for the release of such Guarantor’s Note Guarantee, upon:
(1) in the case of a Subsidiary Guarantor, any sale, exchange, transfer or other disposition (by merger, consolidation, amalgamation, dividend, distribution or otherwise) of the Capital Stock of such Subsidiary Guarantor, after which such Subsidiary Guarantor is no longer a Restricted Subsidiary if such sale, exchange, transfer or other disposition is permitted or not prohibited by the applicable provisions of this Indenture;
(2) in the case of a Subsidiary Guarantor, the release or discharge of the guarantee by (or direct obligation of) such Subsidiary Guarantor of the Senior Credit Facilities or the release or discharge of such other guarantee or direct obligation that resulted in the creation of such Note Guarantee, except a discharge or release by or as a result of payment under such guarantee or payment of such obligation after the occurrence of a payment default or acceleration thereunder (it being understood that a release subject to a contingent reinstatement is still a release);
152
(3) in the case of a Subsidiary Guarantor, the designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary as permitted or not prohibited by the applicable provisions of this Indenture;
(4) with respect to the Notes, the Issuer exercising the legal defeasance option or covenant defeasance option with respect to the Notes in accordance with Article 8 or the Issuer’s obligations under this Indenture with respect to the Notes being discharged in accordance with the terms of this Indenture and the applicable Security Documents or in accordance with the provisions of the Collateral Trust Agreement;
(5) the merger, amalgamation or consolidation of any Subsidiary Guarantor with and into the Issuer or another Subsidiary Guarantor that is the surviving Person in such merger, amalgamation or consolidation, or upon the liquidation of a Subsidiary Guarantor;
(6) in the case of a Subsidiary Guarantor, upon the occurrence of an Investment Grade Event; provided that such Note Guarantee shall not be released pursuant to this clause (6) for so long as such Subsidiary Guarantor is an obligor with respect to any Indebtedness under the Senior Credit Facilities, any other First Lien Obligations, the New Second Lien Notes or the Existing Notes; or
(7) in the case of Parent or any other Parent Guarantor, the release or discharge of the guarantees by (or direct obligation of) Parent or such Parent Guarantor of the Senior Credit Facilities, any other First Lien Obligations, the New Second Lien Notes, the Existing Notes and any other Material Indebtedness of the Issuer (other than Obligations under the Notes) then guaranteed by Parent or such other Parent Guarantor, to the extent such guarantees or direct obligations have been released or discharged or are released or discharged substantially contemporaneously with the release or discharge of such guarantee under the Notes (the date on which such release or discharge occurs, the “Parent Guarantee Release Date”).
Notwithstanding the foregoing, the Note Guarantee of any Subsidiary Guarantor shall not be released from its Note Guarantee (i) in connection with or in furtherance of a Priming Financing/Liability Management Transaction, (ii) upon such Subsidiary Guarantor becoming a Restricted Subsidiary that is not a Wholly-Owned Subsidiary except in connection with a bona-fide joint venture with a Person that is not an Affiliate of the Issuer in the ordinary course of business or (iii) upon such Subsidiary Guarantor no longer remaining a Restricted Subsidiary primarily for the purpose of releasing its Note Guarantee. Any release of a Subsidiary Guarantor will be deemed to be the incurrence of an Investment in such released Subsidiary Guarantor at the time of such release in an amount equal to the portion of the fair market value (as determined in good faith by the Issuer) of the Issuer’s retained ownership interest, if any, in such Person; provided that such release will not be permitted unless such Investment is not prohibited by the applicable provisions of this Indenture.
Upon the Parent Guarantee Release Date, the Events of Default set forth in Section 6.01(a) shall cease to apply to Parent or such Parent Guarantor, as the case may be; provided that, if at any time after the Parent Guarantee Release Date, Parent or such Parent Guarantor, as the case may be, shall guarantee any Material Indebtedness of the Issuer, the guarantee obligations of Parent or such Parent Guarantor, as the case may be, shall be automatically reinstated, and the Events of Default set forth in Section 6.01(a) shall again apply to Parent or such Parent Guarantor, as the case may be. Parent or such Parent Guarantor, as the case may be, shall take all actions reasonably necessary in order to provide the same Note Guarantee as would be required had the Parent Guarantee Release Date never occurred.
153
ARTICLE 11
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture.
This Indenture shall, upon the Issuer’s request, cease to be of further effect with respect to the Notes specified by the Issuer and any related Note Guarantees (except as to any surviving rights of registration of transfer or exchange of Notes herein expressly provided for), and the Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to the Notes, when:
(1) either (A) all Notes theretofore authenticated and delivered (other than (i) Notes which have been mutilated, destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.07 and (ii) Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer or the Guarantors and thereafter repaid to the Issuer or the Guarantors or discharged from such trust), have been delivered to the Trustee for cancellation; or
(B) (w) all Notes not theretofore delivered to the Trustee for cancellation (i) have become due and payable by reason of the making of a notice of redemption or otherwise, (ii) will become due and payable at their Stated Maturity within one year or (iii) are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer;
(x) the Issuer or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders of the Notes, cash in U.S. dollars, U.S. Government Obligations, or a combination thereof, in an amount sufficient to pay and discharge the entire indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal, premium, if any, and accrued interest to the date of such deposit (in the case of Notes which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(y) no Event of Default (other than that resulting from borrowing funds to be applied to make such deposit or the grant of any Lien securing such borrowing or any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith) with respect to the Notes or this Indenture in respect of the Notes shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit, and such deposit will not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is bound (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith); and
(z) the Issuer has delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Notes at Maturity or the Redemption Date, as the case may be;
154
(2) the Issuer has paid or caused to be paid all other sums payable hereunder by the Issuer with respect to the Notes; and
(3) the Issuer has delivered an Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions) to the Trustee, each stating that all conditions precedent herein relating to the satisfaction and discharge of this Indenture as to the Notes have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Issuer to the Trustee under Section 7.07 and, if money shall have been deposited with the Trustee pursuant to subclause (1)(B) of this Section 11.01, the obligations of the Trustee under Section 11.02 and Section 8.06 shall survive.
SECTION 11.02. Application of Trust Money.
Subject to the provisions of Section 8.06, all money and U.S. Government Obligations deposited with the Trustee pursuant to Section 11.01 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto as set forth in the Registrar, of the principal, premium and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with Section 11.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s and any Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01; provided that if the Issuer has made any payment of principal of, premium or interest on any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of the Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE 12
COLLATERAL
SECTION 12.01. Security Documents.
From and after the consummation of the Transactions and upon the execution and delivery of the Security Documents, the due and punctual payment of the principal of, premium, if any, or interest on the Notes when and as the same shall be due and payable, whether on an Interest Payment Date, at Maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of, premium, if any, or interest on the Notes and performance of all other Obligations of the Issuer and the Guarantors to the Holders or the Trustee under this Indenture, such Notes, the related Note Guarantees and the Security Documents with respect to the Notes, according to the terms hereunder or thereunder, shall be secured as provided in the Security Documents, which define the terms of the Liens that secure the Notes Obligations. The Trustee, the Issuer and the Guarantors hereby acknowledge and agree that the Collateral Trustee holds the Collateral in trust for the benefit of the Holders, the Trustee, the Collateral Trustee and the other First Lien Secured Parties (as defined in the Collateral Trust Agreement) and pursuant to the terms of the Security Documents. Each Holder, by accepting a Note, consents and
155
agrees to the terms of the Security Documents (including the provisions providing for the possession, use, release and foreclosure of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms and this Indenture, and authorizes and directs each of the Trustee and the Collateral Trustee to enter into the Security Documents to which it is named as a party on the Issue Date, and at any time after the Issue Date, if applicable, and to perform its obligations and exercise its rights thereunder in accordance therewith. Upon the execution and delivery of the Security Documents, the Issuer shall deliver to the Collateral Trustee copies of all documents required to be filed pursuant to the Security Documents, and will do or cause to be done all such acts and things as may be reasonably required by the next sentence of this Section 12.01, to assure and confirm to the Collateral Trustee the security interest in the Collateral contemplated hereby, by the Security Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and of the Notes secured hereby, according to the intent and purposes herein expressed. The Issuer shall, and shall cause the Guarantors to, take any and all actions and make all filings (including the filing of UCC financing statements, continuation statements and amendments thereto) required to cause the Security Documents to create and maintain, as security for the Obligations of the Issuer and the Guarantor to the secured parties under this Indenture, the Notes, the Note Guarantees and the Security Documents, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Security Documents), in favor of the Collateral Trustee for the benefit of the Holders, the Trustee and the Collateral Trustee subject to no Liens other than Permitted Liens. It is further understood and agreed that there shall be no Security Document (or other security agreements or pledge agreements) governed under the laws of any non-U.S. jurisdiction.
SECTION 12.02. Release of Collateral.
(a) Collateral may be released from the Lien and security interest created by the Security Documents at any time and from time to time with respect to the Notes in accordance with the provisions of the Security Documents and this Indenture. Notwithstanding anything to the contrary in the Security Documents and this Indenture, the Issuer and the Guarantors will be entitled to the release of property and other assets constituting Collateral from the Liens securing the Notes and the Notes Obligations under any one or more of the following circumstances:
(1) to enable the Issuer or any Guarantor to consummate the sale, transfer or other disposition of such property or assets to the extent not prohibited under Section 4.10 hereof;
(2) in the case of a Guarantor that is released from its Note Guarantee with respect to the Notes pursuant to the terms of this Indenture with respect to the property and other assets of such Guarantor, upon the release of such Guarantor from such Note Guarantee;
(3) with respect to Collateral that is Capital Stock, upon (i) the dissolution or liquidation of the issuer of that Capital Stock that is not prohibited by this Indenture or (ii) upon the designation by Issuer of the issuer of that Capital Stock as an Unrestricted Subsidiary;
(4) with respect to any Collateral that becomes an “Excluded Asset”, upon it becoming an Excluded Asset;
(5) upon the occurrence of an Investment Grade Event;
(6) in accordance with Section 4.12(b);
156
(7) (i) to the extent the Liens on the Collateral securing the First-Out Senior Credit Facilities Indebtedness are released at the direction of the First-Out Bank Representative in compliance with the terms of the Senior Credit Facilities (other than any release by, or as a result of, payment of such Indebtedness), upon the release of such Liens or (ii) to the extent the Liens on the Collateral securing the Second-Out Senior Credit Facilities Indebtedness are released as a result of a release in accordance with the terms of the New Credit Agreement (other than a release by, or as a result of, payment of such Indebtedness), upon the release of such Liens;
(8) in connection with any enforcement action taken by the Collateral Trustee (acting at the direction of the Controlling Representative) in accordance with the terms of the Collateral Trust Agreement; or
(9) pursuant to Article 9 hereof.
(b) The Liens on the Collateral securing the Notes and the related Note Guarantees also will be terminated and released:
(1) upon payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations with respect to the Notes under this Indenture, the related Note Guarantees and the Security Documents with respect to the Notes that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(2) upon a Legal Defeasance or Covenant Defeasance under this Indenture pursuant to Sections 8.02 and 8.03, respectively, or a satisfaction and discharge of this Indenture pursuant to Section 11.01; or
(3) pursuant to the Intercreditor Agreements and the Security Documents with respect to the Notes.
(c) Any Lien on any Collateral may be released or subordinated to the holder of any Lien on such Collateral securing any Financing Lease Obligations or any Lien on such Collateral that is permitted by clause (16) of the definition of “Permitted Liens” to the extent required by the terms of the Obligations secured by such Liens.
(d) With respect to any release of Collateral, upon receipt of an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent under this Indenture and the Security Documents, as applicable, to such release have been met and that it is permitted for the Trustee or the Collateral Trustee to execute and deliver the documents requested by the Issuer in connection with such release and any necessary or proper instruments of termination, satisfaction or release prepared by the Issuer, the Trustee and the Collateral Trustee shall, execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture, the Security Documents or the Intercreditor Agreements.
Neither the Trustee nor the Collateral Trustee shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate or Opinion of Counsel, and notwithstanding any term hereof or in any Security Document to the contrary, the Trustee and the Collateral Trustee shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officer’s Certificate and Opinion of Counsel.
157
SECTION 12.03. Suits to Protect the Collateral.
Subject to the provisions of Article 7 and the Security Documents, the Trustee may or may direct the Collateral Trustee to take all actions it determines in order to:
(a) enforce any of the terms of the Security Documents; and
(b) collect and receive any and all amounts payable in respect of the Obligations hereunder.
Subject to the provisions of the Security Documents (including the Intercreditor Agreements), the Trustee and the Collateral Trustee shall have power to institute and to maintain such suits and proceedings as the Trustee may determine to prevent any impairment of the Collateral by any acts which may be unlawful or in violation of any of the Security Documents or this Indenture, and such suits and proceedings as the Trustee may determine to preserve or protect its interests and the interests of the Holders in the Collateral, as applicable. Nothing in this Section 12.03 shall be considered to impose any such duty or obligation to act on the part of the Trustee or the Collateral Trustee.
SECTION 12.04. Authorization of Receipt of Funds by the Trustee Under the Security Documents.
Subject to the provisions of the Intercreditor Agreements, the Trustee is authorized to receive any funds for the benefit of the Holders distributed under the Security Documents, and to make further distributions of such funds to the Holders according to the provisions of this Indenture.
SECTION 12.05. Purchaser Protected.
In no event shall any purchaser in good faith of any property purported to be released hereunder be bound to ascertain the authority of the Collateral Trustee or the Trustee to execute the release or to inquire as to the satisfaction of any conditions required by the provisions hereof for the exercise of such authority or to see to the application of any consideration given by such purchaser or other transferee; nor shall any purchaser or other transferee of any property or rights permitted by this Article 12 to be sold be under any obligation to ascertain or inquire into the authority of the Issuer or the applicable Guarantor to make any such sale or other transfer.
SECTION 12.06. Powers Exercisable by Receiver or Trustee.
In case the Collateral shall be in the possession of a receiver or trustee, lawfully appointed, the powers conferred in this Article 12 upon the Issuer or a Guarantor with respect to the release, sale or other disposition of such property may be exercised by such receiver or trustee, and an instrument signed by such receiver or trustee shall be deemed the equivalent of any similar instrument of the Issuer or a Guarantor or of any Officer or Officers thereof required by the provisions of this Article 12; and if the Trustee shall be in the possession of the Collateral under any provision of this Indenture, then such powers may be exercised by the Trustee.
SECTION 12.07. Release Upon Termination of the Issuer’s Obligations.
In the event that the Issuer delivers to the Trustee an Officer’s Certificate certifying that (i) payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, such Notes, the related Note Guarantees and the Security Documents that were due and payable at or prior to the time such principal, together with accrued and unpaid interest, were paid or (ii) the Issuer shall have either (x) exercised their Legal Defeasance option
158
or their Covenant Defeasance option, in each case in compliance with the provisions of Article 8 or (y) satisfied and discharged this Indenture in compliance with the provisions of Article 11, and in each case of (i) and (ii), an Opinion of Counsel stating that all conditions precedent to the release of such Lien in the Collateral by the Trustee have been satisfied, the Trustee and the Collateral Trustee shall deliver to the Issuer a release of Lien in the Collateral without recourse, representations or warranties and shall do or cause to be done (at the expense of the Issuer) all acts reasonably requested of them to release such Lien as soon as is reasonably practicable.
SECTION 12.08. Collateral Trustee.
(a) The Issuer and each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Trustee as its agent under this Indenture and the Security Documents and the Issuer and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Trustee to take such action on its behalf under the provisions of this Indenture and the Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Trustee with respect to such Holder’s Notes by the terms of this Indenture and the Security Documents, and consents and agrees to the terms of each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Trustee agrees to act as such on the express conditions contained in this Section 12.08. Each Holder agrees that any action taken by the Collateral Trustee in accordance with the provision of this Indenture and the Security Documents, and the exercise by the Collateral Trustee of any rights or remedies set forth herein with respect to such Holder’s Notes and therein shall be authorized and binding upon such Holder. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Security Documents, the duties of the Collateral Trustee shall be ministerial and administrative in nature, and the Collateral Trustee shall not have any duties or responsibilities, except those expressly set forth herein and in the Security Documents to which the Collateral Trustee is a party, nor shall the Collateral Trustee have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or the Issuer or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the Security Documents or otherwise exist against the Collateral Trustee. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Trustee 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 merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Collateral Trustee may perform any of its duties under this Indenture or the Security Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Trustee shall not be responsible for the negligence or misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care.
(c) None of the Collateral Trustee or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Security Document or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any
159
Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or a Guarantor or Affiliate of the Issuer or any Guarantor, or any Officer or Related Person thereof, contained in this Indenture or the Security Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Trustee under or in connection with, this Indenture or the Security Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture or the Security Documents, or for any failure of the Issuer or any Guarantor or any other party to this Indenture or the Security Documents to perform its obligations hereunder or thereunder. None of the Collateral Trustee or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture or the Security Documents or to inspect the properties, books, or records of the Issuer or any Guarantor or any Affiliate of the Issuer or a Guarantor.
(d) The Collateral Trustee shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Guarantor), independent accountants and other experts and advisors selected by the Collateral Trustee. The Collateral Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Trustee shall be fully justified in failing or refusing to take any action under this Indenture or the Security Documents unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be offered security or indemnity to its satisfaction by the Holders of such Notes against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Trustee shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Security Documents in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders of such Notes.
(e) The Collateral Trustee shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Collateral Trustee shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Trustee shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 12.08).
(f) The Collateral Trustee may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor collateral trustee to its appointment as Collateral Trustee. If the Collateral Trustee resigns under this Indenture, the Issuer shall appoint a successor collateral trustee. If no successor collateral trustee is appointed prior to the intended effective date of the resignation of the Collateral Trustee (as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of Notes then outstanding, may appoint a successor collateral trustee, subject to the consent of the Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default). If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of
160
resignation) the Collateral Trustee shall be entitled to petition a court of competent jurisdiction to appoint a successor. In addition, the Holders of at least a majority in aggregate principal amount of the Notes then outstanding shall have the right to require the resignation of the Collateral Trustee and immediately appoint a successor thereto (with any resignation or replacement of the Collateral Trustee being subject to the terms and conditions of the Collateral Trust Agreement). The Collateral Trustee shall be permitted to rely in good faith on customary certificates of beneficial ownership as evidence of holdings (and shall not require the provision of DTC proxies, medallion-stamped guarantees or other similar evidence) in connection with any determination with respect to the Holders of Notes giving any consent, instruction or authorization under this Indenture. Upon the acceptance of its appointment as successor collateral trustee hereunder, such successor collateral trustee shall succeed to all the rights, powers and duties of the retiring Collateral Trustee, and the term “Collateral Trustee” shall mean such successor collateral trustee, and the retiring Collateral Trustee’s appointment, powers and duties as the Collateral Trustee shall be terminated. After the retiring Collateral Trustee’s resignation hereunder, the provisions of this Section 12.08 (and Section 7.07) shall continue to inure to its benefit and the retiring Collateral Trustee shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Collateral Trustee under this Indenture.
(g) The Collateral Trustee shall be authorized to appoint co-Collateral Trustees as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Security Documents, neither the Collateral Trustee nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The Collateral Trustee shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Trustee nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own gross negligence or willful misconduct.
(h) The Collateral Trustee is authorized and directed to (i) enter into the Security Documents to which it is party, whether executed on or after the Issue Date, (ii) make the representations of the Holders set forth in the Security Documents, (iii) bind the Holders on the terms as set forth in the Security Documents and (iv) perform and observe its obligations under the Security Documents.
(i) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Trustee pursuant to the terms of this Indenture, or (ii) payments from the Collateral Trustee in excess of the amount required to be paid to the Trustee pursuant to Article 6, the Trustee shall promptly turn the same over to the Collateral Trustee, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Trustee such proceeds to be applied by the Collateral Trustee pursuant to the terms of this Indenture and the Security Documents.
(j) The Collateral Trustee is each Holder’s agent for the purpose of perfecting the Holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon request from the Issuer, the Trustee shall notify the Collateral Trustee thereof and promptly shall deliver such Collateral to the Collateral Trustee or otherwise deal with such Collateral in accordance with the Collateral Trustee’s instructions.
161
(k) The Collateral Trustee shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by the Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Trustee’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer or Guarantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Trustee pursuant to this Indenture or any Security Document other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of Notes or as otherwise provided in the Security Documents.
(l) If the Issuer or any Guarantor (i) incurs any obligations in respect of First Lien Obligations or Junior Lien Obligations at any time when no applicable intercreditor agreement is in effect or at any time when Indebtedness constituting First Lien Obligations or Junior Lien Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Trustee and/or the Collateral Trustee an Officer’s Certificate so stating and requesting the Trustee and/or the Collateral Trustee to enter into an intercreditor agreement (on substantially the same terms as the applicable Intercreditor Agreement) in favor of a designated agent or representative for the holders of the First Lien Obligations or Junior Lien Obligations so incurred, together with an Opinion of Counsel, the Trustee and/or the Collateral Trustee shall (and is hereby authorized and directed to) enter into such intercreditor agreement (at the sole expense and cost of the Issuer, including legal fees and expenses of the Trustee and/or the Collateral Trustee), bind the Holders of Notes secured as provided in the Security Documents and this Article 12 on the terms set forth therein and perform and observe its obligations thereunder; provided that neither an Officer’s Certificate nor an Opinion of Counsel shall be required in connection with the applicable Intercreditor Agreements to be entered into by the Trustee and/or the Collateral Trustee on the Issue Date.
(m) No provision of this Indenture or any Security Document shall require the Collateral Trustee (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders (or the Trustee in the case of the Collateral Trustee) if it shall have received indemnity satisfactory to the Collateral Trustee and the Trustee against potential costs and liabilities incurred by the Collateral Trustee relating thereto. Notwithstanding anything to the contrary contained in this Indenture or the Security Documents, in the event the Collateral Trustee is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Collateral Trustee shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the mortgages or take any such other action if the Collateral Trustee has determined that the Collateral Trustee may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances. The Collateral Trustee shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient.
(n) The Collateral Trustee (i) shall not be liable for any action taken or omitted to be taken by it in connection with this Indenture and the Security Documents or instrument referred to herein or therein, except to the extent that any of the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct, (ii) shall not be liable for interest on any money received by it except as the Collateral Trustee may agree in writing with the Issuer (and money held in trust by the Collateral Trustee need not be segregated from other funds except to the extent required by law) and (iii) may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Trustee shall not be construed to impose duties to act.
162
(o) Neither the Collateral Trustee nor the Trustee shall be liable for delays or failures in performance resulting from acts caused by, directly or indirectly, forces beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Trustee nor the Trustee shall be liable for any indirect, special, punitive, incidental or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
(p) The Collateral Trustee does not assume any responsibility for any failure or delay in performance or any breach by the Issuer or any Guarantor under this Indenture and the Security Documents. The Collateral Trustee shall not be responsible to the Holders or any other Person for any recitals, statements, information, representations or warranties contained in this Indenture, the Security Documents or in any certificate, report, statement, or other document referred to or provided for in, or received by the Collateral Trustee under or in connection with, this Indenture or any Security Document; the execution, validity, genuineness, effectiveness or enforceability of any Security Documents of any other party thereto; the genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral, or the validity, effectiveness, enforceability, sufficiency, extent, perfection or priority of any Lien therein; the validity, enforceability or collectability of any Obligations; the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any obligor; or for any failure of any obligor to perform its Obligations under this Indenture and the Security Documents. The Collateral Trustee shall have no obligation to any Holder or any other Person to ascertain or inquire into the existence of any Default or Event of Default, the observance or performance by any obligor of any terms of this Indenture and the Security Documents, or the satisfaction of any conditions precedent contained in this Indenture and any Security Documents. The Collateral Trustee shall not be required to initiate or conduct any litigation or collection or other proceeding under this Indenture and the Security Documents unless expressly set forth hereunder or thereunder. The Collateral Trustee shall have the right at any time to seek instructions from the Holders with respect to the administration of this Indenture and the Security Documents.
(q) The parties hereto and the Holders hereby agree and acknowledge that neither the Collateral Trustee nor the Trustee shall assume, be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including but not limited to, any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result of this Indenture, the Security Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture and the Security Documents, the Collateral Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Trustee in the Collateral and that any such actions taken by the Collateral Trustee shall not be construed as or otherwise constitute any participation in the management of such Collateral. In the event that the Collateral Trustee or the Trustee is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Collateral Trustee or the Trustee’s sole discretion may cause the Collateral Trustee or the Trustee to be considered an “owner or operator” under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act
163
(“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause the Collateral Trustee or the Trustee to incur liability under CERCLA or any other federal, state or local law, the Collateral Trustee and the Trustee reserves the right, instead of taking such action, to either resign as the Collateral Trustee or the Trustee or arrange for the transfer of the title or control of the asset to a court-appointed receiver. Neither the Collateral Trustee nor the Trustee shall be liable to the Issuer, the Guarantors or any other Person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Trustee or the Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment. If at any time it is necessary or advisable for property to be possessed, owned, operated or managed by any Person (including the Collateral Trustee or the Trustee) other than the Issuer or the Guarantors, Holders of a majority in aggregate principal amount of the then outstanding Notes affected thereby shall direct the Collateral Trustee or the Trustee to appoint an appropriately qualified Person (excluding the Collateral Trustee or the Trustee) who they shall designate to possess, own, operate or manage, as the case may be, the property.
(r) Upon the receipt by the Collateral Trustee of a written request of the Issuer signed by an Officer (a “Security Document Order”), the Collateral Trustee is hereby authorized to execute and enter into, and shall execute and enter into, without the further consent of any Holder or the Trustee, any Security Document or amendment or supplement thereto, to be executed after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Trustee pursuant to, and is a Security Document Order referred to in, this Section 12.08(r), and (ii) instruct the Collateral Trustee to execute and enter into such Security Document or amendment or supplement thereto. Any such execution of a Security Document or amendment or supplement thereto, shall be at the direction and expense of the Issuer, upon delivery to the Collateral Trustee of an Officer’s Certificate and Opinion of Counsel stating that all conditions precedent to the execution and delivery of the Security Document or amendment or supplement thereto, have been satisfied. The Holders, by their acceptance of the Notes, hereby authorize and direct the Collateral Trustee to execute such Security Documents or amendment or supplement thereto.
(s) Subject to the provisions of the applicable Security Documents and the Intercreditor Agreements, each Holder, by acceptance of the Notes, agrees that the Trustee and/or Collateral Trustee shall execute and deliver the Security Documents and Intercreditor Agreements to which it is a party and all agreements, documents and instruments incidental thereto, and act in accordance with the terms thereof. For the avoidance of doubt, the Collateral Trustee shall have no discretion under this Indenture, the Intercreditor Agreements or the Security Documents and shall not be required to make or give any determination, consent, approval, request or direction except as set forth in the Collateral Trust Agreement and, to the extent any instruction is required pursuant to this Indenture, at the direction of the Trustee acting in accordance with a written direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes.
(t) After the occurrence and continuance of an Event of Default, the Trustee, acting at the direction of the Holders of a majority of the aggregate principal amount of the then outstanding Notes, may direct the Collateral Trustee in connection with any action required or permitted by this Indenture, the Security Documents or the Intercreditor Agreements.
(u) The Collateral Trustee is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, for turnover to the Trustee to make further distributions of such funds to itself, the Trustee and the Holders in accordance with the provisions of Section 6.13 and the other provisions of this Indenture.
164
(v) In each case that the Collateral Trustee may or is required hereunder or under any Security Document to take any action (an “Action”) with respect to the Notes, including without limitation to make any determination, to give consents, to exercise rights, powers or remedies, to release or sell Collateral or otherwise to act hereunder or under any Security Document, the Collateral Trustee may seek direction in accordance with the Collateral Trust Agreement and, to the extent any instruction is required pursuant to this Indenture, at the direction of the Trustee acting in accordance with a written direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes. The Collateral Trustee shall not be liable with respect to any Action taken or omitted to be taken by it in accordance with the Collateral Trust Agreement and, to the extent any instruction is required pursuant to this Indenture, at the direction of the Trustee acting in accordance with a written direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes.
(w) Notwithstanding anything to the contrary in this Indenture or in any Security Document, in no event shall the Collateral Trustee or the Trustee be responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security interests or Liens intended to be created by this Indenture, the Security Documents (including without limitation the filing or continuation of any UCC financing or continuation statements or similar documents or instruments), nor shall the Collateral Trustee or the Trustee be responsible for, and neither the Collateral Trustee nor the Trustee makes any representation regarding, the validity, effectiveness or priority of any of the Security Documents or the security interests or Liens intended to be created thereby.
(x) Before the Collateral Trustee acts or refrains from acting in each case at the request or direction of the Issuer or the Guarantors, it may require an Officer’s Certificate and an Opinion of Counsel, which shall conform to the provisions of this Section 12.08. The Collateral Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion.
(y) Notwithstanding anything to the contrary contained herein, the Collateral Trustee shall act in accordance with the Collateral Trust Agreement and, to the extent any instruction is required pursuant to this Indenture, at the direction of the Trustee acting in accordance with a written direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes .
SECTION 12.09. Other Limitations.
(a) Liens required to be granted from time to time pursuant to this Indenture shall be subject to exceptions and limitations set forth in the Security Documents;
(b) control agreements or other control or similar arrangements shall not be required with respect to deposit accounts, securities accounts, commodities accounts or other assets requiring perfection by control agreements;
(c) no actions in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction shall be required to be taken to create any security interests in assets located or titled outside of the United States (including any Equity Interests of any Foreign Subsidiary and foreign intellectual property) or to perfect or make enforceable any security interests in any such assets (it being understood that there shall be no Security Document (or other security agreements or pledge agreements) governed under the laws of any non-U.S. jurisdiction); and
(d) no actions shall be required to perfect a security interest in letter of credit rights (other than the filing of a UCC financing statement) and no perfection actions (other than the filing of a UCC financing statement) shall be required with respect to promissory notes evidencing debt for borrowed money in a principal amount of less than $10.0 million.
165
ARTICLE 13
MISCELLANEOUS
SECTION 13.01. [Reserved].
SECTION 13.02. Notices.
Any notice or communication by the Issuer, any Guarantor or the Trustee or the Collateral Trustee to the others is duly given if in writing and delivered in person or mailed by first-class mail (registered or certified, return receipt requested), or overnight air courier guaranteeing next day delivery, to the others’ address, or given electronically:
If to the Issuer and/or any Guarantor:
Sinclair Television Group, Inc.
10706 Beaver Dam Road
Hunt Valley, Maryland 21030
Attention: Lucy Rutishauser
Justin Bray
David Gibber
Email: LRutisha@sbgtv.com
JLBray@sbgtv.com
dbgibber@sbgtv.com
If to the Trustee or the Collateral Trustee:
U.S. Bank Trust Company, National Association
Corporate Trust Services
Mail Station: EX-VA-JRIT
Three James Center
1051 East Cary Street, Suite 600
Richmond, Virginia 23219-4000
Attention: Melody Scott
Email: melody.scott@usbank.com
The Issuer, any Guarantor, the Trustee or the Collateral Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; on the first day on which publication is made, if given by publication; five calendar days after being deposited in the mail, postage prepaid, if mailed by first-class mail; at the time delivered, if sent by overnight air courier guaranteeing next day delivery; and at the time sent, if given electronically; provided that any notice or communication delivered to the Trustee or the Collateral Trustee shall be deemed effective upon actual receipt thereof. Notice otherwise given in accordance with the procedures of DTC will be deemed given on the date sent to DTC.
166
Any notice or communication to a Holder shall be mailed by first-class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. Notwithstanding anything to the contrary contained herein, as long as the Notes are in the form of a Global Note, notice to the Holders may be made electronically in accordance with procedures of the Depositary for such Note.
If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
If the Issuer delivers a notice or communication to Holders, it shall deliver a copy to the Trustee and the Collateral Trustee at the same time.
The Trustee and the Collateral Trustee agree to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail or other similar unsecured electronic methods. Electronic signatures believed by the Trustee and the Collateral Trustee to comply with the ESIGN Act of 2000 or other applicable law (including electronic images of handwritten signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign or any other digital signature provider identified by any other party hereto and acceptable to the Trustee and the Collateral Trustee) shall be deemed original signatures for all purposes. If the Issuer, any Guarantor or any Holder elects to give the Trustee or the Collateral Trustee e-mail instructions (or instructions by a similar electronic method) and the Trustee or the Collateral Trustee in its discretion elects to act upon such instructions, the Trustee’s or the Collateral Trustee’s understanding of such instructions shall be deemed controlling. Neither the Trustee nor the Collateral Trustee shall be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s or the Collateral Trustee’s reliance upon and compliance with such instructions notwithstanding if such instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions and electronic signatures agrees to assume all risks arising out of the use of such electronic signatures and electronic methods to submit instructions and directions to the Trustee or the Collateral Trustee, including without limitation the risk of the Trustee or the Collateral Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties. Notwithstanding the foregoing, Agent may in any instance and in its sole discretion require that a Notice in the form of an original document bearing a manual signature be delivered to Agent in lieu of, or in addition to, any such electronic Notice.
SECTION 13.03. Communication by Holders of Notes with Other Holders of Notes.
Holders of Notes may communicate pursuant to Trust Indenture Act Section 312(b) with other Holders of Notes with respect to their rights under this Indenture or the Notes. The Issuer, the Trustee, the Registrar and anyone else shall have the protection of Trust Indenture Act Section 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer or any of the Guarantors to the Trustee to take any action under this Indenture, the Issuer or such Guarantor, as the case may be, shall furnish to the Trustee or, if such action relates to a Security Document or an Intercreditor Agreement, the Collateral Trustee:
(a) An Officer’s Certificate in form and substance reasonably satisfactory to the Trustee or the Collateral Trustee, as applicable (which shall include the statements set forth in Section 13.05), stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture and the Security Documents relating to the proposed action have been satisfied; and
167
(b) An Opinion of Counsel in form and substance reasonably satisfactory to the Trustee or the Collateral Trustee, as applicable (which shall include the statements set forth in Section 13.05) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
SECTION 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to Section 4.04) and shall include:
(a) a statement that the Person making such certificate or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with (and, in the case of an Opinion of Counsel, may be limited to reliance on an Officer’s Certificate as to matters of fact); and
(d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
SECTION 13.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
SECTION 13.07. No Personal Liability of Directors, Managers, Officers, Employees and Stockholders.
No past, present or future director, manager, officer, employee, incorporator, member, partner or stockholder of the Issuer or any Guarantor or any of their parent companies or entities (other than the Issuer in respect of the Notes and each Guarantor in respect of its Note Guarantee) shall have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Note Guarantees, this Indenture or the Security Documents (including any Intercreditor Agreements) or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder by accepting Notes waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
SECTION 13.08. Governing Law; Submission to Jurisdiction.
THIS INDENTURE, THE NOTES AND ANY NOTE GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Each of the parties hereto hereby irrevocably submits to the jurisdiction of any New York State court sitting in the Borough of Manhattan in the City of New York or any federal court sitting in the Borough of Manhattan in the City of New York inrespect of any suit, action or proceeding arising out of or relating to this Indenture, any Note Guarantee and the Notes, and irrevocably accepts for itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaidcourts.
168
SECTION 13.09. Waiver of Jury Trial.
EACH OF THE ISSUER, THE GUARANTORS, THE TRUSTEE AND EACH HOLDER OF A NOTE BY ITS ACCEPTANCE THEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 13.10. Force Majeure.
In no event shall the Trustee or the Collateral Trustee be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
SECTION 13.11. Foreign Account Tax Compliance Act (FATCA).
In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (“Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent, holder or other institution is or has agreed to be subject to related to this Indenture, the Issuer agrees (i) to use commercially reasonable efforts to provide to the Trustee sufficient information about Holders or other applicable parties and/or transactions related to this Indenture (including any modification to the terms of such transactions) so that the Trustee can determine whether it has tax related obligations under Applicable Law and (ii) that the Trustee shall be entitled to make any withholding or deduction from payments under this Indenture to the extent necessary to comply with Applicable Law for which the Trustee shall not have any liability. The terms of this Section 13.11 shall survive the termination of this Indenture.
SECTION 13.12. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer or a Guarantor or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 13.13. Successors.
All agreements of the Issuer in this Indenture and the Notes shall bind its successors. All agreements of the Trustee and the Collateral Trustee in this Indenture shall bind each of its successors. All agreements of each Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section 10.06.
169
SECTION 13.14. Severability.
In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 13.15. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
SECTION 13.16. Table of Contents, Headings, Etc..
The Table of Contents, Cross Reference Table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 13.17. No Adverse Interpretation of Other Agreement.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer, any Guarantor or any other Restricted Subsidiary or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 13.18. Intercreditor Agreements.
Reference is made to the Intercreditor Agreements. Each Holder, by its acceptance of a Note, (a) agrees that it will be bound by and will take no actions contrary to the provisions of the Intercreditor Agreements and (b) authorizes and instructs the Trustee and the Collateral Trustee to enter into the Intercreditor Agreements as Trustee and as Collateral Trustee, as the case may be, and on behalf of such Holder, including without limitation, making the representations of the Holders contained therein. The foregoing provisions are intended as an inducement to the lenders under the Senior Credit Facilities to extend credit and such lenders are intended third party beneficiaries of such provisions and the provisions of the Intercreditor Agreements.
[Signatures on following page]
170
| SINCLAIR TELEVISION GROUP, INC., as the Issuer | |
|---|---|
| By: | /s/ Christopher S. Ripley |
| Name: Christopher S. Ripley | |
| Title: President and Chief Executive Officer |
[Signature Page to Indenture]
| GUARANTORS: | |
|---|---|
| SINCLAIR BROADCAST GROUP, LLC | |
| By: | /s/ Christopher S. Ripley |
| Name: Christopher S. Ripley | |
| Title: President and Chief Executive Officer |
| BIRMINGHAM (WABM-TV) LICENSEE, INC. |
|---|
| FISHER MILLS INC. |
| FISHER PROPERTIES INC. |
| HARRISBURG TELEVISION, INC. |
| NEW YORK TELEVISION, INC. |
| PERPETUAL CORPORATION |
| RALEIGH (WRDC-TV) LICENSEE, INC. |
| SINCLAIR ACQUISITION IX, INC. |
| SINCLAIR ACQUISITION VII, INC. |
| SINCLAIR ACQUISITION VIII, INC. |
| SINCLAIR MEDIA III, INC. |
| SINCLAIR MEDIA VI, INC. |
| SINCLAIR TELEVISION MEDIA, INC. |
| SINCLAIR TELEVISION OF BAKERSFIELD, INC. |
| SINCLAIR TELEVISION OF SEATTLE, INC. |
| SINCLAIR TELEVISION OF WASHINGTON, INC. |
| WGME, INC. |
| WSMH, INC. |
| WSYX LICENSEE, INC. |
| WVTV LICENSEE, INC. |
| KAME, LLC |
| KENV, LLC |
| KRNV, LLC |
| KRXI, LLC |
| KVCW, LLC |
| KVMY, LLC |
| By: | Chesapeake Media I, LLC, Sole Member |
|---|---|
| By: | Sinclair Television Group, Inc., Sole Member of Chesapeake Media I, LLC |
| WCWF LICENSEE, LLC |
|---|
| WJAR LICENSEE, LLC |
| WLUK LICENSEE, LLC |
| By: | Harrisburg Television, Inc., Sole Member |
|---|---|
| SINCLAIR TELEVISION OF ILLINOIS, LLC | |
| --- | --- |
| WICD LICENSEE, LLC | |
| WICS LICENSEE, LLC | |
| By: | Illinois Television, LLC, Sole Member |
| By: | Sinclair Communications LLC, Sole Member of Illinois Television, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| KATV LICENSEE, LLC | |
| By: | KATV, LLC, Sole Member |
| By: | Sinclair Television Stations, LLC, Sole Member of KATV, LLC |
| By: | Perpetual Corporation, Sole Member of |
| Sinclair Television Stations, LLC | |
| KDSM LICENSEE, LLC | |
| By: | KDSM, LLC, Sole Member |
| By: | Sinclair Television Group, Inc., Sole Member of KDSM, LLC |
| KOKH LICENSEE, LLC | |
| By: | KOKH, LLC, Sole Member |
| By: | Sinclair Communications, LLC, Sole Member of KOKH, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| KTUL LICENSEE, LLC | |
| By: | KTUL, LLC, Sole Member |
| By: | Sinclair Television Stations, LLC, Sole Member of KTUL, LLC |
| By: | Perpetual Corporation, Sole Member of |
| Sinclair Television Stations, LLC | |
| WCGV LICENSEE, LLC | |
| By: | Milwaukee Television, LLC, Sole Member |
| By: | Sinclair Communications, LLC Sole Member of Milwaukee Television, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| WSMH LICENSEE, LLC | |
| --- | --- |
| By: | WSMH, Inc., Sole Member |
| SINCLAIR TELEVISION STATIONS, LLC | |
| By: | Perpetual Corporation, Sole Member |
| --- | --- |
| MJ PODCAST, LLC | |
| UMR PODCAST, LLC | |
| By: | Sinclair Audio, LLC |
| By: | Sinclair Television Group, Inc. |
| WKEF LICENSEE L.P. | |
| By: | Sinclair Communications, LLC, General Partner |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| CHESAPEAKE TELEVISION LICENSEE, LLC |
|---|
| HARRISBURG LICENSEE, LLC |
| ILLINOIS TELEVISION, LLC |
| KABB LICENSEE, LLC |
| KDNL LICENSEE, LLC |
| KEYE LICENSEE, LLC |
| KFDM LICENSEE, LLC |
| KFOX LICENSEE, LLC |
| KFXA LICENSEE, LLC |
| KGAN LICENSEE, LLC |
| KGBT LICENSEE, LLC |
| KHGI LICENSEE, LLC |
| KHQA LICENSEE, LLC |
| KJZZ LICENSEE, LLC |
| KOCB LICENSEE, LLC |
| KOKH, LLC |
| KPTH LICENSEE, LLC |
| KRCG LICENSEE, LLC |
| KRXI LICENSEE, LLC |
| KSAS LICENSEE, LLC |
| KTVL LICENSEE, LLC |
| KTVO LICENSEE, LLC |
| KUPN LICENSEE, LLC |
| KUQI LICENSEE, LLC |
| KUTV LICENSEE, LLC |
| KVII LICENSEE, LLC |
| MILWAUKEE TELEVISION, LLC |
| SAN ANTONIO TELEVISION, LLC |
| SINCLAIR PROPERTIES, LLC |
| SINCLAIR TELEVISION OF EL PASO, LLC |
| WACH LICENSEE, LLC |
| WCWB LICENSEE, LLC |
| WCWN LICENSEE, LLC |
| WDKY LICENSEE, LLC |
| WEAR LICENSEE, LLC |
| --- |
| WFGX LICENSEE, LLC |
| WFXL LICENSEE, LLC |
| WGFL LICENSEE, LLC |
| WGXA LICENSEE, LLC |
| WHOI LICENSEE, LLC |
| WKRC LICENSEE, LLC |
| WLFL LICENSEE, LLC |
| WLOS LICENSEE, LLC |
| WMSN LICENSEE, LLC |
| WNAB LICENSEE, LLC |
| WNWO LICENSEE, LLC |
| WOAI LICENSEE, LLC |
| WOLF LICENSEE, LLC |
| WPBN LICENSEE, LLC |
| WPDE LICENSEE, LLC |
| WPEC LICENSEE, LLC |
| WPGH LICENSEE, LLC |
| WQMY LICENSEE, LLC |
| WRDC, LLC |
| WRGB LICENSEE, LLC |
| WRGT LICENSEE, LLC |
| WRLH LICENSEE, LLC |
| WSBT LICENSEE, LLC |
| WSTQ LICENSEE, LLC |
| WSTR ACQUISITION, LLC |
| WTGS LICENSEE, LLC |
| WTOV LICENSEE, LLC |
| WTTO LICENSEE, LLC |
| WTVC LICENSEE, LLC |
| WTVX LICENSEE, LLC |
| WTVZ LICENSEE, LLC |
| WTWC LICENSEE, LLC |
| WUCW, LLC |
| WUHF LICENSEE, LLC |
| WUPN LICENSEE, LLC |
| WUTV LICENSEE, LLC |
| WUXP LICENSEE, LLC |
| WWHO LICENSEE, LLC |
| WWMT LICENSEE, LLC |
| WXLV LICENSEE, LLC |
| WZTV LICENSEE, LLC |
| By: | Sinclair Communications, LLC, Sole Member |
|---|---|
| By: | Sinclair Television Group, Inc., Sole Member |
| of Sinclair Communications, LLC | |
| SINCLAIR DIGITAL NEWS, LLC | |
| --- | --- |
| WEST COAST DIGITAL, LLC | |
| By: | Sinclair Digital Group, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Digital Group, LLC |
| WCHS LICENSEE, LLC | |
| WVAH LICENSEE, LLC | |
| By: | Sinclair Media III, Inc., Sole Member |
| SINCLAIR MEDIA LICENSEE, LLC | |
| SINCLAIR TELEVISION OF ABILENE, LLC | |
| SINCLAIR TELEVISION OF BRISTOL, LLC | |
| SINCLAIR TELEVISION OF CALIFORNIA, LLC | |
| SINCLAIR TELEVISION OF MONTANA, LLC | |
| SINCLAIR TELEVISION OF NEW BERN, LLC | |
| WCTI LICENSEE, LLC | |
| By: | Sinclair Media VI, Inc., Sole Member |
| KBSI LICENSEE L.P. | |
| WMMP LICENSEE L.P. | |
| By: | Sinclair Properties, LLC, General Partner |
| By: | Sinclair Communications, LLC, Sole Member of Sinclair Properties, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| WDKA LICENSEE, LLC | |
| By: | Sinclair Properties, LLC, Sole Member |
| By: | Sinclair Communications, LLC, Sole Member of Sinclair Properties, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| ACTION TV, LLC | |
| CHESAPEAKE MEDIA I, LLC | |
| COMETTV, LLC | |
| DRIVE SALES, LLC | |
| FULL MEASURE, LLC | |
| HUMMINGBIRD, LLC | |
| HUNT VALLEY TRACKS, LLC | |
| KDSM, LLC | |
| NEST TV, LLC | |
| SINCLAIR AUDIO, LLC | |
| SINCLAIR COMMUNICATIONS, LLC | |
| SINCLAIR DIGITAL GROUP, LLC | |
| SINCLAIR GAMING SERVICES, LLC | |
| --- | --- |
| SINCLAIR NETWORKS GROUP, LLC | |
| SINCLAIR PROGRAMMING COMPANY, LLC | |
| SINCLAIR TELEVISION OF FRESNO, LLC | |
| SINCLAIR TELEVISION OF OMAHA, LLC | |
| TBD TV, LLC | |
| THE NATIONAL DESK, LLC | |
| By: | Sinclair Television Group, Inc., Sole Member |
| SINCLAIR BAKERSFIELD LICENSEE, LLC | |
| SINCLAIR BOISE LICENSEE, LLC | |
| SINCLAIR BROADCASTING OF SEATTLE, LLC | |
| SINCLAIR EUGENE LICENSEE, LLC | |
| SINCLAIR LEWISTON LICENSEE, LLC | |
| SINCLAIR MEDIA OF BOISE, LLC | |
| SINCLAIR MEDIA OF WASHINGTON, LLC | |
| SINCLAIR PORTLAND LICENSEE, LLC | |
| SINCLAIR SEATTLE LICENSEE, LLC | |
| SINCLAIR TELEVISION OF OREGON, LLC | |
| SINCLAIR MEDIA OF SEATTLE, LLC | |
| SINCLAIR TELEVISION OF PORTLAND, LLC | |
| SINCLAIR YAKIMA LICENSEE, LLC | |
| By: | Sinclair Television Media, Inc., Sole Member |
| SINCLAIR-CALIFORNIA LICENSEE, LLC | |
| By: | Sinclair Television of California, LLC, Sole Member |
| By: | Sinclair Media VI, Inc., Sole Member of Sinclair Television of California, LLC |
| KDBC LICENSEE, LLC | |
| By: | Sinclair Television of El Paso, LLC, Sole Member |
| By: | Sinclair Communications, LLC, Sole Member of |
| Sinclair Television of El Paso, LLC | |
| By: | Sinclair Television Group, Inc., Sole Member of |
| Sinclair Communications, LLC | |
| KFRE LICENSEE, LLC | |
| KMPH LICENSEE, LLC | |
| WJAC LICENSEE, LLC | |
| By: | Sinclair Television of Fresno, LLC, Sole Member |
| By: | Sinclair Television Group, Inc., Sole Member of |
| Sinclair Television of Fresno, LLC | |
| KPTM LICENSEE, LLC | |
| --- | --- |
| By: | Sinclair Television of Omaha, LLC, Sole Member |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Television of Omaha, LLC |
| --- | --- |
| SINCLAIR KENNEWICK LICENSEE, LLC | |
| SINCLAIR LA GRANDE LICENSEE, LLC | |
| By: | Sinclair Television of Washington, Inc., Sole Member |
| ACC LICENSEE, LLC | |
| KATV, LLC | |
| KTUL, LLC | |
| WBMA LICENSEE, LLC | |
| WSET LICENSEE, LLC | |
| By: | Sinclair Television Stations, LLC, Sole |
| Member | |
| By: | Perpetual Corporation, Sole Member of |
| Sinclair Television Stations, LLC | |
| WGME LICENSEE, LLC | |
| By: | WGME, Inc., Sole Member |
| KLGT LICENSEE, LLC | |
| By: | WUCW, LLC, Sole Member |
| By: | Sinclair Communications, LLC, Sole Member of WUCW, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| By: | /s/ Christopher S. Ripley |
| Christopher S. Ripley, in his capacity as President and Chief Executive Officer | |
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee and Collateral Trustee | |
| --- | --- |
| By: | /s/ Melody M. Scott |
| Name: Melody M. Scott | |
| Title: Assistant Vice President |
[Signature Page to Indenture]
EXHIBIT A
[Face of Note]
[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]
[Insert the Regulation S Temporary Global Note Legend, if applicable pursuant to the provisions of the Indenture]
A-1
CUSIP [ ]
ISIN [ ]
[RULE 144A][REGULATION S][IAI] [GLOBAL] NOTE
representing up to
[$______________]
4.375% Second-Out First Lien Secured Notes due 2032
| No. ___ | [$______________] |
|---|
SINCLAIR TELEVISION GROUP, INC.
promises to pay to CEDE & CO. or registered assigns, the principal sum [set forth on the Schedule of Exchanges of Interests in the Global Note attached hereto] [of ________________________ United States Dollars] on [ ].
Interest Payment Dates: June 1 and December 1, commencing on June 1, 2025
Record Dates: May 15 and November 15
A-2
IN WITNESS HEREOF, the Issuer has caused this instrument to be duly executed.
Dated:
| SINCLAIR TELEVISION GROUP, INC. | |
|---|---|
| By: | |
| Name: | |
| Title: |
A-3
This is one of the Notes referred to in the within-mentioned Indenture:
| U.S. BANK TRUST COMPANY, NATIONAL<br><br><br>ASSOCIATION, as Trustee | ||
|---|---|---|
| Dated: | By: | |
| Authorized Signatory |
A-4
[Back of Note]
4.375% Second-Out First Lien Secured Notes due 2032
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
INTEREST. Sinclair Television Group, Inc., a Maryland corporation (the “Issuer”), promises to pay interest on the principal amount of this Note at 4.375% per annum from [February 12, 2025]^1^ until Maturity. The Issuer shall pay interest semi-annually in arrears on June 1 and December 1 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from [February 12, 2025]^2^; provided that the first Interest Payment Date shall be [June 1, 2025]^3^. The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at the interest rate on the Notes to the extent lawful; the Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest from time to time on demand at the interest rate on the Notes. Interest shall be computed on the basis of a 360-day year comprised of twelve 30-day months. This note is one of the series designated on the face hereof (individually, a “Note” and, collectively, the “Notes”).
METHOD OF PAYMENT. The Issuer will pay interest on the Notes to the Persons who are registered Holders of the Notes at the close of business (if applicable) on the May 15 or November 15 (whether or not a Business Day), as the case may be, immediately preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. Payment of interest may be made by check mailed to the Holders of the Notes at their addresses set forth in the register of Holders; provided that all payments of principal of and interest and premium, if any, with respect to the Notes represented by one or more Global Notes will be made in accordance with DTC’s applicable procedures. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
PAYING AGENT AND REGISTRAR. Initially, U.S. Bank Trust Company, National Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Issuer may change any Paying Agent or Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may act in any such capacity.
INDENTURE. The Issuer issued the Notes under the Indenture, dated as of February 12, 2025 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), among the Issuer, the Guarantors party thereto, the Trustee and U.S. Bank Trust Company, National Association, as collateral trustee (the “Collateral Trustee”). This Note is one of a duly authorized issue of Notes of the Issuer designated as its 4.375% Second-Out First Lien Secured Notes due 2032. The Issuer shall be entitled to issue Additional Notes constituting Notes pursuant to Sections 2.01, 4.09 and 4.12 of the Indenture. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms, and Holders of the Notes are referred to the Indenture for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
| ^1^ | Revise in connection with the issuance of Additional Notes (other than those issued on final settlement of the<br>Exchange Offer). |
|---|---|
| ^2^ | Revise in connection with the issuance of Additional Notes (other than those issued on final settlement of the<br>Exchange Offer). |
| --- | --- |
| ^3^ | Revise in connection with the issuance of Additional Notes (other than those issued on final settlement of the<br>Exchange Offer). |
| --- | --- |
A-5
REDEMPTION AND REPURCHASE. The Notes are subject to optional redemption and may be the subject of a Change of Control Offer and an Asset Sale Offer, as further described in the Indenture. The Issuer shall not be required to make any mandatory redemption or sinking fund payments with respect to the Notes.
DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuer need not exchange or register the transfer of any Note or portion of a Note selected for redemption or tendered (and not withdrawn) for repurchase in connection with a Change of Control Offer, an Asset Sale Offer or other tender offer, in whole or in part, except for the unredeemed portion of any Note being redeemed in part. Also, the Issuer need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed.
PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes; provided, however, that in connection with the giving any consent, instruction or authorization for purposes of the provisions of Article 6, Article 9 and Sections 7.08 and 12.08(f) of the Indenture, beneficial owners of interests in a Note may constitute registered Holders, and in connection therewith, the Issuer, the Trustee, the Collateral Trustee, any Officer signing an Officer’s Certificate and any counsel delivering an Opinion of Counsel shall be permitted to rely in good faith on customary certificates of beneficial ownership as evidence of holdings of such interests (without, for the avoidance of doubt, DTC proxies, medallion-stamped guarantees or other similar evidence).
AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the Notes or the related Note Guarantees may be amended or supplemented as provided in the Indenture.
DEFAULTS AND REMEDIES. The Events of Default relating to the Notes are defined in Section 6.01 of the Indenture. Upon the occurrence of an Event of Default relating to the Notes, the rights and obligations of the Issuer, the Parent, the other Guarantors, the Trustee and the Holders of the Notes shall be as set forth in the applicable provisions of the Indenture.
AUTHENTICATION. This Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose until authenticated by the manual signature of the Trustee.
GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES.
CUSIP AND ISIN NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP and ISIN numbers and/or similar numbers to be printed on the Notes and the Trustee may use CUSIP and ISIN numbers and/or similar numbers in notices of redemption as a convenience to Holders of the Notes. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
A-6
- SECURITY. The Notes and the related Note Guarantees shall be secured by the Collateral on the terms and subject to the conditions set forth in the Indenture and the Security Documents. The Trustee and the Collateral Trustee, as the case may be, shall hold the Collateral in trust for the benefit of the Holders of the Notes, in each case pursuant to the Notes. Each Holder of the Notes, by accepting this Note, consents and agrees to the terms of the Security Documents (including the provisions providing for the foreclosure and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms and the Indenture and authorizes and directs the Collateral Trustee to enter into the Security Documents on the Issue Date, and at any time after the Issue Date, if applicable, and to perform its obligations and exercise its rights thereunder in accordance therewith.
The Issuer will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to the Issuer at the following address:
Sinclair Television Group, Inc.
10706 Beaver Dam Road
Hunt Valley, Maryland 21030
Attention: Lucy Rutishauser
Justin Bray
David Gibber
Email: LRutisha@sbgtv.com
JLBray@sbgtv.com
dbgibber@sbgtv.com
A-7
ASSIGNMENT FORM
To assign this Note, fill in the form below:
| (I) or (we) assign and transfer this Note to: | |
|---|---|
| (Insert assignee’s legal name) |
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
| Date: _____________________ | |
|---|---|
| Your Signature: | |
| --- | --- |
| (Sign exactly as your name appears on the face of this Note) | |
| Signature Guarantee:* | |
| --- | |
| * | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to<br>the Trustee). |
| --- | --- |
A-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.10 or 4.14 of the Indenture, check the appropriate box below:
[ ] Section 4.10 [ ] Section 4.14
If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.10 or Section 4.14 of the Indenture, state the amount you elect to have purchased:
$_______________
| Date: _____________________ | |
|---|---|
| Your Signature: | |
| --- | --- |
| (Sign exactly as your name appears on the face of this Note) | |
| Tax Identification No.: | |
| Signature Guarantee:* __________________________________ | |
| --- | |
| * | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to<br>the Trustee). |
| --- | --- |
A-9
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The initial outstanding principal amount of this Global Note is $__________. The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global or Definitive Note for an interest in this Global Note, have been made:
| Date of<br><br><br>Exchange | Amount of<br><br><br>decrease<br> <br>in Principal<br><br><br>Amount | Amount of increase<br><br><br>in Principal<br> <br>Amount of this<br><br><br>Global Note | Principal Amount<br>of<br><br><br>this Global Note<br> <br>following such<br><br><br>decrease or<br>increase | Signature of<br><br><br>authorized officer<br> <br>of Trustee<br>or<br> <br>Note Custodian |
|---|---|---|---|---|
| * | This schedule should be included only if the Note is issued in global form. | |||
| --- | --- |
A-10
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Sinclair Television Group, Inc.
10706 Beaver Dam Road
Hunt Valley, Maryland 21030
Attention: Lucy Rutishauser
Justin Bray
David Gibber
U.S. Bank Trust Company, National Association
Corporate Trust Services, 18th Floor
Mail Station: EX-VA-JRIT
Three James Center
10251 East Cary Street, Suite 1850600
Richmond, Virginia 23219-4000Attention: Melody Scott
Re: 4.375% Second-Out First Lien Secured Notes due 2032
Reference is hereby made to the Indenture, dated as of February 12, 2025 (as amended or supplemented from time to time, the “Indenture”), among the Issuer, the Guarantors party thereto, the Trustee and the Collateral Trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
_______________ (the “Transferor”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $___________ in such Note[s] or interests (the “Transfer”), to _______________ (the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
[ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States.
[ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction
B-1
was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Indenture and the Securities Act.
- [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Issuer, a Restricted Subsidiary or a Guarantor;
or
(c) [ ] such Transfer is being effected pursuant to an effective registration statement under the Securities Act and, if applicable, in compliance with the prospectus delivery requirements of the Securities Act;
or
(d) [ ] such Transfer is in a principal amount of at least $250,000 and is being effected to an Institutional Accredited Investor and pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Global Note or Definitive Notes and the requirements of the exemption claimed, which certification is supported by (1) a certificate executed by the Transferee in the form of Exhibit H to the Indenture and (2) an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the effect that such Transfer is in compliance with the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the IAI Global Note and/or the Definitive Notes and in the Indenture and the Securities Act.
B-2
- [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
B-3
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
| [Insert Name of Transferor] | |
|---|---|
| By: | |
| Name: | |
| Title: | |
| Dated: _______________________ | |
| --- |
B-4
ANNEX A TO CERTIFICATE OF TRANSFER
| 1. | The Transferor owns and proposes to transfer the following: |
|---|
[CHECK ONE OF (a) OR (b)]
| (a) | [ ] a beneficial interest in the: |
|---|---|
| (i) | [ ] 144A Global Note (CUSIP [ ]), or |
| --- | --- |
| (ii) | [ ] Regulation S Global Note (CUSIP [ ]), or |
| --- | --- |
| (iii) | [ ] IAI Global Note (CUSIP [ ]), or |
| --- | --- |
| (b) | [ ] a Restricted Definitive Note. |
| --- | --- |
| 2. | After the Transfer the Transferee will hold: |
| --- | --- |
[CHECK ONE]
| (a) | [ ] a beneficial interest in the: |
|---|---|
| (i) | [ ] 144A Global Note (CUSIP [ ]), or |
| --- | --- |
| (ii) | [ ] Regulation S Global Note (CUSIP [ ]), or |
| --- | --- |
| (iii) | [ ] IAI Global Note (CUSIP [ ]), or |
| --- | --- |
| (iv) | [ ] Unrestricted Global Note (CUSIP [ ]); or |
| --- | --- |
| (b) | [ ] a Restricted Definitive Note; or |
| --- | --- |
| (c) | [ ] an Unrestricted Definitive Note, |
| --- | --- |
in accordance with the terms of the Indenture.
B-5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Sinclair Television Group, Inc.
10706 Beaver Dam Road
Hunt Valley, Maryland 21030
Attention: Lucy Rutishauser
Justin Bray
David Gibber
U.S. Bank Trust Company, National Association
Corporate Trust Services, 18th Floor
Mail Station: EX-VA-JRIT
Three James Center
10251 East Cary Street, Suite 1850600
Richmond, Virginia 23219-4000Attention: Melody Scott
Re: 4.375% Second-Out First Lien Secured Notes due 2032
Reference is hereby made to the Indenture, dated as of February 12, 2025 (as amended or supplemented from time to time, the “Indenture”), among the Issuer, the Guarantors party thereto, the Trustee and the Collateral Trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
___________ (the “Owner”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $__________ in such Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:
1) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the United States Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
C-1
b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
2) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.
C-2
b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE] [ ] 144A Global Note [ ] Regulation S Global Note [ ] IAI Global Note, with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
| [Insert Name of Transferor] | |
|---|---|
| By: | |
| Name: | |
| Title: | |
| Dated: _______________________ | |
| --- |
C-3
EXHIBIT D
[FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
SUPPLEMENTAL INDENTURE NO. [ ] (this “Supplemental Indenture”), dated as of [__________], by and between [__________________] (the “Guaranteeing Entity”), a subsidiary of [the Issuer], U.S. Bank Trust Company, National Association, as trustee (the “Trustee”) and collateral trustee (the “Collateral Trustee”).
W I T N E S S E T H
WHEREAS, Sinclair Television Group, Inc., a Maryland corporation (the “Issuer”), the other parties that are signatories thereto as Guarantors, the Trustee and the Collateral Trustee have heretofore executed and delivered an indenture, dated as of February 12, 2025 (together with this Supplemental Indenture, and as further amended, supplemented or otherwise modified, the “Indenture”) providing for the initial issuance of $267,229,000.00 aggregate principal amount of 4.375% Second-Out First Lien Secured Notes due 2032 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Entity shall execute and deliver to the Trustee and the Collateral Trustee a supplemental indenture pursuant to which the Guaranteeing Entity shall unconditionally guarantee, on a joint and several basis with the other Guarantors, all of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and the Collateral Trustee are authorized to execute and deliver this Supplemental Indenture to amend or supplement the Indenture without the consent of any Holder of Notes.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
(1) Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
(2) Agreement to Guarantee. The Guaranteeing Entity hereby agrees to be a Guarantor under the Indenture and to be bound by the terms of the Indenture applicable to a Guarantor, including Article 10 thereof.
(3) Execution and Delivery. The Guaranteeing Entity agrees that the Note Guarantee shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
D-1
(4) Governing Law. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(5) Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
(6) Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
(7) The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Entity.
[Signature Page Follows]
D-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
| GUARANTOR: | |
|---|---|
| [GUARANTEEING ENTITY] | |
| By: | |
| Name: | |
| Title: | |
| By: | |
| Name: | |
| Title: |
D-3
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee and Collateral Trustee | |
|---|---|
| By: | |
| Name: | |
| Title: |
D-4
Exhibit E
FORM OF SECURITY AGREEMENT
[Intentionally Omitted. To be provided to
the Securities and Exchange Commission
or its staff upon request.]
Exhibit F
FORM OF COLLATERAL TRUST AGREEMENT
[Intentionally Omitted. To be provided to
the Securities and Exchange Commission
or its staff upon request.]
Exhibit G
FORM OF FIRST/SECOND/THIRD LIEN INTERCREDITOR AGREEMENT
[Intentionally Omitted. To be provided to
the Securities and Exchange Commission
or its staff upon request.]
Exhibit H
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Sinclair Television Group, Inc.
10706 Beaver Dam Road
Hunt Valley, Maryland 21030
Attention: Lucy Rutishauser
Justin Bray
David Gibber
U.S. Bank Trust Company, National Association
Corporate Trust Services, 18th Floor
Mail Station: EX-VA-JRIT
Three James Center
10251 East Cary Street, Suite 1850600
Richmond, Virginia 23219-4000Attention: Melody Scott
| Re: | 4.375% Second-Out First Lien Secured Notes due 2032<br> |
|---|
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of February 12, 2025 (as amended and supplemented to the date hereof, the “Indenture”), by and among Sinclair Television Group, Inc., a Maryland corporation (the “Issuer”), the other parties that are signatories thereto as Guarantors and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”) and collateral trustee (the “Collateral Trustee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $ aggregate principal amount (which is at least $250,000) of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
We understand that any subsequent transfer of the Notes or any interest therein is subject to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended (the “Securities Act”).
We understand that the offer and sale of the Notes have not been registered under the Securities Act, and that the Notes and any interest therein may not be offered or sold except as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should sell the Notes or any interest therein, we will do so only (A) to the Issuer, a Restricted Subsidiary or a Guarantor, (B) in accordance with Rule 144A under the Securities Act to a “qualified institutional buyer” (as defined therein), (C) to an institutional “accredited investor” (as defined below) in a principal amount of at least $250,000 and that, prior to such transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the Issuer a signed letter substantially in the form of this letter and an Opinion of Counsel in form reasonably acceptable to the
H-1
Issuer to the effect that such transfer is in compliance with the Securities Act, (D) outside the United States in accordance with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the provisions of Rule 144 under the Securities Act or (F) pursuant to an effective registration statement under the Securities Act, and we further agree to provide to any Person purchasing the Definitive Note or beneficial interest in a Global Note from us in a transaction meeting the requirements of clauses (A) through (E) of this paragraph a notice advising such purchaser that resales thereof are restricted as stated herein.
We understand that, on any proposed resale of the Notes or beneficial interest therein, we will be required to furnish to you and the Issuer such certifications, legal opinions and other information as you and the Issuer may reasonably require to confirm that the proposed sale complies with the foregoing restrictions. We further understand that the Notes purchased by us will bear a legend to the foregoing effect.
We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we and any accounts for which we are acting are each able to bear the economic risk of our or its investment.
We are acquiring the Notes or beneficial interest therein purchased by us for our own account or for one or more accounts (each of which is an institutional “accredited investor”) as to each of which we exercise sole investment discretion.
The Trustee and the Issuer are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
| [Insert Name of Institutional Accredited Investor] | ||
|---|---|---|
| By: | ||
| Name: | ||
| Title: | ||
| Dated: |
H-2
EX-4.4
Exhibit 4.4
Execution Version
INDENTURE
Dated as of February 12, 2025
Among
SINCLAIR TELEVISION GROUP, INC.,
as Issuer,
THE GUARANTORS FROM TIME TO TIME PARTY HERETO
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee and Notes Collateral Agent
9.750% SECOND LIEN SECURED NOTES DUE 2033
TABLE OF CONTENTS
| Page | |||
|---|---|---|---|
| ARTICLE 1 | |||
| DEFINITIONS AND INCORPORATION BY REFERENCE | |||
| SECTION 1.01. | Definitions | 1 | |
| SECTION 1.02. | Other Definitions | 58 | |
| SECTION 1.03. | Incorporation by Reference of Trust Indenture Act | 59 | |
| SECTION 1.04. | Rules of Construction | 60 | |
| SECTION 1.05. | Acts of Holders | 60 | |
| SECTION 1.06. | Calculations | 62 | |
| ARTICLE 2 | |||
| THE NOTES | |||
| SECTION 2.01. | Form and Dating; Terms | 63 | |
| SECTION 2.02. | Execution and Authentication | 64 | |
| SECTION 2.03. | Registrar and Paying Agent | 65 | |
| SECTION 2.04. | Paying Agent to Hold Money in Trust | 65 | |
| SECTION 2.05. | Holder Lists | 66 | |
| SECTION 2.06. | Transfer and Exchange | 66 | |
| SECTION 2.07. | Replacement Notes | 76 | |
| SECTION 2.08. | Outstanding Notes | 76 | |
| SECTION 2.09. | Treasury Notes | 77 | |
| SECTION 2.10. | Temporary Notes | 77 | |
| SECTION 2.11. | Cancellation | 77 | |
| SECTION 2.12. | Defaulted Interest | 77 | |
| SECTION 2.13. | CUSIP Numbers | 78 | |
| ARTICLE 3<br> <br><br><br><br>REDEMPTION | |||
| SECTION 3.01. | Notices to Trustee | 78 | |
| SECTION 3.02. | Selection of Notes to Be Redeemed or Purchased | 78 | |
| SECTION 3.03. | Notice of Redemption | 79 | |
| SECTION 3.04. | Effect of Notice of Redemption or Purchase | 80 | |
| SECTION 3.05. | Deposit of Redemption or Purchase Price | 80 | |
| SECTION 3.06. | Notes Redeemed or Purchased in Part | 81 | |
| SECTION 3.07. | Optional Redemption | 81 | |
| SECTION 3.08. | Mandatory Redemption | 82 | |
| SECTION 3.09. | Offers to Repurchase by Application of Excess Proceeds | 82 |
i
| ARTICLE 4<br> <br><br><br><br>COVENANTS | ||
|---|---|---|
| SECTION 4.01. | Payment of Notes | 84 |
| SECTION 4.02. | Maintenance of Office or Agency | 85 |
| SECTION 4.03. | Reports and Other Information | 85 |
| SECTION 4.04. | Compliance Certificate | 86 |
| SECTION 4.05. | Taxes | 87 |
| SECTION 4.06. | Stay, Extension and Usury Laws | 87 |
| SECTION 4.07. | Limitation on Restricted Payments | 87 |
| SECTION 4.08. | Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries | 99 |
| SECTION 4.09. | Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred<br>Stock | 101 |
| SECTION 4.10. | Asset Sales | 112 |
| SECTION 4.11. | Transactions with Affiliates | 115 |
| SECTION 4.12. | Liens | 118 |
| SECTION 4.13. | Corporate Existence | 119 |
| SECTION 4.14. | Change of Control Triggering Event | 119 |
| SECTION 4.15. | Additional Note Guarantees | 121 |
| SECTION 4.16. | Covenant Suspension | 122 |
| SECTION 4.17. | Limitation on Priming Financing/ Liability Management Transactions | 123 |
| SECTION 4.18. | [Reserved] | 123 |
| SECTION 4.19. | After-Acquired Property | 123 |
| ARTICLE 5<br> <br><br><br><br>SUCCESSORS | ||
| SECTION 5.01. | Merger, Consolidation, Amalgamation or Sale of All or Substantially All Assets | 124 |
| SECTION 5.02. | Successor Corporation Substituted | 127 |
| ARTICLE 6<br> <br><br><br><br>DEFAULTS AND REMEDIES | ||
| SECTION 6.01. | Events of Default | 127 |
| SECTION 6.02. | Acceleration | 130 |
| SECTION 6.03. | Other Remedies | 130 |
| SECTION 6.04. | Waiver of Past Defaults | 131 |
| SECTION 6.05. | Control by Majority | 131 |
| SECTION 6.06. | Limitation on Suits | 131 |
| SECTION 6.07. | Rights of Holders of Notes to Receive Payment | 132 |
| SECTION 6.08. | Collection Suit by Trustee | 132 |
| SECTION 6.09. | Restoration of Rights and Remedies | 132 |
| SECTION 6.10. | Rights and Remedies Cumulative | 132 |
| SECTION 6.11. | Delay or Omission Not Waiver | 133 |
| SECTION 6.12. | Trustee May File Proofs of Claim | 133 |
| SECTION 6.13. | Priorities | 133 |
| SECTION 6.14. | Undertaking for Costs | 134 |
ii
| ARTICLE 7<br> <br><br><br><br>TRUSTEE | ||
|---|---|---|
| SECTION 7.01. | Duties of Trustee | 134 |
| SECTION 7.02. | Rights of Trustee | 135 |
| SECTION 7.03. | Individual Rights of Trustee | 136 |
| SECTION 7.04. | Trustee’s Disclaimer | 136 |
| SECTION 7.05. | Notice of Defaults | 136 |
| SECTION 7.06. | [Reserved] | 136 |
| SECTION 7.07. | Compensation and Indemnity | 136 |
| SECTION 7.08. | Replacement of Trustee | 137 |
| SECTION 7.09. | Successor Trustee by Merger, Etc. | 138 |
| SECTION 7.10. | Eligibility; Disqualification | 138 |
| SECTION 7.11. | Preferential Collection of Claims Against Issuer | 138 |
| SECTION 7.12. | [Reserved] | 139 |
| SECTION 7.13. | Security Documents; Intercreditor Agreements | 139 |
| ARTICLE 8<br> <br><br><br><br>LEGAL DEFEASANCE AND COVENANT DEFEASANCE | ||
| SECTION 8.01. | Option to Effect Legal Defeasance or Covenant Defeasance | 139 |
| SECTION 8.02. | Legal Defeasance and Discharge | 139 |
| SECTION 8.03. | Covenant Defeasance | 140 |
| SECTION 8.04. | Conditions to Legal or Covenant Defeasance | 140 |
| SECTION 8.05. | Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions | 142 |
| SECTION 8.06. | Repayment to Issuer | 142 |
| SECTION 8.07. | Reinstatement | 142 |
| ARTICLE 9<br> <br><br><br><br>AMENDMENT, SUPPLEMENT AND WAIVER | ||
| SECTION 9.01. | Without Consent of Holders of Notes | 142 |
| SECTION 9.02. | With Consent of Holders of Notes | 145 |
| SECTION 9.03. | [Reserved] | 147 |
| SECTION 9.04. | Revocation and Effect of Consents | 147 |
| SECTION 9.05. | Notation on or Exchange of Notes | 147 |
| SECTION 9.06. | Trustee and Notes Collateral Agent to Sign Amendments, Etc. | 148 |
| ARTICLE 10<br> <br><br><br><br>NOTE GUARANTEES | ||
| SECTION 10.01. | Note Guarantee | 148 |
| SECTION 10.02. | Limitation on Guarantor Liability | 149 |
| SECTION 10.03. | Execution and Delivery | 150 |
| SECTION 10.04. | Subrogation | 150 |
| SECTION 10.05. | Benefits Acknowledged | 150 |
| SECTION 10.06. | Release of Note Guarantees | 151 |
iii
| ARTICLE 11<br> <br><br><br><br>SATISFACTION AND DISCHARGE | ||
|---|---|---|
| SECTION 11.01. | Satisfaction and Discharge of Indenture | 152 |
| SECTION 11.02. | Application of Trust Money | 153 |
| ARTICLE 12<br> <br><br><br><br>COLLATERAL | ||
| SECTION 12.01. | Security Documents | 154 |
| SECTION 12.02. | Release of Collateral | 155 |
| SECTION 12.03. | Suits to Protect the Collateral | 156 |
| SECTION 12.04. | Authorization of Receipt of Funds by the Trustee Under the Security Documents | 156 |
| SECTION 12.05. | Purchaser Protected | 156 |
| SECTION 12.06. | Powers Exercisable by Receiver or Trustee | 157 |
| SECTION 12.07. | Release Upon Termination of the Issuer’s Obligations | 157 |
| SECTION 12.08. | Notes Collateral Agent | 157 |
| SECTION 12.09. | Other Limitations | 164 |
| ARTICLE 13<br> <br><br><br><br>MISCELLANEOUS | ||
| SECTION 13.01. | [Reserved] | 164 |
| SECTION 13.02. | Notices | 164 |
| SECTION 13.03. | Communication by Holders of Notes with Other Holders of Notes | 166 |
| SECTION 13.04. | Certificate and Opinion as to Conditions Precedent | 166 |
| SECTION 13.05. | Statements Required in Certificate or Opinion | 166 |
| SECTION 13.06. | Rules by Trustee and Agents | 167 |
| SECTION 13.07. | No Personal Liability of Directors, Managers, Officers, Employees and Stockholders | 167 |
| SECTION 13.08. | Governing Law; Submission to Jurisdiction | 167 |
| SECTION 13.09. | Waiver of Jury Trial | 167 |
| SECTION 13.10. | Force Majeure | 167 |
| SECTION 13.11. | Foreign Account Tax Compliance Act (FATCA) | 168 |
| SECTION 13.12. | No Adverse Interpretation of Other Agreements | 168 |
| SECTION 13.13. | Successors | 168 |
| SECTION 13.14. | Severability | 168 |
| SECTION 13.15. | Counterpart Originals | 168 |
| SECTION 13.16. | Table of Contents, Headings, Etc. | 168 |
| SECTION 13.17. | No Adverse Interpretation of Other Agreement | 169 |
| SECTION 13.18. | Intercreditor Agreements | 169 |
iv
| EXHIBITS | |
|---|---|
| Exhibit A | Form of Note |
| Exhibit B | Form of Certificate of Transfer |
| Exhibit C | Form of Certificate of Exchange |
| Exhibit D | Form of Supplemental Indenture |
| Exhibit E | Form of Security Agreement |
| Exhibit F | Form of First/Second/Third Lien Intercreditor Agreement |
| Exhibit G | Principal Terms of Second Lien Pari Passu Lien Intercreditor Agreement |
i
INDENTURE, dated as of February 12, 2025, among Sinclair Television Group, Inc., a corporation organized under the laws of the State of Maryland (the “Issuer”), the Guarantors (as defined herein) from time to time party hereto, and U.S. Bank Trust Company, National Association, as trustee (in such capacity, the “Trustee”) and as notes collateral agent (in such capacity, the “Notes Collateral Agent”).
W I T N E S S E T H
WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance of $432.0 million^^aggregate principal amount of the Issuer’s 9.750% Second Lien Secured Notes due 2033 (the “Notes”); and
WHEREAS, all things necessary to make this Indenture a valid and legally binding agreement of the Issuer, in accordance with its terms, have been done.
NOW, THEREFORE, the Issuer and the Trustee and the Notes Collateral Agent agree as follows for the benefit of each other and, except as provided herein, for the equal and ratable benefit of the Holders of the Notes:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
“144A Global Note” means a Global Note substantially in the form of Exhibit A hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or not prohibited by this Indenture, bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.
“4.125% Unsecured Notes” means such Existing Secured Notes which, upon consummation of the Exchange Offer, the indenture related to which will be amended to release all collateral securing such notes and eliminate substantially all covenants, events of default and related definitions.
“5.125% Senior Unsecured Notes” means each series of 5.125% Senior Unsecured Notes due 2027 governed by the 5.125% Senior Unsecured Notes Indenture.
“5.125% Senior Unsecured Notes Indenture” means the indenture, dated as of August 30, 2016 (as in effect immediately prior to giving effect to any AHG Notes Repurchase), among the Issuer, the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee, as amended or supplemented from time to time.
“5.500% Senior Unsecured Notes” means each series of 5.500% Senior Unsecured Notes due 2030 governed by the 5.500% Senior Unsecured Notes Indenture.
1
“5.500% Senior Unsecured Notes Indenture” means the indenture, dated as of November 27, 2019 (as in effect immediately prior to the Issue Date), among the Issuer, the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee, as amended or supplemented from time to time.
“Accounting Change” has the meaning assigned to it in the definition of “GAAP”.
“Acquired Indebtedness” means, with respect to any specified Person,
(1) Indebtedness of any other Person existing at the time such other Person is merged, consolidated or amalgamated with or into or became a Restricted Subsidiary of such specified Person, including Indebtedness incurred or assumed in connection with, or in contemplation of, such other Person merging, consolidating or amalgamating with or into or becoming a Restricted Subsidiary of such specified Person, and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
“Acquisition Transaction” means any Investment by the Issuer or any of its Restricted Subsidiaries in a Person that is engaged in a Similar Business if as a result of such Investment, (a) such Person becomes a Restricted Subsidiary or (b) such Person, in one transaction or a series of related transactions, is merged, consolidated, or amalgamated with or into, or transfers or conveys all or substantially all of its assets (or all or substantially all the assets constituting a business unit, division, product line or line of business) to, or is liquidated into, the Issuer or a Restricted Subsidiary, and, in each case, any Investment held by such Person (including, for the avoidance of doubt, any TV/Radio Acquisition).
“Additional Assets” means (1) any property or other assets (other than current assets, except for current assets invested in acquired property, businesses or assets) used or useful in a Similar Business, (2) the Capital Stock of a Person that becomes a Restricted Subsidiary of the Issuer as a result of the acquisition of such Capital Stock by the Issuer or another Restricted Subsidiary or (3) Capital Stock constituting a minority interest in any Person that at such time is a Restricted Subsidiary of the Issuer; provided, however, that any Restricted Subsidiary described in clause (2) or (3) above is engaged in a Similar Business.
“Additional Notes” means additional Notes issued pursuant to the terms of any supplemental indenture (other than the Notes, any additional Notes issued pursuant to Sections 2.06, 2.07, 2.10 or 9.05 of this Indenture).
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
“Agent” means any Registrar or Paying Agent.
“AHG Notes Repurchase” has the meaning set forth under the “Summary—Recent developments—Transaction Support Agreement” section of the New First-Out First Lien Notes Offering Memorandum.
2
“Amended Credit Agreement” means the Existing Credit Agreement, as amended by the amendment to the Existing Credit Agreement dated as of the Issue Date, among Parent, as guarantor, the Issuer, as borrower, the lenders from time to time party thereto, certain other parties party thereto from time to time and JPMorgan Chase Bank, N.A. (or any successor thereto), as administrative agent, issuing bank and swingline lender, including any related notes, guarantees, security documents, instruments and agreements executed in connection therewith, and as such agreement, in whole or in part, in one or more instances, may be further amended, restated, renewed, extended, substituted, refinanced, restructured, replaced (whether or not upon termination, and whether with the original lenders or otherwise), supplemented or otherwise modified from time to time (including, in each case, by means of one or more credit agreements, note purchase agreements or sales of debt securities to institutional investors whether with the original agents and lenders or otherwise and including, without limitation, any successive renewals, extensions, substitutions, refinancings, restructurings, replacements, supplementations or other modifications of the foregoing) and including, without limitation, to increase the amount of available borrowings thereunder or to add Restricted Subsidiaries as additional borrowers or guarantors or otherwise, which Amended Credit Agreement shall provide for, as of the Issue Date, a junior lien revolving credit facility (the “Junior Lien Revolving Credit Facility”), the term loan B-3 facility (the “Junior Lien Term Loan B-3 Facility”), the term loan B-4 facility (the “Junior Lien Term Loan B-4 Facility” and, together with the Junior Lien Term Loan B-3 Facility, the “Junior Lien Term Loan Facilities” and, together with the Junior Lien Revolving Credit Facility, the “Junior Lien Credit Facilities”).
“Applicable Calculation Date” means the applicable date of determination for (i) Consolidated First Lien Secured Debt Ratio, (ii) Consolidated Secured Debt Ratio, (iii) Consolidated Total Debt Ratio, (iv) Fixed Charge Coverage Ratio, (v) Consolidated EBITDA or (vi) Total Assets.
“Applicable Measurement Period” means the most recently completed eight consecutive fiscal quarters of the Issuer immediately preceding the Applicable Calculation Date for which internal financial statements are available. When used in reference to (x) a measurement of Consolidated EBITDA, the Consolidated EBITDA for such Applicable Measurement Period shall be measured as the Consolidated EBITDA for such eight consecutive fiscal quarters, divided by two and (y) a measurement of the Consolidated First Lien Secured Debt Ratio, the Consolidated Secured Debt Ratio, the Consolidated Total Debt Ratio or the Fixed Charge Coverage Ratio, the applicable ratio shall be calculated using the Consolidated EBITDA (in the numerator or the denominator, as applicable) for such eight consecutive fiscal quarters, divided by two.
“Applicable Premium” means, with respect to any Note on any Redemption Date, the greater of:
(1) 1.0% of the principal amount of such Note; and
(2) the excess, if any, of (a) the present value at such Redemption Date of (i) the redemption price of such Note at February 15, 2027 (such redemption price being set forth in the table appearing in Section 3.07(b)) plus (ii) all required interest payments due on such Note through February 15, 2027 (excluding accrued but unpaid interest to the Redemption Date), computed by the Issuer on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) using a discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points; over (b) the principal amount of such Note.
Calculation of the Applicable Premium will be made by the Issuer; provided that such calculation or the correctness thereof shall not be a duty or obligation of the Trustee.
3
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and/or Clearstream that apply to such transfer or exchange.
“Asset Sale” means:
(1) the sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of property or assets (including by way of a Sale and Lease-Back Transaction) of the Issuer or any of its Restricted Subsidiaries; or
(2) the issuance or sale of Equity Interests of any Restricted Subsidiary (other than Preferred Stock or Disqualified Stock of Restricted Subsidiaries issued in compliance with Section 4.09), whether in a single transaction or a series of related transactions
(each of the foregoing clauses (1) and (2) referred to in this definition as a “disposition”),
in each case, other than:
(a) any disposition of Cash Equivalents or Investment Grade Securities or obsolete, non-core, surplus, damaged, unnecessary, unsuitable or worn out property or equipment, inventory or other assets, in each case, in the ordinary course of business or consistent with industry or past practice or any disposition of inventory, immaterial assets or goods (or other assets), property or equipment held for sale or no longer used or useful, or economically practicable to maintain, in the conduct of the business of the Issuer and any of its Subsidiaries;
(b) the disposition of all or substantially all of the assets of the Issuer or any Restricted Subsidiary in a manner permitted pursuant to Section 5.01 or any disposition that constitutes a Change of Control pursuant to this Indenture;
(c) any disposition in connection with the making of any Restricted Payment that is permitted to be made under Section 4.07 or any Permitted Investment;
(d) any disposition of property or assets, or issuance or sale of Equity Interests of any Restricted Subsidiary, in any single transaction or series of related transactions with an aggregate fair market value not to exceed $90.0 million (such greater amounts, the “Specified Threshold”) (provided that if the aggregate amount of all such individual dispositions or related series of dispositions that are less than or equal to the Specified Threshold in any fiscal year exceeds $180.0 million in the aggregate during such fiscal year, then the foregoing Specified Threshold shall refer to the purchase price of all such dispositions in such fiscal year in excess of the Specified Threshold;
(e) any disposition of property or assets or issuance of securities by a Restricted Subsidiary to the Issuer or by the Issuer or a Restricted Subsidiary to another Restricted Subsidiary (including any sale, transfer or other disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC so long as upon formation of such Delaware Divided LLC, such Delaware Divided LLC shall be a Restricted Subsidiary);
(f) any disposition of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property, (ii) an amount equal to the Net Proceeds of such disposition are promptly applied to the purchase price of similar replacement property or (iii) to the extent allowable under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
4
(g) the lease, assignment, sublease, license or sublicense of any real or personal property (including the provision of software under an open source license) in the ordinary course of business or consistent with past practice;
(h) any issuance, disposition or pledge of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary (or a Restricted Subsidiary which owns an Unrestricted Subsidiary so long as such Restricted Subsidiary owns no assets other than the Equity Interests of such Unrestricted Subsidiary);
(i) foreclosures, condemnation, expropriation, forced dispositions, eminent domain or any similar action (whether by deed in lieu of condemnation or otherwise) with respect to any property, assets, Equity Interests or Indebtedness, the granting of Liens permitted or not prohibited by this Indenture, and transfers of any property, asset, Equity Interests or Indebtedness that have been subject to a casualty to the respective insurer of such property, asset, Equity Interests or Indebtedness as part of an insurance settlement or upon receipt of the net proceeds of such casualty event;
(j) dispositions or discounts without recourse (including by way of assignment or participation) of (i) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (ii) receivables and related assets pursuant to any Permitted Receivables Financing or any participation therein;
(k) any financing transaction with respect to property built or acquired by the Issuer or any Restricted Subsidiary after the Issue Date, including Sale and Lease-Back Transactions and assets securitizations permitted or not prohibited by this Indenture;
(l) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business or consistent with industry or past practice;
(m) the sale, discount or other disposition, lease, assignment, license, sublease or discount of inventory, equipment, accounts receivable, notes receivable, equipment or other property, assets, Equity Interests or Indebtedness in the ordinary course of business or consistent with industry or past practice, and the conversion of accounts receivable or notes receivable or other dispositions of accounts receivable or notes receivable in connection with the collection or compromise thereof;
(n) the licensing, sub-licensing or cross-licensing of intellectual property or other general intangibles in the ordinary course of business or consistent with industry or past practice or that is immaterial;
(o) the unwinding or termination of any Hedging Obligations or Cash Management Obligations;
(p) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in binding joint venture or similar agreements or arrangements;
(q) the lapse, abandonment or invalidation of intellectual property rights that are not material to the conduct of the business of the Issuer and its Restricted Subsidiaries, taken as a whole, or that are no longer used or useful or no longer economically practicable or commercially reasonable to maintain, in each case as reasonably determined by the Issuer;
5
(r) the issuance of directors’ qualifying shares and shares issued to foreign nationals or other third parties as required by applicable law;
(s) the disposition of any property, assets, Equity Interests or Indebtedness (i) acquired in a transaction that are not used or useful in the core or principal business of the Issuer and its Restricted Subsidiaries as reasonably determined by the Issuer, or (ii) made in connection with the approval of any applicable antitrust authority or any other governmental authority or otherwise necessary or advisable to consummate any acquisition after the Issue Date, as determined by the Issuer;
(t) any disposition of property, assets, Equity Interests or Indebtedness of a Foreign Subsidiary the Net Proceeds of which the Issuer has reasonably determined that the repatriation of such Net Proceeds (i) is prohibited or subject to limitations under applicable law, orders, decrees or determinations of any arbitrator, court or governmental authority or (ii) would have a material adverse tax consequence; provided that when the Issuer determines that repatriation of any of such Net Proceeds (i) is no longer prohibited or subject to limitations under such applicable law, orders, decrees or determinations of any arbitrator, court or governmental authority or (ii) would no longer have a material adverse tax consequence, such amount at such time shall be considered the Net Proceeds in respect of an Asset Sale; and
(u) any disposition of property, assets, Equity Interests or Indebtedness that were acquired with Excluded Contributions if the proceeds of such disposition are used to make a Restricted Payment pursuant to clause (9)(b) of Section 4.07(b).
In the event that a transaction (or any portion thereof) meets the criteria of a permitted Asset Sale and would also be a permitted Restricted Payment or Permitted Investment, the Issuer, in its sole discretion, will be entitled to divide and classify such transaction (or a portion thereof) as an Asset Sale and/or one or more of the types of permitted Restricted Payments or Permitted Investments.
“Bankruptcy Code” means Title 11 of the United States Code, as amended.
“Bankruptcy Law” means the Bankruptcy Code and any similar federal, state or foreign law for the relief of debtors.
“Board” with respect to a Person means the board of directors (or similar body) of such Person or any committee thereof duly authorized to act on behalf of such board of directors (or similar body).
“Broadcast Licenses” means (a) the licenses, permits, authorizations or certificates to construct, own or operate the Stations granted by the FCC, and all extensions, additions and renewals thereto or thereof, and (b) the licenses, permits, authorizations or certificates which are necessary to construct, own or operate the Stations granted by administrative law courts or any state, county, city, town, village or other local governmental authority, and all extensions, additions and renewals thereto or thereof.
“Business Day” means each day which is not a Legal Holiday.
“Capital Stock” means:
(1) in the case of a corporation, corporate stock;
6
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
“Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by a Person and its Restricted Subsidiaries during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of a Person and its Restricted Subsidiaries.
“Cash Equivalents” means:
(1) United States dollars;
(2) (a) Canadian dollars, euro, pound sterling or any national currency of any participating member state of the EMU; or
(b) other currencies held by the Issuer and its Restricted Subsidiaries from time to time in the ordinary course of business;
(3) securities issued or directly and fully and unconditionally guaranteed or insured by the U.S. government or any agency or instrumentality thereof as a full faith and credit obligation of the U.S. government, with average maturities of 24 months or less from the date of acquisition;
(4) certificates of deposit, time deposits and eurodollar time deposits with average maturities of one year or less from the date of acquisition, demand deposits, bankers’ acceptances with average maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank having capital and surplus of not less than $100.0 million in the case of U.S. banks or other U.S. financial institutions and $100.0 million (or the U.S. dollar equivalent as of the date of determination) in the case of non-U.S. banks or other non-U.S. financial institutions;
(5) repurchase obligations for underlying securities of the types described in clauses (3), (4) and (10) entered into with any financial institution meeting the qualifications specified in clause (4) above;
(6) commercial paper rated at least P-2 by Moody’s, at least A-2 by S&P or at least F2 by Fitch (or, if at any time, none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another Rating Agency) and variable or fixed rate notes issued by any financial institution meeting the qualifications specified in clause (4) above, in each case, with average maturities of 36 months after the date of creation thereof;
(7) marketable short-term money market and similar securities having a rating of at least P-2, A-2 or F2 from either Moody’s, S&P or Fitch, respectively (or, if at any time none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another Rating Agency);
7
(8) investment funds investing at least 90% of their assets in securities of the types described in clauses (1) through (7) above and (9) through (12) below;
(9) securities issued or directly and fully and unconditionally guaranteed by any state, commonwealth or territory of the United States of America or any political subdivision or taxing authority of any such state, commonwealth or territory or any public instrumentality thereof having average maturities of not more than 36 months from the date of acquisition thereof;
(10) readily marketable direct obligations issued or directly and fully and unconditionally guaranteed by any foreign government or any political subdivision or public instrumentality thereof, in each case (other than in the case of such securities issued or guaranteed by any participating member state of the EMU) having an Investment Grade Rating from any of Moody’s, S&P or Fitch (or, if at any time none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another Rating Agency) with average maturities of 36 months or less from the date of acquisition;
(11) Indebtedness or Preferred Stock issued by Persons with a rating of A or higher from S&P, A2 or higher from Moody’s or F1 or higher from Fitch (or, if at any time none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another Rating Agency) with average maturities of 36 months or less from the date of acquisition;
(12) Investments with average maturities of 36 months or less from the date of acquisition in money market funds rated A or better by S&P, A2 or better by Moody’s or F1 or better by Fitch (or, if at any time none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another Rating Agency);
(13) in the case of investments by any Foreign Subsidiary of the Issuer, investments for cash management purposes of comparable tenor and credit quality to those described in the foregoing clauses (1) through (12) customarily utilized in countries in which such Foreign Subsidiary operates; and
(14) investments, classified in accordance with GAAP as current assets, in money market investment programs that are registered under the Investment Company Act of 1940 or that are administered by financial institutions meeting the qualifications specified in clause (4) above, and, in either case, the portfolios of which are limited such that substantially all of such investments are of the character, quality and maturity described in clauses (1) through (13) of this definition.
Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (1) and (2) above; provided that such amounts are converted into any currency listed in clauses (1) and (2) as promptly as practicable and in any event within ten Business Days following the receipt of such amounts.
For the avoidance of doubt, any items identified as Cash Equivalents under this definition will be deemed to be Cash Equivalents under this Indenture regardless of the treatment of such items under GAAP.
“Cash Management Obligations” means (1) obligations of the Issuer or any of its Restricted Subsidiaries in respect of any overdraft and related liabilities arising from treasury, depository, cash pooling arrangements and cash management or treasury services or any automated clearing house transfers of funds, (2) other obligations in respect of netting services, employee credit or purchase card programs and similar arrangements and (3) obligations in respect of any other services related, ancillary or complementary to the foregoing (including any overdraft and related liabilities arising from treasury, depository, cash pooling arrangements and cash management services, corporate credit and purchasing cards and related programs or any automated clearing house transfers of funds).
8
“Change of Control” means the occurrence of one or more of the following events after the Issue Date:
(1) the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the assets of the Issuer and its Subsidiaries, taken as a whole, to any Person other than any Permitted Holders; or
(2) the Issuer becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), including any group acting for the purpose of acquiring, holding or disposing of Equity Interests of the Issuer or Parent (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than any Permitted Holder or Permitted Holders, in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase, of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of more than 50% of the total voting power of the Voting Stock entitled to vote for the election of directors of the Issuer or Parent, as applicable, having a majority of the aggregate votes on the Board of the Issuer or Parent, as applicable, unless any Permitted Holder or Permitted Holders have the right (pursuant to contract, proxy or otherwise), directly or indirectly, to designate, nominate or appoint directors or other governing body of the Issuer or Parent, as applicable, having a majority of the aggregate votes on the Board of the Issuer or Parent or other governing body, as applicable.
Notwithstanding the preceding or any provision of Section 13d-3 of the Exchange Act, (i) a Person or group shall not for purposes of this definition beneficially own Voting Stock subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the Voting Stock in connection with the transactions contemplated by such agreement sufficient to otherwise be a Change of Control, (ii) if any group includes one or more Permitted Holders, the issued and outstanding Voting Stock of the Issuer or Parent, as applicable, owned, directly or indirectly, by any Permitted Holder or Permitted Holders that are part of such group shall not for purposes of this definition be beneficially owned by such group or any other member of such group for purposes of determining whether a Change of Control has occurred and (iii) a Person or group shall not for purposes of this definition beneficially own the Voting Stock of another Person as a result of its ownership of Voting Stock or other securities of such other Person’s Parent Entity (or related contractual rights) unless it owns more than 50% of the total voting power of the Voting Stock entitled to vote for the election of directors or other governing members of such Parent Entity. Notwithstanding anything to the contrary, if any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), including any group acting for the purpose of acquiring, holding or disposing of Equity Interests of the Issuer or Parent (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) that are not Permitted Holders has the right (directly or indirectly) to appoint or nominate (in the aggregate) the members of the Board of the Issuer or Parent (including through having voting rights over Voting Stock of Parent or the Issuer), in each case, having the right to vote a majority of the aggregate votes of the members on the Board of the Issuer or the Parent, a Change of Control will be deemed to have occurred.
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Rating Decline with respect to the Notes.
9
“Channel Sharing Agreement” means an agreement governing the shared use of a television channel or other similar contractual arrangement that constitutes a channel sharing agreement within the meaning of 47 C.F.R. § 73.3700(a)(5).
“Chatham” means Chatham Asset Management, LLC or any Person for which it acts as investment advisor or manager
“Clearstream” means Clearstream Banking, Société Anonyme, or any successor securities clearance agency.
“Code” means the Internal Revenue Code of 1986, as amended, or any successor thereto.
“Collateral” means all of the assets and property (whether real or personal) of the Issuer or any Guarantor now owned or hereafter acquired securing or purporting to secure the Notes Obligations pursuant to the Security Documents.
“Consolidated EBITDA” means, as of any Applicable Calculation Date, with respect to any Person for any period, the Consolidated Net Income of such Person for such period, plus:
(1) without duplication and to the extent already deducted (and not added back) in arriving at such Consolidated Net Income for such period, the sum of the following amounts for such period:
(a) Fixed Charges of such Person for such period and, to the extent not reflected in Fixed Charges, any losses on Hedging Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, net of interest income and gains on such Hedging Obligations or such derivative instruments, and bank and letter of credit fees and costs of surety bonds in connection with financing activities, plus items excluded from the definition of “Consolidated Interest Expense” pursuant to clauses (n) through (z) thereof,
(b) provision for taxes based on income, profits, revenue or capital, including federal, foreign and state income, franchise, excise, value added and similar taxes based on income, profits, revenue or capital, and foreign withholding taxes of such Person paid or accrued during such period (including in respect of repatriated funds), including any penalties and interest relating to such taxes or arising from any tax examinations, and (without duplication) any payments actually made to a Parent Entity pursuant to clause (13) of Section 4.07(b) in respect of such taxes,
(c) the total amount of depreciation and amortization expense (including amortization of deferred financing fees or costs, internal labor costs, debt issuance costs, commissions, fees and expenses, capitalized expenditures (including Capitalized Software Expenditures), customer acquisition costs and incentive payments, content (including film) and sports rights amortization, conversion costs and contract acquisition costs) of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP,
(d) any other non-cash charges, expenses or losses, including any write offs, write downs, expenses, losses or items (each, a “non-cash charge”), except that if any non-cash charge represents an accrual or reserve for potential cash items in any future period (A) such Person may elect not to add back such non-cash charge in such period and (B) to the extent such Person elects to add back such non-cash charge (other than amortization of a prepaid cash item that was paid in a prior period) in such period, the cash payment in respect thereof in any future period shall be subtracted from Consolidated EBITDA,
10
(e) (i) the amount of any non-controlling interest or minority interest expense consisting of income attributable to non-controlling or minority equity interests of third parties (other than the Issuer or any of its Subsidiaries) in any non-Wholly-Owned Subsidiary deducted (and not added back) in such period to Consolidated Net Income, and (ii) the amount of dividends or distributions or other payments to the Issuer or any of its Restricted Subsidiaries that are actually paid in cash or Cash Equivalents (or if not paid in cash or Cash Equivalents, but later converted into cash or Cash Equivalents, upon such conversion) by any Person during such period, in the case of each of clause (i) and (ii), without duplication of cash distributions in respect thereof which are included in Consolidated Net Income for such period,
(f) the amount of fees, expenses and indemnities paid to directors, including of the Issuer or any Parent Entity thereof,
(g) losses or discounts on sales or dispositions of receivables and related assets in connection with any Permitted Receivables Financing,
(h) cash receipts (or any netting arrangements resulting in reduced cash expenditures) not included in the calculation of Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to clause (4) below for any previous period and not added back,
(i) any costs or expenses incurred by such Person or any Restricted Subsidiary pursuant to any management equity plan or stock option plan or phantom equity plan or any other management or employee benefit plan or agreement, any severance agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are non-cash or otherwise funded with cash proceeds contributed to the capital of such Person or Net Proceeds of an issuance of Equity Interests of such Person (other than Disqualified Stock),
(j) any net pension or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at the date of initial application of FASB Accounting Standards Codification Topic 715—Compensation—Retirement Benefits, and any other items of a similar nature, plus
(k) adjustments used in connection with the calculation of “Adjusted EBITDA” as set forth in the reconciliation of net income to adjusted EBITDA of the Issuer, set forth in the section “Summary Consolidated Financial Information—Non-GAAP Financial Measures” of the New First-Out First Lien Notes Offering Memorandum to the extent such adjustments continue to be applicable during the period in which Consolidated EBITDA is being calculated and other adjustments of a similar nature to the foregoing, in each case applied in good faith by the Issuer; plus
(2) without duplication, the amount reasonably projected by such Person of “run rate” cost savings, expenses, operating expense reductions, synergies and contractual retransmission revenue (including from increased pricing, if any, determined on an aggregate basis across all existing customer contracts) and charges (including restructuring and integration charges) to be realized by such Person as a result of actions (including actions taken or initiated before, on or after the Issue Date) that have been taken or initiated or are expected to be taken or initiated in connection with, pursuant to or as
11
contemplated by the Transactions, any Specified Event or any joint venture or other arrangement of such Person or any of its Restricted Subsidiaries (even if not accounted for on the financial statements of any such joint venture or such Person) occurring on or prior to the date that is 12 full months after the date of final consummation of any investment, disposition of assets, property, Capital Stock or Indebtedness, incurrence, prepayment or repayment of Indebtedness, Restricted Payment, Subsidiary designation, restructuring, cost saving initiative or other initiative (including any Acquisition Transactions) (each such investment, disposition, incurrence, prepayment, repayment, Restricted Payment and Subsidiary designation, a “Specified Event”). Such cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) 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 from such actions if such cost savings are reasonably identifiable and factually supportable; provided, that any such amounts attributable to actions taken or initiated after the Issue Date (other than such amounts that are already included in Consolidated EBITDA calculations for periods prior to the Issue Date and/or attributable to specifically identifiable and measurable contractual retransmission revenue from contracts acquired in connection with Acquisition Transactions and Investments in the broadcast industry but including any such cost savings, expenses, operating expense reductions, synergies, contractual retransmission revenue and charges that are otherwise included in the calculation of Consolidated EBITDA due to add-backs and exceptions specified in the definition of “Consolidated Net Income” and in other components of “Consolidated EBITDA”) shall not constitute more than twenty percent (20%) of Consolidated EBITDA for such period (before giving effect to add-backs pursuant to this clause (2)). No cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) shall be added pursuant to this clause (2) to the extent duplicative of any cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) that are included in clause (1) above (it being understood and agreed that “run rate” shall mean the full recurring cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) that are associated with any action taken) and the share of any such cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) with respect to a joint venture that are to be allocated to such Person shall not exceed the total amount thereof proportionate to such Person’s economic interest in such joint venture for the relevant Applicable Measurement Period; plus
(3) any Designated Parent Contribution; less
(4) without duplication and to the extent included in arriving at such Consolidated Net Income, the sum of the following amounts for such period:
(a) non-cash gains (excluding any non-cash gain to the extent it represents the reversal of an accrual or reserve for a potential cash item that reduced Consolidated Net Income or Consolidated EBITDA in any prior period),
(b) the amount of any non-controlling interest consisting of loss attributable to non-controlling interests of third parties in any non-Wholly-Owned Subsidiary added (and not deducted) in such period from Consolidated Net Income, and
(c) Film Cash Payments made during such period (and not deducted in such period from Consolidated Net Income),
in each case, as determined on a consolidated basis for such Person and its Restricted Subsidiaries; provided that there shall be excluded from Consolidated EBITDA any management fees paid by or on behalf of Diamond Sports Group, LLC to the Issuer or any of its Restricted Subsidiaries prior to the Issue Date pursuant to the management services agreement between Diamond Sports Group, LLC and the Issuer dated August 23, 2019.
12
For purposes of testing the covenants under this Indenture in connection with any transaction, the Consolidated EBITDA of such Person and its Restricted Subsidiaries shall be adjusted to reflect such pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio (other than as set forth in the third sentence of the first paragraph of such definition).
In addition, to the extent not already included in the Consolidated EBITDA of such Person and its Restricted Subsidiaries in any period, notwithstanding anything to the contrary in the foregoing, Consolidated EBITDA shall include additional adjustments evidenced by or contained in a due diligence or quality of earnings report prepared with respect to any Investment permitted under this Indenture that has been consummated (or, solely for purposes of determining the permissibility of any Investment that constitutes a Limited Condition Transaction, a definitive agreement or other binding obligation with respect to which has been entered into) and made available to the Trustee by an Independent Financial Advisor.
“Consolidated First Lien Secured Debt Ratio” means, as of any Applicable Calculation Date, with respect to any Person and its Restricted Subsidiaries, the ratio of (1) Consolidated Total Indebtedness of such Person and its Restricted Subsidiaries for borrowed money, unreimbursed drawings under letters of credit, Obligations in respect of Financing Lease Obligations, debt obligations evidenced by promissory notes and similar instruments that constitute First Lien Obligations, computed as of the end of the most recent fiscal quarter for which internal financial statements are available immediately preceding the Applicable Calculation Date to (2) such Person’s Consolidated EBITDA for the Applicable Measurement Period, in each case with such pro forma adjustments to Consolidated Total Indebtedness and Consolidated EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio (other than as set forth in the third sentence of the first paragraph of such definition); provided that, for purposes of the calculation of Consolidated First Lien Secured Debt Ratio, in connection with (x) the Incurrence of any Indebtedness pursuant to Section 4.09 or (y) the Incurrence of any Lien pursuant to clause (34) of the definition of “Permitted Liens”, such Person may elect, pursuant to an Officer’s Certificate delivered to the Trustee, to treat all or any portion of the commitment (such amount elected until revoked as described below, the “Elected Amount”) under any Indebtedness which is to be Incurred (or any commitment in respect thereof) or secured by such Lien, as the case may be, as being Incurred or secured, as the case may be, as of the Applicable Calculation Date and (i) any Incurrence of such Indebtedness under such commitment after such Applicable Calculation Date (so long as the total amount under such Indebtedness does not exceed the Elected Amount) shall not be for purposes of this calculation an Incurrence of additional Indebtedness or an additional Lien at any time, (ii) such Person may revoke an election of an Elected Amount pursuant to an Officer’s Certificate delivered to the Trustee and (iii) for purposes of calculations of the Consolidated First Lien Secured Debt Ratio, the Elected Amount (if any) shall be deemed to be outstanding, whether or not such amount is actually outstanding unless and to the extent revoked pursuant to the immediately preceding subclause (ii) of this definition.
“Consolidated Interest Expense” means, with respect to any Person for any period, without duplication, the sum of:
(1) consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect
13
to letters of credit or bankers acceptances, (c) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in mark to market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP), (d) the interest component of Financing Lease Obligations and (e) net payments, if any, made (less net payments, if any, received), pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding (n) any interest expense attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto and with respect to the Transactions or any Specified Event, (o) annual agency or similar fees paid to the administrative agents, collateral trustees, collateral agents and other agents under any Credit Facilities, (p) any additional interest with respect to failure to comply with any registration rights agreement owing with respect to any securities, (q) costs associated with obtaining Hedging Obligations, (r) any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting in connection with any acquisition, (s) penalties and interest relating to taxes, (t) any “additional interest” or “liquidated damages” with respect to other securities for failure to timely comply with registration rights obligations, (u) amortization or expensing of deferred financing fees, amendment and consent fees, debt issuance costs, commissions, fees, expenses and discounted liabilities, (v) any expensing of bridge, commitment and other financing fees and any other fees related to the Transactions or any acquisitions after the Issue Date, (w) commissions, discounts, yield and other fees and charges (including any interest expense) related to any Permitted Receivables Financing, (x) any accretion of accrued interest on discounted liabilities and any prepayment, make whole or breakage premium, penalty or cost, (y) interest expense attributable to a Parent Entity resulting from push down accounting and (z) any lease, rental or other expense in connection with a Non-Financing Lease Obligation); plus
(2) consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less
(3) interest income of such Person and its Restricted Subsidiaries for such period.
For purposes of this definition, interest on a Financing Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Financing Lease Obligation in accordance with GAAP (or, if not implicit, as otherwise determined in accordance with GAAP).
“Consolidated Net Income” means, with respect to any Person for any period, the aggregate of the net income (loss) of such Person for such period, determined on a consolidated basis, excluding (and excluding the effect of), without duplication:
(1) extraordinary, exceptional, one-time, infrequent, non-recurring, non-operating or unusual gains or losses (less all fees and expenses relating thereto) and expenses (including any unusual or non-recurring operating expenses directly attributable to the implementation of cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) initiatives and any accruals or reserves in respect of any extraordinary, non-recurring or unusual items), severance, relocation costs, contract termination costs, system establishment charges, integration and facilities’ opening costs and other business optimization expenses (including related to new product introductions and other strategic or cost savings initiatives), restructuring charges, accruals or reserves (including restructuring and integration costs related to acquisitions after the Issue Date and adjustments to existing reserves), whether or not classified as restructuring expense on the consolidated financial statements, recruiting and signing costs, retention or completion bonuses, other executive recruiting and retention costs, transition costs, charges or expenses attributable to legal or regulatory claims, suits, actions, disputes, hearings and other matters, asset divestitures, costs or cost inefficiencies related to labor, facility, property or broadcasting transmission slowdowns, shutdowns or disruptions (as applicable), costs related to closure/consolidation of facilities and curtailments or modifications to pension and post-retirement employee benefit plans (including any settlement of pension liabilities and charges resulting from changes in estimates, valuations and judgments),
14
(2) the cumulative effect of a change in accounting principles and changes as a result of adoption or modification of accounting policies during such period to the extent included in Consolidated Net Income,
(3) Transaction Expenses,
(4) the net income for such period of any Person that is an Unrestricted Subsidiary and any Person that is not a Subsidiary or that is accounted for by the equity method of accounting, except that Consolidated Net Income shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash or Cash Equivalents (or if not paid in cash or Cash Equivalents, but later converted into cash or Cash Equivalents, upon such conversion) by such Person to the referent Person or a Restricted Subsidiary thereof during such period,
(5) [reserved],
(6) any fees and expenses (including any transaction or retention bonus or similar payment) incurred during such period, or any amortization thereof for such period, in connection with any Specified Event, acquisition, Investment, recapitalization, asset disposition, issuance or repayment of indebtedness, issuance of equity securities, refinancing transaction or amendment or other modification of, or the rating by the Rating Agencies of, any debt instrument (in each case, including any such transaction consummated prior to the Issue Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction, in each case whether or not successful or abandoned (including, for the avoidance of doubt, the effects of expensing all transaction-related expenses in accordance with FASB Accounting Standards Codification Topic 805—Business Combinations and gains or losses associated with FASB Accounting Standards Codification Topic 460—Guarantees),
(7) any income (loss) for such period attributable to the early extinguishment of Indebtedness, Hedging Obligations or other derivative instruments (including deferred financing costs written off and premiums paid),
(8) [reserved],
(9) non-cash expenses and costs that result from the issuance of stock-based awards, partnership interest-based awards and similar incentive-based compensation awards or arrangements,
(10) any income (loss) attributable to deferred compensation plans or trusts,
(11) any income (loss) from investments recorded using the equity method of accounting (but including any cash dividends or distributions actually received by such Person or a Restricted Subsidiary thereof in respect of such investment),
(12) any gain (loss) on asset sales, disposals or abandonments (other than asset sales, disposals or abandonments in the ordinary course of business) or income (loss) from discontinued operations (but if such operations are classified as discontinued due to the fact that they are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually disposed of),
15
(13) any non-cash gain (loss) attributable to the mark to market movement in the valuation of Hedging Obligations or other derivative instruments pursuant to FASB Accounting Standards Codification Topic 815—Derivatives and Hedging or mark to market movement of other financial instruments pursuant to FASB Accounting Standards Codification Topic 825—Financial Instruments in such period; provided that any cash payments or receipts relating to transactions realized in a given period shall be taken into account in such period,
(14) any non-cash gain (loss) related to currency remeasurements of Indebtedness (including the net loss or gain resulting from Hedging Obligations for currency exchange risk and revaluations of intercompany balances and other balance sheet items),
(15) any non-cash expenses, accruals or reserves related to adjustments to historical tax exposures; provided, in each case, that the cash payment in respect thereof in such future period shall be subtracted from Consolidated Net Income for the period in which such cash payment was made,
(16) any impairment charge or asset write-off or write-down (including related to intangible assets (including goodwill), long-lived assets, investments in debt and equity securities, and write-offs and write-downs in connection with film and other programming costs),
(17) solely for the purpose of determining the amount available for Restricted Payments under clause (3)(a) of Section 4.07(a), the net income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded to the extent the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its net income is not at the date of determination wholly permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, is otherwise restricted by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived or released (or the Issuer reasonably believes such restriction could be waived or released and is using commercially reasonable efforts to pursue such waiver or release); provided that Consolidated Net Income of such Person will be increased by the amount of dividends or other distributions or other payments actually paid in cash or Cash Equivalents (or, if not paid in cash or Cash Equivalents, but later converted into cash or Cash Equivalents, upon such conversion) to such Person or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein,
(18) [reserved],
(19) costs associated with, or in anticipation of, or preparation for, compliance with the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and other costs and expenses attributable to any Parent Entity thereof being a public company, and
(20) any expenses, charges or losses to the extent covered by insurance or indemnity and actually reimbursed, or, so long as such Person has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the extent that such amount is in fact reimbursed within 365 days of the date of the insurable or indemnifiable event (net of any amount so added back in any prior period to the extent not so reimbursed within the applicable 365-day period).
16
There shall be excluded from Consolidated Net Income for any period the effects from applying acquisition method accounting, including applying acquisition method accounting to inventory, property and equipment, loans and leases, software and other intangible assets and deferred revenue (including deferred costs related thereto and deferred rent) required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to such Person and its Restricted Subsidiaries), as a result of any Specified Event, acquisition or Investment consummated prior to the Issue Date and any other Specified Event or acquisition (by merger, consolidation, amalgamation or otherwise) or other Investment or the amortization or write-off of any amounts thereof.
In addition, to the extent not already included in Consolidated Net Income, Consolidated Net Income shall include (i) the amount of proceeds received or due from business interruption insurance or reimbursement of expenses and charges that are covered by indemnification and other reimbursement provisions in connection with any acquisition or other Investment or any disposition of any asset permitted under this Indenture (net of any amount so added back in any prior period to the extent not so reimbursed within a two-year period) and (ii) the amount of any cash tax benefits related to the tax amortization of intangible assets in such period.
“Consolidated Secured Debt Ratio” means, as of any Applicable Calculation Date, with respect to any Person and its Restricted Subsidiaries, the ratio of (1) Consolidated Total Indebtedness of such Person and its Restricted Subsidiaries for borrowed money, unreimbursed drawings under letters of credit, Obligations in respect of Financing Lease Obligations, debt obligations evidenced by promissory notes and similar instruments that is secured by a Lien on the Collateral, computed as of the end of the most recent fiscal quarter for which internal financial statements are available immediately preceding the Applicable Calculation Date to (2) such Person’s Consolidated EBITDA for the Applicable Measurement Period, in each case with such pro forma adjustments to Consolidated Total Indebtedness and Consolidated EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio” (other than as set forth in the third sentence of the first paragraph of such definition); provided that, for purposes of the calculation of Consolidated Secured Debt Ratio, in connection with (x) the Incurrence of any Indebtedness pursuant to Section 4.09 or (y) the Incurrence of any Lien pursuant to clause (34) of the definition of “Permitted Liens”, such Person may elect, pursuant to an Officer’s Certificate delivered to the Trustee, to treat an Elected Amount under any Indebtedness which is to be Incurred (or any commitment in respect thereof) or secured by such Lien, as the case may be, as being Incurred or secured, as the case may be, as of the Applicable Calculation Date and (i) any Incurrence of such Indebtedness under such commitment after such Applicable Calculation Date (so long as the total amount under such Indebtedness does not exceed the Elected Amount) shall not be for purposes of this calculation an Incurrence of additional Indebtedness or an additional Lien at any time, (ii) such Person may revoke an election of an Elected Amount pursuant to an Officer’s Certificate delivered to the Trustee and (iii) for purposes of calculations of the Consolidated Secured Debt Ratio, the Elected Amount (if any) shall be deemed to be outstanding, whether or not such amount is actually outstanding, unless and to the extent revoked pursuant to the immediately preceding subclause (ii) of this definition.
“Consolidated Total Debt Ratio” means, as of any Applicable Calculation Date, with respect to any Person and its Restricted Subsidiaries, the ratio of (1) Consolidated Total Indebtedness of such Person and its Restricted Subsidiaries for borrowed money, unreimbursed drawings under letters of credit, Obligations in respect of Financing Lease Obligations, debt obligations evidenced by promissory notes and similar instruments, computed as of the end of the most recent fiscal quarter for which internal financial statements are available immediately preceding the Applicable Calculation Date to (2) such Person’s Consolidated EBITDA for the Applicable Measurement Period, in each case with such pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio” (other than as set forth in the third sentence of the first paragraph of such definition); provided that, for purposes of the calculation of Consolidated Total Debt Ratio, in connection with the Incurrence of any Indebtedness pursuant to Section 4.09, such Person may elect, pursuant to an Officer’s Certificate delivered to the
17
Trustee, to treat an Elected Amount under any Indebtedness which is to be Incurred (or any commitment in respect thereof) as being Incurred as of the Applicable Calculation Date and (i) any Incurrence of such Indebtedness under such commitment after such Applicable Calculation Date (so long as the total amount under such Indebtedness does not exceed the Elected Amount) shall not be for purposes of this calculation an Incurrence of additional Indebtedness at any time, (ii) such Person may revoke an election of an Elected Amount pursuant to an Officer’s Certificate delivered to the Trustee and (iii) for purposes of calculations of the Consolidated Secured Debt Ratio, the Elected Amount (if any) shall be deemed to be outstanding, whether or not such amount is actually outstanding unless and to the extent revoked pursuant to the immediately preceding subclause (ii) of this definition.
“Consolidated Total Indebtedness” means, as of any date of determination, with respect to any Person and its Restricted Subsidiaries, an amount equal to (a) the sum of (1) the aggregate amount of all outstanding Indebtedness of such Person and its Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money, unreimbursed drawings under letters of credit, Obligations in respect of Financing Lease Obligations, debt obligations evidenced by promissory notes and similar instruments, but excluding (A) all undrawn amounts under revolving credit facilities, (B) Hedging Obligations, (C) performance bonds or any similar instruments, (D) the effects of any discounting of Indebtedness resulting from the application of recapitalization accounting or acquisition method accounting in connection with any Specified Event, acquisition (by merger, consolidation, amalgamation, dividend, distribution or otherwise), or other Investment, and (E) all Obligations (including any Non-Recourse Indebtedness) relating to Permitted Receivables Financings and (2) the aggregate amount of all outstanding Disqualified Stock of Person and all Preferred Stock of its Restricted Subsidiaries on a consolidated basis, with the amount of such Disqualified Stock and Preferred Stock equal to the greater of their respective voluntary or involuntary liquidation preferences and maximum fixed repurchase prices, in each case determined on a consolidated basis in accordance with GAAP; less (b) Unrestricted cash and Cash Equivalents of such Person and its Restricted Subsidiaries. For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Stock or Preferred Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock or Preferred Stock as if such Disqualified Stock or Preferred Stock were purchased on any date on which Consolidated Total Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the fair market value of such Disqualified Stock or Preferred Stock, such fair market value shall be determined in good faith by the Board or senior management of such Person.
“Contract Station” means (a) each television or radio station that is the subject of an Acquisition Transaction consummated by the Issuer or any Subsidiary on or after the Issue Date and (b) any television or radio station with which the Issuer or any Subsidiary has entered into any Program Services Agreement, Outsourcing Agreement or other similar agreement on or after the Issue Date, in each case until such time, if any, as the Issuer or any Subsidiary acquires the Broadcast License of such television or radio station and such station becomes an Owned Station.
“Controlled Investment Affiliate” means, as to any Person, any other Person, other than any Investor, which directly or indirectly controls, is controlled by, or is under common control with such Person and is organized by such Person (or any Person controlling such Person) primarily for making direct or indirect equity or debt investments in the Issuer and/or other Persons.
“Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in Section 13.02 or such other address as to which the Trustee may give notice to the Holders and the Issuer.
18
“Covenant Restricted Acquisition” means a publicly announced entry into an agreement or arrangement in respect of an acquisition or Investment (each, a “CRA Transaction”) pursuant to which (a) (i) the Issuer or a Restricted Subsidiary would acquire a Significant Acquired Person, (ii) any Significant Acquired Person would be merged, consolidated or amalgamated with or into or wound up into the Issuer or a Restricted Subsidiary (whether or not the Issuer or a Restricted Subsidiary is the surviving Person) or (iii) any Significant Acquired Person would sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets to the Issuer or a Restricted Subsidiary and (b) a Default or Event of Default would result from the consummation of such CRA Transaction. For the avoidance of doubt, no transaction undertaken in connection with or in furtherance of a Priming Financing/Liability Management Transaction shall be a CRA Transaction or a Covenant Restricted Acquisition under this definition.
“Covenant Restricted Change of Control” means a publicly announced entry into an agreement or arrangement in respect of a transaction (a “COC Transaction”) pursuant to which (a) a Change of Control would (or would reasonably be expected to) occur or (b) (i) the acquiring Person would, upon the consummation of such transaction, be required (or reasonably expected to be required) to assume or acquire the Notes Obligations and (ii) the agreements governing the Indebtedness of such acquiring Person (which Indebtedness was not incurred by such acquiring Person in contemplation of, or in connection with, such COC Transaction) as of the announcement date of the COC Transaction would not permit the acquiring Person to incur or assume the Notes Obligations or (c) a Default or Event of Default would result from the consummation of such COC Transaction. For the avoidance of doubt, no transaction undertaken in connection with or in furtherance of a Priming Financing/Liability Management Transaction shall be a COC Transaction or a Covenant Restricted Change of Control under this definition.
“Credit Facility” means one or more debt facilities (including, without limitation, the Senior Credit Facilities (including the First Lien Senior Credit Facilities) or other financing arrangements (including, without limitation, commercial paper facilities or indentures)) providing for revolving credit loans, term loans, letters of credit or other Indebtedness, including any notes, mortgages, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements, refundings, replacements, exchanges or refinancings thereof, in whole or in part, and any financing arrangements that amend, supplement, modify, extend, renew, restate, refund, replace, exchange or refinance any part thereof, including, without limitation, any such amended, supplemented, modified, extended, renewed, restated, refunding, replacement, exchanged or refinancing financing arrangement that increases the amount permitted to be borrowed or issued thereunder or alters the maturity thereof if and to the extent that such increase in borrowings or issuance is permitted under Section 4.09 or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, trustee, lender or group of lenders, investors, holders or otherwise.
“Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.
“Default” means any event that is, or after notice or lapse of time or both would become, an Event of Default.
“Definitive Note” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06(c), substantially in the form of Exhibit A, or in such other form as shall be established in one or more supplemental indentures, in each case, with such appropriate insertions, omissions, substitutions and other variations as are required or not prohibited by this Indenture, except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.
19
“Delaware Divided LLC” means any Delaware LLC which has been formed upon the consummation of a Delaware LLC Division.
“Delaware LLC” means any limited liability company organized or formed under the laws of the State of Delaware.
“Delaware LLC Division” means the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act.
“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 as the Depositary with respect to the Notes, and any and all successors thereto appointed as Depositary hereunder and having become such pursuant to the applicable provision of this Indenture.
“Designated Non-cash Consideration” means the fair market value of non-cash consideration received by or owing to the Issuer or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officer’s Certificate, less the amount of cash or Cash Equivalents actually received in connection with a subsequent disposition of or collection on such Designated Non-cash Consideration. A particular item of Designated Non-cash Consideration will no longer be considered to be outstanding when and to the extent it has been paid, redeemed or otherwise retired or subject of a disposition in exchange for consideration in the form of cash or Cash Equivalents in compliance with Section 4.10.
“Designated Parent Contribution” means any cash equity contribution made by Parent to the Issuer and designated by the Issuer as a “Designated Parent Contribution.”
“Designated Parent Subsidiary” means each Subsidiary of Parent that is designated as a “Designated Parent Subsidiary” in accordance with the terms of this Indenture, in each case so long as such Subsidiary remains a Designated Parent Subsidiary under this Indenture. As of the Issue Date, there are no Designated Parent Subsidiaries.
“Designated Preferred Stock” means Preferred Stock of the Issuer or any Parent Entity (in each case other than Disqualified Stock) that is issued for cash (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Issuer or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an Officer’s Certificate executed by the principal financial officer of the Issuer or the applicable Parent Entity, as the case may be, on the issuance date thereof, the cash proceeds of which are excluded from the calculation set forth in clause (3) of Section 4.07(a).
“Designated Representative” means, with respect to any series of First Lien Obligations, Pari Passu Lien Obligations or other Secured Indebtedness, the trustee, administrative agent, collateral trustee, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, Incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.
“Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely for Capital Stock of such Person or any Parent Entity thereof that would not otherwise constitute Disqualified Stock, and other than solely as a result of a change of control, asset sale, casualty, condemnation or eminent domain) pursuant to a sinking fund obligation or otherwise, or is redeemable at
20
the option of the holder thereof (other than solely as a result of a change of control, asset sale, casualty, condemnation or eminent domain), in whole or in part, in each case prior to the date 91 days after the maturity date of the Notes; provided, however, that if such Capital Stock is issued to any plan for the benefit of employees of the Issuer or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Issuer or its Subsidiaries or Parent Entities in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability; provided further, that any Capital Stock held by any future, current or former employee, director, officer, manager or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer, any of its Subsidiaries or any Parent Entity or any other entity in which the Issuer or a Restricted Subsidiary has an Investment and is designated in good faith as an “affiliate” by the Board of the Issuer shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Issuer or its Subsidiaries pursuant to any stockholders’ agreement, management equity plan, stock option plan or any other management or employee benefit plan or agreement or in order to satisfy applicable statutory or regulatory obligations.
“Domestic Subsidiary” means any Restricted Subsidiary (other than a Foreign Subsidiary) that is organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof.
“DSG Cash Tax Payments” means the cash tax payments to be paid by or on behalf of the Issuer and its Restricted Subsidiaries related to the Diamond Sports Group, LLC bankruptcy. As of the Issue Date, the DSG Cash Tax Payments were approximately $121 million.
“Elected Amount” has the meaning set forth in the definition of “Consolidated First Lien Secured Debt Ratio”.
“EMU” means economic and monetary union as contemplated in the Treaty on European Union.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock.
“Equity Offering” means any public or private sale or issuance of common equity or Preferred Stock of the Issuer or any Parent Entity (excluding Disqualified Stock), other than:
(1) public offerings with respect to the Issuer or any Parent Entity’s common stock registered on Form S-8;
(2) issuances to any Subsidiary of the Issuer; and
(3) any such public or private sale or issuance that constitutes an Excluded Contribution.
“euro” means the single currency of participating member states of the EMU.
“Euroclear” means Euroclear S.A./N.V., as operator of the Euroclear system, or any successor securities clearance agency.
“Exchange Act” means the Securities Exchange Act of 1934, as amended (with respect to the definitions of “Change of Control” and “Permitted Holders” only, as in effect on the Issue Date).
21
“Exchange Offer” has the meaning ascribed to such term in the New First-Out First Lien Notes Offering Memorandum.
“Exchange Second-Out Indenture” means the indenture, dated as of the Issue Date, among the Issuer, the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and collateral trustee, which indenture governs the Exchange Second-Out First Lien Notes, as amended or supplemented from time to time.
“Exchange Second-Out First Lien Notes” means the 4.375% Second-Out First Lien Secured Notes due 2032 governed by the Exchange Second-Out Indenture, and issued in connection with the Exchange Offer.
“Exchange Second-Out First Lien Notes Obligations” means the Obligations in respect of the Exchange Second-Out First Lien Notes, the guarantees in respect thereof, the Exchange Second-Out Indenture and the security documents relating to the foregoing.
“Excluded Assets” has the meaning assigned to that term in the Security Agreement.
“Excluded Contribution” means net cash proceeds, the fair market value of marketable securities or the fair market value of Qualified Proceeds received by the Issuer from:
(1) contributions to its common equity capital,
(2) dividends, distributions, fees and other payments from any Unrestricted Subsidiaries or joint ventures or Investments in entities that are not Restricted Subsidiaries, and
(3) the sale (other than to a Subsidiary of the Issuer or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of the Issuer) of Capital Stock (other than Disqualified Stock and Designated Preferred Stock) of the Issuer,
in each case designated as Excluded Contributions pursuant to an Officer’s Certificate executed by the principal financial officer of the Issuer within 30 days of the date such capital contributions are made, the date such dividends, distributions, fees or other payments are received or the date such Equity Interests are sold, as the case may be, which are (or were) excluded from the calculation set forth in clause (3) of Section 4.07(a); provided that any such dividends, distributions, fees or other payments so designated pursuant to clause (2) of this definition shall be excluded from the definition of “Consolidated Net Income” for all purposes under this Indenture.
“Existing Credit Agreement” means the Seventh Amended and Restated Credit Agreement dated as of August 23, 2019 (as in effect immediately prior to the Issue Date), by and among the Issuer, the Guarantors, the lenders party thereto, JPMorgan Chase Bank, N.A., in its capacity as administrative agent and collateral agent, and the other agents party thereto.
“Existing LMT Debt” has the meaning assigned to it in the definition of “Priming Financing/Liability Management Transaction”.
“Existing Notes” means, individually or collectively as the context so requires, the Existing Unsecured Notes, and, in the case of the Existing Secured Notes, to the extent such Existing Secured Notes are not exchanged for (i) Exchange Second-Out First Lien Notes pursuant to the Exchange Offer or (ii) Notes or Additional Notes pursuant to the Private Exchanges.
22
“Existing Secured Notes” means the 4.125% Senior Secured Notes due 2030 governed by the Existing Secured Notes Indenture.
“Existing Secured Notes Indenture” means the indenture, dated as of December 4, 2020 (as in effect immediately prior to the Issue Date), among the Issuer, the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and collateral agent, as amended or supplemented from time to time.
“Existing Senior Credit Facilities” means, individual or collectively, as the context may require, the term loan facility and revolving credit facility under the Existing Credit Agreement, in each case, as in effect immediately prior to the Issue Date, including, in each case, any related notes, mortgages, letters of credit, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any appendices, exhibits, annexes or schedules to any of the foregoing (as the same are in effect immediately prior to the Issue Date).
“Existing Unsecured Notes” means, collectively, the 5.125% Senior Unsecured Notes and the 5.500% Senior Unsecured Notes.
“fair market value” means, with respect to any asset or liability, the fair market value of such asset or liability as determined in good faith by the Board or senior management of the Issuer.
“FCC” means the Federal Communications Commission or any governmental authority substituted therefor.
“FCC License” means any license, authorization, approval, or permit granted by the FCC pursuant to the Communications Act of 1934, as amended, and the rules, regulations, published orders and published and promulgated policy statements of the FCC, all as may be amended from time to time, to the Issuer or any of its Restricted Subsidiaries, or assigned or transferred to the Issuer or any Subsidiary Guarantor pursuant to FCC consent.
“Film Cash Payments” means, for any period, the sum (determined on a consolidated basis and without duplication) of all payments by the Issuer and its Restricted Subsidiaries made during such period in respect of Film Obligations, which were previously reflected in the consolidated balance sheet with the Issuer and its Restricted Subsidiaries as a liability; provided that amounts applied to the prepayment of Film Obligations owing under any contract evidencing a Film Obligation under which the amount owed by the Issuer or any of its Restricted Subsidiaries exceeds the remaining value of such contract to the Issuer or such Subsidiary, as reasonably determined by the Issuer, shall not be deemed to be Film Cash Payments.
“Film Obligations” means obligations in respect of the purchase, use, license or acquisition of programs, programming materials, films, and similar assets used in connection with the business and operations of the Issuer and its Subsidiaries.
“Financing Lease Obligation” means, at the time any determination thereof is to be made, an obligation that is required to be accounted for as a financing or capital lease (and, for the avoidance of doubt, not a straight-line or operating lease) on both the balance sheet and income statement for financial reporting purposes in accordance with GAAP. At the time any determination thereof is to be made, the amount of the liability in respect of a financing or capital lease would be the amount required to be reflected as a liability on such balance sheet (excluding the footnotes thereto) in accordance with GAAP.
23
“First/Second/Third Lien Intercreditor Agreement” means the First/Second/Third Lien Intercreditor Agreement, dated as of the Issue Date, among U.S. Bank Trust Company, National Association, as collateral trustee (in such capacity, the “First Lien Representative”) for the holders of the First Lien Obligations, Notes Collateral Agent, and the collateral agent under the Amended Credit Agreement, the Issuer and the Guarantors party thereto, substantially in the form of Exhibit G, as it may be amended or otherwise modified from time to time in accordance with the terms thereof, this Indenture.
“First Lien Debt Documents” has the meaning assigned to such term in the First/Second/Third Lien Intercreditor Agreement.
“First Lien Indebtedness” means the Indebtedness under the New First-Out First Lien Notes, the First Lien Senior Credit Facilities, the Exchange Second-Out First Lien Notes and any other Indebtedness that is permitted by this Indenture and the other then-outstanding First Lien Debt Documents to have Liens on the Collateral senior in priority to the Liens securing the New Notes and the Note Guarantees; provided that the holders of such Indebtedness or their Designated Representative shall have entered into the First/Second/Third Lien Intercreditor Agreement and such Indebtedness shall constitute “First Lien Obligations” as defined therein.
“First Lien Obligations” means the Obligations in respect of any First Lien Indebtedness.
“First Lien Representative” has the meaning assigned to such term in the definition of the term “First/Second/Third Lien Intercreditor Agreement.”
“First Lien Senior Credit Facilities” has the meaning assigned to such term in the definition of the term “New Credit Agreement.”
“First-Out Revolving Credit Facility” has the meaning assigned to it in the definition of “New Credit Agreement”.
“First-Out Senior Credit Facilities” has the meaning assigned to it in the definition of “New Credit Agreement”.
“First-Out Senior Credit Facilities Indebtedness” means, collectively, the First-Out Senior Credit Facilities Revolving Indebtedness.
“First-Out Senior Credit Facilities Revolving Indebtedness” means the Indebtedness in respect of the Revolving Loans and Letters of Credit (as each such term is defined in the New Credit Agreement as in effect in the Issue Date).
“Fitch” means Fitch Ratings, a part of the Fitch Group and a subsidiary of FIMALAC and Hearst Corporation, or any successor entity to its rating agency business.
“Fixed Charge Coverage Ratio” means, with respect to any Person as of any Applicable Calculation Date, the ratio of Consolidated EBITDA of such Person for the Applicable Measurement Period to the Fixed Charges of such Person for such Applicable Measurement Period. In the event that such Person or any Restricted Subsidiary incurs, assumes, guarantees, redeems, repays, retires or extinguishes any Indebtedness or issues or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the Applicable Measurement Period but on or prior to the Applicable Calculation Date, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee, redemption, repayment, retirement or extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred Stock (in each case, including a pro
24
forma application of the net proceeds therefrom), as if the same had occurred at the beginning of the Applicable Measurement Period, except as provided in Section 1.06. Such pro forma calculation shall not give effect to any Indebtedness Incurred on the Applicable Calculation Date pursuant to Section 4.09(b) (other than pursuant to clause (14) thereof). For purposes of the calculation of the Fixed Charge Coverage Ratio, in connection with the Incurrence of any Indebtedness pursuant to Section 4.09(a), such Person may elect, pursuant to an Officer’s Certificate delivered to the Trustee, to treat an Elected Amount under any Indebtedness which is to be Incurred (or any commitment in respect thereof) as being Incurred as of the Applicable Calculation Date and (i) any Incurrence of such Indebtedness under such commitment after such Applicable Calculation Date (so long as the total amount under such Indebtedness does not exceed the Elected Amount) shall not be for purposes of this calculation an Incurrence of additional Indebtedness at any time, (ii) such Person may revoke an election of an Elected Amount pursuant to an Officer’s Certificate delivered to the Trustee and (iii) for purposes of calculations of the Fixed Charge Coverage Ratio, the Elected Amount (if any) shall be deemed to be outstanding, whether or not such amount is actually outstanding unless and to the extent revoked pursuant to the immediately preceding subclause (ii) of this definition.
For purposes of making the computation referred to above, Specified Events, Investments, acquisitions, dispositions, mergers, amalgamations, consolidations and disposed operations (as determined in accordance with GAAP) and operational changes that have been made by the Issuer or any of its Restricted Subsidiaries during the Applicable Measurement Period or subsequent to such Applicable Measurement Period and on or prior to or simultaneously with the Applicable Calculation Date shall be calculated on a pro forma basis assuming that all such Specified Events, Investments, acquisitions, dispositions, mergers, amalgamations, consolidations, disposed operations and operational changes (and the change in any associated fixed charge obligations and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day of the Applicable Measurement Period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged or amalgamated with or into the Issuer or any of its Restricted Subsidiaries since the beginning of such period shall have made any Investment, acquisition, disposition, merger, amalgamation, consolidation or disposed operation that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such Applicable Measurement Period as if such Investment, acquisition, disposition, merger, amalgamation, consolidation or disposed operation had occurred at the beginning of the Applicable Measurement Period.
For purposes of this definition, whenever pro forma effect is to be given to a transaction, the pro forma calculations shall be made reasonably by a responsible financial or accounting officer of the Issuer (and may include cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) resulting from the Transactions, any Specified Event, Asset Sale or other disposition or such Investment, acquisition, disposition, merger, amalgamation or consolidation or other transaction, in each case calculated in accordance with and permitted by clause (2) of the definition of “Consolidated EBITDA” herein). If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Applicable Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness). Interest on a Financing Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Issuer to be the rate of interest implicit in such Financing Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period or, if lower, the maximum commitments under such revolving credit facility as of the Applicable Calculation Date. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Issuer may designate.
25
“Fixed Charges” means, with respect to any Person for any period, the sum of (without duplication):
(1) Consolidated Interest Expense of such Person for such period;
(2) all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Preferred Stock of such Person during such period; and
(3) all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Disqualified Stock of such Person during such period.
“Foreign Subsidiary” means any Restricted Subsidiary that is not organized under the laws of the United States of America or any state thereof or the District of Columbia and any Restricted Subsidiary of such Foreign Subsidiary.
“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time; provided that all terms of an accounting or financial nature used in this Indenture shall be construed, and all computations of amounts and ratios referred to in this Indenture shall be made without giving effect to any election under FASB Accounting Standards Codification Topic 825—Financial Instruments, or any successor thereto (including pursuant to the FASB Accounting Standards Codification), to value any Indebtedness of the Issuer or any Subsidiary at “fair value”, as defined therein.
If there occurs a change in generally accepted accounting principles occurring after the Issue Date and such change would cause a change in the method of calculation of any term or measure used in this Indenture (an “Accounting Change”), then the Issuer may elect, as evidenced by a written notice of the Issuer to the Trustee, that such term or measure shall be calculated as if such Accounting Change had not occurred; provided that, with respect to any Accounting Change (other than an Accounting Change in respect of the treatment of leases), in the Issuer’s good faith determination, the Issuer’s election to calculate such term or measure as if such Accounting Change had not occurred will not be less favorable to the Holders in any material respect than the method of calculation of such term or measure as in effect on the Issue Date.
“Global Note Legend” means the legend set forth in Section 2.06(f)(ii), which is required to be placed on all Global Notes issued under this Indenture.
“Global Notes” means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes, substantially in the form of Exhibit A.
“guarantee” means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including a pledge of assets (other than a non-recourse pledge of the Equity Interests of a Receivables Subsidiary to secure a Permitted Receivables Financing), letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness or other obligations. The term “guarantee” used as a verb has a corresponding meaning.
26
The amount of any guarantee shall be deemed to be an amount equal to the lesser of (a) the stated or determinable amount of the primary payment obligation in respect of which such guarantee is made and (b) the maximum amount for which the guaranteeing Person may be liable pursuant to the terms of the instrument embodying such guarantee unless such primary payment obligation and the maximum amount for which such guaranteeing Person may be liable are not stated or determinable, in which case the amount of the guarantee shall be such guaranteeing Person’s maximum reasonably possible liability in respect thereof as reasonably determined by Parent in good faith.
“Guarantors” means Parent and each Subsidiary of the Issuer that executes this Indenture as a Guarantor on the Issue Date and each other Affiliate of Parent (including, for the avoidance of doubt, any Designated Parent Subsidiary) that thereafter guarantees the Notes in accordance with the terms of this Indenture, until, in each case, such Person is released from its Note Guarantee with respect to the Notes in accordance with the terms of this Indenture. “Hedging Obligations” means, with respect to any Person, the obligations of such Person with respect to (1) any rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, 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 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 (2) 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 (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“holder” means, with reference to any Indebtedness or other Obligations, any holder or lender of, or trustee or collateral agent or other authorized representative with respect to, such Indebtedness or Obligations, and, in the case of Hedging Obligations, any counter-party to such Hedging Obligations.
“Holder” means the Person in whose name a Note is registered on the Registrar’s books; provided, however, that in connection with the giving any consent, instruction or authorization for purposes of the provisions of Article 6, Article 9 and Sections 7.08 and 12.08(f), beneficial owners of interests in a Note may constitute “Holders”, and in connection therewith, the Issuer, the Trustee, the Notes Collateral Agent, any Officer signing an Officer’s Certificate and any counsel delivering an Opinion of Counsel shall be permitted to rely in good faith on customary certificates of beneficial ownership as evidence of holdings of such interests (without, for the avoidance of doubt, DTC proxies, medallion-stamped guarantees or other similar evidence).
“Immediate Family Members” means with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, qualified domestic partner, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law (including adoptive relationships), and any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals or any private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which any such individual is the donor.
27
“Incur” means issue, assume, guarantee, incur or otherwise become liable for; provided, however, that any Indebtedness of a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Person at the time it becomes a Restricted Subsidiary. The term “Incurrence” when used as a noun shall have a correlative meaning.
“Indebtedness” means, with respect to any Person on any date of determination, the principal in respect of indebtedness of such Person (a) in respect of borrowed money, including indebtedness for borrowed money evidenced by notes, debentures, bonds or other similar instruments or reimbursement obligations in respect of letters of credit, (b) representing any balance deferred and unpaid portion of the purchase price of any property (including pursuant to Financing Lease Obligations), except (i) any such balance that constitutes a trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary course of business or consistent with industry or past practice, (ii) purchase price holdbacks to satisfy warranty or other unperformed obligations of the seller, (iii) obligations attributable to the exercise of appraisal rights and the settlement of any claims or actions with respect thereto and (iv) any earn-out obligations until, after 120 days of becoming due and payable, such earn-out obligation has not been paid or satisfied and such obligation is reflected as a liability on the balance sheet of such Person in accordance with GAAP, (c) Non-Financing Lease Obligations, and (d) representing any net Hedging Obligations, but only if and to the extent that any of the foregoing Indebtedness in clauses (a) through (d) (other than net Hedging Obligations) would appear as a liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP. If any Indebtedness of any Parent Entity would appear on the balance sheet of the Issuer solely by reason of push down accounting under GAAP, such Indebtedness shall be excluded. All guarantees in respect of Indebtedness specified in clause (a) through (d) of this definition (other than any exclusion therefrom) of another Person shall be included. To the extent not otherwise included, the obligations of the type referred to in clauses (a) through (d) of this definition (other than any exclusion therefrom) of another Person secured by a consensual Lien (other than a Permitted Lien) on any assets owned by such Person, whether or not such Indebtedness is assumed by such Person shall be included to such extent, but the amount of such Indebtedness will be the lesser of (x) the fair market value of such assets at such date of determination and (y) the amount of such Indebtedness of such other Person (it being understood, however, that Indebtedness shall in no event include any amounts payable or other liabilities to trade creditors (including undrawn letters of credit) arising in the ordinary course of business or consistent with industry or past practice). Indebtedness of the Issuer and its Restricted Subsidiaries shall exclude (i) intercompany liabilities arising from their cash management and accounting operations and intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any rollover or extensions of terms) and made in the ordinary course of business or consistent with industry or past practice, (ii) deferred or prepaid revenues, (iii) accrued expenses and royalties, (iv) any liabilities for taxes, (v) Capital Stock and Disqualified Stock, (vi) Film Obligations, (vii) obligations under any Program Services Agreement, Outsourcing Agreement or other similar agreement, (viii) any Put Obligations, (ix) any liability shown on the balance sheet of such Person solely as a result of the application of FASB Accounting Standards Codification Topic 810 and for which such Person is not primarily or contingently liable for payment, (x) accounts payable in connection with the sale of programming or advertising time owing by such Persons and (xi) obligations in respect of the lease or other use of spectrum space relating to sub-channels owing by such Person.
“Indenture” means this Indenture, as amended, supplemented or otherwise modified from time to time with respect to the Notes.
“Independent Financial Advisor” means an accounting, appraisal, investment banking firm or consultant of nationally recognized standing that is, in the good faith judgment of the Issuer, qualified to perform the task for which it has been engaged.
“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.
28
“Intercreditor Agreements” means, collectively, the First/Second/Third Lien Intercreditor Agreement and the Second Lien Pari Passu Lien Intercreditor Agreement.
“Interest Payment Date”, when used with respect to any Note, means the Stated Maturity of an installment of interest on such Note.
“Investment Grade Event” means (1) the Issuer has obtained a rating or, to the extent any Rating Agency will not provide a rating, an advisory, prospective or indicative rating or rating confirmation or reaffirmation (or comparable term used by such Rating Agency for such type of rating or evaluation) from either Rating Agency in the event two Rating Agencies provide ratings referred to in clauses (i) and (ii) below at such time, or from any two of three Rating Agencies in the event three Rating Agencies provide ratings referred to in clauses (i) and (ii) below at such time that reflect an Investment Grade Rating (i) for the corporate rating of the Issuer (or any Parent Guarantor) and (ii) with respect to the Notes after giving effect to the proposed release of all of the Note Guarantees to be released in connection therewith; and (2) no Event of Default shall have occurred and be continuing with respect to the Notes.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s, BBB- (or the equivalent) by S&P and BBB- (or the equivalent) by Fitch, or the equivalent investment grade credit rating from any other Rating Agency substituted for Moody’s, S&P or Fitch pursuant to clause (2) of the definition of “Rating Agency.”
“Investment Grade Securities” means:
(1) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Cash Equivalents);
(2) debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Issuer and its Subsidiaries;
(3) investments in any fund that invests at least 90% of its assets in investments of the type described in clauses (1) and (2) which fund may also hold immaterial amounts of cash pending investment or distribution; and
(4) corresponding instruments in countries other than the United States customarily utilized for high quality investments.
“Investments” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, trade credit, advances to customers, commission, travel and similar advances to officers, directors, managers, employees and consultants, in each case made in the ordinary course of business or consistent with industry or past practice), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet (excluding the footnotes) of the Issuer in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property.
29
For purposes of the definition of “Unrestricted Subsidiary” and Section 4.07:
(1) “Investments” shall include the portion (proportionate to such Person’s economic interest in such Subsidiary) of the fair market value of the net assets of a Subsidiary of such Person at the time that such Subsidiary becomes an Unrestricted Subsidiary. Upon a redesignation of such Subsidiary as a Restricted Subsidiary, such Person shall be deemed to continue to have an “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to:
(a) such Person’s “Investment” in such Subsidiary at the time of such redesignation, less
(b) the portion (proportionate to such Person’s economic equity interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation;
(2) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer, in each case as determined by the Issuer; and
(3) a Restricted Subsidiary ceasing to be a Restricted Subsidiary shall be deemed to be an Investment at such time in an amount equal to the portion of the fair market value (as determined in good faith by the Issuer) of the Issuer’s retained ownership interest, if any, in such Restricted Subsidiary that ceased to be a Restricted Subsidiary.
The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash or Cash Equivalents by the Issuer or a Restricted Subsidiary in respect of such Investment.
“Investors” means each of (1) (i) David D. Smith, Frederick G. Smith, J. Duncan Smith and Robert E. Smith, (ii) Immediate Family Members of the Persons described in clause (1)(i), (iii) any Affiliates, related estate plan and trusts created for the benefit of the Persons described in clause (1)(i), (ii) or (iv) or any trust for the benefit of any such Affiliate, estate plan or trust, or (iv) in the event of the incompetence of death of any of the Persons described in clause (1)(i) and (ii), such Persons’ estate, executor, administrator, committee or other personal representative or beneficiaries, in each case who at any particular date shall beneficially own or have the right to acquire, directly or indirectly, Equity Interests of the Issuer, any Parent Entity of the Issuer or any Subsidiary thereof and their respective Affiliates, and any funds, partnerships or other co-investment vehicles managed, advised or controlled by the foregoing or their respective Affiliates and (2) Parent.
“Issue Date” means February 12, 2025.
“Issuer” means Sinclair Television Group, Inc., a Maryland corporation.
“Issuer Order” means a written request or order signed on behalf of the Issuer by an Officer of the Issuer and delivered to the Trustee.
“Junior Lien Credit Facilities” is defined in the term “Amended Credit Agreement.”
“Junior Lien Indebtedness” means the Indebtedness under the Amended Credit Agreement and any other Indebtedness secured by Liens only on all or a portion of the Collateral that is permitted under this Indenture to have Liens on the Collateral on a junior Lien basis relative to the Notes and the Note Guarantees pursuant to the First/Second/Third Lien Intercreditor Agreement; provided that the holders of such Indebtedness or their Designated Representative shall have entered into the First/Second/Third Lien Intercreditor Agreement and such Indebtedness shall constitute “Third Lien Obligations” as defined therein.
“Junior Lien Obligations” means the Obligations in respect of the Junior Lien Indebtedness.
30
“Junior Lien Priority” means, with respect to specified Indebtedness, such Indebtedness is secured by a Lien that is junior in priority to the Liens on the Collateral that secures the Notes and the Notes Guarantees and is subject to the First/Second/Third Lien Intercreditor Agreement (or such other intercreditor agreement having substantially similar terms as the First/Second/Third Lien Intercreditor Agreement, taken as a whole).
“Junior Lien Revolving Credit Facility” is defined in the term “Amended Credit Agreement.”
“Junior Lien Term Loan B-3 Facility” has the meaning assigned to it in the term “Amended Credit Agreement.”
“Junior Lien Term Loan B-4 Facility” has the meaning assigned to it in the term “Amended Credit Agreement.”
“Junior Lien Term Loan Facilities” is defined in the term “Amended Credit Agreement.” “Legal Holiday” means a Saturday, a Sunday or a day on which commercial banking institutions are not required to be open in the State of New York or the city in which the Trustee’s corporate trust office is located.
“License Subsidiaries” means (a) with respect to each Station that is an Owned Station on the Issue Date, the Subsidiary of the Issuer that is the holder of the Broadcast Licenses for such Owned Station and (b) with respect to any Owned Station hereafter acquired by the Issuer or any of its Subsidiaries, the Subsidiary of the Issuer formed, created, or acquired after the Issue Date that holds the Broadcast Licenses for such Owned Station, and in each case any other Subsidiary into which any such License Subsidiary may be merged to the extent not prohibited by Section 5.01.
“Lien” means, with respect to any asset, (1) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (2) the interest of a vendor or a lessor under any conditional sale agreement, Financing Lease Obligation or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset; provided that in no event shall Non-Financing Lease Obligations be deemed to constitute a Lien.
“Limited Condition Transaction” means (1) any Investment or acquisition (whether by merger, amalgamation, consolidation or other business combination or the acquisition of Capital Stock or otherwise), whose consummation is not conditioned on the availability of, or on obtaining, third-party financing, (2) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Stock or Preferred Stock requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment, (3) any Restricted Payment requiring irrevocable notice in advance thereof, and (4) any Asset Sale or a disposition excluded from the definition of “Asset Sale.”
“Local Marketing Agreement” means a local marketing arrangement, sale agreement, time brokerage agreement, management agreement, outsourcing agreement, joint sale agreement, shared services agreement, program services agreement or similar arrangement pursuant to which a Person (i) obtains the right to sell at least a majority of the advertising inventory of a television station on behalf of a third party, (ii) purchases at least a majority of the air time of a television station to exhibit programming and sell advertising time, (iii) manages the selling operations of a television station with respect to at least a majority of the advertising inventory of such station, (iv) manages or controls the acquisition of programming for a television station, (v) acts as a program consultant for a television station, (vi) manages the operation of a television station generally, (vii) obtains the right to negotiate retransmission
31
consent on behalf of a third party, (viii) provides non-programming related management and/or consulting services to a television station, (ix) consults, manages, sells or negotiates uses of excess spectrum or (x) any put or option agreement entered into in connection with any agreement referred to in clauses (i) through (ix) above that provides a right to acquire or sell the license or non-license assets of a television station.
“Management Investors” means current and/or former directors, officers and employees of the Issuer and/or any of its subsidiaries who are (directly or indirectly through one or more investment vehicles) Investors on the Issue Date.
“Material FCC License” means an FCC License that is, in the reasonable, good faith determination of the Issuer, material to the operation of the business of the Issuer and its Restricted Subsidiaries, taken as a whole.
“Material Intellectual Property” means any intellectual property that is, in the reasonable, good faith determination of the Issuer, material to the operation of the business of the Issuer and its Restricted Subsidiaries, taken as a whole.
“Material Subsidiary” means (a) each Wholly-Owned Subsidiary that is a Restricted Subsidiary that, as of the last day of the fiscal quarter of the Issuer most recently ended for which financial statements are available, had revenues or total assets for such quarter in excess of 2.5% of the consolidated revenues or total assets, as applicable, of the Issuer for such quarter or that is designated by the Issuer as a Material Subsidiary and (b) any group comprising Wholly-Owned Subsidiaries that are Restricted Subsidiaries that each would not have been a Material Subsidiary under clause (a) but that, taken together, as of the last day of the fiscal quarter of the Issuer most recently ended for which financial statements are available, had revenues or total assets for such quarter in excess of 10.0% of the consolidated revenues or total assets, as applicable, of the Issuer for such quarter.
“Maturity”, when used with respect to any Note, means the date on which the principal of such Note or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, exercise of option for repayment or otherwise.
“Media for Equity Transactions” means a transaction in the ordinary course of business in which the Issuer or any Restricted Subsidiary sells or exchanges advertising and/or other media inventory for consideration in the form of Equity Interests in, or Indebtedness issued by, the purchaser or an Affiliate (including a parent entity) of the purchaser.
“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
“Net Proceeds” means the aggregate cash proceeds received by the Issuer and any of its Restricted Subsidiaries in respect of any Asset Sale, including any cash received upon the sale or other disposition of any Designated Non-cash Consideration received in any Asset Sale, net of (1) the fees, out-of-pocket expenses and other direct costs relating to such Asset Sale or the sale or disposition of such Designated Non-cash Consideration (including, without limitation, legal, accounting, consulting, investment banking and other customary fees, underwriting discounts and commissions, survey costs, title and recordation expenses, title insurance premiums, payments made in order to obtain a necessary consent or required by applicable law, brokerage and sales commissions and any relocation expenses incurred as a result thereof), (2) all federal, state, provincial, foreign and local taxes (including tax distributions paid or payable to a Parent Entity pursuant to clause (13) of Section 4.07(b)) paid or reasonably estimated to be
32
payable as a result thereof (including transfer taxes, deed or mortgage recording taxes and estimated taxes payable in connection with any repatriation of funds and after taking into account any available tax credits or deductions and any tax sharing arrangements), (3) amounts required to be applied to the repayment of principal, premium, if any, and interest on Senior Indebtedness (other than any unsecured Indebtedness or Junior Lien Indebtedness) required (other than required by Section 4.10(b)) to be paid as a result of such transaction, (4) the pro rata portion of Net Proceeds thereof (calculated without regard to this clause (4)) attributable to minority interests and not available for distribution to or for the account of the Issuer and the Restricted Subsidiaries as a result thereof, (5) any costs associated with unwinding any related Hedging Obligations in connection with such transaction, (6) any deduction of appropriate amounts to be provided by the Issuer or any of its Restricted Subsidiaries as a reserve in accordance with GAAP against any liabilities associated with the asset disposed of in such transaction and retained by the Issuer or any of its Restricted Subsidiaries after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction, (7) any portion of the purchase price from an Asset Sale placed in escrow, whether as a reserve for adjustment of the purchase price, for satisfaction of indemnities in respect of such Asset Sale or otherwise in connection with such Asset Sale; provided that upon the termination of that escrow (other than in connection with a payment in respect of any such adjustment or satisfaction of indemnities), Net Proceeds will be increased by any portion of funds in the escrow that are released to the Issuer or any of its Restricted Subsidiaries, (8) the amount of any liabilities (other than Indebtedness in respect of the Senior Credit Facilities, the Exchange Second-Out First Lien Notes, the Existing Notes, the New First-Out First Lien Notes and the Notes) directly associated with such asset being sold and retained by the Issuer or any of its Restricted Subsidiaries and (9) any amounts paid by the Issuer and any of its Subsidiaries in connection with any Channel Sharing Agreement related to the asset that is the subject of such event or any option agreement related thereto. Any non-cash consideration received in connection with any Asset Sale that is subsequently converted to cash shall become Net Proceeds only at such time as it is so converted.
“New Credit Agreement” means the credit agreement, dated as of the Issue Date, among the Parent, as guarantor, the Issuer, as borrower, the lenders from time to time party thereto, certain other parties party thereto from time to time and JPMorgan Chase Bank, N.A., as administrative agent, issuing bank and swingline lender, including any related notes, guarantees, security documents, instruments and agreements executed in connection therewith, and as such agreement, in whole or in part, in one or more instances, may be further amended, restated, renewed, extended, substituted, refinanced, restructured, replaced (whether or not upon termination, and whether with the original lenders or otherwise), supplemented or otherwise modified from time to time (including, in each case, by means of one or more credit agreements, note purchase agreements or sales of debt securities to institutional investors whether with the original agents and lenders or otherwise and including, without limitation, any successive renewals, extensions, substitutions, refinancings, restructurings, replacements, supplementations or other modifications of the foregoing) and including, without limitation, to increase the amount of available borrowings thereunder or to add Restricted Subsidiaries as additional borrowers or guarantors or otherwise, which credit agreement shall provide for, as of the Issue Date, a “first-out” priority revolving credit facility (the “First-Out Revolving Credit Facility” or the “First-Out Senior Credit Facilities”), a “second-out” priority term loan B-6 facility (with the term loans thereunder referred to herein as the “Term B-6 Loans”) and a “second-out” priority term loan B-7 facility (together with such “second-out” priority term loan B-6 facility (with the term loans thereunder referred to herein as the “Term B-7 Loans”), the “Second-Out Term Loan Facility” and together with the First-Out Senior Credit Facilities, the “First Lien Senior Credit Facilities”).
“New First-Out First Lien Notes” means the 8.125% First-Out First Lien Secured Notes due 2033 governed by the New First-Out Indenture.
33
“New First-Out First Lien Notes Obligations” means the Obligations in respect of the New First-Out First Lien Notes, the guarantees in respect thereof, the New First-Out Indenture and the security documents relating to the foregoing.
“New First-Out Indenture” means the indenture, dated as of the Issue Date, among the Issuer, the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and collateral trustee, which indenture governs the New First-Out First Lien Notes, as amended or supplemented from time to time.
“New LMT Debt” has the meaning assigned to it in the definition of “Priming Financing/Liability Management Transaction”.
“New First-Out First Lien Notes Offering Memorandum” means the Offering Memorandum, dated January 29, 2025, relating to the offering of the New First-Out First Lien Notes.
“Non-Financing Lease Obligation” means a lease obligation that is not required to be accounted for as a financing or capital lease on both the balance sheet and the income statement for financial reporting purposes in accordance with GAAP. For the avoidance of doubt, a straight-line or operating lease shall be considered a Non-Financing Lease Obligation.
“Non-Recourse Indebtedness” means Indebtedness that is non-recourse to the Issuer and its Restricted Subsidiaries (except for customary representations, warranties, covenants and indemnities made in connection with applicable facilities of such type).
“Non-U.S. Person” means a Person who is not a U.S. Person.
“Note Guarantee” means the guarantee by any Guarantor of the Issuer’s Obligations under this Indenture and the Notes.
“Notes” means the Notes and any Additional Notes.
“Notes Collateral Agent” means U.S. Bank Trust Company, National Association until a successor replaces it and, thereafter, means any such successor.
“Notes Obligations” means Obligations in respect of the Notes, this Indenture, the Note Guarantees and the Security Documents relating to the foregoing.
“Obligations” means any principal, interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, federal or foreign law), premium, penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other liabilities, and guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any Indebtedness.
“Officer” means the Chairman of the Board, any Manager or Director, the Chief Executive Officer, the Chief Financial Officer, the Chief Operating Officer, the Chief Accounting Officer, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer, the Controller or the Secretary or any other officer designated by any such individuals of the Issuer or any other Person, as the case may be.
34
“Officer’s Certificate” means a certificate signed on behalf of the Issuer by an Officer of the Issuer or on behalf of any other Person, as the case may be, that meets the requirements set forth in this Indenture.
“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee (which opinion may be subject to customary assumptions and exclusions). The counsel may be an employee of or counsel to the Issuer.
“Outsourcing Agreements” means (a) any agreement to which the Issuer or any of its Subsidiaries is a party which provides for the Issuer or any of its Subsidiaries to deliver or receive non-programming related management and/or consulting services of any television station, and (b) any put or option agreement entered into in connection with any agreement referred to in clause (a) above that provides for the Issuer or any of its Subsidiaries to acquire or sell the license or non-license assets of the related television station.
“Owned Station” means any television or radio station the Broadcast Licenses of which are owned or held by the Issuer or any of its Subsidiaries on or after the Issue Date.
“Parent” means Sinclair Broadcast Group, LLC, a Maryland limited liability company, and the direct parent of the Issuer, or any successor thereto.
“Parent Entity” means any Person that, with respect to another Person, owns (directly or indirectly) 50% or more of the total voting power of the Voting Stock entitled to vote for the election of directors of such other Person having a majority of the aggregate votes on the Board of such other Person. Unless the context requires otherwise, any references to a Parent Entity refer to a Parent Entity of the Issuer (including Parent or Sinclair).
“Parent Guarantor” means a Guarantor that is a Parent Entity of the Issuer.
“Pari Passu Lien Obligations” means the Notes Obligations and any other Indebtedness that is permitted to have Pari Passu Lien Priority and is not secured by any assets other than the Collateral; provided that the holders of such Indebtedness or their Designated Representative shall have entered into the First/Second/Third Lien Intercreditor Agreement and the Second Lien Pari Passu Lien Intercreditor Agreement. For the avoidance of doubt, Pari Passu Lien Obligations shall not include First Lien Obligations or Junior Lien Obligations.
“Pari Passu Lien Priority” means, with respect to any Indebtedness, such Indebtedness is secured by a Lien that is pari passu in priority to the Liens on specified Collateral that secures the Notes and the Note Guarantees and is subject to the First/Second/Third Lien Intercreditor Agreement and the Second Lien Pari Passu Lien Intercreditor Agreement (or such other intercreditor agreement having substantially similar terms as the First/Second/Third Lien Intercreditor Agreement or the Second Lien Pari Passu Lien Intercreditor Agreement, as applicable, taken as a whole).
“Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).
“Permitted Asset Swap” means the substantially concurrent purchase and sale or exchange, including as a deposit for future purchases, of Related Business Assets or a combination of Related Business Assets and cash or Cash Equivalents between the Issuer or any of its Restricted Subsidiaries and another Person; provided that any cash or Cash Equivalents received must be applied in accordance with Section 4.10.
35
“Permitted Holders” means (1) each of the Investors, (2) the Management Investors and their Permitted Transferees, (3) any Person who is acting solely as an underwriter in connection with a public or private offering of Capital Stock of the Issuer or any Parent Entity, acting in such capacity, (4) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) of which any of the foregoing Persons described in clauses (1) and (2) or any Permitted Holder specified in the last sentence of this definition are members and any member of such group; provided that such Persons, without giving effect to the existence of such group or any other group, collectively own, directly or indirectly, more than 50% of the total voting power of the Voting Stock entitled to vote for the election of directors of the Issuer having a majority of the aggregate votes on the Board of the Issuer held by such group, (5) any Permitted Parent and (6) any Permitted Plan, in each case of the foregoing clauses (1) through (6), whether holding Equity Interests of the Issuer directly or indirectly. Any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) whose acquisition of beneficial ownership constitutes a Change of Control Triggering Event in respect of which a Change of Control Offer is made in accordance with the requirements of this Indenture will thereafter, together with its Affiliates, constitute an additional Permitted Holder.
“Permitted Investments” means:
(1) any Investment in the Issuer or any of its Restricted Subsidiaries;
(2) any Investment in cash and Cash Equivalents or Investment Grade Securities;
(3) any Investment by the Issuer or any of its Restricted Subsidiaries in a Person (including, to the extent constituting an Investment, in assets of a Person that represent substantially all of its assets or a division, business unit, product line or line of business, including research and development and related assets in respect of any product) that is engaged, directly or indirectly, in a Similar Business if as a result of such Investment:
(a) such Person is or becomes a Restricted Subsidiary; or
(b) such Person, in one transaction or a series of related transactions, is merged, amalgamated or consolidated with or into, or transfers or conveys substantially all of its assets (or such division, business unit, product line or line of business) to, or is liquidated into, the Issuer or a Restricted Subsidiary,
and, in each case, any Investment held by such Person if and to the extent such Investment was not acquired by such Person in contemplation of such acquisition, merger, amalgamation, consolidation, transfer or conveyance;
(4) any Investment in securities or other assets (including earn-outs) not constituting cash, Cash Equivalents or Investment Grade Securities and received in connection with an Asset Sale made pursuant to Section 4.10 or any other disposition of assets not constituting an Asset Sale;
(5) any Investment existing on the Issue Date or made pursuant to binding commitments in effect on the Issue Date or an Investment consisting of any extension, modification, replacement, reinvestment or renewal of any such Investment existing on the Issue Date or binding commitment in effect on the Issue Date; provided that the amount of any such Investment may be increased in such extension, modification, replacement, reinvestment or renewal only (a) as required by the terms of such Investment or binding commitment as in existence on the Issue Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or (b) as otherwise permitted under this Indenture;
36
(6) any Investment acquired by the Issuer or any of its Restricted Subsidiaries:
(i) in exchange for any other Investment or accounts receivable, endorsements for collection or deposit held by the Issuer or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the Issuer of such other Investment or accounts receivable;
(ii) in satisfaction or release of judgments against other Persons;
(iii) as a result of a foreclosure or other remedy by the Issuer or any of its Restricted Subsidiaries with respect to any Investment or other transfer of title or ownership interest with respect to any Investment; or
(iv) received in compromise or resolution of (A) obligations of trade creditors, suppliers or customers of the Issuer or any Restricted Subsidiary that were incurred in the ordinary course of business or consistent with industry or past practice, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency or reorganization of any trade creditor, supplier or customer, or (B) litigation, arbitration or other disputes or claims, actions or proceedings in law or equity;
(7) Hedging Obligations permitted under clause (10) of Section 4.09(b);
(8) Investments made in connection with any Media for Equity Transaction; provided that any such Investment is made and is held at all times by the Issuer or any Restricted Subsidiary, and is not used in connection with or in furtherance of a Priming Financing/Liability Management Transaction;
(9) Investments the payment for which consists of Equity Interests (exclusive of Disqualified Stock) of the Issuer or any Parent Entity to the extent that issuance of such Equity Interests did not prior thereto increase the amount available for Restricted Payments under clause (3) of Section 4.07(a);
(10) guarantees of Indebtedness permitted (and permitted to be guaranteed) under Section 4.09 and Investments consisting of Liens permitted under Section 4.12; provided that this clause (10) shall not be used in connection with or in furtherance of a Priming Financing/Liability Management Transaction;
(11) any transaction to the extent it constitutes an Investment that is permitted by and made in accordance with Section 4.11(b) (except transactions described in clauses (2), (5) and (9) of Section 4.11(b));
(12) any Investments consisting of purchases and acquisitions of inventory, supplies, material or equipment or other similar assets, or the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons;
37
(13) additional Investments having an aggregate fair market value measured at the time of committing, declaring or determining to make such Investment and without giving effect to subsequent changes in value, when aggregated with all other Investments outstanding under this clause (13), does not exceed at the time of such Investment the greater of (x) $187.0 million and (y) 25.0% of Consolidated EBITDA of the Issuer for the Applicable Measurement Period; provided that if any Investment pursuant to this clause (13) is made in any Person that is not a Restricted Subsidiary of the Issuer at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (13); provided further, that Investments made pursuant to this clause (13) shall not be used in connection with or in furtherance of a Priming Financing/Liability Management Transaction;
(14) Investments in Subsidiaries in the form of receivables and related assets required in connection with a Permitted Receivables Financing (including the contribution or lending of cash and Cash Equivalents to Subsidiaries to finance the purchase of such assets from the Issuer or any Restricted Subsidiary or to otherwise fund required reserves);
(15) loans and advances to, or guarantees of Indebtedness of, officers, directors, managers, employees and consultants not in excess of the greater of (x) $30.0 million and (y) 4.3% of Consolidated EBITDA of the Issuer for the Applicable Measurement Period, in the aggregate, outstanding at the time of such Investment;
(16) loans and advances to officers, directors, managers, employees, consultants and independent contractors for business-related travel expenses, moving or relocation expenses, entertainment, payroll advances and other analogous or similar expenses or payroll expenses;
(17) advances, loans or extensions of trade credit (including the creation of receivables) or prepayments to suppliers or lessors or loans or advances made to distributors, and performance guarantees, in each case in the ordinary course of business or consistent with past practice by the Issuer or any of its Restricted Subsidiaries;
(18) Investments consisting of purchases and acquisitions of assets or services in the ordinary course of business or consistent with industry or past practice and any earnest money deposits in connection therewith;
(19) repurchases of the Notes or any Refinancing Indebtedness in respect thereof;
(20) Investments in the ordinary course of business or consistent with industry or past practice consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers consistent with past practices;
(21) Investments (i) made after the Issue Date in joint ventures of the Issuer or any Restricted Subsidiary existing on the Issue Date or (ii) in Unrestricted Subsidiaries having an aggregate fair market value measured at the time of committing, declaring or determining to make such Investment and without giving effect to subsequent changes in value, in the case of clauses (i) and (ii), when aggregated with all other Investments outstanding under this clause (21), do not exceed, at the time of such Investment, $50.0 million; provided that if any Investment pursuant to this clause (21) is made in any Person that is an Unrestricted Subsidiary at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (21); provided further, that Investments made pursuant to this clause (21) shall not be used (x) in connection with or in furtherance of a Priming Financing/Liability Management Transaction or (y) for Restricted Payments described in clause (I) (II) or (III) of the definition thereof;
38
(22) Investments made as part of, or in connection with, the Transactions;
(23) Investments of assets relating to non-qualified deferred payment plans in the ordinary course of business or consistent with industry or past practice;
(24) intercompany current liabilities owed to Unrestricted Subsidiaries or joint ventures incurred in the ordinary course of business or consistent with industry or past practice in connection with cash management operations of the Issuer and its Subsidiaries;
(25) any Investment in any Subsidiary or any joint venture in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business or consistent with industry or past practice;
(26) contributions to a “rabbi” trust for the benefit of employees, directors, consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the case of a bankruptcy of the Issuer or any Restricted Subsidiary;
(27) non-cash Investments in connection with tax planning and reorganization activities;
(28) any other Investment; provided that on the date of such Investment, on a pro forma basis after giving effect to such Investment, the Consolidated Secured Debt Ratio of the Issuer for the Applicable Measurement Period would be equal to or less than 4.75 to 1.0 and no Event of Default under clause (1), (2), (6) or (7) of Section 6.01(a) shall have occurred and be continuing or would occur as a consequence thereof; provided further, that Investments made pursuant to this clause (28) shall not be used in connection with or in furtherance of a Priming Financing/Liability Management Transaction;
(29) Investments made in the ordinary course of business, on ordinary terms or consistent with industry or past practice in connection with obtaining, maintaining or renewing vendor contracts;
(30) Investments consisting of promissory notes issued by the Issuer or any Guarantor to future, present or former employees, directors, officers, managers, members, partners, independent contractors or consultants of the Issuer or any of its Subsidiaries or their respective estates, spouses or former spouses to finance the redemption of Equity Interests of the Issuer or any direct or indirect parent thereof, to the extent the applicable Restricted Payment is permitted by Section 4.07;
(31) Investments made from casualty insurance proceeds in connection with the replacement, substitution, restoration or repair of assets on account of a casualty event;
(32) Investments in Local Marketing Agreement purchase options (other than purchase options in existence as of the Issue Date) in an amount of up to $360.0 million in the aggregate plus customary closing fees and expenses;
(33) if otherwise permitted pursuant to FCC rules and regulations and the terms and conditions of the then extant Senior Credit Facilities, the acquisition of any television station which is subject to an option agreement, merger agreement or any similar agreement existing between Parent, the Issuer and any of their respective Subsidiaries and the owners of such television station; and
39
(34) any Investment with respect to purchase options relating to the purchase of Stations by the Issuer and its Subsidiaries; provided that at the time any such Investment is made, the aggregate outstanding amount of all Investments made in reliance on this clause (34), when aggregated with all other Investments outstanding under this clause (34), shall not exceed the greater of (x) $100.0 million and (y) 14.5% of Consolidated EBITDA of the Issuer for the most recently ended Applicable Measurement Period after giving pro forma effect to the making of such Investment.
“Permitted Junior Lien Revolving Facility Refinancings” means any refinancings, refundings, replacements, exchanges, and/or permanent prepayments of any Junior Lien Revolving Credit Facility (accompanied by permanent commitment reductions of the amounts so refinanced, refunded, replaced, exchanged and/or prepaid) with (x) the proceeds of any drawing of First-Out Senior Credit Facilities Revolving Indebtedness and/or refinancing, replacement or exchange into First-Out Senior Credit Facilities Revolving Indebtedness, to the extent so permitted under Section 4.09, or (y) with the use of proceeds other than First-Out Senior Credit Facilities Revolving Indebtedness, to the extent permitted under Section 4.07, other than pursuant to clause (27) of Section 4.07(b), in each case that occurs within 15 months before the applicable final maturity of such Junior Lien Revolving Credit Facility; provided that any such Indebtedness shall have a later maturity date than the Junior Lien Revolving Credit Facility.
“Permitted Liens” means:
(1) Liens for taxes, assessments or other governmental charges that are not overdue for a period of more than 60 days or not yet payable or subject to penalties for nonpayment or that are being contested in good faith by appropriate actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of the Issuer or any of its Restricted Subsidiaries in accordance with GAAP, or for property taxes on property that the Issuer or any of its Restricted Subsidiaries has determined to abandon if the sole recourse for such tax, assessment, charge, levy or claim is to such property;
(2) Liens imposed by law or regulation, such as landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, architects’ or construction contractors’ Liens and other similar Liens that secure amounts not overdue for a period of more than 60 days or, if more than 60 days overdue, are unfiled and no other action has been taken to enforce such Liens or that are being contested in good faith by appropriate actions or other Lien arising out of judgments or awards against the Issuer or any of its Restricted Subsidiaries with respect to which the Issuer or such Restricted Subsidiary shall then be proceeding with an appeal or other proceeding for review, if adequate reserves with respect thereto are maintained on the books of the Issuer or such Restricted Subsidiary in accordance with GAAP;
(3) Liens incurred or deposits made in the ordinary course of business or consistent with industry or past practice (a) in connection with workers’ compensation, unemployment insurance, employers’ health tax, and other social security or similar legislation or other insurance related obligations (including, but not limited to, in respect of deductibles, self-insured retention amounts and premiums and adjustments thereto) and (b) securing reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) insurance carriers providing property, casualty or liability insurance to the Issuer or any of its Restricted Subsidiaries or otherwise supporting the payment of items set forth in the foregoing clause (a);
(4) Liens incurred or deposits made to secure the performance of bids, tenders, trade contracts, governmental contracts, leases, public or statutory obligations, surety, indemnity, warranty, release, appeal or similar bonds or with respect to other regulatory requirements, completion guarantees, stay, customs and appeal bonds, performance bonds, bankers’ acceptance facilities and other obligations of a like nature (including those to secure health, safety and environmental obligations), deposits as security for contested taxes or import duties or for payment of rent, performance and return of money bonds and obligations in respect of letters of credit, bank guarantees or similar instruments that have been posted to support the same, incurred in the ordinary course of business or consistent with industry or past practice;
40
(5) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, rights-of-way, restrictions, encroachments, protrusions, servitudes, sewers, electric lines, drains, telegraph, telephone and cable television lines and other similar purposes, or zoning, building codes or other restrictions (including minor defects and irregularities in title and similar encumbrances) affecting real properties or Liens incidental to the conduct of the business of the Issuer and its Subsidiaries or to the ownership of their respective properties which were not incurred in connection with Indebtedness and which do not in any case materially interfere with the ordinary conduct of the business of the Issuer and its Subsidiaries, taken as a whole;
(6) Liens securing Indebtedness permitted to be incurred pursuant to clause (5)(b) of Section 4.09(b);
(7) Liens on goods the purchase price of which is financed by a documentary letter of credit issued for the account of the Issuer or any of its Restricted Subsidiaries or Liens on bills of lading, drafts or other documents of title arising by operation of law or pursuant to the standard terms of agreements relating to letters of credit, bank guarantees and other similar instruments; provided that such Lien secures only the obligations of the Issuer or such Restricted Subsidiaries in respect of such letter of credit to the extent such obligations are permitted under Section 4.09;
(8) (a) rights of set-off, banker’s liens, netting agreements and other Liens arising by operation of law or by the terms of documents of banks or other financial institutions in relation to the maintenance of administration of deposit accounts, securities accounts, cash management arrangements or in connection with the issuance of letters of credit, bank guarantees or other similar instruments and (b) Liens securing, or otherwise arising from, judgments but not constituting an Event of Default under clause (5) of Section 6.01(a);
(9) Liens arising from Uniform Commercial Code financing statements, including precautionary financing statements, or any similar filings made in respect of operating leases or consignments entered into by the Issuer or any of its Restricted Subsidiaries;
(10) Liens securing (x) the New First-Out First Lien Notes, the First Lien Senior Credit Facilities, the Exchange Second-Out First Lien Notes and, in each case, guarantees thereof or (y) any other Indebtedness and other Obligations, including any letter of credit facility relating thereto, that was, at the time such Indebtedness is deemed to be incurred, permitted to be incurred pursuant to clauses (1) or (16) of Section 4.09(b); provided, that the Liens securing such Indebtedness (a) as First Lien Obligations shall not exceed the aggregate principal amounts permitted under subclause (c) (in respect of term indebtedness, including the New First-Out First Lien Notes, the First Lien Senior Credit Facilities (other than, for the avoidance of doubt, the First-Out Revolving Credit Facility), the Exchange Second-Out First Lien Notes and, in each case, guarantees thereof), or (b) as First-Out Senior Credit Facilities Revolving Indebtedness (in respect of revolving indebtedness) pursuant to such clause (1) and Obligations in respect thereof shall, in the case of each of the foregoing clauses (a) and (b), be subject to the First/Second/Third Lien Intercreditor Agreement (with Senior Lien Priority relative to the Second Lien Obligations); and (c) as Second Lien Priority Obligations or Junior Lien Obligations shall not exceed the aggregate principal amount permitted under subclause (d) of such clause (1) (unless incurred in reliance on subclause (b) of such clause (1)) and Obligations in respect thereof shall be subject to the First/Second/Third Lien Intercreditor Agreement (with in the case of Junior Lien Obligations, Junior Lien Priority relative to the Notes Obligations and in the case of Second Lien Obligations, Pari Passu Lien Priority relative to the Notes Obligations) and in the case of Second Lien Priority Obligations shall be subject to the Second Lien Pari Passu Lien Intercreditor Agreement (with Pari Passu Lien Priority relative to the Notes Obligations);
41
(11) Liens existing on the Issue Date after giving effect to the Transactions (other than (a) Liens securing Indebtedness incurred pursuant to clause (1) or (2) of Section 4.09(b) and (b) Liens securing the Junior Lien Term Loan Facilities incurred pursuant to clause (3) of Section 4.09(b));
(12) Liens securing Indebtedness permitted to be incurred pursuant to clauses (4)(a) or (b), (12), (14), (15), and (28) of Section 4.09(b); provided that (a) Liens securing Indebtedness permitted to be incurred pursuant to such clause (4)(a) extend only to the property or assets purchased or acquired with the proceeds of such Indebtedness, accessions to such assets and the proceeds and products thereof, and any lease of such assets (including accessions thereto), the proceeds and the products thereof and customary security deposits in respect thereof; provided, however, that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender, (b) Liens securing Indebtedness permitted to be incurred pursuant to such clause (4)(b) extend only to the property or assets subject to the Sale and Lease-Back Transaction related thereto, accessions to such property or assets and the proceeds and products thereof, and any lease of such property or assets (including accessions thereto) and the proceeds and the products thereof, (c) Liens securing Indebtedness permitted to be incurred pursuant to subclause (a) of such clause (12) shall only secure Junior Lien Indebtedness, (d) Liens securing Indebtedness permitted to be incurred pursuant to such clause (14) shall only be permitted if such Liens are limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof, or replacements of any thereof) acquired, or of any Person acquired or merged, amalgamated or consolidated with or into the Issuer or any Restricted Subsidiary (including designating an Unrestricted Subsidiary as a Restricted Subsidiary), in any transaction to which such Indebtedness relates, (e) [reserved] and (f) Liens securing Indebtedness permitted to be incurred pursuant to such clause (28) extend only to the property or assets of, or Equity Interests issued by, Restricted Subsidiaries that are not Guarantors;
(13) Leases (including leases of aircraft), licenses, subleases or sublicenses granted to others that do not (a) interfere in any material respect with the business of the Issuer and its Restricted Subsidiaries, taken as a whole or (b) secure any Indebtedness;
(14) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
(15) Liens (a) of a collection bank arising under Section 4-210 of the Uniform Commercial Code or any comparable or successor provision on items in the course of collection, (b) attaching to pooling, commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business or consistent with industry or past practice and (c) in favor of a banking or other financial institution or electronic payment service providers arising as a matter of law or under general terms and conditions encumbering deposits (including the right of setoff) and that are within the general parameters customary in the banking or finance industry;
(16) Liens (a) on cash advances or escrow deposits in favor of the seller of any property to be acquired in an Investment permitted under this Indenture to be applied against the purchase price for such Investment or otherwise in connection with any escrow arrangements with respect to any such Investment (including any letter of intent or purchase agreement with respect to such investment), and (b) consisting of an agreement to sell, transfer, lease or otherwise dispose of any property in a transaction permitted under Section 4.10, in each case, solely to the extent such Investment or sale, disposition, transfer or lease, as the case may be, would have been permitted on the date of the creation of such Lien;
42
(17) Liens existing on property or assets at the time of acquisition thereof by the Issuer or any of its Subsidiaries (by a merger, consolidation or amalgamation or otherwise) or existing on the property or assets of, or Equity Interests issued by, any Person at the time such Person becomes a Restricted Subsidiary (including designating an Unrestricted Subsidiary as a Restricted Subsidiary), in each case after the Issue Date if (a) such Lien was not created in contemplation of such acquisition (by a merger, consolidation or amalgamation or otherwise) or such Person becoming a Restricted Subsidiary (including designating an Unrestricted Subsidiary as a Restricted Subsidiary), (b) such Lien does not extend to or cover any other property or assets of the Issuer or any of its other Restricted Subsidiaries, except that individual financings of equipment provided by one lender may be cross-collateralized to other financings of equipment provided by such lender and (c) the Indebtedness secured thereby is permitted under Section 4.09;
(18) any interest or title of a lessor under leases (other than leases constituting Financing Lease Obligations) entered into by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business or consistent with industry or past practice;
(19) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale or purchase of goods by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business or consistent with industry or past practice;
(20) Liens deemed to exist in connection with Investments in repurchase agreements permitted under clause (5) of the definition of “Cash Equivalents”;
(21) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business or consistent with industry or past practice and not for speculative purposes;
(22) Liens that are contractual rights of setoff or rights of pledge (a) relating to the establishment of depository relations with banks not given in connection with the incurrence of Indebtedness, (b) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business or consistent with industry or past practice or (c) relating to purchase orders and other agreements entered into with customers of the Issuer or any of its Restricted Subsidiaries in the ordinary course of business or consistent with industry or past practice;
(23) ground leases, subleases, licenses or sublicenses in respect of real property on which facilities owned or leased by the Issuer or any of its Restricted Subsidiaries are located;
(24) (a) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto or (b) deposits made or other security provided to secure liabilities to insurance carriers under insurance or self-insurance arrangements in the ordinary course of business or consistent with industry or past practice;
(25) Liens on cash and any Cash Equivalents used to satisfy or discharge Indebtedness;
(26) Liens on receivables and related assets incurred in connection with Permitted Receivables Financings;
43
(27) (A) receipt of progress payments and advances from customers in the ordinary course of business or consistent with industry or past practice to the extent the same creates a Lien on the related inventory and proceeds thereof and (B) Liens on specific items of inventory or other goods and proceeds of the Issuer or any of its Restricted Subsidiaries securing the Issuer’s or such Restricted Subsidiary’s accounts payable or similar trade obligations in respect of bankers’ acceptances or documentary or trade letters of credit issued or created for the account of the Issuer or such Restricted Subsidiary to facilitate the purchase, shipment or storage of such inventory or other goods;
(28) Liens securing Hedging Obligations; provided that with respect to Hedging Obligations relating to Indebtedness, such Indebtedness is permitted under this Indenture;
(29) Liens securing Obligations relating to any Indebtedness or other obligations of a Restricted Subsidiary owing to the Issuer or a Guarantor permitted to be incurred in accordance with Section 4.09;
(30) Liens in favor of the Issuer or any Guarantor or the Trustee;
(31) Liens on vehicles or equipment of the Issuer or any of its Restricted Subsidiaries granted in the ordinary course of business or consistent with past practice;
(32) Liens to secure any modification, refinancing, refunding, restatement, exchange, extension, renewal or replacement (or successive refinancing, refunding, restatement, exchange, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in clauses (6), (11), (12), (16), (17), (32), (33) and (34) of this definition; provided that (a) such new Lien shall be limited to all or part of the same property that secured the original Lien, plus accessions, additions and improvements on such property and after-acquired property that by the terms of such Indebtedness require or include a pledge of after-acquired property, (b) such new Lien shall have a Lien priority equal or junior to the original Lien, other than any such new Liens created, incurred, assumed or existing as a result of a Permitted LM Transaction or Indebtedness incurred or issued in accordance with clause (13) of Section 4.09(b) and (c) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (x) the outstanding principal amount or, if greater, committed amount of the Indebtedness under clauses (6), (11), (12), (16), (17), (32), (33) and (34) of this definition at the time the original Lien became a Permitted Lien under this Indenture, and (y) an amount necessary to pay accrued but unpaid interest on such Indebtedness and any dividend, premium (including tender premiums), defeasance costs, underwriting discounts and any fees, costs and expenses (including upfront fees, original issue discount (in lieu of upfront fees) or similar fees) incurred in connection with such modification, refinancing, refunding, extension, renewal or replacement;
(33) other Liens securing outstanding Indebtedness in an aggregate principal amount not to exceed, together with any Liens securing any modification, refinancing, refunding, restatement, exchange, extension, renewal or replacement (or successive modification, refinancing, refunding, restatement, exchange, extensions, renewals or replacements) under clause (32) above, $50.0 million, provided such Liens incurred under this clause (33) shall only secure First Lien Indebtedness, Second Lien Indebtedness, or Junior Lien Indebtedness;
(34) Liens incurred to secure Obligations in respect of any Indebtedness permitted to be incurred pursuant to Section 4.09; provided that, with respect to Liens securing Obligations permitted under this clause (34) and described in any such clause, at the time of incurrence of such Obligations and after giving pro forma effect thereto:
(a) in the case of any First Lien Indebtedness incurred by the Issuer or any Subsidiary Guarantor, the Consolidated First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period would be equal to or less than 4.25 to 1.0; and
44
(b) in the case of any Second Lien Indebtedness or Junior Lien Indebtedness incurred by the Issuer or any Subsidiary Guarantor, the Consolidated Secured Debt Ratio of the Issuer for the Applicable Measurement Period would be equal to or less than 5.00 to 1.0.
(35) (a) any encumbrance or restriction (including put and call arrangements) with respect to capital stock of any joint venture or similar arrangement pursuant to any joint venture or similar arrangement, (b) Liens on Equity Interests in joint ventures or similar arrangements; provided that any such Lien is in favor of a creditor of such joint venture and such creditor is not an Affiliate of any partner to such joint venture or similar arrangement and (c) purchase options, calls, and similar rights of, and restrictions for the benefit of, a third party with respect to Equity Interests held by the Issuer or any of its Subsidiaries in joint ventures or similar arrangements;
(36) Liens on Capital Stock of an Unrestricted Subsidiary that secure Indebtedness or other obligations of the Issuer, any of its Subsidiaries or such Unrestricted Subsidiary;
(37) agreements to subordinate any interest of the Issuer or any Restricted Subsidiary in any accounts receivable or other proceeds arising from inventory consigned by the Issuer or any Restricted Subsidiary pursuant to an agreement entered into in the ordinary course of business or consistent with industry or past practice;
(38) Liens on property or assets used to defease or to irrevocably satisfy and discharge Indebtedness;
(39) (a) Liens securing the Notes, any Additional Notes and the related Note Guarantees incurred pursuant to clause (2) of Section 4.09(b) and (b) Liens securing the Junior Lien Term Loan Facilities and any guarantees with respect thereto incurred pursuant to clause (3) of Section 4.09(b) (provided, that such Liens securing the Junior Lien Term Loan Facilities and any guarantees with respect thereto and Obligations in respect thereof, shall be of Junior Lien Priority relative to the Second Lien Obligations pursuant to the First/Second/Third Lien Intercreditor Agreement);
(40) Liens on deposits taken by a Restricted Subsidiary that constitutes a regulated bank incurred in connection with the taking of such deposits;
(41) Liens created in connection with a project financed with, and created to secure, Non-Recourse Indebtedness;
(42) Liens relating to future escrow arrangements securing Indebtedness, including (i) Liens on escrowed proceeds from the issuance of Indebtedness for the benefit of the related holders of debt securities or other Indebtedness (or the underwriters, arrangers, trustee or collateral agent thereof) and (ii) Liens on cash or Cash Equivalents set aside at the time of the incurrence of any Indebtedness, in either case to the extent such cash or Cash Equivalents prefund the payment of interest or premium or discount on such Indebtedness (or any costs related to the issuance of such Indebtedness) and are held in an escrow account or similar arrangement to be applied for such purpose;
(43) [reserved];
45
(44) security given to a public utility or any municipality or governmental authority when required by such utility or authority in connection with the operations of the Issuer or any of its Restricted Subsidiaries in the ordinary course of business or consistent with industry or past practice;
(45) Liens securing Cash Management Obligations owed by the Issuer or any of its Restricted Subsidiaries to any lender under the Senior Credit Facilities or any Affiliate of such a lender; and
(46) Liens solely on any cash earnest money deposits made by the Issuer or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement.
For purposes of determining compliance with this definition, (i) a Lien need not be incurred solely by reference to one category of Permitted Liens described in this definition but is permitted to be incurred in part under any combination thereof and of any other available exemption, (ii) in the event that a Lien (or any portion thereof) meets the criteria of one or more of the categories of Permitted Liens, the Issuer may, in its sole discretion, divide or classify (or later divide, classify or reclassify in whole or in part in its sole discretion ) such Lien (or any portion thereof) in any manner that complies with this definition and (iii) in the event that a portion of Indebtedness secured by a Lien could be classified as secured in part pursuant to clause (34) above (giving pro forma effect only to the incurrence of such portion of such Indebtedness), the Issuer, in its sole discretion, may divide or classify (or later divide, classify or reclassify in whole or in part in its sole discretion) such portion of such Indebtedness (and any Obligations in respect thereof) as having been secured pursuant to clause (34) above and thereafter the remainder of the Indebtedness as having been secured pursuant to one or more of the other clauses of this definition.
For purposes of this definition, the term “Indebtedness” shall be deemed to include interest on such Indebtedness.
“Permitted LM Transactions” means (i) the transactions permitted under (a) clause (3) (but solely with respect to Junior Lien Term Loan Facilities and Existing Notes and subject to the limitations set forth in the proviso at the end of such clause), (8), (23), (24), (25) or (26) of Section 4.07(b) or (b) clause (1)(c)(x)(III), (1)(c)(x)(IV) or (2) of Section 4.09(b), or (ii) transactions constituting Permitted Junior Lien Revolving Facility Refinancings.
“Permitted Parent” means any Parent Entity that at the time it became a Parent Entity of the Issuer was a Permitted Holder pursuant to clause (1) of the definition thereof and was not formed in connection with, or in contemplation of, a transaction that (assuming such parent was not formed) would otherwise constitute a Change of Control.
“Permitted Plan” means any employee benefits plan of the Issuer or its Affiliates and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan.
“Permitted Receivables Financing” means, collectively, (a) a financing (including any factoring program) of accounts receivable and related accounts receivable collections, proceeds, records and other similar assets (or interests therein) are sold, contributed and/or financed in an aggregate outstanding amount under this clause (a) not to exceed the greater of (x) $375.0 million and (y) 40.0% of Consolidated EBITDA of the Issuer for the Applicable Measurement Period (the “Permitted Receivables Financing Cap”) (provided that with respect to Permitted Receivables Financings incurred in the form of a factoring program under this clause (a), the outstanding amount of such Permitted Receivables Financing for the purposes of this definition shall be deemed to be equal to the Permitted Receivables Net Investment for the Applicable Measurement Period), so long as such financings are non-recourse to the
46
Issuer and its Restricted Subsidiaries, other than any Receivables Subsidiary (except for customary representations, warranties, covenants and indemnities made in connection with such facilities), (b) any modifications, refinancings, renewals, replacements or extensions thereof; provided that, in the case of this clause (b), the terms of the applicable Permitted Receivables Financing, after giving effect to any modifications, refinancings, renewals, replacements or extensions thereof would satisfy the requirements set forth in clause (a) above and (c) the financings and factoring facilities existing on the Issue Date (if any) and any modifications, refinancings, renewals, replacements or extensions thereof; provided that any recourse to the Issuer and its Restricted Subsidiaries (other than any Receivables Subsidiary) is not expanded in any material respect by any such modification, refinancing, renewal, replacement or extension and the aggregate outstanding amount of such facilities is not increased after the Issue Date, in each case, except to the extent such recourse or increase would otherwise be permitted by clause (a) above (and is deemed a usage thereof); provided further, that (A) no Permitted Receivables Financing shall be effectuated in connection with or in furtherance of a Priming Financing/Liability Management Transaction; and (B) no “whole business” or intellectual property securitization shall constitute a Permitted Receivables Financing.
“Permitted Receivables Financing Cap” has the meaning assigned to such term in the definition of the term “Permitted Receivables Financing.”
“Permitted Receivables Net Investment” means the aggregate cash amount paid by the purchasers under any Permitted Receivables Financing in the form of a factoring program in connection with their purchase of accounts receivable and related accounts receivable collections, proceeds, records and other similar assets (or interests therein), as the same may be reduced from time to time by collections with respect to such accounts receivable and related assets or otherwise in accordance with the terms of such Permitted Receivables Financing (but excluding any such collections used to make payments of commissions, discounts, yield and other fees and charges incurred in connection with any Permitted Receivables Financing in the form of a factoring program which are payable to any Person other than the Issuer or a Restricted Subsidiary).
“Permitted Transferees” means, with respect to any Person that is a natural person (and any Permitted Transferee of such Person), (a) such Person’s Immediate Family Members, including his or her spouse, ex-spouse, children, step-children and their respective lineal descendants and (b) without duplication with any of the foregoing, such Person’s successors, heirs, executors and/or administrators upon the death of such Person and any other Person who was an Affiliate of such Person upon the death of such Person and who, upon such death, directly or indirectly owned Equity Interests in the Issuer.
“Person” means any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“Preferred Stock” means any Equity Interest with preferential rights of payment of dividends or upon liquidation, dissolution, or winding up.
“Priming Debt” has the meaning assigned to such term in the definition of the term “Priming Financing/Liability Management Transaction.”
“Priming Financing/Liability Management Transaction” means (i) any exchange, refinancing, amendment or extension transaction (or any transaction specifically designed to circumvent the restrictions set forth under Section 4.17) of any existing Indebtedness of the Issuer or any of its Restricted Subsidiaries (the “Existing LMT Debt”) with any other Indebtedness or Preferred Stock (including that of the Issuer or any of its Affiliates or of any other Person) (the “New LMT Debt”) in a
47
transaction that is designed to directly or indirectly “uptier”, or has the effect of, “uptiering”, holders of such Existing LMT Debt into contractually, effectively (including as to lien priority or recourse to additional assets or through a “double dip” or “pari plus” structure), temporally (i.e., having a shorter maturity than the Existing LMT Debt) or structurally senior New LMT Debt (“Priming Debt”) or (ii) the issuance of any Priming Debt in each case, other than the following:
(1) Permitted LM Transactions;
(2) the incurrence of Indebtedness to finance an acquisition secured by the acquired assets and/or guaranteed by an acquired entity, so along as such Indebtedness and the acquisition are permitted under this Indenture and any acquired assets that constitute Collateral are pledged to the lenders and holders of the Issuer’s other Indebtedness (including the Notes) and any acquired entity that is or becomes a Restricted Subsidiary grants a guarantee of the Notes and such other Indebtedness in each case to the extent required (and within the periods required) under this Indenture; and
(3) the refinancing of Financing Lease Obligations incurred in the ordinary course or of other Indebtedness secured by assets not constituting Collateral with other Indebtedness permitted under this Indenture secured by such assets not constituting Collateral.
“Private Exchanges” means the issuance to certain holders of Existing Secured Notes of up to $432.0 million aggregate principal amount of Notes and Additional Notes in exchange for up to $432.0 million aggregate principal amount of Existing Secured Notes, together with accrued and unpaid interest to, but excluding, the Issue Date on the exchanged amount of Existing Secured Notes being paid in cash at the time of such exchange; provided, however, that any Additional Notes issued in connection with such exchange after the Issue Date shall be issued with pre-accrued interest from the Issue Date.
“Private Placement Legend” means the legend set forth in Section 2.06(f)(i) to be placed on all Notes issued under this Indenture, except where otherwise permitted by the provisions of this Indenture.
“Program Services Agreements” means any agreement entered into by the Issuer or any of its Subsidiaries (other than License Subsidiaries) relating to a Contract Station, pursuant to which agreement the Issuer or any of its Subsidiaries (other than License Subsidiaries) will obtain the right to program and/or sell advertising on a substantial portion of such Contract Station’s inventory of broadcast time.
“Purchase Money Obligations” means any Indebtedness incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets (other than Capital Stock), and whether acquired through the direct acquisition of such property or assets, or otherwise (including through the purchase of Capital Stock of any Person owning such property or assets).
“Put Obligations” means the obligations of the Issuer or any of its Subsidiaries to purchase certain assets of any Station with respect to which the Issuer or such Subsidiary shall have entered into an Outsourcing Agreement.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Qualified Proceeds” means assets that are used or useful in, or Capital Stock of any Person engaged in, a Similar Business.
48
“Rating Agency” means (1) S&P, Moody’s and Fitch or (2) if S&P, Moody’s or Fitch or each of them shall not make a corporate rating with respect to the Issuer or a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Issuer, which shall be substituted for any or all of S&P, Moody’s or Fitch, as the case may be, with respect to such corporate rating or the rating of the Notes, as the case may be.
“Rating Decline” means, with respect to the Notes, the occurrence of a decrease in the rating of the Notes by one or more gradations by either Rating Agency in the event the Notes are rated by two Rating Agencies, or from any two of three Rating Agencies in the event the Notes are rated by three Rating Agencies (in each case, including gradations within the rating categories, as well as between categories), within 60 days before or after the earlier of (x) a Change of Control, (y) the date of public notice of the occurrence of a Change of Control or (z) public notice of the intention of the Issuer or Parent to effect a Change of Control (which 60-day period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by either of such Rating Agencies); provided, however, that a Rating Decline otherwise arising by virtue of a particular reduction in rating will not be deemed to have occurred in respect of a particular Change of Control (and thus will not be deemed a Rating Decline for purposes of the definition of Change of Control Triggering Event) unless each of such Rating Agencies making the reduction in rating to which this definition would otherwise apply announces or publicly confirms or informs the Trustee in writing that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control has occurred at the time of the Rating Decline); provided further, that notwithstanding the foregoing, a Rating Decline shall not be deemed to have occurred so long as the Notes have an Investment Grade Rating from both Rating Agencies in the event the Notes are rated by two Rating Agencies, or from at least two of three Rating Agencies in the event the Notes are rated by three Rating Agencies.
“Receivables Fees” means distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Receivables Subsidiary in connection with, any Permitted Receivables Financing.
“Receivables Subsidiary” means any Special Purpose Entity established in connection with a Permitted Receivables Financing.
“Record Date” means (i) a record date set by the Issuer for purposes of determining the identity of Holders entitled to give any request, demand, authorization, notice, consent, waiver or take any other act, or to vote or consent to any action by vote or consent authorized or permitted to be given or taken by Holders, or (ii) for the interest, if any, payable on any Interest Payment Date on the Notes means the date specified for that purpose as contemplated by Article 2 of the Notes.
“Redemption Price”, when used with respect to any Note to be redeemed, means the price at which such Note is to be redeemed pursuant to this Indenture.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Global Note” means a Regulation S Temporary Global Note or Regulation S Permanent Global Note, as applicable.
“Regulation S Permanent Global Note” means, with respect to the Notes, a permanent Global Note substantially in the form of Exhibit A hereto, bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the corresponding Regulation S Temporary Global Note representing the Notes upon expiration of the Restricted Period.
49
“Regulation S Temporary Global Note” means, with respect to the Notes, a temporary Global Note substantially in the form of Exhibit A hereto, bearing the Global Note Legend, the Private Placement Legend and the Regulation S Temporary Global Note Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes initially sold in reliance on Rule 903.
“Regulation S Temporary Global Note Legend” means the legend set forth in Section 2.06(f)(iii).
“Related Business Assets” means assets (other than cash or Cash Equivalents) used or useful in a Similar Business; provided that any assets received by the Issuer or a Restricted Subsidiary in exchange for assets transferred by the Issuer or a Restricted Subsidiary shall not be deemed to be Related Business Assets if they consist of securities of a Person, unless upon receipt of the securities of such Person, such Person would become a Restricted Subsidiary.
“Responsible Officer” means, when used with respect to the Trustee, any officer of the Trustee within its corporate trust department, including any vice president, assistant secretary, senior associate, associate, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such Person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.
“Restricted Global Note” means a Global Note bearing the Private Placement Legend.
“Restricted Investment” means an Investment other than a Permitted Investment.
“Restricted Period” means the 40-day distribution compliance period as defined in Regulation S.
“Restricted Subsidiary” means, at any time, with respect to any Person, any direct or indirect Subsidiary of such Person (including any Foreign Subsidiary or Designated Parent Subsidiary) that is not then an Unrestricted Subsidiary; provided, however, that upon the occurrence of an Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be included in the definition of “Restricted Subsidiary.” Unless the context requires otherwise, any references to Restricted Subsidiary refer to a Restricted Subsidiary of the Issuer.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“Rule 903” means Rule 903 promulgated under the Securities Act.
“Rule 904” means Rule 904 promulgated under the Securities Act.
50
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and any successor to its rating agency business.
“Sale and Lease-Back Transaction” means any arrangement with any Person providing for the leasing by the Issuer or any of its Restricted Subsidiaries of any real property or tangible personal property, which property has been or is to be sold or transferred by the Issuer or such Restricted Subsidiary to a third Person in contemplation of such leasing.
“SEC” means the U.S. Securities and Exchange Commission.
“Second Lien Indebtedness” means the Indebtedness (including guarantees in respect thereof) under the Notes and any other Indebtedness that is permitted by this Indenture and the other then-outstanding Second Lien Documents (as defined in the Second Lien Pari Passu Lien Intercreditor Agreement) to have Liens on the Collateral pari passu with the Liens securing the Notes and the Note Guarantees; provided that the holders of such Indebtedness or their Designated Representative (as defined in the Second Lien Pari Passu Lien Intercreditor Agreement) shall have entered into (i) the Second Lien Pari Passu Lien Intercreditor Agreement and such Indebtedness shall constitute “Second Lien Obligations” or “Additional Second Lien Obligations” as defined therein and (ii) the First/Second/Third Lien Intercreditor Agreement.
“Second Lien Obligations” means the Obligations in respect of any Second Lien Indebtedness.
“Second Lien Pari Passu Lien Intercreditor Agreement” means an intercreditor agreement to initially be entered into by and among the Issuer, the Guarantors, the Notes Collateral Agent and the holders of any Indebtedness of the Issuer or Guarantors secured by the Collateral on a pari passu basis relative to the Notes and/or the Note Guarantees having such principal terms set forth in Exhibit G and such other terms not inconsistent with such principal terms, and as may be agreed to by the Issuer, the Holders of a majority in aggregate principal amount of the Notes then outstanding and holders of such other Indebtedness, as it may be amended or otherwise modified from time to time in accordance with this Indenture.
“Second-Out Senior Credit Facilities Indebtedness” means the Indebtedness in respect of the Term B-6 Loans and the Term B-7 Loans (as each such term is defined in the New Credit Agreement as in effect in the Issue Date).
“Secured Indebtedness” means any Indebtedness of the Issuer or any of its Restricted Subsidiaries secured by a Lien.
“Securities Act” means the U.S. Securities Act of 1933, as amended.
“Security Agreement” means that certain Collateral Agreement, dated as of the Issue Date, among the Issuer, the Guarantors and the Notes Collateral Agent, substantially in the form of Exhibit E, as it may be amended or otherwise modified from time to time in accordance with the terms thereof, this Indenture and the Intercreditor Agreements.
“Security Documents” means, collectively, the Security Agreement, the First/Second/Third Lien Intercreditor Agreement, the Second Lien Pari Passu Lien Intercreditor Agreement, other security or intercreditor agreements relating to the Collateral to preserve and protect the Liens on the Collateral (including, without limitation, financing statements under the Uniform Commercial Code of the relevant states applicable to the Collateral), each for the benefit of the Notes Collateral Agent in such capacity for itself, the Trustee and the Holders, as amended, amended and restated, modified, renewed or replaced from time to time.
51
“Senior Credit Facilities” means, individual or collectively, as the context may require, the First-Out Revolving Credit Facility and the Second-Out Term Loan Facility under the New Credit Agreement and the Junior Lien Revolving Credit Facility and the Junior Lien Term Loan Facility under the Amended Credit Agreement, in each case, as the same may be in effect from time to time, including, in each case, any related notes, mortgages, letters of credit, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any appendices, exhibits, annexes or schedules to any of the foregoing (as the same may be in effect from time to time) and any amendments, supplements, modifications, extensions, renewals, restatements, refundings, replacements, exchanges or refinancings thereof, in whole or in part, and any financing arrangements that amend, supplement, modify, extend, renew, restate, refund, replace, exchange or refinance any part thereof, including, without limitation, any such amended, supplemented, modified, extended, renewed, restated, refunding, replacement, exchanged or refinancing financing arrangement that increases the amount permitted to be borrowed or issued thereunder or alters the maturity thereof or adds Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, trustee, lender or group of lenders, investors, holders or otherwise.
“Senior Credit Facility Obligations” means the “Secured Obligations” (as defined in each of the Senior Credit Facilities).
“Senior Indebtedness” means:
(1) all Indebtedness of the Issuer or any Guarantor outstanding under the Senior Credit Facilities, the Existing Notes, the Exchange Second-Out First Lien Notes, the New First-Out First Lien Notes or the Notes and related Note Guarantees (including interest accruing on or after the filing of any petition in bankruptcy or similar proceeding or for reorganization of the Issuer or any Guarantor (at the rate provided for in the documentation with respect thereto, regardless of whether or not a claim for post-filing interest is allowed in such proceedings)), and any and all other fees, expense reimbursement obligations, indemnification amounts, penalties, and other amounts (whether existing on the Issue Date or thereafter created or incurred) and all obligations of the Issuer or any Guarantor to reimburse any bank or other Person in respect of amounts paid under letters of credit, acceptances or other similar instruments;
(2) all (a) Hedging Obligations (and guarantees thereof) and (b) Cash Management Obligations (and guarantees thereof); provided that such Hedging Obligations and Cash Management Obligations, as the case may be, are permitted to be incurred under the terms of this Indenture;
(3) any other Indebtedness of the Issuer or any Guarantor permitted to be incurred under the terms of this Indenture, unless the instrument under which such Indebtedness is incurred expressly provides that it is subordinated in right of payment to the Notes or any related Note Guarantee; and
(4) all Obligations with respect to the items listed in the preceding clauses (1), (2) and (3);
provided, however, that Senior Indebtedness shall not include:
(a) any obligation of such Person to the Issuer or any of its Subsidiaries;
(b) any liability for federal, state, local or other taxes owed or owing by such Person;
52
(c) any accounts payable or other liability to trade creditors arising in the ordinary course of business;
(d) any Indebtedness or other Obligation of such Person which is subordinate or junior in right of payment to any other Indebtedness or other Obligation of such Person; or
(e) that portion of any Indebtedness which at the time of incurrence is incurred in violation of this Indenture.
“Senior Lien Priority” means, with respect to specified Indebtedness, such Indebtedness is secured by a Lien that is senior in priority to the Liens on the Collateral that secures the Notes and the Notes Guarantees and is subject to the First/Second/Third Lien Intercreditor Agreement (or such other intercreditor agreement having substantially similar terms as the First/Second/Third Lien Intercreditor Agreement, taken as a whole).
“Significant Acquired Person” means a Person that would be a “Significant Subsidiary” of the Issuer within the meaning under Rule 1-02 of Regulation S-X promulgated by the SEC if such Person were a Subsidiary of the Issuer (and substituting 20 percent for 10 percent each place it appears in Rule 1-02(w) of Regulation S-X for purposes of the definition of Significant Subsidiary).
“Significant Subsidiary” means any Restricted Subsidiary that would be a “Significant Subsidiary” of the Issuer within the meaning under Rule 1-02 of Regulation S-X promulgated by the SEC.
“Similar Business” means any business conducted or proposed to be conducted by the Issuer and its Restricted Subsidiaries on the Issue Date or any business that is similar (including, without limitation, (a) the business of owning and operating the Stations (and related retransmission facilities), (b) the commercial utilization of frequencies licensed, granted or leased to the Issuer or any of its Subsidiaries by the FCC, any other governmental authority or any other Person in connection with the television or radio broadcasting businesses, including using or leasing spectrum for the distribution of data and/or ancillary and supplementary services, (c) the production of streaming programming, programming broadcast on television stations or syndicated to others, (d) the utilization of digital media, including, but not limited to, websites, mobile applications, podcasts, channel sharing, spectrum datacasting and social media, to promote or distribute programming and to assist other businesses to reach audiences, customers and consumers, (e) the business of broadcasting in a mobile environment, (f) the business of managing and/or consulting to television stations other than the Owned Stations and/or (g) from the technology, media and telecommunications industries, including sports team broadcasting, ownership or management and any sports gaming or wagering business), complementary, reasonably related, synergistic, incidental or ancillary thereto, or is a reasonable extension, development or expansion thereof, including using or leasing spectrum for the distribution of data and/or ancillary or supplementary services.
“Sinclair” means Sinclair, Inc., a Maryland corporation, and, as of the Issue Date, the direct or indirect parent of each of the Parent and the Issuer, or any successor thereto.
“Special Call Event” means a Covenant Restricted Acquisition or a Covenant Restricted Change of Control.
“Special Purpose Entity” means a direct or indirect subsidiary of the Issuer, whose organizational documents contain restrictions on its purpose and activities and impose requirements intended to preserve its separateness from the Issuer and/or one or more Subsidiaries of the Issuer.
53
“Specified Event” has the meaning given to such term in the definition of “Consolidated EBITDA.”
“Stated Maturity”, when used with respect to any Note or any installment of principal thereof or interest thereon, means the date specified in such Note as the fixed date on which the principal of such Note or such installment of principal or interest is due and payable. The Stated Maturity of the Notes is February 15, 2033.
“Stations” means the Owned Stations and Contract Stations.
“Subordinated Film Indebtedness” means Film Obligations of the Issuer and its Subsidiaries that are Subordinated Indebtedness of the Issuer and the Guarantors.
“Subordinated Indebtedness” means, with respect to the Notes or any Note Guarantee,
(1) any Indebtedness of the Issuer which is by its terms subordinated in right of payment to the Notes, or
(2) any Indebtedness of any Guarantor which is by its terms subordinated in right of payment to the Note Guarantee of such entity of the Notes.
“Subsidiary” means, with respect to any Person:
(1) any corporation, association or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof; or
(2) any partnership, joint venture, limited liability company or similar entity of which,
(a) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise, and
(b) such Person or any Restricted Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
For the avoidance of doubt, any entity that is owned at a 50% or less level (as described above) shall not be a “Subsidiary” for any purpose under this Indenture, regardless of whether such entity is consolidated on the Issuer’s or any of its Restricted Subsidiaries’ financial statements. Notwithstanding anything to the contrary in the foregoing, however, each Designated Parent Subsidiary shall be deemed to be a “Subsidiary” of the Issuer for all purposes of the Notes and this Indenture (unless the context requires otherwise). Unless otherwise specified, “Subsidiary” means a Subsidiary of the Issuer.
“Subsidiary Guarantor” means a Guarantor that is a Subsidiary of the Issuer (including, for the avoidance of doubt, any Designated Parent Subsidiary).
54
“Term B-6 Loans” has the meaning assigned to it in the definition of “New Credit Agreement”.
“Term B-7 Loans” has the meaning assigned to it in the definition of “New Credit Agreement”.
“Total Assets” means, as of any Applicable Calculation Date, with respect to any Person and its Restricted Subsidiaries, the total assets of such Person and its Restricted Subsidiaries on a consolidated basis, as shown on the most recent consolidated balance sheet of such Person and its Restricted Subsidiaries as of the end of the most recent fiscal quarter for which internal financial statements are available immediately preceding the Applicable Calculation Date; provided that, for purposes of testing the covenants under this Indenture in connection with any transaction, the Total Assets of such Person and its Restricted Subsidiaries shall be adjusted to reflect such pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio.”
“Transaction Expenses” means any fees or expenses incurred or paid by the Issuer, its Restricted Subsidiaries, any Parent Entity and any of their Affiliates and any Investors in connection with the Transactions (including, without limitation, expenses in connection with hedging transactions and any original issue discount or upfront fees, as well as any legal, filing, auditing and printing fees and expenses), this Indenture, the Notes, the Exchange Second-Out First Lien Notes, the New First-Out First Lien Notes and the Senior Credit Facilities, and the transactions contemplated hereby and thereby.
“Transactions” means (i) the offering and sale of the Notes and the New First-Out First Lien Notes and the use of proceeds therefrom, including, without limitation, the repayment of certain of the term loans outstanding under the Existing Senior Credit Facilities and the repurchase or repayment of certain of the Existing Secured Notes on the Issue Date, (ii) the issuance of the revolving commitments under the First-Out Senior Credit Facilities and the use of proceeds therefrom, (iii) the issuance of the Second-Out Term Loan Facility and the use of proceeds therefrom, (iv) the issuance of the Exchange Second-Out First Lien Notes, (v) the amendment of the Existing Secured Notes Indenture in respect of the Existing Secured Notes issued thereunder, and (vi) the amendment of the Existing Credit Agreement in respect of the revolving credit facility and term loans thereunder, each as described in the New First-Out First Lien Notes Offering Memorandum.
“Treasury Rate” means, as obtained by the Issuer, as of any Redemption Date, the yield to maturity as of such Redemption Date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 that has become publicly available at least two Business Days prior to the Redemption Date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such Redemption Date to February 15, 2027; provided, however, that if the period from such Redemption Date to February 15, 2027 is less than one year, the weekly average yield on actively traded United States Treasury securities adjusted to a constant maturity of one year will be used.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.
“Trustee” means U.S. Bank Trust Company, National Association until a successor replaces it and, thereafter, means any such successor.
55
“TV/Radio Acquisition” means (a) the acquisition by the Issuer or any of its Subsidiaries in accordance with the terms hereof of substantially all of the assets (including Broadcast Licenses) of a television or radio station in the United States in a single transaction (i.e., not by means of the acquisition of an option for such assets and the subsequent exercise of such option), (b) (i) the acquisition by the Issuer or any of its Subsidiaries in accordance with the terms hereof of (x) substantially all of the assets (other than Broadcast Licenses and other property required pursuant to the rules and regulations of the FCC to be sold in connection with the transfer of such Broadcast Licenses) of a television or radio station in the United States and (y) an option to acquire the Broadcast Licenses and such other assets of such television or radio station and (ii) the entering into by the Issuer or any of its Subsidiaries of a Program Services Agreement with respect to such station and (c) the consummation of the acquisition of assets by the Issuer or any of its Subsidiaries pursuant to the exercise of an option referred to in the preceding clause (b)(i)(y), together with the termination of the related Program Services Agreement referred to in the preceding clause (b)(ii). As used in this definition, the acquisition of assets shall be deemed to include reference to the acquisition of the voting Capital Stock of the Person that owns such assets, and references to the acquisition and exercise of an option to acquire assets shall be deemed to include the acquisition and exercise of the option to acquire voting Capital Stock of the Person that owns such assets.
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction.
“Unrestricted” means, when referring to cash and Cash Equivalents of the Issuer and its Restricted Subsidiaries, that such cash and Cash Equivalents (a) do not appear or would not be required to appear as “restricted” on the financial statements of the Issuer or any such Restricted Subsidiary (unless related to the Intercreditor Agreements and the other Security Documents or the Liens created thereunder), (b) are not the proceeds of long-term Indebtedness (it being understood revolving facility draws are not long-term Indebtedness for these purposes) incurred to finance the relevant transaction for which a relevant ratio under this Indenture, including incurrence of Indebtedness, is being tested and (c) are not otherwise unavailable to the Issuer or such Restricted Subsidiary; provided, that the aggregate amount of Unrestricted cash and Cash Equivalents as of any date of determination shall be deemed to be reduced by the amount of the then unpaid DSG Cash Tax Payments but, in any event, to an amount not less than $0.
“Unrestricted Definitive Note” means one or more Definitive Notes that do not bear and are not required to bear the Private Placement Legend.
“Unrestricted Global Note” means with respect to the Notes, a permanent Global Note, substantially in the form of Exhibit A, or in such other form as shall be established in one or more supplemental indentures, in each case, with such appropriate insertions, omissions, substitutions and other variations as are required or not prohibited by this Indenture, that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, and that is deposited with or on behalf of and registered in the name of the Depositary, representing Notes that do not bear the Private Placement Legend.
“Unrestricted Subsidiary” means:
(1) any Subsidiary of the Issuer which at the time of determination is an Unrestricted Subsidiary (as designated by the Issuer, as provided below); and
(2) any Subsidiary of an Unrestricted Subsidiary.
56
The Issuer may designate any Subsidiary (including any existing Subsidiary and any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on, any property of, the Issuer or any Restricted Subsidiary (other than solely any Subsidiary of the Subsidiary to be so designated); provided that:
(1) any Unrestricted Subsidiary must be an entity of which the Equity Interests entitled to cast at least a majority of the votes that may be cast by all Equity Interests having ordinary voting power for the election of directors or Persons performing a similar function are owned, directly or indirectly, by the Issuer;
(2) such designation complies with Section 4.07;
(3) each of (a) the Subsidiary to be so designated and (b) its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of the Issuer or any Restricted Subsidiary (other than Equity Interests in the Unrestricted Subsidiary); and
(4) such Subsidiary is established or designated for a legitimate business purpose and not in connection with or in furtherance of a Priming Financing/Liability Management Transaction.
The Issuer may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that immediately after giving effect to any such designation, no Event of Default under clause (1), (2), (6) or (7) of Section 6.01(a) shall have occurred and be continuing or would occur as a consequence thereof and either:
(1) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); or
(2) the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such designation, in each case on a pro forma basis taking into account such designation.
Any such designation by the Issuer shall be notified by the Issuer to the Trustee by promptly filing with the Trustee an Officer’s Certificate certifying that such designation complied with the foregoing provisions.
“Unsecured Indebtedness” means Senior Indebtedness or Subordinated Indebtedness of the Issuer or any of its Restricted Subsidiaries that is not secured by a Lien.
“Unsecured Notes” means, collectively, the Existing Unsecured Notes and the 4.125% Unsecured Notes.
“U.S. Government Obligations” means securities that are:
(1) direct obligations of, or obligations guaranteed by, the United States of America for the timely payment of which its full faith and credit is pledged; or
57
(2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government Obligations or a specific payment of principal of or interest on any such U.S. Government Obligations held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligations or the specific payment of principal of or interest on the U.S. Government Obligations evidenced by such depository receipt.
“U.S. Person” means a U.S. person as defined in Rule 902(k) under the Securities Act.
“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, at any date, the quotient obtained by dividing:
(1) the sum of the products of the number of years (calculated to the nearest one-twelfth) from the date of determination to the date of each successive scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Disqualified Stock or Preferred Stock multiplied by the amount of such payment; by
(2) the sum of all such payments.
“Wholly-Owned Subsidiary” of any Person means a Subsidiary of such Person, 100% of the outstanding Equity Interests of which (other than directors’ qualifying shares and shares issued to foreign nationals as required by applicable law) shall at the time be owned by such Person or by one or more Wholly-Owned Subsidiaries of such Person. Notwithstanding anything to the contrary in the foregoing, however, each Designated Parent Subsidiary that is a Wholly-Owned Subsidiary of Parent shall be deemed to be a “Wholly-Owned Subsidiary” of the Issuer for all purposes of the Notes and this Indenture (unless the context requires otherwise).
SECTION 1.02. Other Definitions.
| Term | Defined in<br>Section |
|---|---|
| “Acceptable Commitment” | 4.10(b) |
| “Action” | 12.08(v) |
| “Advance Offer” | 4.10(c) |
| “Advance Portion” | 4.10(c) |
| “Affiliate Transaction” | 4.11(a) |
| “Applicable Law” | 13.11 |
| “Asset Sale Offer” | 4.10(c) |
| “Asset Sale Proceeds Application Period” | 4.10(b) |
| “Authentication Order” | 2.02 |
| “CERCLA” | 12.08(q) |
| “Change of Control Offer” | 4.14(a) |
| “Change of Control Payment” | 4.14(a) |
| “Change of Control Payment Date” | 4.14(a)(2) |
| “Covenant Defeasance” | 8.03 |
| “Covenant Suspension Event” | 4.16(a) |
58
| Term | Defined in<br>Section |
|---|---|
| “Declined Proceeds” | 4.10(d) |
| “DTC” | 2.03 |
| “Event of Default” | 6.01(a) |
| “Excess Proceeds” | 4.10(c) |
| “Increased Amount” | 4.12(c) |
| “Issuer” | Preamble |
| “LCT Election” | 1.06(b) |
| “LCT Test Date” | 1.06(b) |
| “Legal Defeasance” | 8.02 |
| “Material Indebtedness” | 6.01(a)(4) |
| “MD&A” | 4.03(a) |
| “Note Register” | 2.03 |
| “Notes” | Recitals |
| “Notes Collateral Agent” | Preamble |
| “Offer Amount” | 3.09(b) |
| “Offer Period” | 3.09(b) |
| “Parent Guarantee Release Date” | 10.06(7) |
| “Paying Agent” | 2.03 |
| “Purchase Date” | 3.09(b) |
| “Redemption Date” | 3.07(a) |
| “refinance” | 4.09(b)(13) |
| “Refinancing Indebtedness” | 4.09(b)(13) |
| “Refunding Capital Stock” | 4.07(b)(2) |
| “Registrar” | 2.03 |
| “Related Person” | 12.08(b) |
| “Reserved Indebtedness Amount” | 4.09(c)(5) |
| “Restricted Payments” | 4.07(a) |
| “Reversion Date” | 4.16(b) |
| “Second Change of Control Payment Date” | 4.14(e) |
| “Security Document Order” | 12.08(r) |
| “Subject Lien” | 4.12(a) |
| “Successor Company” | 5.01(a)(1) |
| “Successor Guarantor” | 5.01(c)(1)(a) |
| “Suspended Covenants” | 4.16(a) |
| “Suspension Date” | 4.16(a) |
| “Suspension Period” | 4.16(b) |
| “Treasury Capital Stock” | 4.07(b)(2) |
| “Trustee” | Preamble |
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
The Issuer and the Guarantors, if any, shall not be required to qualify this Indenture under the Trust Indenture Act. Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and made a part of this Indenture.
59
The following Trust Indenture Act term used in this Indenture has the following meaning:
“obligor” on the Notes and the Note Guarantees means the Issuer and the Guarantors, respectively, and any successor obligor upon the Notes and the Note Guarantees, respectively.
All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by SEC rule under the Trust Indenture Act have the meanings so assigned to them.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or” is not exclusive;
(d) words in the singular include the plural, and in the plural include the singular;
(e) “will” shall be interpreted to express a command;
(f) provisions apply to successive events and transactions;
(g) references to sections of, or rules under, the Securities Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time;
(h) unless otherwise specifically indicated, the term “consolidated” with respect to any Person refers to such Person on a consolidated basis in accordance with GAAP but excluding from such consolidation any Unrestricted Subsidiary as if such Unrestricted Subsidiary were not an Affiliate of such Person;
(i) unless the context otherwise requires, any reference to an “Article”, “Section”, “clause” or “Exhibit” refers to an Article, Section, clause or Exhibit, as the case may be, of this Indenture; and
(j) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not any particular Article, Section, clause, other subdivision or Exhibit.
SECTION 1.05. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Issuer. Proof of execution of any such instrument or of a writing appointing any such agent, or the holding by any Person of a Note, shall be sufficient for any purpose of this Indenture and (subject to Section 7.01) conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Section 1.05.
60
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by or on behalf of any legal entity other than an individual, such certificate or affidavit shall also constitute proof of the authority of the Person executing the same. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that the Trustee deems sufficient.
(c) Subject to the proviso in the definition of “Holder” in Section 1.01 regarding beneficial owners, the ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of any action taken, suffered or omitted by the Trustee or the Issuer in reliance thereon, whether or not notation of such action is made upon such Note.
(e) The Issuer may set a Record Date for purposes of determining the identity of Holders entitled to give any request, demand, authorization, direction, notice, consent, waiver or take any other act, or to vote or consent to any action by vote or consent authorized or permitted to be given or taken by Holders. Unless otherwise specified, if not set by the Issuer prior to the first solicitation of a Holder made by any Person in respect of any such action, or in the case of any such vote, prior to such vote, any such Record Date shall be the later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders furnished to the Trustee prior to such solicitation.
(f) Without limiting the foregoing, a Holder entitled to take any action hereunder with regard to any particular Note may do so with regard to all or any part of the principal amount of such Note or by one or more duly appointed agents, each of which may do so pursuant to such appointment with regard to all or any part of such principal amount. Any notice given or action taken by a Holder or its agents with regard to different parts of such principal amount pursuant to this Section 1.05(f) shall have the same effect as if given or taken by separate Holders of each such different part.
(g) Without limiting the generality of the foregoing, a Holder, including DTC that is the Holder of a Global Note, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and DTC that is the Holder of a Global Note may provide its proxy or proxies to the beneficial owners of interests in any such Global Note through such depositary’s standing instructions and customary practices.
(h) The Issuer may fix a Record Date for the purpose of determining the Persons who are beneficial owners of interests in any Global Note held by DTC entitled under the procedures of such depositary to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders. If such a Record Date is fixed, the Holders on such Record Date or their duly appointed proxy or proxies, and only such Persons, shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other action, whether or not such Holders remain Holders after such Record Date. No such request, demand, authorization, direction, notice, consent, waiver or other action shall be valid or effective if made, given or taken more than 90 days after such Record Date.
61
SECTION 1.06. Calculations.
(a) So long as there is a Parent Guarantor that is a Parent Entity of the Issuer and does not hold any material assets other than, directly or indirectly, the Equity Interests of the Issuer (as determined in good faith by the Board or senior management of such Parent Guarantor), any calculations or measure that is determined with reference to the Issuer’s consolidated financial statements (including, without limitation, Applicable Measurement Period, Consolidated EBITDA, Consolidated Interest Expense, Consolidated Net Income, Consolidated First Lien Secured Debt Ratio, Consolidated Secured Debt Ratio, Consolidated Total Debt Ratio, Fixed Charge Coverage Ratio, Fixed Charges, Permitted Receivables Financing, Total Assets and clause (3)(a) of Section 4.07(a)) may be determined with reference to such Parent Guarantor’s consolidated financial statements instead.
(b) When determining compliance with, or inapplicability of, any provision or term of this Indenture in connection with or related to any Limited Condition Transaction and any actions or transactions related or appurtenant thereto, at the option of the Issuer (such election, an “LCT Election”), the date of determination of compliance with, or inapplicability of, such provision or term shall be deemed to be the first date (the “LCT Test Date”) any of the definitive agreements for such Limited Condition Transaction are entered into. If after giving pro forma effect to the Limited Condition Transaction and any actions or transactions related or appurtenant thereto, the Issuer or any of its Restricted Subsidiaries would have been permitted or not prohibited to consummate such Limited Condition Transaction and any actions or transactions related or appurtenant thereto on the relevant LCT Test Date in compliance with such term or provision, such term or provision shall be deemed to have been complied with (or satisfied) for all purposes; provided that (a) if financial statements are available for one or more fiscal quarters after such LCT Test Date, the Issuer may elect in its sole discretion to determine such compliance or inapplicability of such terms or provisions on the basis of such financial statements, and the LCT Test Date shall be the date of determination of such compliance or inapplicability after the date of availability of such financial statements, (b) no determination of compliance or inapplicability of any such term or provision shall be required at any time after the applicable LCT Test Date for such Limited Condition Transaction and any actions or transactions related or appurtenant thereto and (c) Consolidated Interest Expense for purposes of the Fixed Charge Coverage Ratio will be calculated using an assumed interest rate as reasonably determined by the Issuer.
For the avoidance of doubt, if the Issuer has made an LCT Election, (1) if any term or provision of this Indenture for which compliance was determined or tested as of the LCT Test Date would at any time after the LCT Test Date otherwise not be complied with for any reason, such terms and provisions will nevertheless continue to be determined to be complied with; (2) no such determination of compliance or inapplicability of any such term or provision of this Indenture shall be affected by any subsequent Default or Event of Default and such Default or Event of Default shall be deemed not to have occurred or be continuing solely for purposes of such compliance or inapplicability; and (3) all determinations of compliance with or inapplicability of any term or provision of this Indenture for any action or inaction that are not comprised within the action or inaction contemplated or related to such Limited Condition Transaction after the LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that such Limited Condition Transaction is terminated, expires or is abandoned, shall be determined after giving pro forma effect to such Limited Condition Transaction.
In the event an action or transaction is undertaken by the Issuer or any of its Restricted Subsidiaries that may rely on a ratio basket based on the Fixed Charge Coverage Ratio, Consolidated First Lien Secured Debt Ratio, Consolidated Secured Debt Ratio or Consolidated Total Debt Ratio or any other basket, each such action and transaction will be deemed to have been taken first, to the extent available, pursuant to the relevant Fixed Charge Coverage Ratio, Consolidated First Lien Secured Debt Ratio, Consolidated Secured Debt Ratio or Consolidated Total Debt Ratio test.
62
ARTICLE 2
THE NOTES
SECTION 2.01. Form and Dating; Terms.
(a) General. The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A, or in such other form as shall be established in one or more supplemental indentures, in each case, with such appropriate insertions, omissions, substitutions and other variations as are required or not prohibited by this Indenture. The Notes may have notations, legends or endorsements required by law, stock exchange rules or usage. Each Note shall be dated the date of its authentication. The Notes shall be in denominations of $2,000 and integral multiples of $1,000 thereof.
(b) Global Notes. Notes issued in global form shall be substantially in the form of Exhibit A, or in such other form as shall be established in one or more supplemental indentures, in each case, with such appropriate insertions, omissions, substitutions and other variations as are required or not prohibited by this Indenture (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes issued in definitive form shall be substantially in the form of Exhibit A, or in such other form as shall be established in one or more supplemental indentures, in each case, with such appropriate insertions, omissions, substitutions and other variations as are required or not prohibited by this Indenture (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note shall represent such of the outstanding Notes as shall be specified in the “Schedule of Exchanges of Interests in the Global Note” attached thereto and each shall provide that it shall represent up to the aggregate principal amount of Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as applicable, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06.
(c) Temporary Global Notes. Notes offered and sold in reliance on Regulation S shall be issued initially in the form of the Regulation S Temporary Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for the Depositary, and registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated agents holding on behalf of Euroclear or Clearstream, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided.
Following the termination of the Restricted Period, beneficial interests in the Regulation S Temporary Global Note shall be exchanged for beneficial interests in the Regulation S Permanent Global Note pursuant to the Applicable Procedures. Simultaneously with the authentication of the Regulation S Permanent Global Note, the Trustee shall cancel the Regulation S Temporary Global Note. The aggregate principal amount of the Regulation S Temporary Global Note and the Regulation S Permanent Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee, as the case may be, in connection with transfers of interest as hereinafter provided.
63
(d) Terms. The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture, and the Issuer, the Guarantors and the Trustee, by their execution and delivery of this Indenture (or, any other Guarantor from time to time party hereto, by its execution and delivery of a supplemental indenture to this Indenture).
The Notes shall be subject to repurchase by the Issuer pursuant to an Asset Sale Offer as provided in Section 4.10 or a Change of Control Offer as provided in Section 4.14. The Notes shall not be redeemable, other than as provided in Article 3.
Additional Notes ranking pari passu with the Notes may be created and issued from time to time by the Issuer and shall be consolidated with and form a single class with the Notes and shall have the same terms as to status, redemption or otherwise as the Notes; provided that the Issuer’s ability to issue Additional Notes shall be subject to the Issuer’s compliance with Section 4.09 and Section 4.12; provided further that any Additional Notes issued for the primary purpose of influencing the provision of, or in connection with obtaining, the requisite consents of Holders of Notes for any modification, amendment, release or waiver under this Indenture shall be disregarded in the calculation of the requisite consents for such modification, amendment, release or waiver; provided further that if any Additional Notes are not fungible with the Notes for U.S. federal income tax purposes, such Additional Notes will have a separate CUSIP number and ISIN from the Notes.
(e) Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream shall be applicable to transfers of beneficial interests in the Regulation S Temporary Global Note and the Regulation S Permanent Global Notes that are held by Participants through Euroclear or Clearstream.
SECTION 2.02. Execution and Authentication.
At least one Officer shall execute the Notes on behalf of the Issuer by manual, facsimile or electronic (including “.pdf”) signature.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be entitled to any benefit under this Indenture or be valid or obligatory for any purpose until authenticated substantially in the form of Exhibit A by the manual signature of the Trustee. The signature shall be conclusive evidence that the Note has been duly authenticated and delivered under this Indenture.
At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Notes executed by the Issuer to the Trustee for authentication and delivery and the Trustee shall, upon receipt of an Issuer Order (an “Authentication Order”), authenticate and deliver the Notes for an aggregate principal amount specified in such Authentication Order for the Notes.
In authenticating the Notes, and accepting the additional responsibilities under this Indenture in relation to the Notes, the Trustee shall receive, and, subject to Section 7.01, shall be fully protected in relying upon:
(a) an Officer’s Certificate delivered in accordance with Sections 13.04 and 13.05; and
64
(b) an Opinion of Counsel, delivered in accordance with Sections 13.04 and 13.05, and which shall also state:
(1) that the form of the Notes has been established in conformity with this Indenture;
(2) that the terms of the Notes have been established by this Indenture; and
(3) that the Notes, when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Issuer, enforceable in accordance with their terms, subject to customary exceptions, limitations, qualifications and other assumptions.
The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Issuer.
SECTION 2.03. Registrar and Paying Agent.
The Issuer shall maintain with respect to the Notes an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar shall keep a register with respect to the Notes (“Note Register”) and of their transfer and exchange. The Issuer may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar, and the term “Paying Agent” includes any additional paying agent. The Issuer may change any Paying Agent or Registrar without prior notice to any Holder. The Issuer shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Issuer fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. the Issuer or any of its Subsidiaries may act as Paying Agent or Registrar.
The Issuer initially appoints The Depository Trust Company (“DTC”) to act as Depositary with respect to the Global Notes.
The Issuer initially appoints the Trustee to act as the Paying Agent and Registrar for the Notes and to act as Custodian with respect to the Global Notes.
SECTION 2.04. Paying Agent to Hold Money in Trust.
The Issuer shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders of any Notes or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or interest, if any, on the Notes, and will notify the Trustee of any default by the Issuer in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it with respect to the Notes to the Trustee. The Issuer at any time may require a Paying Agent to pay all money held by it with respect to the Notes to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Issuer or a Subsidiary of the Issuer) shall have no further liability for the money. If the Issuer or a Subsidiary of the Issuer acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuer, the Trustee shall serve as Paying Agent for the Notes.
65
SECTION 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least two Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes.
SECTION 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. Except as otherwise set forth in this Section 2.06, a Global Note may be transferred, in whole and not in part, only to another nominee of the Depositary or to a successor Depositary or a nominee of such successor Depositary. A beneficial interest in a Global Note may not be exchanged for a Definitive Note unless (i) the Depositary (x) notifies the Issuer that it is unwilling or unable to continue as Depositary for such Global Note or (y) has ceased to be a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Issuer within 90 days, (ii) the Issuer, at its option, notifies the Trustee that it elects to cause the issuance of Definitive Notes, and any Participant requests a Definitive Note in accordance with the Applicable Procedures or (iii) there shall have occurred and be continuing an Event of Default with respect to the Notes. Upon the occurrence of any of the preceding events in (i) or (ii) above, Definitive Notes delivered in exchange for any Global Note or beneficial interests therein will be registered in the names, and issued in any approved denominations, requested by or on behalf of the Depositary (in accordance with its customary procedures). Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10, shall be authenticated and delivered in the form of, and shall be, a Global Note, except for Definitive Notes issued subsequent to any of the preceding events in (i) or (ii) above and pursuant to Section 2.06(b)(ii)(B) and Section 2.06(c). A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a); provided, however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b) or (c).
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also shall require compliance with either subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend; provided, however, that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Regulation S Temporary Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person. Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(i).
66
(ii) All Other Transfers and Exchanges of Beneficial Interests in GlobalNotes. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(i), the transferor of such beneficial interest must deliver to the Registrar either (A) (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase or (B) (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (1) above; provided that in no event shall Definitive Notes be issued upon the transfer or exchange of beneficial interests in a Regulation S Temporary Global Note prior to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar of any certificates required pursuant to Rule 903. Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(h).
(iii) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.06(b)(ii) and the Registrar receives the following:
(A) if the transferee will take delivery in the form of a beneficial interest in a 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B, including the certifications in item (1) thereof; or
(B) if the transferee will take delivery in the form of a beneficial interest in a Regulation S Global Note, then the transferor must deliver a certificate in the form of Exhibit B, including the certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an UnrestrictedGlobal Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.06(b)(ii) and the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit C, including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B, including the certifications in item (4) thereof;
67
and, in each such case set forth in this subparagraph (iv), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (iv) above at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to subparagraph (iv) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon the occurrence of any of the events in paragraph (i), (ii) or (iii) of Section 2.06(a) and receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder substantially in the form of Exhibit C, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate substantially in the form of Exhibit B, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate substantially in the form of Exhibit B, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to the Issuer or any of the Restricted Subsidiaries or any Guarantor, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(b) thereof; or
(F) if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(c) thereof,
68
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h), and the Issuer shall execute and the Trustee shall authenticate and mail or otherwise deliver to the Person designated in the instructions a Definitive Note in the applicable principal amount. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall mail such Definitive Notes to the Persons in whose names the Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.
(ii) Beneficial Interests in Regulation S Temporary Global Note toDefinitive Notes. Notwithstanding Sections 2.06(c)(i)(A) and (C), a beneficial interest in the Regulation S Temporary Global Note may not be exchanged for a Definitive Note or transferred to a Person who takes delivery thereof in the form of a Definitive Note prior to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) of the Securities Act, except in the case of a transfer pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only upon the occurrence of any of the events in subsection (i), (ii) or (iii) of Section 2.06(a) and if the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder substantially in the form of Exhibit C, including the certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder substantially in the form of Exhibit B, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (iii), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(iv) Beneficial Interests in UnrestrictedGlobal Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon the occurrence of any of the events in subsection (i), (ii) or (iii) of Section 2.06(a) and satisfaction of the conditions set forth in Section 2.06(b)(ii), the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h), and the Issuer shall
69
execute and the Trustee shall, upon receipt of an Authentication Order, authenticate and mail or otherwise deliver to the Person designated in the instructions a Definitive Note in the applicable principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from or through the Depositary and the Participant or Indirect Participant. The Trustee shall mail such Definitive Notes to the Persons in whose names the Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder substantially in the form of Exhibit C, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate substantially in the form of Exhibit B, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate substantially in the form of Exhibit B, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to the Issuer or any of the Restricted Subsidiaries or any Guarantor, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(b) thereof; or
(F) if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the applicable Restricted Global Note, in the case of clause (B) above, the applicable 144A Global Note, and in the case of clause (C) above, the applicable Regulation S Global Note, and in all other cases, the IAI Global Note.
70
(ii) Restricted Definitive Notes to Beneficial Interests in UnrestrictedGlobal Notes. A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if the Registrar receives the following:
(1) if the Holder of such Definitive Notes proposes to exchange the Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit C, including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes proposes to transfer the Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit B, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (ii), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to clause (ii) or (iii) above at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e):
71
(i) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of Persons who take delivery thereof if the Registrar receives the following:
(A) if the transfer will be made pursuant to a QIB in accordance with Rule 144A, then the transferor must deliver a certificate substantially in the form of Exhibit B, including the certifications in item (1) thereof;
(B) if the transfer will be made to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904 then the transferor must deliver a certificate in the form of Exhibit B, including the certifications in item (2) thereof; or
(C) if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B, including the certifications required by item (3) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if the Registrar receives the following:
(A) if the Holder of such Restricted Definitive Notes proposes to exchange the Notes for an Unrestricted Definitive Note, a certificate from such Holder substantially in the form of Exhibit C, including the certifications in item (1)(d) thereof; or
(B) if the Holder of such Restricted Definitive Notes proposes to transfer the Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder substantially in the form of Exhibit B, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (ii), if the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer the Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Legends. The following legends shall appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture:
(i) Private Placement Legend.
72
(A) Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:
“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR (IN THE CASE OF NOTES SOLD PURSUANT TO RULE 144A) OR 40 DAYS (IN THE CASE OF NOTES SOLD PURSUANT TO REGULATION S) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.”
(B) Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii) or (e)(iii) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) shall not bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in substantially the following form:
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
73
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06(h) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
(iii) Regulation S Temporary Global Note Legend. The Regulation S Temporary Global Note shall bear a legend in substantially the following form:
“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).”
(g) [Reserved].
(h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.11. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
74
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 or at the Registrar’s request.
(ii) No service charge shall be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.07, 2.10, 3.06, 3.09, 4.10, 4.14 and 9.05).
(iii) Neither the Registrar nor the Issuer shall be required to register the transfer of or exchange any Note selected for redemption or tendered (and not withdrawn) for repurchase in whole or in part, except the unredeemed or unpurchased portion of any Note being redeemed or repurchased in part.
(iv) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(v) The Issuer shall not be required (A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 and ending at the close of business on the day of selection, (B) to register the transfer of or to exchange any Note so selected for redemption or tendered (and not withdrawn) for repurchase in connection with a Change of Control Offer, an Asset Sale Offer or other tender offer, in whole or in part, except the unredeemed portion of any Note being redeemed in part or (C) to register the transfer of or to exchange a Note between a Record Date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuer may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of (and premium, if any) and interest on the Notes and for all other purposes, and none of the Trustee, any Agent or the Issuer shall be affected by notice to the contrary.
(vii) Upon surrender for registration of transfer of any Note at the office or agency of the Issuer designated pursuant to Section 4.02, the Issuer shall execute, and the Trustee shall authenticate and mail or otherwise deliver, in the name of the designated transferee or transferees, one or more replacement Notes of any authorized denomination or denominations of a like aggregate principal amount.
(viii) At the option of the Holder, Notes may be exchanged for other Notes of any authorized denomination or denominations of a like aggregate principal amount upon surrender of the Notes to be exchanged at such office or agency. Whenever any Global Notes or Definitive Notes are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and mail or otherwise deliver, the replacement Global Notes and Definitive Notes which the Holder making the exchange is entitled to in accordance with the provisions of Section 2.02.
75
(ix) All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by electronic transmission.
(x) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Participants or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
(xi) Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not taken by the Depositary.
SECTION 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee, the Registrar or the Issuer and the Trustee receives evidence to its satisfaction of the ownership and destruction, loss or theft of any Note, the Issuer shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Issuer, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuer to protect the Issuer, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuer may charge for its expenses in replacing a Note.
Every replacement Note is a contractual obligation of the Issuer and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.
SECTION 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.08 as not outstanding. Except as set forth in Section 2.09, a Note does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note.
If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section 4.01, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of any thereof) holds, on a Redemption Date or the Maturity, money sufficient to pay Notes payable on that date, then on and after that date the Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.
76
SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer, or by any Affiliate of the Issuer, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee knows are so owned shall be so disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to deliver any such direction, waiver or consent with respect to the Notes and that the pledgee is not the Issuer or any obligor upon the Notes or any Affiliate of the Issuer or of such other obligor.
SECTION 2.10. Temporary Notes.
Until certificates representing Notes are ready for delivery, the Issuer may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of certificated Notes but may have variations that the Issuer considers appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate Definitive Notes in exchange for temporary Notes.
Holders and beneficial holders, as the case may be, of temporary Notes shall be entitled to all of the benefits accorded to Holders, or beneficial holders, respectively, of Notes under this Indenture.
SECTION 2.11. Cancellation.
The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee or, at the direction of the Trustee, the Registrar or the Paying Agent and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of cancelled Notes (subject to the record retention requirement of the Exchange Act). Certification of the disposal of all cancelled Notes shall be delivered to the Issuer upon its written request. The Issuer may not issue new Notes to replace Notes that have been paid or that have been delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest.
If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest to the Persons who are Holders on a subsequent special Record Date, in each case at the rate provided in the Notes and in Section 4.01. The Issuer shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such defaulted interest as provided in this Section 2.12. The Trustee shall fix or cause to be fixed each such special Record Date and payment date; provided that no such special Record Date shall be less than 10 days prior to the related payment date for such defaulted interest. The Trustee shall promptly notify the Issuer of such special Record Date. At least 5 days before the special Record Date, the Issuer (or, upon the written request of the Issuer, the Trustee in the name and at the expense of the Issuer) shall send or cause to be sent to each Holder of such Notes a notice at his or her address as it appears in the Note Register that states the special Record Date, the related payment date and the amount of such interest to be paid.
77
Subject to the foregoing provisions of this Section 2.12 and for greater certainty, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 2.13. CUSIP Numbers.
The Issuer in issuing the Notes may use CUSIP or ISIN numbers or both numbers (if then generally in use) and, if so, the Trustee shall use CUSIP or ISIN numbers or both numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will as promptly as practicable notify the Trustee of any change in the CUSIP or ISIN numbers of any Notes.
ARTICLE 3
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Issuer elects to redeem Notes pursuant to the optional redemption terms set forth in this Indenture, it shall furnish to the Trustee, at least 5 Business Days (or such shorter time period as the Trustee may agree) before notice of redemption is required to be sent or caused to be sent to Holders pursuant to Section 3.03, an Officer’s Certificate setting forth (i) the paragraph or subparagraph of such Note and/or Section of this Indenture governing the Notes, as applicable, pursuant to which the redemption shall occur, (ii) the Redemption Date, (iii) the principal amount of the Notes to be redeemed and (iv) the Redemption Price.
SECTION 3.02. Selection of Notes to Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any time, the Notes shall be selected for redemption or repurchase by lot, pro rata, or by such other method the Trustee considers fair and appropriate; provided that if the Notes are represented by Global Notes, interests in the Notes shall be selected for redemption or repurchase by DTC in accordance with its standard procedures therefor. The Notes to be redeemed or purchased shall be selected, unless otherwise provided herein, not less than 15 nor more than 60 days prior to the Redemption Date from the outstanding Notes not previously called for redemption or purchase.
The Trustee shall promptly notify the Issuer in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected shall be in amounts of $2,000 or whole multiples of $1,000 in excess thereof; no Notes in denominations of less than $2,000 can be redeemed or repurchased in part, except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except as provided in the preceding sentence, provisions of this Indenture that apply to the Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.
78
SECTION 3.03. Notice of Redemption.
Subject to Section 3.09, the Issuer shall deliver electronically, mail or cause to be mailed by first-class mail, postage prepaid, notices of redemption at least 15 days (which 15-day period shall include the day on which such notice is mailed or otherwise delivered) but, except as set forth in the last paragraph of this Section 3.03, not more than 60 days before the Redemption Date or purchase date to each Holder of Notes to be redeemed at such Holder’s registered address or otherwise in accordance with the procedures of DTC, except that redemption notices may be delivered or mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with Article 8 or Article 11. Notices of redemption may be conditional.
The notice shall identify the Notes to be redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if any Note is to be redeemed or purchased in part only, the portion of the principal amount of that Note that is to be redeemed or purchased and that, with respect to the Notes represented by Definitive Notes after the Redemption Date upon surrender of such Note, a new Note or Notes in a principal amount equal to the unredeemed or unpurchased portion of the original Note representing the same indebtedness to the extent not redeemed or repurchased will be issued in the name of the Holder of the Notes upon cancellation of the original Note; provided that the new Notes will be only issued in denominations of $2,000 and any integral multiple of $1,000 in excess thereof;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price;
(f) that, unless the Issuer defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the Redemption Date;
(g) the paragraph or subparagraph of the Notes and/or Section of this Indenture governing the Notes, as applicable, pursuant to which the Notes called for redemption are being redeemed;
(h) that no representation is made as to the correctness or accuracy of the CUSIP or ISIN number, if any, listed in such notice or printed on the Notes; and
(i) if in connection with a redemption of Notes pursuant to Section 3.07, any condition to such redemption.
A notice of redemption need not set forth the exact Redemption Price but only the manner of calculation thereof.
79
Notice of any redemption of, or any offer to purchase, the Notes may, at the Issuer’s discretion, be given in connection with an Equity Offering, other transaction (or series of related transactions) or an event that constitutes a Change of Control and prior to the completion or the occurrence thereof, and any such redemption or purchase may, at the Issuer’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion or occurrence of the related Equity Offering, transaction or event, as the case may be. In addition, if such redemption or purchase is subject to satisfaction of one or more conditions precedent, such notice shall describe each such condition, and if applicable, shall state that, in the Issuer’s discretion, the redemption or purchase date may be delayed until such time (including more than 60 days after the date the notice of redemption or offer to purchase was mailed or delivered, including by electronic transmission) as any or all such conditions shall be satisfied (or waived by the Issuer in its sole discretion), or such redemption or purchase may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied (or waived by the Issuer in its sole discretion) by the redemption or purchase date or by the redemption or purchase date as so delayed, or such notice or offer may be rescinded at any time in the Issuer’s discretion if the Issuer reasonably believes that any or all of such conditions will not be satisfied (or waived). In addition, the Issuer may provide in such notice that payment of the redemption or purchase price and performance of the Issuer’s obligations with respect to such redemption or offer to purchase may be performed by another Person.
SECTION 3.04. Effect of Notice of Redemption or Purchase.
Once a notice of redemption is sent (including electronically) in accordance with Section 3.03, Notes called for redemption or purchase become irrevocably due and payable on the Redemption Date or purchase date, as applicable, at the Redemption Price or purchase price, as applicable, unless such redemption or purchase is conditioned on the happening of a future event. The notice, if sent in a manner herein provided (including electronically), shall be conclusively presumed to have been given, whether or not the Holder receives such notice. In any case, failure to give such notice or any defect in the notice to the Holder of any Note designated for redemption or purchase in whole or in part shall not affect the validity of the proceedings for the redemption or purchase of any other Note or portions thereof. Subject to Section 3.05, on and after the Redemption Date or purchase date, as applicable, interest shall cease to accrue on Notes or portions of Notes called for redemption or purchase.
SECTION 3.05. Deposit of Redemption or Purchase Price.
Prior to noon (New York City time) on the Redemption Date or purchase date, the Issuer shall deposit with the Trustee or with the Paying Agent money sufficient to pay the Redemption Price or purchase price of and accrued and unpaid interest on all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent shall promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the Redemption Price of, and accrued and unpaid interest on, all Notes to be redeemed or purchased.
If the Issuer complies with the provisions of the preceding paragraph, on and after the Redemption Date or purchase date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after a Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest to the Redemption Date or purchase date shall be paid to the Person in whose name such Note was registered at the close of business on such Record Date. If any Note called for redemption or purchase shall not be so paid upon surrender for redemption or purchase because of the failure of the Issuer to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the Redemption Date or purchase date until such principal is paid, and to the extent lawful on any interest accrued to the Redemption Date or purchase date not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01.
80
SECTION 3.06. Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the Issuer shall issue and the Trustee shall authenticate for the Holder at the expense of the Issuer a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered representing the same indebtedness to the extent not redeemed or purchased; provided that each new Note will be issued in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. It is understood that, notwithstanding anything in this Indenture to the contrary, only an Authentication Order and not an Opinion of Counsel or Officer’s Certificate is required for the Trustee to authenticate such new Note.
SECTION 3.07. Optional Redemption.
(a) At any time prior to February 15, 2027, the Issuer may, at its option and on one or more occasions, redeem all or a part of the Notes, upon notice as set forth in Section 3.03, at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any, to, but excluding, the date of redemption (any applicable date of redemption hereunder, the “Redemption Date”), subject to the rights of Holders of Notes on the relevant Record Date to receive interest due on the relevant Interest Payment Date falling on or prior to the Redemption Date.
(b) On and after February 15, 2027, the Issuer may, at its option and on one or more occasions, redeem the Notes, in whole or in part, upon notice as set forth in Section 3.03, at the redemption prices (expressed as percentages of the principal amount of the Notes to be redeemed) set forth in this Section 3.07(b), plus accrued and unpaid interest thereon, if any, to, but excluding, the applicable Redemption Date, subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date falling on or prior to the Redemption Date, if redeemed during the twelve-month period beginning on February 15 of each of the years indicated below:
| Year | Percentage | ||
|---|---|---|---|
| 2027 | 107.313 | % | |
| 2028 | 104.875 | % | |
| 2029 | 102.438 | % | |
| 2030 and thereafter | 100.000 | % |
(c) Prior to February 15, 2027, the Issuer may, at its option, upon notice as set forth in Section 3.03, on one or more occasions, redeem in an amount equal to or less than the net cash proceeds from one or more Equity Offerings to the extent such net cash proceeds are received by or contributed to the Issuer, up to 40% of the aggregate principal amount of Notes (including Additional Notes) issued under this Indenture at a redemption price (as calculated by the Issuer) equal to (i) 109.750% of the aggregate principal amount thereof being redeemed, plus (ii) accrued and unpaid interest thereon, if any, to, but excluding, the applicable Redemption Date, subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date falling on or prior to the Redemption Date; provided that (a) at least 50% of the sum of the aggregate principal amount of Notes originally issued under this Indenture on the Issue Date (but excluding any Additional Notes issued under this Indenture after the Issue Date) remains outstanding immediately after the occurrence of each such redemption and (b) each such redemption occurs within 180 days of the date of closing of each such Equity Offering.
81
(d) At any time prior to February 15, 2027, if a Special Call Event occurs with respect to the Notes, then the Issuer may, at its option, redeem all of the Notes, upon notice as set forth in Section 3.03, at a redemption price (as calculated by the Issuer) equal to (a) 109.750% of the aggregate principal amount thereof being redeemed, plus (b) accrued and unpaid interest thereon, if any, to, but excluding, the applicable Redemption Date, subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date falling on or prior to the Redemption Date; provided that the Issuer shall be permitted to repurchase Notes pursuant to a notice of redemption issued in accordance with this clause (d) at any time following public announcement of the Special Call Event transaction and on or prior to the date that is 30 days following the consummation of the applicable Special Call Event transaction. For the avoidance of doubt, notice of redemption pursuant to this clause (d) may be given if the Issuer publicly announces entry into an agreement or arrangement in respect of a Special Call Event, whether or not such transaction is completed on or before such date, and such notice may be subject to one or more conditions precedent, including, without limitation, the completion of a transaction constituting a Special Call Event. A third party or Person who is approved by the Issuer may exercise the repurchase option pursuant to this clause (d) at the times and otherwise in compliance with the requirements set forth in this clause (d).
(e) Notwithstanding the foregoing, in connection with any tender offer for the Notes, if Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in such tender offer and the Issuer, or any third party approved in writing by the Issuer making such tender offer in lieu of the Issuer, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer or such third party will have the right upon not less than 15 nor more than 60 days’ prior notice, given not more than 60 days following any such purchase date, to redeem (with respect to the Issuer) or purchase (with respect to a third party) all Notes that remain outstanding following such purchase at a price equal to the price paid to each other Holder in such tender offer (which may be less than par) plus, to the extent not included in the tender offer payment, accrued and unpaid interest, if any, thereon, to, but excluding, the Redemption Date or purchase date, subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date falling on or prior to the Redemption Date or purchase date.
(f) The Notes may be redeemed under the circumstances and in accordance with Section 4.14(e).
(g) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06.
(h) The Issuer and its affiliates may acquire Notes by means other than a redemption, whether by a tender offer, open market purchases, negotiated transactions or otherwise.
SECTION 3.08. Mandatory Redemption.
The Issuer shall not be required to make any mandatory redemption or sinking fund payments with respect to any Notes.
SECTION 3.09. Offers to Repurchase by Application of Excess Proceeds.
(a) In the event that, pursuant to Section 4.10, the Issuer shall be required to commence an Asset Sale Offer, it shall follow the procedures specified below.
(b) The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than five Business Days after the termination of the Offer Period (the “Purchase Date”), the Issuer shall apply all Excess Proceeds (the “Offer Amount”) to the purchase of all Notes and, if required, other Second Lien Indebtedness (on a pro rata basis, if applicable), or, if less than the Offer Amount has been tendered, all Notes and such other Second Lien Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made.
82
(c) If the Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest, if any, up to but excluding the Purchase Date, shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
(d) Upon the commencement of an Asset Sale Offer, the Issuer shall send, electronically or by first-class mail, a notice to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders and holders of such other Second Lien Indebtedness. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(1) that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 and the length of time the Asset Sale Offer shall remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment shall continue to accrue interest;
(4) that, unless the Issuer defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in amounts of $2,000 or whole multiples of $1,000 in excess thereof only;
(6) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Note completed, or transfer by book-entry transfer, to the Issuer, the Depositary, if appointed by the Issuer, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Issuer, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, electronic transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes and such other Second Lien Indebtedness surrendered by the holders thereof exceeds the Offer Amount, the Notes and such other Second Lien Indebtedness shall be selected to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such other Second Lien Indebtedness tendered (with such adjustments so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased; provided that no Notes of $2,000 or less can be redeemed in part, except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes of such Holder, even if not a multiple of $1,000, shall be redeemed or purchased); and
83
(9) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer) representing the same indebtedness to the extent not repurchased.
(e) On or before the Purchase Date, the Issuer shall, to the extent lawful, (1) accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof validly tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered and (2) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof so tendered.
(f) The Issuer, the Depositary or the Paying Agent, as the case may be, shall promptly mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes properly tendered by such Holder and accepted by the Issuer for purchase, and the Issuer shall promptly issue a new Note, and the Trustee, upon receipt of an Authentication Order, shall authenticate and mail or deliver (or cause to be transferred by book-entry) such new Note to such Holder (it being understood that, notwithstanding anything in this Indenture to the contrary, no Opinion of Counsel or Officer’s Certificate is required for the Trustee to authenticate and mail or deliver such new Note) in a principal amount equal to any unpurchased portion of the Note surrendered representing the same indebtedness to the extent not repurchased; provided, that each such new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Any Note not so accepted shall be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Purchase Date.
Other than as specifically provided in this Section 3.09 or Section 4.10, any purchase pursuant to this Section 3.09 shall be made pursuant to the applicable provisions of Sections 3.01 through 3.06.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Notes.
The Issuer shall pay or cause to be paid the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes; provided that all payments of principal, premium, if any, and interest with respect to the Notes represented by one or more Global Notes registered in the name of or held by DTC or its nominee will be made in accordance with DTC’s applicable procedures. Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent (other than the Issuer or a Subsidiary thereof) holds as of noon (New York City time) on the due date money deposited by the Issuer in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due. If an Interest Payment Date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is a Business Day, and no interest on such payment will accrue in respect of the delay.
The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to the interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest at the same rate to the extent lawful.
84
SECTION 4.02. Maintenance of Office or Agency.
The Issuer shall maintain an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served. The Issuer shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The Issuer may also from time to time designate one or more other offices or agencies where Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency for such purposes. The Issuer shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
The Issuer hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Issuer in accordance with Section 2.03.
SECTION 4.03. Reports and Other Information.
(a) So long as any Notes are outstanding, Parent shall have its annual consolidated financial statements audited by a nationally recognized firm of independent auditors and its interim consolidated financial statements reviewed by a nationally recognized firm of independent auditors in accordance with Statement on Auditing Standards No. 100 issued by the American Institute of Certified Public Accountants (or any similar replacement standard). In addition, so long as any Notes are outstanding, whether or not Parent is subject to Section 13(a) or 15(d) of the Exchange Act, Parent shall furnish to the Holders (x) all annual and quarterly financial statements substantially in forms that would be required to be contained in a filing with the SEC on Forms 10-K and 10-Q of Parent, plus a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” (“MD&A”) with respect to the Issuer and (y) with respect to the annual financial statements only, a report on the annual financial statements by the Parent’s independent registered public accounting firm; provided, however, that (i) in no event shall such reports be required to comply with Rule 3-09, 3-10, 3-16, 13-01 or 13-02 of Regulation S-X promulgated by the SEC from time to time and (ii) in no event shall such reports be required to comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-GAAP financial measures contained therein; and provided further that the Issuer shall not be required to furnish to the Holders a separate MD&A of the Issuer and the Guarantors if and to the extent that the MD&A of any Parent Entity (including Parent) includes a discussion of the Issuer (in the form of segment reporting or otherwise), which includes financial information not materially different (in the good faith judgment of the Issuer) than the financial information required pursuant to clause (x) above for the relevant period. In addition, the quarterly and annual financial information required by this clause (a) shall include the percentages of the total assets, total revenue and total operating income of Parent and its Subsidiaries represented by (i) all Restricted Subsidiaries of Parent and Issuer that are not Guarantors and (ii) all Unrestricted Subsidiaries.
(b) All such annual reports (commencing with the fiscal year ending December 31, 2024) shall be furnished within 120 days after the end of the fiscal year to which they relate, and all such quarterly reports (commencing with the fiscal quarter ending March 31, 2025) shall be furnished within 60 days after the end of the fiscal quarter to which they relate.
85
(c) Parent or the Issuer shall make available such information and such reports to the Trustee under this Indenture, to any Holder of the Notes and, upon request, to any beneficial owner of the Notes, in each case by posting such information on its website, or on Intralinks or any on comparable password-protected online data system which shall require a confidentiality acknowledgment, and shall make such information readily available to any Holder of the Notes, any bona fide prospective investor in the Notes, any securities analyst (to the extent providing analysis of investment in the Notes) or any market maker in the Notes who agrees to treat such information as confidential or accesses such information on Intralinks or on any comparable password-protected online data system which will require a confidentiality acknowledgment; provided that Parent or the Issuer shall post such information thereon and make readily available any password or other login information to any such Holder of the Notes, bona fide prospective investor, securities analyst or market maker; provided further, that Parent or the Issuer, as applicable, may deny access to any competitively-sensitive information otherwise to be provided pursuant to this Section 4.03 to any such Holder, bona fide prospective investor, security analyst or market maker that is a competitor of Parent or the Issuer, as applicable, and its Subsidiaries to the extent that Parent or the Issuer determines in good faith that the provision of such information to such Person would be competitively harmful to the Issuer and its Subsidiaries.
(d) To the extent not satisfied by the foregoing, Parent or the Issuer, as the case may be, shall furnish to prospective investors in the Notes, upon their request, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely transferable under the Securities Act.
(e) Any Parent Entity may satisfy the obligations of Parent set forth in this Section 4.03 by providing the requisite financial and other information of such Parent Entity instead of Parent; provided that to the extent such Parent Entity either (i) holds assets (other than its direct or indirect interest in Parent and its Subsidiaries) that exceeds 1.0% of the Total Assets of such Parent Entity and its Subsidiaries or (ii) has revenue (other than revenue from its direct or indirect interest in Parent and its Subsidiaries) that exceeds 1.0% of the total revenue for the preceding fiscal year of such Parent Entity and its Subsidiaries, then such information related to such Parent Entity shall be accompanied by consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information of such Parent Entity, on the one hand, and the information relating to the Issuer and its Subsidiaries on a stand-alone basis, on the other hand.
(f) Parent and the Issuer shall be deemed to have furnished the financial statements referred to in Section 4.03(a) if Parent, the Issuer or any Parent Entity of Parent or the Issuer, as applicable, has filed reports containing such information (or any such information of a Parent Entity in accordance with Section 4.03(e)) with the SEC.
(g) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
SECTION 4.04. Compliance Certificate.
(a) The Issuer shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Issuer, an Officer’s Certificate from the principal executive officer, principal financial officer or principal accounting officer stating that a review of the activities of the Issuer and its Restricted Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Issuer and its Restricted Subsidiaries have kept, observed,
86
performed and fulfilled their obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best of his or her knowledge the Issuer and its Restricted Subsidiaries have kept, observed, performed and fulfilled each and every condition and covenant contained in this Indenture and are not in default in the performance or observance of any of the terms, provisions, covenants and conditions of this Indenture (or, if a Default shall have occurred, describing all such Defaults of which he or she may have knowledge and what action the Issuer is taking or proposes to take with respect thereto).
(b) If the Issuer becomes aware of any Default, it shall, within thirty (30) days, deliver to the Trustee an Officer’s Certificate specifying such Default and what action the Issuer proposes to take with respect thereto.
SECTION 4.05. Taxes.
The Issuer shall pay, and shall cause each of its Restricted Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies except such as are contested in good faith and by appropriate negotiations or proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes.
SECTION 4.06. Stay, Extension and Usury Laws.
The Issuer and each of the Guarantors covenant (to the extent that they may lawfully do so) that they shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Issuer and each of the Guarantors (to the extent that they may lawfully do so) hereby expressly waive all benefit or advantage of any such law, and covenant that they shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.
SECTION 4.07. Limitation on Restricted Payments.
(a) From and after the Issue Date, the Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(I) declare or pay any dividend or make any payment or distribution on account of the Issuer’s or any of its Restricted Subsidiaries’ Equity Interests, including any dividend or distribution payable in connection with any merger, amalgamation or consolidation other than:
(a) dividends, payments or distributions by the Issuer payable solely in Equity Interests (other than Disqualified Stock) of the Issuer or in options, warrants or other rights to purchase such Equity Interests (other than Disqualified Stock); or
(b) dividends, payments or distributions by a Restricted Subsidiary so long as, in the case of any dividend, payments or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly-Owned Subsidiary, the Issuer or a Restricted Subsidiary receives at least its pro rata share of such dividend, payment or distribution as required by its Equity Interests in such class or series of securities;
87
(II) purchase, redeem, defease or otherwise acquire or retire for value any Equity Interests of the Issuer or any Parent Entity, including in connection with any merger, amalgamation or consolidation, in each case, owned by a Person other than the Issuer or a Restricted Subsidiary;
(III) make any principal payment on, or redeem, repurchase, defease, discharge or otherwise acquire or retire for value in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Junior Lien Indebtedness, Unsecured Indebtedness or Subordinated Indebtedness, other than:
(a) Indebtedness permitted to be incurred or issued under any or all of clauses (7), (8) or (9) of Section 4.09(b); or
(b) the redemption, defeasance, purchase, repurchase, discharge or other acquisition of Junior Lien Indebtedness, Unsecured Indebtedness or Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of redemption, defeasance, purchase, repurchase, discharge or acquisition; or
(IV) make any Restricted Investment
(all such payments and other actions set forth in clauses (I) through (IV) above (other than any exceptions thereto) being collectively referred to as “Restricted Payments”), unless, at the time of such Restricted Payment:
(1) no Event of Default under clause (1), (2), (6) or (7) of Section 6.01(a) shall have occurred and be continuing or would occur as a consequence thereof;
(2) on a pro forma basis after giving effect to such Restricted Payment and the incurrence of any Indebtedness the proceeds of which are used to make such Restricted Payment, the Consolidated Secured Debt Ratio of the Issuer for the Applicable Measurement Period would be equal to or less than in the case where such Restricted Payment is a Restricted Payment described in clause (I), (II) or (III) of the definition thereof, 5.00 to 1.0; and
(3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Issuer and its Restricted Subsidiaries after the Issue Date (including Restricted Payments permitted by clauses (1) and (6)(c) of Section 4.07(b), but excluding all other Restricted Payments permitted by Section 4.07(b)), is less than the sum of (without duplication):
(a) 100% of the (i) Consolidated EBITDA of the Issuer for the period (taken as one accounting period) beginning on the first day of the fiscal quarter during which the Issue Date occurs to the end of the Issuer’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment, or, in the case such Consolidated EBITDA of the Issuer for such period is a negative figure, minus 100% of such negative figure, less (ii) 1.4 times Fixed Charges of the Issuer for the period (taken as one accounting period) described in clause (i); plus
88
(b) 100% of the aggregate net cash proceeds and the fair market value of marketable securities or other property received by the Issuer and its Restricted Subsidiaries since immediately after the Issue Date (other than net cash proceeds to the extent such net cash proceeds have been used to incur Indebtedness or issue Disqualified Stock or Preferred Stock pursuant to clause (12)(a) of Section 4.09(b)) from the issue or sale of:
(i) (A) Equity Interests of the Issuer, including Treasury Capital Stock, but excluding cash proceeds and the fair market value of marketable securities or other property received from the sale of:
(x) Equity Interests to any employee, director or consultant of the Issuer, its Subsidiaries or any Parent Entity after the Issue Date to the extent such amounts have been applied to Restricted Payments made in accordance with clause (4) of Section 4.07(b); and
(y) Designated Preferred Stock; and
(B) Equity Interests of Parent Entities, to the extent such net cash proceeds and the fair market value of marketable securities or other property are contributed to the Issuer (excluding contributions to the extent such amounts have been applied to Restricted Payments made in accordance with clause (4) of Section 4.07(b)); or
(ii) Indebtedness or Disqualified Stock of the Issuer or any Restricted Subsidiary that has been converted into or exchanged for or satisfied with such Equity Interests (other than Disqualified Stock) of the Issuer or a Parent Entity;
provided, however, that this clause (b) of Section 4.07(a)(3) shall not include the proceeds from (W) Refunding Capital Stock applied in accordance with Section 4.07(b)(2), (X) Equity Interests (or Indebtedness that has been converted or exchanged for Equity Interests) of the Issuer sold to a Restricted Subsidiary, (Y) Disqualified Stock or debt securities that have been converted or exchanged into Disqualified Stock or (Z) Excluded Contributions; plus
(c) 100% of the aggregate amount of cash or Cash Equivalents and the fair market value of marketable securities or other property contributed to the capital of the Issuer or a Restricted Subsidiary, or that becomes part of the capital of the Issuer or a Restricted Subsidiary through consolidation or merger, following the Issue Date (other than net cash proceeds to the extent such net cash proceeds (i) have been used to incur Indebtedness or issue Disqualified Stock or Preferred Stock pursuant to clause (12)(a) of Section 4.09(b), (ii) are contributed by a Restricted Subsidiary or (iii) constitute Excluded Contributions); plus
(d) 100% of the aggregate amount received in cash or Cash Equivalents and the fair market value of marketable securities or other property received by the Issuer or a Restricted Subsidiary by means of:
(i) the sale or other disposition (other than to the Issuer or a Restricted Subsidiary) of, or other returns on Investments from, Restricted Investments made by the Issuer or its Restricted Subsidiaries (including repurchases and redemptions of such Restricted Investments and cash distributions or cash interest received in respect thereof) and repayments of loans or advances, and releases of guarantees, which constitute Restricted Investments made by the Issuer or its Restricted Subsidiaries, in each case, after the Issue Date; or
89
(ii) the issuance, sale or other disposition (other than to the Issuer or a Restricted Subsidiary) of the Equity Interests of, or a dividend or distribution from, an Unrestricted Subsidiary (other than to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment, but including cash and the fair market value of marketable securities or other property to the extent exceeding the amount of such Investment); plus
(e) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger, amalgamation or consolidation of an Unrestricted Subsidiary into the Issuer or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Issuer or a Restricted Subsidiary after the Issue Date, the fair market value of the Investment in such Unrestricted Subsidiary (or the net assets transferred) at the time of the redesignation, merger, amalgamation, consolidation or transfer of such Unrestricted Subsidiary as a Restricted Subsidiary (other than to the extent such Investment constituted a Permitted Investment made after the Issue Date, but including cash and the fair market value of marketable securities or other property to the extent exceeding the amount of such Investment); plus
(f) the aggregate amount of Declined Proceeds since the Issue Date; plus
(g) $250.0 million.
(b) The foregoing provisions of Section 4.07(a) shall not prohibit:
(1) the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration thereof or the giving of such irrevocable notice, as applicable, if, at the date of declaration or the giving of such notice, such payment would have complied with the provisions of this Indenture (assuming, in the case of a redemption payment, the giving of the notice of such redemption payment would have been deemed to be a Restricted Payment at such time);
(2) (a) the prepayment, redemption, repurchase, defeasance, discharge, retirement or other acquisition of any Equity Interests of the Issuer (“Treasury Capital Stock”) (including any accrued and unpaid dividends thereon), Junior Lien Indebtedness, Unsecured Indebtedness or Subordinated Indebtedness or any Equity Interests of any Parent Entity, in exchange for, or in an amount equal to or less than the proceeds of a sale or issuance (other than to a Restricted Subsidiary) made within 120 days of such sale of Equity Interests of the Issuer or any Parent Entity to the extent such amount was contributed to the Issuer (in each case, other than any Disqualified Stock) (“Refunding Capital Stock”) and (b) if immediately prior to the retirement of Treasury Capital Stock, the declaration and payment of dividends thereon was permitted under clauses (6)(a) or (b) of this Section 4.07(b), the declaration and payment of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Equity Interests of any Parent Entity) in an aggregate amount per year no greater than the aggregate amount of dividends per annum that were declarable and payable on such Treasury Capital Stock immediately prior to such retirement;
90
(3) the prepayment, redemption, defeasance, repurchase, retirement, discharge, exchange or other acquisition of (i) Junior Lien Indebtedness, Unsecured Indebtedness or Subordinated Indebtedness made in exchange for, or out of the proceeds of, an incurrence of new Indebtedness of the Issuer or a Subsidiary Guarantor or (ii) Disqualified Stock of the Issuer or a Subsidiary Guarantor made in exchange for, or out of the proceeds of, an incurrence of Disqualified Stock of the Issuer or a Subsidiary Guarantor that, in any case is made within 120 days of such incurrence in compliance with Section 4.09 so long as:
(a) the principal amount (or accreted value, if applicable) of such new Indebtedness or the liquidation preference of such new Disqualified Stock does not exceed the principal amount of (or accreted value, if applicable), plus any accrued and unpaid interest on, the Junior Lien Indebtedness, Unsecured Indebtedness or Subordinated Indebtedness or the liquidation preference of, plus any accrued and unpaid dividends on, the Disqualified Stock being so prepaid, redeemed, defeased, repurchased, acquired, retired, discharged or exchanged, plus the amount of any premium (including tender premiums), defeasance costs, underwriting discounts and any fees, costs and expenses incurred in connection with the issuance of such new Indebtedness or Disqualified Stock and such prepayment, redemption, defeasance, repurchase, acquisition, retirement, discharge or exchange;
(b) in the case of the prepayment, redemption, defeasance, repurchase, retirement, discharge, exchange or other acquisition of (i) Junior Lien Indebtedness or Unsecured Indebtedness, such new Indebtedness is Junior Lien Indebtedness, Unsecured Indebtedness or Subordinated Indebtedness and (ii) Subordinated Indebtedness, such new Indebtedness is subordinated in right of payment to the Notes or the applicable Note Guarantee at least to the same extent as such Subordinated Indebtedness so prepaid, redeemed, defeased, repurchased, acquired, retired, discharged or exchanged;
(c) the amount of such new Indebtedness or Disqualified Stock has a final scheduled maturity date or mandatory redemption date, as applicable, equal to or later than the final scheduled maturity date or mandatory redemption date of the amount of Junior Lien Indebtedness, Unsecured Indebtedness, Subordinated Indebtedness or Disqualified Stock being so prepaid, redeemed, defeased, repurchased, acquired, retired, discharged or exchanged (or if earlier, such date that is at least 91 days after the maturity date of the Notes);
(d) the encumbrances and restrictions in respect of such new Indebtedness are not materially more restrictive, taken as a whole, than those set forth in this Article 4 (as determined in the good faith determination of the Issuer); and
(e) the amount of such new Indebtedness or Disqualified Stock has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the amount of Junior Lien Indebtedness, Unsecured Indebtedness, Subordinated Indebtedness or Disqualified Stock being so prepaid, redeemed, defeased, repurchased, acquired, retired, discharged or exchanged (or requires no or nominal payments in cash (other than interest payments) prior to the date that is 91 days after the maturity date of the Notes);
91
provided, however, that notwithstanding the foregoing, in the case of Junior Lien Indebtedness consisting of (x) Junior Lien Term Loan Facilities or (y) following the termination or completion of the Exchange Offer or Private Exchanges, as the case may be, Existing Notes, such Junior Lien Term Loan Facilities and Existing Notes, as the case may be, may be prepaid, redeemed, defeased, repurchased, retired, discharged, exchanged or otherwise acquired with the proceeds of (i) Junior Lien Indebtedness or Unsecured Indebtedness which (A) has a final stated maturity after the applicable Junior Lien Term Loan Facilities or such Existing Notes, as the case may be, (B) is not provided by an Affiliate of the Issuer, (C) bears interest at then-prevailing market rates for similarly situated borrowers or issuers (as determined in the good faith determination of the Issuer) and (D) has encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those set forth in this Article 4 (as determined in the good faith determination of the Issuer) or (ii) solely in the case of Junior Lien Term Loan Facilities, First Lien Indebtedness that has encumbrances and restrictions that are not materially more restrictive, taken as a whole, than those set forth in this Article 4 (as determined in the good faith determination of the Issuer) if incurred within 15 months before the applicable final maturity of such Junior Lien Term Loan Facilities and so long as the Consolidated First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period (determined on a pro forma basis) would be equal to or less than 4.00 to 1.0;
(4) Restricted Payments to pay for the repurchase, redemption, retirement or other acquisition of Equity Interests (other than Disqualified Stock) of the Issuer or any Parent Entity held by any future, present or former employee, director, officer, manager or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer, any of its Subsidiaries or any Parent Entity upon the death, disability, retirement, resignation or termination of employment of any such Person or otherwise pursuant to any management, director and/or employee equity plan or equity option plan, stock appreciation rights plan, or any other management, director and/or employee benefit plan or agreement or any equity subscription or equity holder agreement or any employment termination agreement (including, for the avoidance of doubt, any principal and interest payable on any Indebtedness issued by the Issuer or any Parent Entity in connection with such repurchase, retirement or other acquisition), including any Equity Interests rolled over by management, directors or employees of the Issuer, any of its Subsidiaries or any Parent Entity in connection with any corporate transaction; provided, that the aggregate amount of Restricted Payments made under this clause (4) do not exceed in any fiscal year an amount equal to:
(a) the cash proceeds from the sale of Equity Interests (other than Disqualified Stock) of the Issuer and, to the extent contributed to the Issuer, the cash proceeds from the sale of Equity Interests of any Parent Entity, in each case, to any future, present or former employees, directors, officers, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Issuer, any of its Subsidiaries or any Parent Entity that occurs on or after the Issue Date, to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments by virtue of clause (3) of Section 4.07(a); plus
(b) the cash proceeds of key man life insurance policies received by the Issuer or its Restricted Subsidiaries (or any Parent Entity to the extent contributed to the Issuer) after the Issue Date; plus
(c) the amount of any cash bonuses otherwise payable to future, present or former employees, directors, officers, managers, members, partners or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Issuer, any of its Subsidiaries or any Parent Entity that are foregone in exchange for the receipt of Equity Interests of the Issuer or any Parent Entity pursuant to any compensation arrangement, including any deferred compensation plan; plus
92
(d) the amount of cash dividends that would have been permitted to be made pursuant to clause (29) of this Section 4.07(b) as if such cash dividends were made (and the record date referred to in such clause (29) were), in each case, on the date such Restricted Payments to pay for the repurchase, redemption, retirement or other acquisition of Equity Interests were made; less
(e) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (a), (b), (c) and (d) of this clause (4);
provided that the Issuer may elect to apply all or any portion of the net aggregate increase contemplated by clauses (a) through (e) of this clause (4) in any fiscal year; and provided further, that cancellation of Indebtedness owing to the Issuer or any Restricted Subsidiary from any future, present or former employees, directors, officers, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer, any of its Restricted Subsidiaries or any Parent Entity in connection with a repurchase of Equity Interests of the Issuer or any Parent Entity is not a Restricted Payment under this Section 4.07 or any other provision of this Indenture;
(5) the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Issuer or any of its Restricted Subsidiaries or any class or series of Preferred Stock of any Restricted Subsidiary in each case issued in accordance with Section 4.09 to the extent such dividends are included in the definition of “Fixed Charges”;
(6) (a) the declaration and payment of dividends or distributions to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) issued by the Issuer after the Issue Date; provided that the amount of dividends or distributions made pursuant to this clause (a) shall not exceed the net cash proceeds received by the Issuer from the issuance of such Designated Preferred Stock;
(b) the declaration and payment of dividends or distributions to a Parent Entity, the proceeds of which will be used to fund the payment of dividends or distributions to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) of such Parent Entity issued after the Issue Date; provided that the amount of dividends or distributions made pursuant to this clause (b) shall not exceed the aggregate amount of cash contributed to the Issuer from the issuance of such Designated Preferred Stock; or
(c) the declaration and payment of dividends or distributions on Refunding Capital Stock that is Preferred Stock in excess of the dividends or distributions declarable and payable thereon pursuant to clause (2) of this Section 4.07(b); provided that the amount of dividends or distributions made pursuant to this clause (c) shall not exceed the net cash proceeds received by the Issuer from the issuance of such Preferred Stock;
provided, however, in the case of each of clause (a) and clause (c) of this clause (6), that for the Applicable Measurement Period at the date of issuance of such Designated Preferred Stock or the declaration of such dividends or distributions on Refunding Capital Stock that is Preferred Stock, after giving effect to such issuance or declaration on a pro forma basis, the Issuer would have had either (x) a Fixed Charge Coverage Ratio of at least 2.0 to 1.0 or (y) a Consolidated Total Debt Ratio of equal to or less than 7.0 to 1.0;
93
(7) payments made or expected to be made by the Issuer or any Restricted Subsidiary in respect of withholding or similar taxes payable in connection with the exercise or vesting of Equity Interests or any other equity award by any future, present or former employee, director, officer, manager or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee or any legatee or distributee thereof) of the Issuer, any of its Restricted Subsidiaries or any Parent Entity and repurchases or withholdings of Equity Interests in connection with the exercise or vesting of any stock or other equity options, warrants or other incentive interests or the grant, vesting or delivery of equity awards if such Equity Interests represent all or a portion of the exercise price thereof or payments in lieu of the issuance of fractional Equity Interests, or withholding obligations with respect to, such options, warrants or other incentive interests or other Equity Interests or equity awards;
(8) the prepayment, redemption, defeasance, repurchase, retirement, discharge, exchange or other acquisition at a discount to par of Junior Lien Indebtedness (other than obligations under the Junior Lien Term Loan Facilities) or Unsecured Indebtedness for consideration not to exceed, in the aggregate, $125.0 million;
(9) Restricted Payments that are made (a) in an amount not to exceed the amount of Excluded Contributions received following the Issue Date and (b) without duplication with clause (a), in an amount not to exceed the net cash proceeds from any sale or disposition of Investments acquired after the Issue Date, to the extent the acquisition of such Investments was financed with Excluded Contributions;
(10) other Restricted Payments in an aggregate amount taken together with all other Restricted Payments made and outstanding under this clause (10) (in the case of Restricted Investments, at the time outstanding (without giving effect to the sale of an Investment to the extent the proceeds of such sale do not consist of, or have not been converted to, Cash Equivalents)) not to exceed $50.0 million (in the case of a Restricted Investment, determined on the date such Investment is made, with the fair market value of such Investment being measured at the time made and without giving effect to subsequent changes in value); provided, however, that if any Restricted Payment pursuant to this clause (10) consists of an Investment made in any Person that is not a Restricted Subsidiary of the Issuer at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) of the definition of “Permitted Investments” and shall cease to have been made pursuant to this clause (10);
(11) any Restricted Payment on or after the Issue Date made in connection with or in order to consummate the Transactions and the fees and expenses related thereto or used to fund amounts owed in connection with the Transactions;
(12) the repurchase, redemption, defeasance, acquisition, retirement or discharge of any Junior Lien Indebtedness, Unsecured Indebtedness or Subordinated Indebtedness, Disqualified Stock or Preferred Stock:
(a) (i) in accordance with the provisions similar to those set forth in Section 4.10 and Section 4.14, or (ii) after completion of an Asset Sale Offer, from any remaining Excess Proceeds (assuming such Excess Proceeds were not reset at zero upon completion of an Asset Sale Offer); provided that (x) at or prior to such repurchase,
94
redemption, defeasance, acquisition, retirement or discharge, a Change of Control Offer or Asset Sale Offer, as the case may be, with respect to the Notes to the extent required as a result of such Change of Control Triggering Event or Asset Sale, as the case may be, has been made and (y) all Notes required to be repurchased, redeemed, defeased, acquired, retired or discharged in connection with the relevant Change of Control Offer or Asset Sale Offer, as applicable, have been so repurchased, redeemed, defeased, acquired, retired or discharged; or
(b) held by or on behalf of Chatham or any of its affiliates;
(13) the declaration and payment of dividends or distributions by the Issuer to, or the making of loans to, any Parent Entity in amounts required for any Parent Entity to pay or cause to be paid, in each case without duplication,
(a) franchise, excise and similar taxes and other fees, taxes and expenses, in each case, required to maintain their corporate or other legal existence;
(b) for any taxable period for which the Issuer and/or any of its Subsidiaries are members of a consolidated, combined or unitary tax group for U.S. federal and/or applicable state, local or foreign income tax purposes of which a direct or indirect parent of the Issuer is the common parent (a “Tax Group”), the portion of any U.S. federal, state, local or foreign taxes (as applicable) of such Tax Group for such taxable period that are attributable to the income of the Issuer and/or its Subsidiaries; provided that Restricted Payments made pursuant to this clause (13)(b) of Section 4.07(b) shall not exceed the tax liability that the Issuer and/or its Subsidiaries (as applicable) would have incurred were such taxes determined as if such entity(ies) were a stand-alone taxpayer or stand-alone group;
(c) customary salary, incentive compensation, bonus, severance and other benefits payable to, and indemnities provided on behalf of, future, current or former officers, employees, directors, managers, independent contractors and consultants of any Parent Entity to the extent such salaries, bonuses, severance and other benefits and indemnities are attributable to the ownership or operation of the Issuer and its Restricted Subsidiaries, including (without limitation) the Issuer’s or its Restricted Subsidiaries’ proportionate share of such amount relating to such Parent Entity being a public company;
(d) general corporate, operating, overhead, management costs and expenses and other costs and expenses (including, without limitation, expenses related to the maintenance of corporate or other existence, auditing or other accounting or tax reporting matters), listing fees, other costs and expenses attributable to being a public company of the Issuer, and other fees, costs and expenditures related to the foregoing that are attributable to the ownership or operation of the Issuer and its Restricted Subsidiaries by such Parent Entity (including such attributable amounts payable in respect of such Parent Entity’s lease for its corporate headquarters);
(e) fees and expenses related to any equity or debt offering, financing transaction, acquisitions, divestitures, investments or other non-ordinary course transaction (whether or not successful or abandoned) of such Parent Entity on or after the Issue Date; provided that any such transaction was intended to be for the benefit of the Issuer and its Restricted Subsidiaries;
95
(f) amounts (including fees and expenses) that would otherwise be permitted to be paid directly by the Issuer pursuant to Section 4.11 (except transactions described in clause (2) of Section 4.11(b));
(g) cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Issuer or any Parent Entity;
(h) any Restricted Payments permitted by clause (4) or (11) of this Section 4.07(b); and
(i) any Investment that would otherwise be permitted to be made pursuant to this Section 4.07 if made by the Issuer or any Restricted Subsidiary; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment, (B) such Parent Entity shall cause (1) all property acquired (whether assets or Equity Interests but not including any loans or advances made pursuant to clause (15) or (16) of the definition of “Permitted Investments”) to be contributed to the capital of the Issuer or one of its Restricted Subsidiaries (which contribution shall not be designated as an Excluded Contribution) or (2) the Person formed or acquired to merge into, or amalgamate or consolidate with, the Issuer or one of its Restricted Subsidiaries (to the extent not prohibited by Section 5.01) in order to consummate such Investment, (C) to the extent constituting an Investment, such Investment shall be deemed to have been made by the Issuer or such Restricted Subsidiary in a manner permitted or not prohibited by this Indenture and (D) any property received by the Issuer or a Restricted Subsidiary in excess thereof shall not increase amounts available for Restricted Payments pursuant to clause (3) of Section 4.07(a);
(14) the repurchase, redemption, or other acquisition of Equity Interests of the Issuer or any Restricted Subsidiary deemed to occur in connection with paying cash in lieu of fractional shares of such Equity Interests in connection with a share dividend, distribution, share split, reverse share split, merger, consolidation, amalgamation or other business combination of the Issuer or any Restricted Subsidiary, in each case, permitted or not prohibited by this Indenture;
(15) [reserved];
(16) any other Restricted Payment; provided that, on the date of such Restricted Payment on a pro forma basis after giving effect to such Restricted Payment and the incurrence of any Indebtedness the proceeds of which are used to make such Restricted Payment, the Consolidated Secured Debt Ratio of the Issuer for the Applicable Measurement Period would be equal to or less than (a) in the case where such other Restricted Payment is a Restricted Payment described in clause (I) or (II) of the definition thereof, 4.25 to 1.0 and (b) in the case where such other Restricted Payment is a Restricted Payment described in clause (III) of the definition thereof, 4.50 to 1.0; provided that any Restricted Payment under this clause (16) may not be made in connection with or in furtherance of a Priming Financing/Liability Management Transaction;
(17) payments or distributions to satisfy dissenters’ or appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, pursuant to or in connection with a consolidation, amalgamation, merger or transfer of assets that complies with Section 5.01;
96
(18) distributions or payments of Receivables Fees and purchases of receivables in connection with any Permitted Receivables Financing or any repurchase obligation in connection therewith;
(19) [reserved];
(20) mandatory redemptions of Disqualified Stock;
(21) to the extent constituting Restricted Payments, the acquisition of Equity Interests held by joint venture partners pursuant to put and call or similar arrangements under any joint venture or similar agreement;
(22) payments, distributions or other Restricted Payments made in connection with transactions among the Issuer and any of its Restricted Subsidiaries, on the one hand, and Parent and any of its direct or indirect Subsidiaries and/or any joint venture partners, customers and/or clients, on the other hand, entered into in the ordinary course of business or consistent with industry or past practice, including, without limitation, any cash management and treasury activities and any shared services, offices or facilities, including back office, accounting, books and record-keeping or similar functions, and shared production or other facilities, branch offices and other shared spaces and licensing or similar arrangements related thereto;
(23) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of obligations under the 5.125% Senior Unsecured Notes, including any Restricted Payment deemed to occur upon the refinancing of such 5.125% Senior Unsecured Notes permitted under Section 4.09;
(24) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of obligations under (i) the Junior Lien Term Loan Facilities or (ii) the 4.125% Unsecured Notes, in each case, to the extent such Restricted Payments are financed with or exchanged for Refinancing Indebtedness permitted under clause (13) of Section 4.09(b);
(25) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of obligations under the Junior Lien Term Loan Facilities, at a purchase price lower than the then prevailing trading price of each series of Second-Out Senior Credit Facilities Indebtedness then outstanding for consideration not to exceed, in the aggregate, $100.0 million;
(26) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of obligations under (i) Junior Lien Indebtedness or (ii) Unsecured Indebtedness in an aggregate principal amount not to exceed the sum of (x) any Excluded Contribution and (y) any net cash proceeds from the issuance of Junior Lien Indebtedness or Unsecured Indebtedness received by the Issuer after the Issue Date; provided that such Excluded Contributions and net cash proceeds shall not increase the amount available for Restricted Payments pursuant to clause (3) of Section 4.07(a);
(27) to the extent constituting Restricted Payments, Permitted Junior Lien Revolving Facility Refinancings;
(28) [reserved]; and
97
(29) payments of cash dividends to Parent in connection with the payment of cash dividends on Sinclair’s shares of common stock in the aggregate amount per fiscal quarter not to exceed $0.25 (or $0.30 if at the time that Sinclair makes such cash dividends, on a pro forma basis after giving effect to the making thereof and the incurrence of any Indebtedness the proceeds of which are used to make such cash dividends, the Consolidated Secured Debt Ratio of the Issuer for the Applicable Measurement Period would be equal to or less than 4.50 to 1.0) per share for each share of common stock of Sinclair outstanding as of the one record date for dividends payable in respect of such fiscal quarter (as such amount shall be appropriately adjusted for any stock splits, stock dividends, reverse stock splits, stock consolidations and similar transactions); provided, that the amount of such cash dividends that may be made pursuant to this clause (29) shall be reduced by the amount of Restricted Payments made to pay for the repurchase, redemption, retirement or other acquisition of any Equity Interests in such fiscal quarter pursuant to clause (4)(d) of this Section 4.07(b);
provided, however, that at the time of, and after giving effect to, any Restricted Payment permitted under clauses (10) and (16) of this Section 4.07(b), no Event of Default under clause (1), (2), (6) or (7) of Section 6.01(a) shall have occurred and be continuing or would occur as a consequence thereof.
(c) For purposes of determining compliance with this Section 4.07, in the event that a Restricted Payment or Permitted Investment (or a portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in clauses (1) through (29) of Section 4.07(b) and/or is entitled to be made pursuant to Section 4.07(a) and/or one or more of the clauses contained in the definition of “Permitted Investments”, the Issuer will be entitled to divide or classify (or later divide, classify or reclassify in whole or in part in its sole discretion) such Restricted Payment or Investment (or a portion thereof) among such clauses (1) through (29) (other than clause (16)) of Section 4.07(b) and/or Section 4.07(a) and/or one or more of the clauses contained in the definition of “Permitted Investments” (other than clause (28) of the definition thereof) in a manner that otherwise complies with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the assets or securities proposed to be transferred or issued by the Issuer or any Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
(d) As of the Issue Date, all of the Issuer’s Subsidiaries will be Restricted Subsidiaries, other than ONE Media Technologies, LLC, HealthyBest, LLC, Circa, LLC, Highwoods Joint Venture, Holdco RCC, LLC, Holdco RCK, LLC and Heartland Tower Company, LLC. The Issuer shall not permit any Unrestricted Subsidiary to become a Restricted Subsidiary except pursuant to the second to last paragraph of the definition of “Unrestricted Subsidiary.” For purposes of designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the Issuer and its Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so designated shall be deemed to be Restricted Payments or Permitted Investments in an amount determined as set forth in clause (1) of the second paragraph of the definition of “Investments.” Such designation shall be permitted only if a Restricted Payment or Permitted Investment in such amount would be permitted at such time, pursuant to this Section 4.07 or pursuant to the definition of “Permitted Investments”, and if such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(e) Notwithstanding anything to the contrary in this Indenture:
(1) in no event shall any Persons that are not the Issuer or any Guarantor hold Material Intellectual Property or Material FCC Licenses or any other assets owned by the Issuer or any such Guarantor that are, in the reasonable, good faith determination of the Issuer, material to the business operations, assets, financial condition or prospects of the Issuer and its Restricted Subsidiaries, taken as a whole (collectively, “Covered Assets”), and in no event shall Issuer or any of its Restricted Subsidiaries sell, transfer or otherwise dispose of any Covered Assets (in each case, whether pursuant to a sale, lease, license, transfer, Investment, Restricted Payment,
98
dividend or otherwise or relating to the exclusive rights thereto) to any Person that is neither a Guarantor nor the Issuer; provided, however, that in no event shall this clause (a) prohibit the Issuer or any Guarantor from (i) selling, transferring or otherwise disposing any Covered Assets in connection with (A) a bona-fide sale for cash or Cash Equivalents to an unaffiliated third party or (B) a bona-fide joint venture with an unaffiliated third party in the ordinary course of business, in each case, to the extent not otherwise prohibited by this Indenture, (ii) entering into non-exclusive licensing arrangements or (iii) selling, transferring or otherwise disposing of accounts receivable and related accounts receivable collections, proceeds, records and other similar assets (or interests therein) sold to any Receivables Subsidiary or otherwise pledged, factored, transferred or sold in connection with any Permitted Receivables Financing that is otherwise permitted by this Indenture; and
(2) the Issuer shall not permit any of its Unrestricted Subsidiaries to make any dividend or other distribution declared or paid on any Capital Stock of such Unrestricted Subsidiary on a greater than pro rata basis to any holder of the Capital Stock of such Unrestricted Subsidiary (other than to the extent any of the Issuer or any of its Restricted Subsidiaries receives a greater than pro rata share of such dividend or other distribution).
(f) For the avoidance of doubt, this Section 4.07 shall not restrict the making of any “AHYDO catch up payment” with respect to, and required by the terms of, any Indebtedness of the Issuer or any of its Restricted Subsidiaries permitted to be incurred under the terms of this Indenture.
SECTION 4.08. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.
(a) From and after the Issue Date, the Issuer shall not, and shall not permit any of its Restricted Subsidiaries that is not a Subsidiary Guarantor to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary that is not a Subsidiary Guarantor to:
(1) (A) pay dividends or make any other distributions to the Issuer or any of its Restricted Subsidiaries on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or (B) pay any Indebtedness owed to the Issuer or any Guarantor;
(2) make loans or advances to the Issuer or any Guarantor; or
(3) sell, lease or transfer any of its properties or assets to the Issuer or a Guarantor.
(b) The restrictions in Section 4.08(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Issue Date, including pursuant to any of the Senior Credit Facilities, the Exchange Second-Out First Lien Notes, the New First-Out First Lien Notes, the Existing Notes and, in each case, related documentation and related Hedging Obligations;
(2) this Indenture, the Notes, the Note Guarantees and the Security Documents;
(3) Purchase Money Obligations for property acquired in the ordinary course of business or consistent with industry or past practice, and Financing Lease Obligations that at the relevant time otherwise would not be permitted by clause (3) of Section 4.08(a) on the property so acquired;
99
(4) applicable law or any applicable rule, regulation or order;
(5) (i) any agreement, arrangement, Indebtedness or Capital Stock of any Person or its affiliates that is acquired by or merged, consolidated or amalgamated with or into any of the Issuer or any Restricted Subsidiary that applies to such Person or its affiliates or any assets acquired in any such acquisition, merger, consolidation or amalgamation or acquisition of assets in existence at the time thereof, or assumed in connection therewith (unless and to the extent created in contemplation thereof), which encumbrance or restriction is not applicable to the Issuer or any of its Restricted Subsidiaries or its properties or assets, other than any such Person or its affiliates or such assets, or any Unrestricted Subsidiary; and (ii) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger, amalgamation or consolidation of an Unrestricted Subsidiary into the Issuer or a Restricted Subsidiary or the transfer of all, substantially all or any of the assets of an Unrestricted Subsidiary to the Issuer or a Restricted Subsidiary, any such encumbrance or restriction existing or assumed (unless and to the extent created in contemplation thereof);
(6) contracts, including sale-leaseback agreements, for the sale or disposition of assets, including customary restrictions with respect to a Subsidiary of the Issuer pursuant to an agreement that has been entered into for the sale or disposition of Capital Stock or assets of such Subsidiary;
(7) Secured Indebtedness permitted to be incurred pursuant to Section 4.09 and Section 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash, Cash Equivalents or other deposits under contracts or customary net worth provisions contained in real property leases, in each case, entered into in the ordinary course of business or consistent with industry or past practice and restrictions on cash, Cash Equivalents or other deposits permitted under Section 4.12 or arising in connection with any Permitted Liens;
(9) other Indebtedness, Disqualified Stock or Preferred Stock of Restricted Subsidiaries that are not Guarantors permitted to be incurred or issued subsequent to the Issue Date pursuant to the provisions of Section 4.09;
(10) provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to such joint venture;
(11) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course or consistent with industry or past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary party thereto, the payment rights arising thereunder or the proceeds thereof;
(12) any encumbrance or restriction with respect to any Unrestricted Subsidiary or any of its affiliates or their respective properties or assets that existed before the date that such Subsidiary became a Restricted Subsidiary if such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary unless and to the extent otherwise permitted by this Indenture;
100
(13) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the Issue Date pursuant to Section 4.09; if (A) in the judgment of the Issuer, such incurrence will not materially impair the Issuer’s ability to make payments on the Notes when due, (B) the encumbrances and restrictions in such Indebtedness, Disqualified Stock or Preferred Stock otherwise not permitted by this Indenture apply only so long as a default in respect of a payment or financial maintenance covenant relating to such Indebtedness, Disqualified Stock or Preferred Stock is not cured or waived or (C) the encumbrances and restrictions in such Indebtedness, Disqualified Stock or Preferred Stock either are not materially more restrictive, taken as a whole, than those contained in this Article 4 or are not materially more disadvantageous, taken as a whole, to the Holders than is ordinary or customary at the time and under the circumstances for financings for similarly situated borrowers or issuers or available to the Issuer and its Subsidiaries (as determined by the Issuer);
(14) restrictions contained in any documentation relating to, or otherwise required or necessary to consummate, any Permitted Receivables Financing;
(15) customary provisions in leases, subleases, licenses, sublicenses and other contracts restricting the assignment or other transfer thereof (or the assets subject thereto), including with respect to intellectual property; and
(16) any encumbrances and restrictions of the type referred to in clauses (1), (2) and (3) of Section 4.08(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (15) of this Section 4.08(b) if such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the judgment of the Issuer, not materially more restrictive with respect to such encumbrances and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing or are not materially more disadvantageous, taken as a whole, to the Holders than is ordinary or customary at the time and under the circumstances for financings for similarly situated borrowers or issuers or available to the Issuer and its Subsidiaries (as determined by the Issuer).
(c) For purposes of determining compliance with this Section 4.08, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (2) the subordination of loans and advances made to the Issuer or a Restricted Subsidiary to other Indebtedness incurred by the Issuer or such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
SECTION 4.09. Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock.
(a) From and after the Issue Date, the Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness), and the Issuer shall not issue any shares of Disqualified Stock and shall not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or Preferred Stock; provided, however, that the Issuer may incur
101
Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock, and any of the Subsidiary Guarantors may incur Indebtedness (including Acquired Indebtedness), and issue shares of Disqualified Stock or Preferred Stock, if either (i) the Fixed Charge Coverage Ratio of the Issuer for the Applicable Measurement Period would have been at least 2.0 to 1.0 or (ii) the Consolidated Total Debt Ratio of the Issuer for the Applicable Measurement Period would have been equal to or less than 7.0 to 1.0, in each case, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock or Preferred Stock had been issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of the Applicable Measurement Period.
(b) The provisions of Section 4.09(a) shall not apply to:
(1) Indebtedness owed and outstanding by the Issuer or any of the Subsidiary Guarantors and the issuance and creation of letters of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the face amount thereof) consisting of:
(a) [reserved];
(b) up to the greater of (x) $650.0 million and (y) 75.0% of Consolidated EBITDA of the Issuer for the Applicable Measurement Period of aggregate outstanding principal amount of First-Out Senior Credit Facilities Revolving Indebtedness (which amount shall be reduced by the amount of any permanent reduction of the commitments in respect thereof resulting from or accompanying any mandatory prepayments and voluntary permanent prepayments of principal thereof (other than in connection with any refinancing thereof)); provided that, notwithstanding anything to the contrary herein, any Indebtedness incurred in the form of Permitted Junior Lien Revolving Facility Refinancings and shall be incurred solely in reliance on this subclause (b);
(c) First Lien Indebtedness in an aggregate outstanding principal amount of up to the greater of (x) (I) $1,430.0 million, plus (II) the aggregate outstanding principal amount of Second-Out Senior Credit Facilities Indebtedness issued or incurred as of the Issue Date, plus (III) the aggregate outstanding principal amount of (i) the Exchange Second-Out First Lien Notes, including any guarantees thereof, issued on the Issue Date (excluding, for the avoidance of doubt, any additional Exchange Second-Out First Lien Notes, including any guarantees thereof, issued upon final settlement of the Exchange Offer) and (ii) any additional Exchange Second-Out First Lien Notes, including any guarantees thereof, issued upon final settlement of the Exchange Offer after the Issue Date, plus (IV) an amount equal to the then outstanding principal amount of the 5.125% Senior Unsecured Notes at the time of incurrence of Indebtedness (solely to the extent the proceeds of such Indebtedness are used to refinance an equal or greater principal amount of 5.125% Senior Unsecured Notes) using the capacity under this clause (c)(IV) and (y) such other aggregate principal amount so long as the Consolidated First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period (determined on a pro forma basis) would be equal to or less than 4.25 to 1.0; and
(d) Second Lien Indebtedness and Junior Lien Indebtedness in an aggregate outstanding principal amount so long as the Consolidated Secured Debt Ratio of the Issuer for the Applicable Measurement Period (determined on a pro forma basis) would be equal to or less than 5.00 to 1.0;
102
provided that (A) any Indebtedness incurred pursuant to subclauses (b) and (c) above shall be treated as First Lien Obligations in all calculations of the Consolidated First Lien Secured Debt Ratio and the Consolidated Secured Debt Ratio, (B) any Indebtedness incurred pursuant to subclause (d) above shall be treated as being secured by a Lien on the Collateral in all calculations of the Consolidated Secured Debt Ratio and (C) any Indebtedness incurred pursuant to this clause (1) (I) shall not, directly or indirectly, be borrowed from or provided by, an Affiliate of the Issuer, (II) shall bear interest at then-prevailing market rates for similar debt of similarly situated borrowers or issuers (as determined in the good faith determination of the Issuer), (III) shall not have guarantors or obligors (other than the Issuer or any Guarantor) and (IV) shall not be secured by any assets other than the Collateral and (D) any Indebtedness incurred pursuant to subclauses (c) and (d) above shall not have a stated maturity earlier than any then-outstanding Second-Out Senior Credit Facilities Indebtedness (but may be coterminous with such Second-Out Senior Credit Facilities Indebtedness in the case of incremental facility increases with respect thereto and, for the avoidance of doubt, the “second-out” priority term loan B-6 facility and any incremental facility thereto constituting Second-Out Senior Credit Facilities Indebtedness may mature earlier than any “second-out” priority term loan B-7 facility and any incremental facility thereto constituting Second-Out Senior Credit Facilities Indebtedness);
(2) the incurrence by the Issuer and any Guarantor of Indebtedness represented by (a) the Notes, including any Note Guarantees thereof, issued on the Issue Date (excluding, for the avoidance of doubt, any Additional Notes, if any, or Note Guarantees with respect thereto, issued upon final settlement of the Private Exchanges) and (b) Additional Notes, including any Note Guarantees thereof, issued upon final settlement of the Private Exchanges after the Issue Date;
(3) Indebtedness, Disqualified Stock and Preferred Stock (other than Indebtedness described in clauses (1) and (2) above) of the Issuer and its Restricted Subsidiaries in existence on, and in an amount not to exceed the amount outstanding on, the Issue Date, including the Existing Notes and any guarantees with respect thereto and the Junior Lien Term Loan Facilities and any guarantees with respect thereto;
(4) (a) Indebtedness (including Financing Lease Obligations and Purchase Money Obligations), Disqualified Stock and Preferred Stock incurred or issued by the Issuer or any of its Restricted Subsidiaries, to finance the purchase, lease, expansion, construction, development, replacement, maintenance, upgrade, installation, replacement, repair or improvement of property (real or personal), equipment or any other asset, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets, so long as such Indebtedness exists at the date of such purchase, lease or improvement or is created within 12 months thereafter, (b) Indebtedness in the form of Financing Lease Obligations arising out of any Sale and Lease-Back Transactions and (c) Subordinated Film Indebtedness of the Issuer and its Restricted Subsidiaries, if the aggregate amount of Indebtedness, Disqualified Stock and Preferred Stock outstanding under this clause (4), when aggregated with all Indebtedness outstanding under clause (13) of this Section 4.09(b) incurred to refinance such Indebtedness, does not at the time of any incurrence under this clause (4) exceed $150.0 million; provided, that such Indebtedness, Disqualified Stock and Preferred Stock is incurred for such bona fide business purposes and not in connection with or in furtherance of any Priming Financing/Liability Management Transaction; provided further, however, that any Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to this clause (4) shall, at the Issuer’s election, cease to be deemed incurred or outstanding for purposes of this clause (4) but shall be deemed incurred pursuant to Section 4.09(a) from and after the first date on which the Issuer or such Restricted Subsidiary could have incurred or issued such Indebtedness, Disqualified Stock or Preferred Stock under Section 4.09(a) without reliance on this clause (4);
103
(5) (a) Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit, bankers’ acceptances, bank guarantees, warehouse receipts or similar instruments issued or entered into, or relating to obligations or liabilities incurred, in the ordinary course of business or consistent with industry or past practice, including letters of credit in favor of suppliers or trade creditors or in respect of workers’ compensation claims, performance, completion or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to obligations regarding workers’ compensation claims, performance, completion or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance and (b) Indebtedness of the Issuer or any of its Restricted Subsidiaries as an account party in respect of letters of credit, bank guarantees or similar instruments in favor of suppliers, customers or other creditors issued in the ordinary course of business or consistent with industry or past practice if the aggregate amount outstanding under this subclause (b) of this clause (5), when aggregated with all Indebtedness outstanding under clause (13) of this Section 4.09(b) incurred to refinance such Indebtedness, does not exceed on a pro forma basis at the time of incurrence of such Indebtedness the greater of (x) $100.0 million and (y) 14.5% of Consolidated EBITDA of the Issuer for the Applicable Measurement Period, except that any Indebtedness incurred pursuant to this clause (5) shall, at the Issuer’s election, cease to be deemed incurred or outstanding for purposes of this clause (5) but shall be deemed incurred pursuant to Section 4.09(a) from and after the first date on which the Issuer or such Restricted Subsidiary could have incurred or issued such Indebtedness under Section 4.09(a) without reliance on this clause (5);
(6) Indebtedness arising from agreements of the Issuer or any of its Restricted Subsidiaries providing for indemnification, adjustment of purchase price, earn out or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary or Investment, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(7) Indebtedness, Disqualified Stock and Preferred Stock of the Issuer owing to a Restricted Subsidiary; provided that any such Indebtedness, Disqualified Stock and Preferred Stock owing to a Restricted Subsidiary that is not the Issuer or a Subsidiary Guarantor, excluding any Indebtedness, Disqualified Stock and Preferred Stock in respect of accounts payable incurred in connection with goods and services rendered in the ordinary course of business or consistent with industry or past practice (and not in connection with the borrowing of money), is expressly subordinated in right of payment (but only to the extent permitted by applicable law and does not result in material adverse tax consequences as determined by the Issuer) to the Notes; provided further, that if any such Restricted Subsidiary ceases to be a Restricted Subsidiary or any such Indebtedness, Disqualified Stock and Preferred Stock is not held by a Restricted Subsidiary, thereupon the then outstanding principal amount of such Indebtedness, Disqualified Stock and Preferred Stock shall no longer be permitted by this clause (7);
(8) Indebtedness of a Restricted Subsidiary owing to the Issuer or another Restricted Subsidiary; provided that if the Issuer or a Subsidiary Guarantor incurs such Indebtedness owing to a Restricted Subsidiary that is neither the Issuer nor a Subsidiary Guarantor, excluding any Indebtedness in respect of accounts payable incurred in connection with goods and services rendered in the ordinary course of business or consistent with past practice (and not in connection with the borrowing of money), such Indebtedness is expressly subordinated in right of payment (but only to the extent permitted by applicable law and does not result in material adverse tax consequences as determined by the Issuer) to the Notes or the Note Guarantee of the Notes of such Guarantor; provided further, that if any such Restricted Subsidiary ceases to be a Restricted Subsidiary or any such Indebtedness is not owned by the Issuer or another Restricted Subsidiary, thereupon the then outstanding principal amount of such Indebtedness shall no longer be permitted by this clause (8);
104
(9) shares of Preferred Stock or Disqualified Stock of a Restricted Subsidiary issued to the Issuer or another Restricted Subsidiary; provided that if any such Restricted Subsidiary ceases to be a Restricted Subsidiary or any such Preferred Stock or Disqualified Stock is not held by the Issuer or another Restricted Subsidiary, thereupon the then outstanding amount of such capital stock shall no longer be permitted by this clause (9);
(10) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes);
(11) obligations in respect of self-insurance and obligations in respect of stays, customs, performance, indemnity, bid, appeal, judgment, surety and other similar bonds or instruments and performance, bankers’ acceptance facilities and completion guarantees and similar obligations provided by the Issuer or any of its Restricted Subsidiaries or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business or consistent with industry or past practice;
(12) (a) Indebtedness that is Junior Lien Indebtedness or unsecured Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or any of the Guarantors in an aggregate principal amount or liquidation preference then outstanding under this subclause (a) of this clause (12) of up to 100.0% of the net cash proceeds received by the Issuer since immediately after the Issue Date from the issue or sale of Equity Interests of the Issuer or cash contributed to the capital of the Issuer and (b) Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or any of its Restricted Subsidiaries if the aggregate principal amount or liquidation preference outstanding Indebtedness under this subclause (b) of this clause (12), when aggregated with and all outstanding Indebtedness under clause (13) of this Section 4.09(b) incurred to refinance such Indebtedness outstanding under this subclause (b) of this clause (12), does not exceed at the time of such incurrence or issuance the greater of (x) $150.0 million and (y) 25% of Consolidated EBITDA of the Issuer for the Applicable Measurement Period; provided that with respect to any such Indebtedness, Disqualified Stock or Preferred Stock incurred under subclause (b) of this clause (12), (i) such Indebtedness shall not have a stated maturity that is earlier than the 91st day following the stated maturity of the Exchange Second-Out First Lien Notes, (ii) the pricing for such Indebtedness, including the interest rate margins, fees, premiums, funding discounts, and amortization of such Indebtedness are at then-prevailing market rates for similarly situated borrowers or issuers (as determined in the good faith determination of the Issuer), (iii) the encumbrances and restrictions in respect of such Indebtedness cannot be materially more restrictive, taken as a whole, than those set forth in this Article 4 (as determined in the good faith determination of the Issuer) and (iv) such Indebtedness cannot be provided by an Affiliate of the Issuer or any of its Restricted Subsidiaries; provided further, that subclauses (i) through (iii) of the immediately preceding proviso shall not apply with respect to any such Indebtedness which is incurred or issued for purposes or transactions in the ordinary course of business and so long as the outstanding aggregate principal amount of such Indebtedness does not exceed $50.0 million at the time of such incurrence or issuance; provided further, that (I) no such Indebtedness, Disqualified Stock or Preferred Stock may be incurred under this clause (12) in connection with or in furtherance of any Priming Financing/Liability Management Transaction; (II) subclause (a) of this clause (12) shall not include Excluded Contributions or proceeds of Disqualified Stock or sales of Equity Interests to the Issuer or any of its Subsidiaries as determined in accordance with
105
clauses (3)(b) and (3)(c) of Section 4.07(a) to the extent such proceeds have been applied pursuant to such clauses to make Restricted Payments or to make other Investments, payments or exchanges pursuant to Section 4.07(b) or to make Permitted Investments (other than Permitted Investments specified in clauses (1), (2) and (3) of the definition thereof) and (III) any Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to subclause (b) of this clause (12) shall, at the election of the Issuer, cease to be deemed incurred or outstanding for purposes of subclause (b) of this clause (12) but shall be deemed incurred pursuant to Section 4.09(a) from and after the first date on which the Issuer or such Restricted Subsidiary could have incurred or issued such Indebtedness, Disqualified Stock or Preferred Stock under Section 4.09(a) without reliance on subclause (b) of this clause (12);
(13) the incurrence or issuance by the Issuer or any of its Restricted Subsidiaries of Indebtedness, Disqualified Stock or Preferred Stock which serves to refund, refinance, replace, renew, extend or defease (collectively, “refinance” with “refinances”, “refinanced” and “refinancing” having a correlative meaning) any Indebtedness, Disqualified Stock or Preferred Stock incurred or issued as permitted under Section 4.09(a) and clauses (2), (3), (4), (5)(b) and (12) of this Section 4.09(b), this clause (13) and clauses (14)and (28) of this Section 4.09(b) or any Indebtedness, Disqualified Stock or Preferred Stock incurred or issued to so refinance such Indebtedness, Disqualified Stock or Preferred Stock, including additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay accrued but unpaid interest, dividends, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including upfront fees, original issue discount (in lieu of customary upfront fees) or similar fees) in connection with such refinancing (the “Refinancing Indebtedness”) on or prior to its respective maturity; provided, however, that such Refinancing Indebtedness:
(A) has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is incurred which is not less than the remaining Weighted Average Life to Maturity of the Indebtedness, Disqualified Stock or Preferred Stock being refinanced (or requires no or nominal payments in cash (other than interest payments) prior to the date that is 91 days after the maturity date of the Notes);
(B) to the extent such Refinancing Indebtedness refinances (i) Subordinated Indebtedness, such Refinancing Indebtedness is subordinated in right of payment to the Notes or the applicable Note Guarantee at least to the same extent as the Indebtedness being refinanced and also complies with the terms of the immediately succeeding clause (ii), (ii) Unsecured Indebtedness or Junior Lien Indebtedness, such Refinancing Indebtedness shall constitute Unsecured Indebtedness or Junior Lien Indebtedness or (iii) Disqualified Stock or Preferred Stock, such Refinancing Indebtedness is Disqualified Stock or Preferred Stock for Disqualified Stock, or Preferred Stock for Preferred Stock;
(C) shall not include:
(i) Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary of the Issuer that is not a Guarantor that refinances Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or a Guarantor; or
(ii) Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or a Restricted Subsidiary of the Issuer that refinances Indebtedness, Disqualified Stock or Preferred Stock of an Unrestricted Subsidiary; and
106
(D) to the extent such Refinancing Indebtedness refinances Secured Indebtedness, (i) the Liens securing such Refinancing Indebtedness have a Lien priority equal or junior to the Liens securing the Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased, or such Refinancing Indebtedness is Unsecured Indebtedness and (ii) such Refinancing Indebtedness shall not be secured by a Lien on any asset or property that did not secure the Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased; provided, however, that if such Secured Indebtedness is Junior Lien Indebtedness, such clause (i) and (ii) shall not apply so long as such Refinancing Indebtedness constitutes Junior Lien Indebtedness (which, for the avoidance of doubt, shall be subject to the First/Second/Third Lien Intercreditor Agreement and not be secured by any assets not constituting Collateral) or Unsecured Indebtedness;
provided further, however, that notwithstanding anything contrary in the foregoing, (x) Refinancing Indebtedness in respect of any Junior Lien Term Loan Facilities may constitute (I) Junior Lien Indebtedness so long as such Refinancing Indebtedness (A) has a later Stated Maturity than such Junior Lien Term Loan Facilities, (B) is not, directly or indirectly, borrowed from or provided by an Affiliate of the Issuer, (C) bears interest at then-prevailing market rates for similar Indebtedness of similar issuers or borrowers (as determined in good faith by the Issuer) and (D) has encumbrances and restrictions that are not materially more restrictive to the Issuer, taken as a whole, than those applicable to any Second-Out Senior Credit Facilities Indebtedness then outstanding (as determined in the good faith by the Issuer), (II) First Lien Indebtedness if (A) such Refinancing Indebtedness is incurred within 15 months before the applicable final maturity of such Junior Lien Term Loan Facilities, (B) such Refinancing Indebtedness has encumbrances and restrictions that are not materially more restrictive to the Issuer, taken as a whole, than those applicable to any Second-Out Senior Credit Facilities Indebtedness then outstanding (as determined in the good faith by the Issuer) and (C) the Consolidated First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period (determined on a pro forma basis) would be equal to or less than 4.00 to 1.0 and (y) notwithstanding anything to the contrary in the immediately preceding clause (x) or otherwise herein, Existing Secured Notes incurred under clause (3) of this Section 4.09(b) may be refinanced with (A) Exchange Second-Out First Lien Notes to be issued upon final settlement of the Exchange Offer after the Issue Date in accordance with clause (1)(c) of this Section 4.09(b) and (B) Additional Notes to be issued upon final settlement of the Private Exchanges after the Issue Date in accordance with clause (2) of this Section 4.09(b);
(14) Indebtedness, Disqualified Stock or Preferred Stock of (x) the Issuer or a Subsidiary Guarantor incurred or issued to finance an acquisition or Investment, (y) any Person that is acquired by or merged or consolidated with or into the Issuer or a Subsidiary Guarantor, or (z) any Unrestricted Subsidiary which becomes a Subsidiary Guarantor; provided that after giving pro forma effect thereto, in the case of:
(a) the incurrence of any such Indebtedness that is First Lien Indebtedness by (i) the Issuer or any Subsidiary Guarantor, (ii) any Person that is acquired by or merged or consolidated with or into the Issuer or a Subsidiary Guarantor, or (iii) any Unrestricted Subsidiary which becomes a Subsidiary Guarantor, either (A) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Consolidated First Lien Secured Debt Ratio test set forth in clause (1)(c)(y) of this Section 4.09(b) or (B) the Consolidated First Lien Secured Debt Ratio of the Issuer for the Applicable Measurement Period is no more than such ratio immediately prior to such event;
107
(b) the incurrence of any such Indebtedness that is Second Lien Indebtedness or Junior Lien Indebtedness by (i) the Issuer or any Subsidiary Guarantor, (ii) any Person that is acquired by or merged or consolidated with or into the Issuer or a Subsidiary Guarantor, or (iii) any Unrestricted Subsidiary which becomes a Subsidiary Guarantor, either (A) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Secured Debt Ratio test set forth in clause (1)(d) of this Section 4.09(b) or (B) the Consolidated Secured Debt Ratio of the Issuer for the Applicable Measurement Period is no more than such ratio immediately prior to such event; and
(c) (i) the incurrence of any such Indebtedness that is unsecured Indebtedness by (A) the Issuer or any Subsidiary Guarantor, (B) any Person that is acquired by or merged or consolidated with or into the Issuer or a Subsidiary Guarantor, or (C) any Unrestricted Subsidiary which becomes a Subsidiary Guarantor, (ii) the issuance of any such Disqualified Stock by the Issuer or (iii) the issuance of any such Disqualified Stock or Preferred Stock by (A) any Subsidiary Guarantor, (B) any Person that is acquired by or merged or consolidated with or into the Issuer or a Subsidiary Guarantor, or (C) any Unrestricted Subsidiary which becomes a Subsidiary Guarantor, either (I) (aa) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in clause (i) of Section 4.09(a) or (bb) the Fixed Charge Coverage Ratio of the Issuer for the Applicable Measurement Period is at least equal to such ratio immediately prior to such event; or (II) (aa) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Total Debt Ratio test set forth in clause (ii) of Section 4.09(a) or (bb) the Consolidated Total Debt Ratio of the Issuer for the Applicable Measurement Period is no more than such ratio immediately prior to such event;
(15) (a) Cash Management Obligations and (b) Indebtedness in respect of netting services, overdraft protections and similar arrangements and other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds (including Indebtedness owed on a short term basis of no longer than 30 days to banks and other financial institutions incurred in the ordinary course of business or consistent with past practice of the Issuer and its Restricted Subsidiaries with such banks or financial institutions that arises in connection with ordinary banking arrangements to manage cash balances of the Issuer and its Restricted Subsidiaries);
(16) Indebtedness of the Issuer or any of its Restricted Subsidiaries supported by a letter of credit issued pursuant to a Credit Facility permitted under clause (1) of this Section 4.09(b), in a principal amount not in excess of the face amount of such letter of credit, bank guarantee or such other instrument;
(17) any guarantee or co-issuance by the Issuer or any Restricted Subsidiary of Indebtedness or other obligations of the Issuer or any Restricted Subsidiary if the incurrence of such Indebtedness incurred by the Issuer or such Restricted Subsidiary is permitted or not prohibited by this Indenture;
(18) [reserved];
(19) [reserved];
(20) Indebtedness of the Issuer or any of its Restricted Subsidiaries consisting of (a) the financing of insurance premiums or (b) take-or-pay obligations contained in supply arrangements, in each case, incurred in the ordinary course of business or consistent with past practice;
108
(21) Indebtedness consisting of Indebtedness issued by the Issuer or any of its Restricted Subsidiaries to future, current or former officers, directors, employees, managers, consultants or independent contractors thereof (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer, any Restricted Subsidiary or any Parent Entity, in each case to finance the purchase or redemption of Equity Interests of the Issuer or any Parent Entity to the extent described in clause (4) of Section 4.07(b);
(22) Indebtedness in respect of Permitted Receivables Financings;
(23) Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries to the extent that the net proceeds thereof are promptly deposited with the Trustee to satisfy and discharge the Notes or exercise the Issuer’s legal defeasance or covenant defeasance option pursuant to Article 8, in each case, in accordance with this Indenture;
(24) [reserved];
(25) Indebtedness attributable to (but not incurred to finance) the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, in each case with respect to any acquisition (by merger, consolidation or amalgamation or otherwise) permitted or not prohibited by the terms of this Indenture;
(26) Indebtedness representing deferred compensation or stock-based compensation to directors, employees, consultants or independent contractors of any Parent Entity, the Issuer or any Restricted Subsidiary incurred in the ordinary course of business or consistent with industry or past practice;
(27) Indebtedness consisting of obligations under deferred compensation or any other similar arrangements incurred in connection with any Investment or any acquisition (by merger, consolidation or amalgamation or otherwise) permitted under this Indenture;
(28) Indebtedness of any Restricted Subsidiary that is not a Guarantor if the aggregate principal amount of such Indebtedness outstanding under this clause (28), when aggregated with all outstanding Indebtedness under clause (13) of this Section 4.09(b) incurred to refinance such Indebtedness, shall not exceed, at the time of incurrence thereof, $25.0 million; provided that (a) no such Indebtedness may be incurred in connection with or in furtherance of a Priming Financing/Liability Management Transaction; provided further, however, that except that any Indebtedness incurred pursuant to this clause (28) shall, at the election of the Issuer, cease to be deemed incurred or outstanding for purposes of this clause (28) but shall be deemed incurred pursuant to Section 4.09(a) from and after the first date on which the Issuer or such Restricted Subsidiary could have incurred or issued such Indebtedness under Section 4.09(a) without reliance on this clause (28);
(29) to the extent constituting Indebtedness, customer deposits and advance payments (including progress premiums) received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business or consistent with past practice;
109
(30) unfunded pension fund and other employee benefits plan obligations and liabilities incurred in the ordinary course of business or consistent with past practice;
(31) [reserved]; and
(32) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (1) through (31) of this Section 4.09(b).
(c) For purposes of determining compliance with this Section 4.09:
(1) in the event that an item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) meets the criteria of more than one of the categories of permitted Indebtedness, Disqualified Stock or Preferred Stock described in clauses (2) through (32) of Section 4.09(b) or is entitled to be incurred pursuant to Section 4.09(a), the Issuer, in its sole discretion, may divide or classify (or later divide, classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) in any manner that complies with this Section 4.09 and shall only be required to include the amount and type of such Indebtedness, Disqualified Stock or Preferred Stock (or portion thereof) in one or more of the clauses in Section 4.09(b) or under Section 4.09(a); provided that (i) all Indebtedness under the First-Out Revolving Credit Facility and any Junior Lien Revolving Credit Facility and any guarantees related to any of the foregoing (and any “refinancing” of any of the foregoing) shall be Incurred only under clause (1)(b) of Section 4.09(b) and may not later be reclassified and (ii) all First Lien Indebtedness Incurred on the Issue Date or in connection with the Exchange Offer (including the New First-Out First Lien Notes, the First Lien Senior Credit Facilities (other than the First-Out Revolving Credit Facility), the Exchange Second-Out First Lien Notes Incurred on the Issue Date and any Exchange Second-Out First Lien Notes Incurred upon final settlement of the Exchange Offer) and any guarantees related thereto (and any “refinancing” of any of the foregoing), other than that described in the preceding clause (i), shall be Incurred only under clause (1)(c)(x) of Section 4.09(b), and may not later be reclassified;
(2) at the time of incurrence, the Issuer will be entitled to divide or classify (or later divide, classify or reclassify in whole in part in its sole discretion) an item of Indebtedness in more than one of the types of Indebtedness, Disqualified Stock or Preferred Stock described in Section 4.09(a) or Section 4.09(b) above; provided that this clause (2) shall be subject to the proviso at the end of clause (1) of this Section 4.09;
(3) the principal amount of Indebtedness, Disqualified Stock or Preferred Stock outstanding under any clause of this Section 4.09 shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness;
(4) the principal amount of any Disqualified Stock of the Issuer or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary, will be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof; and
(5) for purposes of calculating the Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Debt Ratio, the Consolidated Secured Debt Ratio or the Consolidated Total Debt Ratio, as applicable, in connection with the incurrence of any Indebtedness pursuant to Section 4.09(a) or Section 4.09(b) or the creation or incurrence of any Lien pursuant to the definition of “Permitted Liens”, the Issuer may elect, at its option, to treat all or any portion of the
110
committed amount of any Indebtedness (and the issuance and creation of letters of credit and bankers’ acceptances thereunder) which is to be incurred (or any commitment in respect thereof) or secured by such Lien, as the case may be (any such committed amount elected until revoked as described below, the “Reserved Indebtedness Amount”), as being incurred as of such election date, and, if such Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Debt Ratio, Consolidated Secured Debt Ratio or Consolidated Total Debt Ratio, as applicable, is satisfied with respect thereto on such election date, any subsequent borrowing or reborrowing thereunder (and the issuance and creation of letters of credit and bankers’ acceptances thereunder) will be deemed to be permitted under this Section 4.09 or the definition of “Permitted Liens”, as applicable, whether or not the Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Debt Ratio, the Consolidated Secured Debt Ratio or the Consolidated Total Debt Ratio, as applicable, at the actual time of any subsequent borrowing or reborrowing (or issuance or creation of letters of credit or bankers’ acceptances thereunder) is met; provided that for purposes of subsequent calculations of the Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Debt Ratio, the Consolidated Secured Debt Ratio or the Consolidated Total Debt Ratio, as applicable, the Reserved Indebtedness Amount shall be deemed to be outstanding, whether or not such amount is actually outstanding, for so long as such commitments are outstanding or until the Issuer revokes an election of a Reserved Indebtedness Amount.
(d) Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Indebtedness, Disqualified Stock or Preferred Stock shall not be deemed to be an incurrence of Indebtedness, Disqualified Stock or Preferred Stock for purposes of this Section 4.09. If Indebtedness, Disqualified Stock or Preferred Stock originally incurred in reliance upon the Consolidated First Lien Secured Debt Ratio of the Issuer or the Consolidated Secured Debt Ratio of the Issuer under any subclause of clause (1) of Section 4.09(b) is being refinanced under such subclause of clause (1) of Section 4.09(b) and such refinancing would cause the maximum amount of Indebtedness, Disqualified Stock or Preferred Stock thereunder to be exceeded at such time, then such refinancing shall nevertheless be permitted thereunder and such additional Indebtedness, Disqualified Stock or Preferred Stock shall be deemed to have been incurred under such subclause of clause (1) of Section 4.09(b) so long as the principal amount of such refinancing Indebtedness, Disqualified Stock or Preferred Stock does not exceed the principal amount of Indebtedness, Disqualified Stock or Preferred Stock being refinanced plus amounts permitted by the next sentence. Any Indebtedness, Disqualified Stock or Preferred Stock incurred to refinance Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to Section 4.09 shall be permitted to include additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay accrued but unpaid interest, dividends, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including upfront fees, original issue discount (in lieu of upfront fees) or similar fees) incurred in connection with such refinancing.
(e) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, Disqualified Stock or Preferred Stock, the U.S. dollar-equivalent principal amount of Indebtedness, Disqualified Stock or Preferred Stock denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness, Disqualified Stock or Preferred Stock was deemed to be incurred, in the case of term debt, or first committed, in the case of revolving credit debt, for purposes of this Section 4.09; provided that if such Indebtedness, Disqualified Stock or Preferred Stock is incurred to refinance other Indebtedness, Disqualified Stock or Preferred Stock denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness, Disqualified Stock or Preferred Stock does not exceed the principal amount of such
111
Indebtedness, Disqualified Stock or Preferred Stock being refinanced plus the aggregate amount of accrued but unpaid interest, dividends, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including upfront fees, original issue discount (in lieu of upfront fees) or similar fees) incurred in connection with such refinancing.
The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.
(f) For the purposes of this Indenture, (1) Indebtedness that is unsecured is deemed not to be subordinated or junior in right of payment to Secured Indebtedness merely because such Indebtedness is unsecured, and (2) Indebtedness is deemed not to be subordinated or junior in right of payment to any other Indebtedness solely because such Indebtedness has a junior priority with respect to shared collateral or because it is guaranteed by other obligors.
SECTION 4.10. Asset Sales.
(a) From and after the Issue Date, the Issuer shall not, and shall not permit any Restricted Subsidiary to, consummate, directly or indirectly, an Asset Sale unless:
(1) the Issuer or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (measured at the time of agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration (measured at the time of agreeing to such Asset Sale) for such Asset Sale, together with all other Asset Sales since the Issue Date (on a cumulative basis), received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents.
(b) Within 365 days after the later of (A) the date of any Asset Sale and (B) the receipt of any Net Proceeds from any Asset Sale (the “Asset Sale Proceeds Application Period”), the Issuer or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale,
(1) to the extent such Net Proceeds are from an Asset Sale of Collateral, to repay (i) Obligations under the Notes, (ii) First Lien Obligations, and in the case of First Lien Obligations consisting of revolving obligations, to correspondingly reduce commitments with respect thereto and/or (iii) other Second Lien Obligations, and in the case of other Second Lien Obligations consisting of revolving obligations, to correspondingly reduce commitments with respect thereto; provided that if the Issuer or any Restricted Subsidiary shall so reduce any such other Second Lien Obligations pursuant to clause (iii), the Issuer or such Restricted Subsidiary shall either (A) reduce Obligations under the Notes on a pro rata basis with such other Second Lien Obligations by, at its option, (x) redeeming Notes pursuant to Section 3.07 or (y) purchasing Notes through open market purchases or in privately negotiated transactions at market prices (which may be below par), or (B) make an offer (in accordance with the procedures for an Asset Sale Offer set forth in Section 3.09 and this Section 4.10) to all Holders to purchase their Notes on a ratable basis with such other Second Lien Obligations for no less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon up to the principal amount of Notes to be repurchased;
112
(2) to the extent such Net Proceeds are from an Asset Sale that does not constitute Collateral, to repay Obligations under any Senior Indebtedness, and in the case of revolving obligations, to correspondingly reduce commitments with respect thereto; provided that the Issuer or such Restricted Subsidiary shall either (A) reduce the aggregate principal amount of Obligations under the Notes on an equal or ratable basis with any Senior Indebtedness repaid pursuant to this clause (2) by, at its option, (x) redeeming Notes pursuant to Section 3.07 and/or (y) purchasing Notes through open-market purchases or in privately negotiated transactions at market prices (which may be below par) and/or (B) make an offer (in accordance with Section 3.09 and this Section 4.10) to all Holders to purchase their Notes on an equal or ratable basis with any Senior Indebtedness repaid pursuant to this clause (2) (which offer shall be deemed to be an Asset Sale Offer for purposes hereof);
(3) to invest in the business of the Issuer and its Subsidiaries, including (i) any investment in Additional Assets and (ii) making capital expenditures; provided that to the extent such Net Proceeds are from an Asset Sale of Collateral, such Net Proceeds shall be invested in Additional Assets that are substantially concurrently added to the Collateral in the manner and to the extent required under this Indenture and the Security Documents;
(4) to the extent such Net Proceeds are from an Asset Sale that does not constitute Collateral, to repay Indebtedness of any Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Issuer or a Guarantor, and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto; or
(5) any one or more combinations of the foregoing;
provided that, in the case of clause (3) above, any agreement shall be treated as a permitted application of the Net Proceeds from the date of such agreement so long as the Issuer or such Restricted Subsidiary enters into such agreement with the good faith expectation that such Net Proceeds will be applied to satisfy such agreement within 180 days of the expiration of the Asset Sale Proceeds Application Period (an “Acceptable Commitment”) and such Net Proceeds are actually applied substantially in such manner within 180 days of the expiration of the Asset Sale Proceeds Application Period, and, in the event any Acceptable Commitment is later cancelled or terminated for any reason after the expiration of the Asset Sale Proceeds Application Period and before the Net Proceeds are applied in connection therewith, then such Net Proceeds shall constitute Excess Proceeds.
(c) Any Net Proceeds from the Asset Sale covered by this Section 4.10 that are not invested or applied as provided and within the time period set forth in this Section 4.10 will be deemed to constitute “Excess Proceeds”; provided that any amount of Net Proceeds offered to Holders of the Notes pursuant to clauses (1) and (2) of Section 4.10(b) shall not be deemed to be Excess Proceeds without regard to whether such offer is accepted by any Holders. No later than 30 Business Days after the date that the aggregate amount of Excess Proceeds, after giving effect to the operation of the immediately following sentence, exceeds $200.0 million, the Issuer shall make an offer to purchase to all Holders and, if required by the terms of other Indebtedness that constitutes Second Lien Obligations, to repay or offer to repay such Indebtedness (an “Asset Sale Offer”) the maximum aggregate principal amount (or accreted value, as applicable) of the Notes and such Indebtedness (in the case of the Notes only, equal to minimum denominations of $2,000 or an integral multiple of $1,000 thereof) that may be purchased or repaid out of the Excess Proceeds (at an offer price in cash in the case of the Notes in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date fixed for the repurchase of such Notes pursuant to such offer) in accordance with the procedures set forth in this Indenture and, if applicable, the documents governing such applicable Second Lien Obligations. With respect to the Notes only, the Issuer shall commence an Asset Sale Offer by sending the notice required
113
pursuant to the terms of this Indenture, with a copy to the Trustee. The Issuer may satisfy the foregoing obligation with respect to such Net Proceeds from an Asset Sale by making an Asset Sale Offer in advance of being required to do so by this Indenture (an “Advance Offer”) with respect to all or part of the available Net Proceeds (the “Advance Portion”).
(d) To the extent that the aggregate principal amount (or accreted value, as applicable) of Notes and, if applicable, such Second Lien Obligations tendered, purchased or repaid pursuant to an Asset Sale Offer is less than the Excess Proceeds (or, in the case of an Advance Offer, any remaining Advance Portion), the Issuer may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) (“Declined Proceeds”) in any manner permitted or not prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes or such other Indebtedness tendered, purchased or repaid, pursuant to an Asset Sale Offer exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Trustee shall select the Notes (subject to applicable DTC procedures as to Global Notes) and the Issuer or the representative of such Second Lien Obligations shall select such Second Lien Obligations to be purchased or repaid on a pro rata basis based on the accreted value or principal amount of the Notes and such Second Lien Obligations tendered, purchased or repaid, with adjustments as necessary so that no Notes or Second Lien Obligations, as the case may be, will be repurchased in an unauthorized denomination; provided that no Notes of $2,000 or less shall be repurchased in part. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero (regardless of whether there are any remaining Excess Proceeds upon such completion), and in the case of an Advance Offer, the Advance Portion shall be excluded in subsequent calculations of Excess Proceeds.
(e) An Asset Sale Offer or an Advance Offer may be made at the same time as consents are solicited with respect to an amendment, supplement or waiver of this Indenture, the Notes, the Security Documents and/or Note Guarantees (but the Asset Sale Offer or Advance Offer may not condition tenders on the delivery of such consents).
(f) Pending the final application of an amount equal to the Net Proceeds pursuant to this Section 4.10, the holder of such Net Proceeds may apply any Net Proceeds to reduce indebtedness outstanding under a revolving credit facility (including under the Senior Credit Facilities) or otherwise invest such Net Proceeds in any manner permitted or not prohibited by this Indenture.
(g) For purposes of this Section 4.10 only, the following shall be deemed to be cash or Cash Equivalents:
(1) the greater of the principal amount and the carrying value of any liabilities (as reflected on the most recent balance sheet of the Issuer or such Restricted Subsidiary or in the footnotes thereto, or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Issuer or such Restricted Subsidiary or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Issuer) of the Issuer or such Restricted Subsidiary, other than liabilities that are unsecured or are by their terms subordinated to the Notes or have Junior Lien Priority on the Collateral, that are assumed, prepaid or repaid by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Asset Sale) pursuant to a written agreement which releases or indemnifies the Issuer or such Restricted Subsidiary from such liabilities;
(2) any securities, notes or other obligations or assets received by the Issuer or such Restricted Subsidiary from such transferee that are converted by the Issuer or such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within 180 days following the closing of such Asset Sale;
114
(3) any Designated Non-cash Consideration received by the Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value (with the fair market value of such item of Designated Non-cash Consideration being measured at the date of agreement for the related Asset Sale) and without giving effect to subsequent changes in value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (3) that is at that time outstanding, not to exceed $40.0 million; provided that this clause (3) shall not be used in connection with or in furtherance of a Priming Financing/Liability Management Transaction; and
(4) the fair market value of any Local Marketing Agreement entered into in connection with, or received as consideration for, any Asset Sale.
(h) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the procedures for an Asset Sale Offer set forth in Section 3.09 and this Section 4.10, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under either Section 3.09 or this Section 4.10 by virtue of such compliance.
(i) The provisions of Section 3.09 and this Section 4.10 relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the Notes.
SECTION 4.11. Transactions with Affiliates.
(a) From and after the Issue Date, the Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Issuer (each of the foregoing, an “Affiliate Transaction”) involving aggregate payments or consideration in respect of such Affiliate Transaction in excess of the greater of (x) $60.0 million and (y) 8.6% of Consolidated EBITDA of the Issuer for the Applicable Measurement Period, unless:
(1) such Affiliate Transaction is on terms, taken as a whole, that are not materially less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person on an arm’s-length basis or, if in the good faith judgment of the Issuer, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Issuer or such Restricted Subsidiary from a financial point of view and when such transaction is taken in its entirety; and
(2) the Issuer delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $100.0 million, a resolution adopted by the Board of the Issuer approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (1) of this Section 4.11(a).
115
(b) The provisions of Section 4.11(a) shall not apply to the following:
(1) (a) transactions between or among Parent, the Issuer and a Restricted Subsidiary or between or among Restricted Subsidiaries or, in any case, any entity that becomes a Restricted Subsidiary as a result thereof and (b) any merger, amalgamation or consolidation of the Issuer into any Parent Entity; provided that such merger, amalgamation or consolidation is otherwise consummated in compliance with the terms of this Indenture and effected for a bona fide business purpose as determined by the Issuer;
(2) Restricted Payments permitted by Section 4.07 (other than pursuant to clause (13)(f) of Section 4.07(b)) and the definition of “Permitted Investments”;
(3) the payment or settlement of management, consulting, monitoring, transaction, advisory and other fees and related expenses to the Investors, indemnification and other similar amounts to the Investors and reimbursement of expenses of the Investors, in each case, approved by, or pursuant to arrangements approved by, the Board of the Issuer;
(4) the payment or settlement of reasonable and customary fees and compensation paid to, and indemnities and reimbursements and employment, consulting, compensation and severance benefit arrangements provided to or on behalf of, or for the benefit of, former, current or future employees, directors, officers, managers, members, partners, independent contractors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Issuer, any Restricted Subsidiary or any Parent Entity;
(5) transactions in which the Issuer or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable, when taken as a whole, to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person on an arm’s length basis;
(6) any agreement or arrangement as in effect or disclosed as of the Issue Date (other than any agreement or arrangement of the type described in clause (3) of this Section 4.11(b)) or any amendment, modification, waiver, consent or replacement (so long as the totality of all such amendments, modifications, waivers, consents or replacements is not materially more disadvantageous in the judgment of the Board of the Issuer or the senior management of the Issuer to the Holders when taken as a whole as compared to the totality of such agreements or arrangements as in effect on the Issue Date);
(7) the existence of, or the performance or satisfaction by the Issuer or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders, investor rights or similar agreement or the equivalent (including any registration rights agreement or purchase agreement related thereto) to which it (or any Parent Entity) is a party as of the Issue Date and any similar agreements which it (or any Parent Entity) may enter into thereafter; provided, however, that the existence of, or the performance or satisfaction by the Issuer or any of its Restricted Subsidiaries (or such Parent Entity) of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (7) to the extent that the terms of any such amendment or new agreement are not materially more disadvantageous in the judgment of the Board of the Issuer or the senior management of the Issuer to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date;
116
(8) the Transactions and the payment of all fees and expenses related to the Transactions, including Transaction Expenses;
(9) transactions with customers, clients, suppliers, contractors, joint venture partners or purchasers or sellers of goods or services or providers of employees or other labor that are Affiliates, in each case in the ordinary course of business or consistent with industry or past practice and otherwise in compliance with the terms of this Indenture that in the determination of the Board of the Issuer or the senior management thereof, or are on terms, taken as a whole, that are not materially less favorable as reasonably could have been obtained at such time from an unaffiliated party;
(10) the issuance or transfer of (a) Equity Interests (other than Disqualified Stock) of the Issuer and the granting and performing of customary registration rights to any Parent Entity or to any Permitted Holder or to any former, current or future director, manager, officer, employee or consultant (or their respective Controlled Investments Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer or any of its Subsidiaries or any Parent Entity and (b) directors’ qualifying shares and shares issued to foreign nationals as required by applicable law;
(11) transactions related to or in connection with Permitted Receivables Financings;
(12) payments by the Issuer or any of its Restricted Subsidiaries made for any financial advisory, consulting, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures if approved or ratified by the Board of the Issuer or the senior management of the Issuer;
(13) payments, loans, advances or guarantees (or cancellation of loans, advances or guarantees) to future, current or former employees, directors, officers, managers, members, partners, independent contractors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer, any of its Subsidiaries or any Parent Entity and employment agreements, stock option plans and other compensatory or severance arrangements (and any successor plans thereto) and any supplemental executive retirement benefit plans or similar arrangements with any such future, present or former employees, directors, officers, managers, members, partners, independent contractors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) (including salary or guaranteed payments and bonuses) if approved or ratified by the Board of the Issuer or the senior management of the Issuer;
(14) (A) investments by Affiliates in securities or loans of the Issuer or any of its Restricted Subsidiaries (and any payment of out-of-pocket expenses incurred by such Affiliate or Permitted Holders in connection therewith) so long as the investment is being offered generally to other investors on the same or more favorable terms, and (B) payments to Affiliates in respect of securities or loans of the Issuer or any of its Restricted Subsidiaries contemplated in the foregoing subclause (A) or that were acquired from Persons other than the Issuer and its Restricted Subsidiaries, in each case, in accordance with the terms of such securities or loans;
117
(15) transactions with a Person that is an Affiliate of the Issuer arising solely because the Issuer or any Restricted Subsidiary owns any Equity Interest in, or controls, such Person;
(16) any lease entered into between the Issuer or any Restricted Subsidiary, on the one hand, and any Affiliate of the Issuer, on the other hand, if approved or ratified by the Board of the Issuer or the senior management of the Issuer in good faith;
(17) intellectual property licenses entered into in the ordinary course of business or consistent with industry or past practice;
(18) transactions between the Issuer or any Restricted Subsidiary and any other Person that would constitute an Affiliate Transaction solely because a director of such other Person is also a director of the Issuer or any Parent Entity; provided, however, that such director abstains from voting as a director of the Issuer or such Parent Entity, as the case may be, on any matter including such other Person;
(19) payment or satisfaction by the Issuer (and any Parent Entity) and its Subsidiaries pursuant to, or the entry into, any tax sharing agreement or arrangement among Parent (and any such Parent Entity) and its Subsidiaries, to the extent such payments are permitted under clause (13) of Section 4.07(b);
(20) payment or satisfaction of reasonable out of pocket costs and expenses relating to registration rights and indemnities provided to equity holders of the Issuer or any Parent Entity thereof pursuant to any equity holders, registration rights or similar agreements;
(21) intercompany transactions undertaken in good faith for the purpose of improving the consolidated tax efficiency of the Issuer and its Restricted Subsidiaries and not for the purpose of circumventing any covenant set forth in this Indenture; and
(22) pledges of Equity Interests of Unrestricted Subsidiaries.
SECTION 4.12. Liens.
(a) From and after the Issue Date, the Issuer shall not, and shall not permit any Subsidiary Guarantor to, directly or indirectly, create, incur, assume or suffer to exist any Lien that is not a Permitted Lien (each, a “Subject Lien”) that secures Obligations under any Indebtedness on any asset or property of the Issuer or any Subsidiary Guarantor, unless:
(1) in the case of Subject Liens on any Collateral, (i) such Subject Lien expressly has Junior Lien Priority on the Collateral or (ii) such Subject Lien is a Permitted Lien; and
(2) in the case of any Subject Lien on any asset or property that is not Collateral, (i) the Notes (or a Note Guarantee in the case of Subject Liens on assets or property of a Subsidiary Guarantor) are or will be substantially contemporaneously equally and ratably secured with (or, at the Issuer’s option or if such Subject Lien secures Subordinated Indebtedness, on a senior basis to) the Obligations secured by such Subject Lien until such time as such Obligations are no longer secured by such Subject Lien or (ii) such Subject Lien is a Permitted Lien.
118
(b) Any Lien created for the benefit of the Holders pursuant to Section 4.12(a)(2) shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged and a nullity upon and to the extent the release and discharge of the Subject Lien that gave rise to the obligation to secure the Notes. In addition, in the event that a Subject Lien at any time qualifies as a Permitted Lien, the Issuer may, at its option and without consent from any Holder, elect to release and discharge any Lien created for the benefit of the Holders pursuant to Section 4.12(a) in respect of such Subject Lien.
(c) With respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the Incurrence of such Indebtedness, such Lien shall also be permitted to secure any Increased Amount of such Indebtedness. The “Increased Amount” of any Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortization of original issue discount, the payment of interest in the form of additional Indebtedness with the same terms, accretion of original issue discount or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Indebtedness.
SECTION 4.13. Corporate Existence.
Subject to Article 5, the Issuer shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) its corporate, partnership or other existence, and the corporate, partnership or other existence of each of its Restricted Subsidiaries, in accordance with the respective organizational documents (as the same may be amended from time to time) of the Issuer or such Restricted Subsidiary, as applicable, and (ii) the rights (charter and statutory), licenses and franchises of the Issuer and its Restricted Subsidiaries; provided that the Issuer shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Restricted Subsidiaries (other than the Issuer), if the Issuer in good faith shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Issuer and its Subsidiaries, taken as a whole.
SECTION 4.14. Change of Control Triggering Event.
(a) If a Change of Control Triggering Event occurs with respect to the Notes, unless, prior to the time the Issuer is required to make a Change of Control Offer, the Issuer has previously or concurrently mailed or delivered, or otherwise sent through electronic transmission, a redemption notice with respect to all of the outstanding Notes pursuant to Section 3.07 or Section 11.01, the Issuer shall make an offer to purchase all of the Notes pursuant to the offer described below (the “Change of Control Offer”) at a price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date falling on or prior to the Change of Control Payment Date. Within 60 days following any Change of Control Triggering Event, the Issuer shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, to each Holder of the Notes to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Section 4.14 and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Issuer;
(2) the purchase price and the purchase date, which will be no earlier than 20 Business Days nor later than 60 days from the date such notice is sent (the “Change of Control Payment Date”); provided that the Change of Control Payment Date may be delayed, at the Issuer’s discretion, until such time (including more than 60 days after the date such notice is sent) as any or all such conditions referred to in clause (8) below shall be satisfied;
119
(3) that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on the Change of Control Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third (3^rd^) Business Day preceding the Change of Control Payment Date;
(6) that Holders shall be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives, not later than the expiration time of the Change of Control Offer, a facsimile or other electronic transmission or letter setting forth the name of the Holder of the Notes, the principal amount of the Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that if the Issuer is redeeming less than all of the Notes, the Holders of the remaining Notes will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered (the unpurchased portion of the Notes must be equal to minimum denominations of $2,000 or an integral multiple of $1,000 in excess thereof);
(8) if such notice is sent prior to the occurrence of a Change of Control Triggering Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Triggering Event or such other conditions specified therein and shall describe each such condition and, if applicable, shall state that in the Issuer’s discretion the Change of Control Payment Date may be delayed until such time as any or all such conditions shall be satisfied or that such purchase shall not occur and such notice shall be rescinded in the event that any or all such conditions shall not have been satisfied by the Change of Control Payment Date, or by the Change of Control Payment Date as so delayed, unless such conditions are waived by the Issuer in its discretion; and
(9) the other instructions, as determined by the Issuer, consistent with this Section 4.14, that a Holder must follow.
The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.14, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.14 by virtue thereof.
120
(b) On the Change of Control Payment Date, the Issuer shall, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer.
(c) The Issuer shall not be required to make a Change of Control Offer if a third party approved by the Issuer makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.14 applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer. In addition, a Change of Control Offer may be made in advance of a Change of Control Triggering Event, conditional upon such Change of Control Triggering Event or such other conditions specified therein, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
(d) A Change of Control Offer may be made at the same time as consents are solicited with respect to an amendment, supplement or waiver of the provisions of this Indenture, the Notes, the Security Documents and/or the Note Guarantees; provided that such Change of Control Offer shall not include the delivery of such consents as a condition precedent.
(e) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Issuer, or any third party approved in writing by the Issuer making a Change of Control Offer in lieu of the Issuer as set forth in clause (c) of this Section 4.14, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer or such third party shall have the right, upon not less than 15 nor more than 60 days’ prior notice, given not more than 60 days following such purchase pursuant to the Change of Control Offer as set forth in this Section 4.14, to redeem (with respect to the Issuer) or purchase (with respect to a third party) all Notes that remain outstanding following such purchase on a date (the “Second Change of Control Payment Date”) at a price in cash equal to the Change of Control Payment in respect of the Second Change of Control Payment Date.
(f) Other than as specifically provided in this Section 4.14, any purchase pursuant to this Section 4.14 shall be made pursuant to the provisions of Sections 3.02, 3.05 and 3.06.
(g) The provisions of this Section 4.14 relating to the Issuer’s obligation to make a Change of Control Offer with respect to the Notes upon a Change of Control Triggering Event may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the Notes.
SECTION 4.15. Additional Note Guarantees.
From and after the Issue Date, the Issuer shall not permit any of its Domestic Subsidiaries that is a Wholly-Owned Subsidiary that is a Restricted Subsidiary (other than the Guarantors and any Receivables Subsidiary), to become an obligor with respect to any Indebtedness owed and outstanding for the Obligations under the Senior Credit Facilities or any other Indebtedness of the Issuer or the Guarantors in an aggregate principal amount in excess of $100.0 million or (ii) to incur Indebtedness in an aggregate principal amount in excess of $100.0 million that is guaranteed (including via a pledge of assets) by the Issuer or any Guarantor, in each case of clause (i) and (ii), unless such Subsidiary within 60
121
days executes and delivers a supplemental indenture to this Indenture providing for a Note Guarantee by such Subsidiary and joinders to the Security Documents or new Security Documents together with any other filings and agreements required by the Security Documents to create or perfect the security interests for the benefit of the Holders of the Notes in the Collateral of such Subsidiary.
SECTION 4.16. Covenant Suspension.
(a) If on any date following the Issue Date, (i) the Notes have Investment Grade Ratings from both Rating Agencies in the event the Notes are rated by two Rating Agencies, or from any two of three Rating Agencies in the event the Notes are rated by three Rating Agencies, and (ii) no Default has occurred and is continuing under this Indenture with respect to the Notes (the occurrence of the events described in the foregoing clauses (i) and (ii), a “Covenant Suspension Event” and the date thereof, the “Suspension Date”), then, beginning on the Suspension Date, Parent, the Issuer and its Restricted Subsidiaries will not be subject to Section 4.07, Section 4.08, Section 4.09, Section 4.10, Section 4.11, Section 4.15 and clause (4) of Section 5.01(a) (collectively, the “Suspended Covenants”) until the occurrence of the Reversion Date (as defined below).
(b) In the event that Parent, the Issuer and its Restricted Subsidiaries are not subject to the Suspended Covenants under this Indenture for any period as a result of the foregoing, and on any subsequent date (the “Reversion Date”), any Rating Agency withdraws its Investment Grade Rating or downgrades the rating assigned to the Notes below an Investment Grade Rating (in each case, to the extent given an Investment Grade Rating by such Rating Agency and after giving effect to such downgrade or withdrawal, the Notes no longer have an Investment Grade Rating from at least two Rating Agencies), then Parent, the Issuer and its Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants under this Indenture with respect to future events. The period of time between the Suspension Date and the Reversion Date is referred to in this description as the “Suspension Period.” The Note Guarantees of the Subsidiary Guarantors will be suspended during the Suspension Period, and the Liens on the Collateral securing the Notes and the Notes Guarantees will be released. Additionally, upon the occurrence of a Covenant Suspension Event, the amount of Excess Proceeds from any Asset Sales shall be reset to zero.
(c) During the Suspension Period, the Issuer and its Restricted Subsidiaries will be entitled to incur Liens permitted under Section 4.12 (including, without limitation, Permitted Liens) with respect to the Notes. To the extent Section 4.12 and any Permitted Liens refer to one or more Suspended Covenants, such covenant or definition shall be interpreted as though such applicable Suspended Covenant(s) continued to be applicable during the Suspension Period (but solely for purposes of Section 4.12 and the definition of “Permitted Liens” and for no other covenant in this Indenture).
(d) Notwithstanding the foregoing, in the event of any such reinstatement, no action taken or omitted to be taken by Parent, the Issuer or any of its Restricted Subsidiaries prior to such reinstatement will give rise to a Default or Event of Default under this Indenture with respect to the Notes, and no Default or Event of Default will be deemed to exist or have occurred as a result of any failure by Parent, the Issuer or any Restricted Subsidiary to comply with any of the Suspended Covenants during the Suspension Period; provided that (1) with respect to Restricted Payments made after such reinstatement, the amount available to be made as Restricted Payments will be calculated as though Section 4.07 had been in effect prior to, but not during, the Suspension Period (including with respect to a Limited Condition Transaction entered into during the Suspension Period); (2) all Indebtedness incurred, or Disqualified Stock or Preferred Stock issued, during the Suspension Period (or deemed incurred or issued in connection with a Limited Condition Transaction entered into during the Suspension Period) will be classified to have been incurred or issued pursuant to clause (3) of Section 4.09(b); (3) any Affiliate Transaction entered into after such reinstatement pursuant to an agreement entered into during any
122
Suspension Period shall be deemed to be permitted pursuant to clause (6) of Section 4.11(b); (4) any encumbrance or restriction on the ability of any Restricted Subsidiary that is not a Guarantor to take any action described in clauses (1) through (3) of Section 4.08(a) that becomes effective during any Suspension Period shall be deemed to be permitted pursuant to clause (1) of Section 4.08(b); (5) no Subsidiary of Parent or the Issuer shall be required to comply with Section 4.15 after such reinstatement with respect to any guarantee or obligation entered into by such Subsidiary during any Suspension Period, other than any Senior Credit Facilities in effect on the Reversion Date; and (6) all Investments made during the Suspension Period (or deemed made in connection with a Limited Condition Transaction entered into during the Suspension Period) will be classified to have been made under clause (5) of the definition of “Permitted Investments.”
(e) Upon the Reversion Date, the Issuer, the Guarantors and the Notes Collateral Agent will enter into Security Documents that establish the terms of the security interests with respect to the Collateral on terms consistent with those set forth in the Security Documents as of the Issue Date.
(f) Notwithstanding that the Suspended Covenants may be reinstated after the Reversion Date, (1) no Default, Event of Default or breach of any kind will be deemed to exist under this Indenture, the Notes or the Note Guarantees with respect to the Suspended Covenants, and none of Parent, the Issuer or any of its Subsidiaries shall bear any liability for any actions taken or events occurring during the Suspension Period, or any actions taken at any time pursuant to any contractual obligation arising during any Suspension Period, in each case as a result of a failure to comply with the Suspended Covenants during the Suspension Period (or, upon termination of the Suspension Period or after that time based solely on any action taken or event that occurred during the Suspension Period), and (2) following a Reversion Date, Parent, the Issuer and each Restricted Subsidiary will be permitted, without causing a Default or Event of Default, to honor, comply with or otherwise perform any contractual commitments or obligations arising during any Suspension Period and to consummate the transactions contemplated thereby.
(g) During any period that the foregoing covenants have been suspended, the Issuer shall not designate any Subsidiary as an Unrestricted Subsidiary unless such designation would have complied with Section 4.07 as if Section 4.07 were in effect for the purposes of designating Unrestricted Subsidiaries from the Issue Date to the date of such designation.
(h) The Issuer shall deliver promptly to the Trustee an Officer’s Certificate notifying it of any such Covenant Suspension Event or other occurrence under this Section 4.16.
SECTION 4.17. Limitation on Priming Financing/ Liability Management Transactions.
The Issuer shall not, and shall not permit any of its Subsidiaries to, enter into or effect any Priming Financing/Liability Management Transaction or make any Investment, sale, transfer or disposition of assets or Restricted Payment in connection with or in furtherance of a Priming Financing/Liability Management Transaction.
SECTION 4.18. [Reserved].
SECTION 4.19. After-Acquired Property.
From and after the Issue Date, and subject to the applicable limitations set forth in the Security Documents and this Indenture (including with respect to Excluded Assets), if the Issuer or any Guarantor creates any additional security interest upon any property or asset that would constitute Collateral to secure any First Lien Obligations, it must concurrently grant a first-priority perfected security interest (subject to Permitted Liens and the terms of the Intercreditor Agreements) upon any such Collateral, as security for the Notes Obligations.
123
ARTICLE 5
SUCCESSORS
SECTION 5.01. Merger, Consolidation, Amalgamation or Sale of All or Substantially All Assets.
(a) From and after the Issue Date, the Issuer, Parent and any Subsidiary of Parent that is a Parent Guarantor shall not merge, consolidate or amalgamate with or into or wind up into (whether or not the Issuer, Parent or such Parent Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless:
(1) the Issuer, Parent or a Subsidiary of Parent that is a Parent Guarantor, as the case may be, is the surviving Person or the Person formed by or surviving any such merger, consolidation or amalgamation (if other than the Issuer, Parent or a Subsidiary of Parent that is a Parent Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited partnership, limited liability company, trust or other entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (the Issuer, Parent, such Subsidiary of Parent that is a Parent Guarantor or such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the Successor Company is not a corporation, a co-issuer of the Notes is a corporation;
(2) the Successor Company, if other than the Issuer, Parent or a Subsidiary of Parent that is a Parent Guarantor, expressly assumes, in the case of Parent or a Subsidiary of Parent that is a Parent Guarantor, all the obligations of Parent or such Parent Guarantor, as the case may be, under this Indenture, its Note Guarantee and the applicable Security Documents and, in the case of the Issuer, all of the obligations of the Issuer under this Indenture, the Security Documents and the Notes, in each case, pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee (provided that, in making such determination, the Trustee may rely on, and shall be fully protected in relying on an Officer’s Certificate and an Opinion of Counsel, each stating that such merger, consolidation, amalgamation, sale, assignment, transfer, lease, conveyance or disposition and such supplemental indentures and other documents or instruments, if any, comply with this Indenture);
(3) immediately after such transaction, no Event of Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the Applicable Measurement Period,
(a) the Successor Company could incur at least $1.00 of additional Indebtedness pursuant to either (x) the Fixed Charge Coverage Ratio test or (y) the Consolidated Total Debt Ratio test, in each case, set forth in Section 4.09(a), or
124
(b) either (x) the Fixed Charge Coverage Ratio of the Successor Company for the Applicable Measurement Period would be no less than the Fixed Charge Coverage Ratio of the Issuer for the Applicable Measurement Period immediately prior to such transaction or (y) the Consolidated Total Debt Ratio of the Successor Company for the Applicable Measurement Period would be no more than the Consolidated Total Debt Ratio of the Issuer for the Applicable Measurement Period immediately prior to such transaction;
(5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such merger, consolidation, amalgamation, sale, assignment, transfer, lease, conveyance or disposition and such supplemental indentures, and/or other documents or instruments, if any, comply with this Indenture;
(6) to the extent any assets of the Person which is merged, consolidated or amalgamated with or into the Issuer, Parent or a Subsidiary of Parent that is a Parent Guarantor, as applicable, are assets of the type which would constitute Collateral under the Security Documents, the Issuer, Parent, such Parent Guarantor or the Successor Company, as applicable, will take such action, if any, as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the applicable Security Documents in the manner and to the extent required in this Indenture or the applicable Security Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the applicable Security Documents; and
(7) the Collateral owned by or transferred to the Successor Company shall: (i) continue to constitute Collateral under this Indenture and the Security Documents, (ii) be subject to the Lien in favor of the Notes Collateral Agent for the benefit of itself, the Trustee and the Holders of the Notes, and (iii) not be subject to any Lien other than Permitted Liens.
(b) The Successor Company shall succeed to, and be substituted for the Issuer, Parent or a Subsidiary of Parent that is a Parent Guarantor, as the case may be, under this Indenture, the Note Guarantees, the Notes and the Security Documents, as applicable, and such Issuer, Parent or such Parent Guarantor, as applicable, shall automatically be released and discharged from its obligations under this Indenture, the Note Guarantees, the Security Documents and the Notes.
Notwithstanding Sections 5.01(a)(3) and 5.01(a)(4),
(1) any Restricted Subsidiary may merge, consolidate or amalgamate with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Issuer or any Restricted Subsidiary,
(2) the Issuer, Parent or a Subsidiary of Parent that is a Parent Guarantor may merge, consolidate or amalgamate with or into an Affiliate of the Issuer, Parent or such Parent Guarantor, as the case may be, solely for the purpose of reincorporating the Issuer, Parent or such Parent Guarantor in the United States, any state thereof, the District of Columbia or any territory thereof; and
(3) any License Subsidiary may be merged or consolidated with or into (i) any other License Subsidiary or (ii) a newly formed Subsidiary of the Issuer (which may be organized as a limited liability company) established for the purpose of becoming a License Subsidiary; provided that such newly formed Subsidiary, if it is the continuing or surviving entity, shall have assumed all of the obligations of such Subsidiary under this Indenture, the Note Guarantees, the Security Documents and the Notes, as applicable.
125
(c) From and after the Issue Date and other than as permitted or not prohibited by Section 10.06 upon the sale, disposition or transfer of Capital Stock of a Subsidiary Guarantor, no Subsidiary Guarantor shall, and the Issuer shall not permit a Subsidiary Guarantor to, merge, consolidate or amalgamate with or into or wind up into (whether or not the Issuer or a Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1)
(a) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such merger, consolidation or amalgamation (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited partnership, limited liability company, trust or other entity organized or existing under the laws of the jurisdiction of organization of such Subsidiary Guarantor or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor”);
(b) the Successor Guarantor, if other than such Subsidiary Guarantor, expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and such Subsidiary Guarantor’s related Note Guarantee and the applicable Security Documents pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee (provided that, in making such determination, the Trustee may rely on, and shall be fully protected in relying on, an Officer’s Certificate and an Opinion of Counsel, each stating that such merger, consolidation, amalgamation, sale, assignment, transfer, lease, conveyance or disposition and such supplemental indentures and/or other documents or instruments, if any, comply with this Indenture);
(c) immediately after such transaction, no Event of Default exists;
(d) to the extent any assets of the Person which is merged, consolidated or amalgamated with or into such Subsidiary Guarantor are assets of the type which would constitute Collateral under the Security Documents, such Subsidiary Guarantor or the Successor Company will take such action, if any, as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the applicable Security Documents in the manner and to the extent required in this Indenture or the applicable Security Documents and shall take all reasonably necessary action so that such Lien in perfected to the extent required by the applicable Security Documents; and
(e) the Collateral owned by or transferred to the Successor Guarantor shall: (A) continue to constitute Collateral under this Indenture and the Security Documents, (B) be subject to the Lien in favor of the Notes Collateral Agent for the benefit of itself, the Trustee and the Holders of the Notes, and (C) not be subject to any Lien other than Permitted Liens; or
126
(2) the transaction is permitted or not prohibited by Section 4.10 and the release of such Subsidiary Guarantor is permitted under Section 10.06.
(d) The Successor Guarantor shall succeed to, and be substituted for, such Subsidiary Guarantor under this Indenture, and such Subsidiary Guarantor’s Note Guarantee and the applicable Security Documents and such Subsidiary Guarantor shall automatically be released and discharged from its obligations under this Indenture, such Subsidiary Guarantor’s Note Guarantee and the applicable Security Documents. Notwithstanding the foregoing, any Subsidiary Guarantor may (i) merge, consolidate or amalgamate with or into, wind up into or transfer all or part of its properties and assets to another Subsidiary Guarantor, Parent or the Issuer, (ii) merge, consolidate or amalgamate with or into any Subsidiary of the Issuer solely for the purpose of reincorporating or reorganizing the Subsidiary Guarantor in the United States, any state thereof, the District of Columbia or any territory thereof, (iii) convert into a corporation, partnership, limited partnership, limited liability company, trust or other entity organized or existing under the laws of the jurisdiction of organization of such Subsidiary Guarantor or a jurisdiction in the United States or (iv) liquidate or dissolve or change its legal form if the Board of the Issuer or the senior management of the Issuer determines in good faith that such action is in the best interests of the Issuer and is not materially disadvantageous to the Holders, in each case, without regard to the requirements set forth in Section 5.01(c).
SECTION 5.02. Successor Corporation Substituted.
Upon any consolidation, merger or amalgamation, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets of the Issuer in accordance with Section 5.01, the successor corporation formed by such consolidation or into or with which the Issuer is merged or amalgamated or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, amalgamation, sale, lease, conveyance or other disposition, the provisions of this Indenture referring to the Issuer shall refer instead to the successor corporation and not to the Issuer), and may exercise every right and power of the Issuer under this Indenture with the same effect as if such Successor Guarantor had been named as the Issuer herein; provided that the Issuer shall not be relieved from the obligation to pay the principal of and interest, if any, on the Notes except in the case of a sale, assignment, transfer, conveyance or other disposition of all of the Issuer’s assets that meets the requirements of Section 5.01.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
(a) An “Event of Default” wherever used herein with respect to the Notes, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) the failure to pay the principal of (or premium, if any, on) the Notes when due and payable and such failure remains uncured;
(2) the failure to pay any interest installment on the Notes when due and payable, which failure continues for more than 30 days;
127
(3) the failure by the Issuer or any Guarantor to comply with or remedy a breach of any covenant in this Indenture applicable to the Notes for more than 90 consecutive days after receipt of written notice given to the Issuer by the Trustee or the Holders of not less than 30% in principal amount of the outstanding Notes (other than those described in clauses (1) through (2) above), except that a failure to comply with Section 4.03 shall only be an Event of Default if it shall have existed and not been remedied for more than 180 consecutive days after written notice given to the Issuer by the Trustee or the Holders of not less than 30% in principal amount of the outstanding Notes;
(4) default under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any existing or future Indebtedness for money borrowed or owed by the Issuer or any of its Wholly-Owned Subsidiaries that are Restricted Subsidiaries or the payment of which is guaranteed by the Issuer or any of its Wholly-Owned Subsidiaries that are Restricted Subsidiaries (other than Indebtedness owed to the Issuer or a Restricted Subsidiary or any Permitted Receivables Financing) if both:
(a) such default either results from the failure to pay any principal of such Indebtedness at its stated final maturity (after giving effect to any applicable grace periods) or relates to an obligation other than the obligation to pay principal of any such Indebtedness at its stated final maturity and results in the holder or holders of such Indebtedness causing such Indebtedness to become due prior to its stated maturity and is not rescinded; and
(b) the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness in default for failure to pay principal at its stated final maturity (after giving effect to any applicable grace periods), or the maturity of which has become due, aggregate $180.0 million (or its foreign currency equivalent) or more at any one time outstanding (such Indebtedness, “Material Indebtedness”);
(5) failure by the Issuer or any Significant Subsidiary (or group of Restricted Subsidiaries that together (as determined as of the most recent consolidated financial statements of the Issuer for a fiscal quarter end provided as required under Section 4.03) would constitute a Significant Subsidiary) to pay final judgments aggregating in excess of $180.0 million (net of (x) amounts covered by insurance policies issued by reputable insurance companies as determined by the Issuer and (y) amounts covered by valid third party indemnification obligations from a third party that is solvent and has been notified of the claim under such indemnification obligation and has not disputed that it is liable for such claim), which final judgments remain unpaid, undischarged and unstayed for a period of more than 60 days after such judgment becomes final, and, in the event such judgment is covered by insurance, an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly stayed;
(6) Parent, any Parent Guarantor, the Issuer or any Significant Subsidiary (or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary), pursuant to or within the meaning of any Bankruptcy Law:
(a) commences proceedings to be adjudicated bankrupt or insolvent;
(b) consents to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under applicable Bankruptcy Law;
128
(c) consents to the appointment of a receiver, liquidator, assignee, trustee, sequestrator or other similar official of it or for all or substantially all of its property;
(d) makes a general assignment for the benefit of its creditors; or
(e) generally is not paying its debts as they become due;
(7) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(a) is for relief against Parent, any Parent Guarantor, the Issuer or any Significant Subsidiary (or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary), in a proceeding in which Parent, any Parent Guarantor, the Issuer, or any Significant Subsidiary (or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary) is to be adjudicated bankrupt or insolvent;
(b) appoints a receiver, liquidator, assignee, trustee, sequestrator or other similar official of Parent, any Parent Guarantor, the Issuer or any Significant Subsidiary (or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary), or for all or substantially all of the property of Parent, any Parent Guarantor, the Issuer or any Significant Subsidiary (or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary); or
(c) orders the liquidation of Parent, any Parent Guarantor, the Issuer or any Significant Subsidiary (or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary);
and the order or decree remains unstayed and in effect for 60 consecutive days;
(8) any Note Guarantee of Parent, any Parent Guarantor, or any Subsidiary Guarantor that is a Significant Subsidiary (or Note Guarantees of any group of Subsidiary Guarantors that, taken together, would constitute a Significant Subsidiary) ceases to be in full force and effect (other than in accordance with the terms of such Note Guarantee) or Parent, any Parent Guarantor, or any such Subsidiary Guarantor or such group of Subsidiary Guarantors denies or disaffirms its obligations under its Note Guarantee (other than by reason of the satisfaction in full of all obligations under this Indenture and discharge of this Indenture or the release of such Note Guarantee in accordance with the terms of this Indenture);
(9) (i) the Liens created by the Security Documents shall at any time not constitute a valid and perfected Lien on any material portion of the Collateral intended to be covered thereby (unless perfection is not required by this Indenture or the Security Documents) other than (A) in accordance with the terms of the relevant Security Document and this Indenture, (B) the satisfaction in full of all Obligations under this Indenture or (C) any loss of perfection that results from the failure of the Notes Collateral Agent to maintain possession of certificates delivered to it representing securities pledged under the Security Documents or to file Uniform Commercial Code continuation statements and (ii) such default continues for 30 days after receipt of written notice given by the Trustee or the Holders of not less than 30% in aggregate principal amount of the then outstanding Notes; or
129
(10) the Issuer or any Subsidiary Guarantor that is a Significant Subsidiary (or any group of Subsidiary Guarantors that together (determined as of the most recent consolidated financial statements of the Issuer for a fiscal quarter or fiscal year end provided as required under Section 4.03 would constitute a Significant Subsidiary)) shall assert, in any pleading in any court of competent jurisdiction, that any security interest in any Security Document on any material portion of the Collateral is invalid or unenforceable.
(b) In the event of any Event of Default specified in clause (4) of Section 6.01(a), such Event of Default and all consequences thereof (excluding any resulting payment default, other than as a result of acceleration of the Notes) shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 30 days after the Issuer becomes aware of such Event of Default:
(1) the Indebtedness or guarantee that is the basis for such Event of Default has been discharged; or
(2) holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default; or
(3) the default that is the basis for such Event of Default has been cured or waived.
SECTION 6.02. Acceleration.
If any Event of Default (other than an Event of Default specified in clauses (6) and (7) of Section 6.01(a) (with respect to the Issuer, any Subsidiary of Parent that is a Parent Guarantor or Parent)) with respect to the Notes at the time outstanding occurs and is continuing under this Indenture, the Trustee or the Holders of at least 30% in aggregate principal amount of the then total outstanding Notes may by a notice in writing to the Issuer (and to the Trustee if given to the Holders) declare the principal of and premium, if any, interest and any other monetary obligations on all the then outstanding Notes to be due and payable immediately. Upon the effectiveness of such declaration, such principal, premium, if any, and interest with respect to the Notes shall be due and payable immediately. The Trustee shall have no obligation to accelerate the Notes if and so long as a committee of its Responsible Officers in good faith determines acceleration is not in the best interest of the Holders of the Notes.
Notwithstanding the foregoing, in the case of an Event of Default arising under clause (6) or (7) of Section 6.01(a) that has occurred and is continuing under this Indenture (with respect to the Issuer, any Subsidiary of Parent that is a Parent Guarantor), all outstanding Notes shall be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
In the event of a declaration of acceleration with respect to the Notes, the Holders of a majority in aggregate principal amount of the then total outstanding Notes by written notice to the Issuer and the Trustee may on behalf of all of the Holders of the Notes rescind and annul such declaration of acceleration and its consequences if the rescission and annulment would not conflict with any judgment or decree and if all existing Events of Default with respect to the Notes (except nonpayment of principal, interest, if any, or premium, if any, that has become due solely because of the acceleration) have been cured or waived.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing with respect to the Notes at the time outstanding, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture with respect to the Notes.
130
The Trustee may maintain a proceeding even if it does not possess any Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default with respect to the Notes shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of the then total outstanding Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default with respect to the Notes and its consequences hereunder, except a continuing Default in the payment of the principal of, premium, if any, or interest on, any Note held by a non-consenting Holder of the Notes (including in connection with an Asset Sale Offer or a Change of Control Offer); provided, subject to Section 6.02, that the Holders of a majority in aggregate principal amount of the then total outstanding Notes may rescind a declaration of acceleration and its consequences, including any related payment default that resulted from such acceleration. Upon any such waiver, such Default with respect to the Notes shall cease to exist, and any Event of Default with respect to the Notes arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
SECTION 6.05. Control by Majority.
Subject to the terms of the Intercreditor Agreements and Section 6.06, the Holders of a majority in aggregate principal amount of the outstanding Notes will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or the Notes Collateral Agent or of exercising any trust or power conferred on the Trustee or the Notes Collateral Agent with respect to the Notes, and, subject to Article 7, the Trustee and the Notes Collateral Agent may act at the direction of the Holders without liability. The Trustee and the Notes Collateral Agent, however, may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee or the Notes Collateral Agent, as the case may be, determines is unduly prejudicial to the rights of any other Holder of a Note or that would involve the Trustee or the Notes Collateral Agent, as the case may be, in personal liability.
SECTION 6.06. Limitation on Suits.
Subject to the terms of the Intercreditor Agreements and Section 6.07, no Holder of a Note shall have any right to institute any proceeding with respect to this Indenture or the Notes or for any remedy thereunder unless:
(1) such Holder has previously given the Trustee and the Issuer written notice that a Default or an Event of Default with respect to the Notes is continuing with respect to the Notes;
(2) Holders of at least 30% in aggregate principal amount of the total outstanding Notes have requested that the Trustee to pursue the remedy in writing;
(3) Holders of the Notes have offered and, if requested, provided to the Trustee for the Notes indemnity or security reasonably satisfactory to the Trustee against any cost, loss, liability or expense;
131
(4) the Trustee has not complied with such request within 60 days after the receipt thereof and the offer of security or indemnity; and
(5) Holders of a majority in aggregate principal amount of the outstanding Notes have not given the Trustee a direction inconsistent with such request within such 60-day period;
provided that the foregoing limitation shall not apply to a suit instituted by a Holder of a Note for the enforcement of payment of the principal of, premium, if any, or interest on such Note on or after the respective due date expressed in such Note.
A Holder of Notes may not use this Indenture to prejudice the rights of another Holder of Notes or to obtain a preference or priority over another Holder of Notes.
SECTION 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal, premium, if any, and interest on such Note, on or after the respective due dates expressed in such Note (including in connection with an Asset Sale Offer or a Change of Control Offer), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a)(1) or (2) with respect to the Notes occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Issuer for the whole amount of principal of, premium, if any, and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. Restoration of Rights and Remedies.
If the Trustee or any Holder of Notes has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceedings, the Issuer, the Guarantors, the Trustee and the Holders of Notes shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders of Notes shall continue as though no such proceeding has been instituted.
SECTION 6.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.07, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
132
SECTION 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article 6 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 6.12. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Issuer (or any other obligor upon the Notes including the Guarantors), its creditors or its property and shall be entitled and empowered to participate as a member in any official committee of creditors appointed in such matter and to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.13. Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order:
(i) to the Trustee, its agents and attorneys for amounts due under Section 7.07, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;
(ii) to Holders of the Notes for amounts due and unpaid on the Notes for principal, premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively; and
(iii) to the Issuer or to such party as a court of competent jurisdiction shall direct, including a Guarantor, if applicable.
The Trustee may fix a Record Date and payment date for any payment to Holders of Notes pursuant to this Section 6.13.
133
SECTION 6.14. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.14 does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default with respect to the Notes has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b) Except during the continuance of an Event of Default with respect to the Notes:
(i) the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this Section 7.01(c) does not limit the effect of Section 7.01(b);
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved in a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05; and
(iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it.
134
(d) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) The Trustee shall be under no obligation to exercise any of its rights or powers under this Indenture at the request or direction of any of the Holders of the Notes unless the Holders of the Notes have offered to the Trustee indemnity or security reasonably satisfactory to the Trustee against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
SECTION 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney at the sole cost of the Issuer and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(b) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if signed by an Officer of the Issuer.
(f) The Trustee shall not be deemed to have notice of any Default or Event of Default unless written notice of any event which is in fact such a Default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.
(g) In no event shall the Trustee be responsible or liable for special, indirect, punitive, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
135
(h) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder, including the Notes Collateral Agent.
(i) The Trustee may request that the Issuer and any Guarantor deliver an Officer’s Certificate setting forth the names of the individuals and/or titles of Officers (with specimen signatures) authorized at such times to take specific actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person specified as so authorized in any certificate previously delivered and not superseded.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days or resign as Trustee. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11.
SECTION 7.04. Trustee’s Disclaimer.
The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.
SECTION 7.05. Notice of Defaults.
If a Default with respect to the Notes occurs and is continuing and if the Trustee has received written notice thereof, the Trustee shall send to each Holder of Notes a notice of the Default within 90 days after having received such notice. Except in the case of a Default relating to the payment of principal, premium, if any, or interest on any Note, the Trustee may withhold from the Holders of Notes notice of any continuing Default if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of Notes. The Trustee shall not be deemed to have received notice of any Default unless written notice of any event which is such a Default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee.
SECTION 7.06. [Reserved].
SECTION 7.07. Compensation and Indemnity.
The Issuer and any Guarantors shall pay to the Trustee from time to time such compensation for its acceptance of this Indenture and services hereunder as the parties shall agree in writing from time to time. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer and any Guarantors shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it (including the reasonable compensation and the expenses and disbursements of its agents and counsel) in addition to the compensation for its services.
136
The Issuer and the Guarantors, jointly and severally, shall indemnify the Trustee for, and hold the Trustee harmless against, any and all loss, damage, claim, liability or expense (including attorneys’ fees) incurred by it in connection with the acceptance or administration of this trust and the performance of its duties hereunder (including the costs and expenses of enforcing this Indenture against the Issuer or any of the Guarantors (including this Section 7.07) or defending itself against any claim whether asserted by any Holder, the Issuer or any Guarantor, or liability in connection with the acceptance, exercise or performance of any of its powers or duties hereunder). The Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer shall defend the claim and the Trustee may have separate counsel and the Issuer shall pay the fees and expenses of such counsel. The Issuer need not reimburse any expense or indemnify against any loss, liability or expense determined to have been caused by the Trustee’s own willful misconduct, negligence or bad faith.
The obligations of the Issuer and the Guarantors, if any, under this Section 7.07 shall survive the satisfaction and discharge of this Indenture or the earlier resignation or removal of the Trustee.
To secure the payment obligations of the Issuer and the Guarantors in this Section 7.07, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(a)(6) or (7) occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of Trust Indenture Act Section 313(b)(2) to the extent applicable.
SECTION 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08. The Trustee may resign with respect to the Notes in writing at any time and be discharged from the trust hereby created by so notifying the Issuer. At any time, the Holders of at least a majority in aggregate principal amount of the Notes then outstanding shall have the right to require the resignation of the Trustee and immediately appoint a successor thereto. The Trustee shall be permitted to rely in good faith on customary certificates of beneficial ownership as evidence of holdings (and shall not require the provision of DTC proxies, medallion-stamped guarantees or other similar evidence) in connection with any determination with respect to the Holders of Notes giving any consent, instruction or authorization under this Indenture. The Issuer may remove the Trustee with respect to the Notes if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
137
If the Trustee resigns or is removed with respect to the Notes or if a vacancy exists in the office of Trustee for any reason, the Issuer shall promptly appoint a successor Trustee.
If a successor Trustee with respect to the Notes does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee (at the Issuer’s expense), the Issuer or the Holders of at least 10% in aggregate principal amount of the then total outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has been a Holder of Notes for at least six months, fails to comply with Section 7.10, such Holder may petition any court of competent jurisdiction for the removal of the Trustee with respect to the Notes and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee with respect to the Notes. The successor Trustee shall send a notice of its succession to Holders of Notes. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuer’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc.(a)
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50.0 million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements of Trust Indenture Act Sections 310(a)(1), (2) and (5). The Trustee is subject to Trust Indenture Act Section 310(b).
SECTION 7.11. Preferential Collection of Claims Against Issuer.
The Trustee is subject to Trust Indenture Act Section 311(a), excluding any creditor relationship listed in Trust Indenture Act Section 311(b). A Trustee who has resigned or been removed shall be subject to Trust Indenture Act Section 311(a) to the extent indicated therein.
138
SECTION 7.12. [Reserved].
SECTION 7.13. Security Documents; Intercreditor Agreements.
By their acceptance of the Notes, the Holders hereby authorize and direct the Trustee and Notes Collateral Agent, as the case may be, to execute and deliver the Intercreditor Agreements and any other Security Documents in which the Trustee or the Notes Collateral Agent, as applicable, is named as a party, including any Security Documents executed after the Issue Date. It is hereby expressly acknowledged and agreed that, in doing so, the Trustee and the Notes Collateral Agent are not responsible for the terms or contents of such agreements, or for the validity or enforceability thereof, or the sufficiency thereof for any purpose. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under, the Intercreditor Agreements or any other Security Documents, the Trustee and the Notes Collateral Agent each shall have all of the rights, immunities, indemnities and other protections granted to it under this Indenture (in addition to those that may be granted to it under the terms of such other agreement or agreements).
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuer may, at its option and at any time, elect to have either Section 8.02 or 8.03 applied to all outstanding Notes upon compliance with the conditions set forth below in this Article 8.
SECTION 8.02. Legal Defeasance and Discharge.
Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.02, the Issuer and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be deemed to have been discharged from their obligations with respect to all outstanding Notes, the related Note Guarantees and the Security Documents on the date the conditions set forth below are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 and the other Sections of this Indenture referred to in (a) and (b) below, to have the Liens on the Collateral released and to have satisfied all their other obligations under the Notes, this Indenture and the Security Documents, including the obligations of the Guarantors (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same, in each case, with respect to the Notes) except for the following provisions which shall survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of Notes to receive payments in respect of the principal of, premium, if any, and interest, if any, on the Notes when such payments are due solely out of the trust created pursuant to this Indenture referred to in Section 8.04;
(b) the Issuer’s obligations with respect to the Notes concerning issuing temporary Notes, registration of the Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust;
(c) the rights, powers, trusts, duties and immunities of the Trustee, and the Issuer’s obligations in connection therewith; and
(d) this Section 8.02.
139
Subject to compliance with this Article 8, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03.
SECTION 8.03. Covenant Defeasance.
Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03, the Issuer and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be released from their obligations under the covenants contained in Sections 4.03, 4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.14, 4.15 and 4.17 and Section 5.01(a)(4), Section 5.01(c) (except as such section relates to Parent or any other Parent Guarantor) and Section 5.01(d) (except as such section relates to Parent or any other Parent Guarantor) with respect to the Notes and to have the Liens on the Collateral released on and after the date the conditions set forth in Section 8.04 are satisfied (“Covenant Defeasance”), and Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders of Notes (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the Notes, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default with respect to the Notes under Section 6.01, but, except as specified above, the remainder of this Indenture and Notes shall be unaffected thereby. In addition, upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04, Sections 6.01(a)(3) (with respect to the covenants contained in the sections of this Indenture specified in this Section 8.03), 6.01(a)(4), 6.01(a)(5), 6.01(a)(6) (solely with respect to Restricted Subsidiaries that are Significant Subsidiaries and any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary), 6.01(a)(7) (solely with respect to Restricted Subsidiaries that are Significant Subsidiaries and any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary), 6.01(a)(8) (except as such section relates to Parent or any other Parent Guarantor), 6.01(a)(9) and 6.01(a)(10) shall not constitute Events of Default with respect to the Notes.
SECTION 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section 8.02 or 8.03 to the Notes:
(1) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, U.S. Government Obligations (that through the scheduled payment of principal and interest in accordance with their terms will provide money in an amount), or a combination thereof, in such amounts as will be sufficient, in the opinion of an Independent Financial Advisor (insofar as any U.S. Government Obligations are so included), to pay the principal of, premium, if any, and interest due on the Notes on the Stated Maturity date or on the Redemption Date, as the case may be, of such principal, premium, if any, or interest on the Notes, and the Issuer must specify whether the Notes are being defeased to Maturity or to a particular Redemption Date;
140
(2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions,
(a) the Issuer has received from, or there has been published by, the United States Internal Revenue Service a ruling, or
(b) since the issuance of the Notes, there has been a change in the applicable U.S. federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, subject to customary assumptions and exclusions, the beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes, as applicable, as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is bound (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith);
(6) the Issuer shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuer or any Guarantor or others; and
(7) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions) each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
141
SECTION 8.05. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 in respect of the Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer or a Guarantor acting as Paying Agent) as the Trustee may determine, to the Holders of Notes of all sums due and to become due thereon in respect of principal, premium and interest, but such money need not be segregated from other funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or U.S. Government Obligations deposited pursuant to Section 8.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon the request of the Issuer any money or U.S. Government Obligations held by it as provided in Section 8.04 which, in the opinion of an Independent Financial Advisor expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(2)), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance of the Notes.
SECTION 8.06. Repayment to Issuer.
Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of, premium or interest on any Note and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Issuer on its request or (if then held by the Issuer) shall be discharged from such trust; and the Holder of such Note shall thereafter look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, shall thereupon cease.
SECTION 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States dollars or U.S. Government Obligations in accordance with Section 8.02 or 8.03, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuer’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03, as the case may be; provided that, if the Issuer makes any payment of principal of, premium or interest on any Note following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of the Notes to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. Without Consent of Holders of Notes.
Notwithstanding Section 9.02, the Issuer, any Guarantor (with respect to a Note Guarantee) and the Trustee and/or the Notes Collateral Agent may amend or supplement this Indenture, the Security Documents, the Notes and any related Note Guarantee without the consent of any Holder:
(1) to cure any ambiguity or omission or correct any defect or inconsistency;
142
(2) to convey, transfer, assign, mortgage or pledge any property to or with the Trustee, or to make such other provisions in regard to matters or questions arising under this Indenture, in each case as shall not adversely affect the interests of any Holders of the Notes in any material respect;
(3) to evidence the succession of another Person to the Issuer or any Guarantor and the assumption by any such successor of the covenants, agreements and obligations of the Issuer or Guarantor, as the case may be, under the Notes, the Note Guarantees, the Security Documents or this Indenture pursuant to Section 5.01;
(4) to surrender any right or power conferred upon the Issuer or to add further covenants, restrictions, conditions or provisions relating to the Issuer or the Guarantors for the protection of the Holders of the Notes, and to add any additional defaults or Events of Default for the Issuer’s or any Guarantor’s failure to comply with any such further covenants, restrictions, conditions or provisions;
(5) to modify or amend this Indenture in such a manner to permit the qualification of this Indenture or any supplemental indenture thereto under the Trust Indenture Act; provided, that no such modification or amendment shall adversely impact the Holders rights under Section 7.08 or otherwise adversely affect the interests of any Holders of the Notes in any material respect;
(6) to add Note Guarantees with respect to any or all of the Notes or to release any Guarantor or Note Guarantee when permitted or required by this Indenture;
(7) to add Collateral with respect to any or all the Notes or to release Collateral from the Lien securing the Notes when permitted or required by the Security Documents, this Indenture or the Intercreditor Agreements (including, for the avoidance of doubt, the release of Collateral that becomes an Excluded Asset and, following the occurrence of an Investment Grade Event, the release of Collateral that was not at such time required under this Indenture to be pledged as security for the Notes);
(8) to release and discharge any Lien securing the Notes when permitted or required by this Indenture (including pursuant to Section 4.12(b));
(9) to provide for the issuance of Additional Notes in accordance with the terms of this Indenture;
(10) to modify or amend the terms of this Indenture in a manner that does not adversely affect the rights of any Holder of the Notes;
(11) to evidence and provide for the acceptance of appointment by a successor or separate Trustee or Notes Collateral Agent with respect to the Notes;
(12) to comply with the rules of any applicable securities depositary;
(13) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(14) to conform the text of the First/Second/Third Lien Intercreditor Agreement to any provision of the “Description of Intercreditor Agreements” section of the New First-Out First Lien Notes Offering Memorandum to the extent that such provisions in the “Description of Intercreditor Agreements” section of the New First-Out First Lien Notes Offering Memorandum were intended to be a verbatim recitation of a provision in the First/Second/Third Lien Intercreditor Agreement;
143
(15) to modify or amend any of the provisions of this Indenture relating to the transfer and legending of the Notes; provided, however, that (a) compliance with this Indenture as so amended would not result in the Notes being transferred in violation of the Securities Act or any other applicable securities law and (b) such amendment does not adversely affect the rights of Holders to transfer the Notes;
(16) in the case of any Security Document, to include therein any legend required to be set forth therein pursuant to the Intercreditor Agreements or to modify any such legend as required by the Intercreditor Agreements;
(17) to enter into any intercreditor agreement having substantially similar terms with respect to the Holders as those set forth in the First/Second/Third Lien Intercreditor Agreement or the Second Lien Pari Passu Lien Intercreditor Agreement, taken as a whole, or any joinder thereto;
(18) with respect to the Intercreditor Agreements, as provided in the relevant Intercreditor Agreement (including to add or replace the secured parties or their respective Designated Representatives and/or to provide for the succession of any parties to the Intercreditor Agreements and other amendments that are administrative or ministerial in nature, including in connection with an amendment, renewal, extension, substitution, refinancing, restructuring, replacement, supplementing or other modification from time to time of any of the Senior Credit Facilities, the New First-Out First Lien Notes, the Exchange Second-Out First Lien Notes, the Existing Secured Notes or any other agreement that is not prohibited by this Indenture); or
(19) to modify any of the provisions of this Indenture, the Notes, any Note Guarantee or the Security Documents in accordance with the immediately following paragraph below.
For the avoidance of doubt, the Holders will be deemed to have consented for purposes of (i) the First/Second/Third Lien Intercreditor Agreement, the Second Lien Pari Passu Lien Intercreditor Agreement and the other Security Documents to any amendments, waivers or other modifications to the First/Second/Third Lien Intercreditor Agreement, the Second Lien Pari Passu Lien Intercreditor Agreement and the other Security Documents, as applicable, (1) to add other parties (or any authorized agent thereof or trustee therefor) holding Obligations that have Pari Passu Lien Priority, Senior Lien Priority or Junior Lien Priority, in each case, that are incurred in compliance with this Indenture and the Security Documents, (2) to establish that the Liens on any Collateral securing such Obligations shall rank under the First/Second/Third Lien Intercreditor Agreement in the case of (A) Second Lien Obligations, equally with, (B) First Lien Obligations, senior to and (C) Junior Lien Obligations, junior to the Liens on such Collateral securing the obligations under this Indenture and the Notes and (3) to establish that the Liens on any Collateral securing such Obligations shall rank equally under the Second Lien Pari Passu Lien Intercreditor Agreement with the Liens on such Collateral securing the obligations under this Indenture and the Notes, all on the terms provided for in the First/Second/Third Lien Intercreditor Agreement and the Second Lien Pari Passu Lien Intercreditor Agreement, as the case may be, in each case, as in effect immediately prior to such amendment. Any such additional party and the Trustee and the Notes Collateral Agent shall be entitled to rely upon an Officer’s Certificate certifying that such Obligations as having Senior Lien Priority, Pari Passu Lien Priority or Junior Lien Priority, as applicable, were issued or borrowed in compliance with this Indenture and the Security Documents.
144
Upon the request of the Issuer accompanied by a resolution of its Board authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 7.02 and Section 9.06, the Trustee and/or the Notes Collateral Agent shall join with the Issuer and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture or the Security Documents and to make any further appropriate agreements and stipulations that may be therein contained; provided that the Trustee and/or the Notes Collateral Agent may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture or Security Documents that affect its own rights, duties or immunities under this Indenture or otherwise. The consent of the Holders is not necessary under this Indenture to approve the particular form of any proposed amendment. It is sufficient if such consent approves the substance of the proposed amendment.
SECTION 9.02. With Consent of Holders of Notes.
Except as provided below in this Section 9.02 with respect to the Notes, the Issuer, any Guarantor (with respect to a Note Guarantee), or the Trustee and/or the Notes Collateral Agent may modify, amend or supplement this Indenture, the Notes, the Note Guarantees, the Intercreditor Agreements and the Security Documents with the consent of the Holders of at least a majority in aggregate principal amount of the Notes (including Additional Notes, if any) then outstanding and affected thereby (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes) and, subject to Sections 6.04 and 6.07, any existing Default or Event of Default with respect to the Notes (other than a Default or Event of Default in the payment of the principal of, premium or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded or annulled) or compliance in respect of the Notes with any provision of this Indenture, Security Documents, the Intercreditor Agreements, the Note Guarantees of the Notes may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes (including Additional Notes, if any) (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes). Section 2.08 and Section 2.09 shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.02.
Upon the request of the Issuer accompanied by a resolution of its Board authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 and Section 9.06, the Trustee and/or the Notes Collateral Agent shall join with the Issuer in the execution of such amended or supplemental indenture, Intercreditor Agreements or Security Documents unless such amended or supplemental indenture, Intercreditor Agreements or Security Documents directly affects the Trustee’s and/or the Notes Collateral Agent’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee and/or the Notes Collateral Agent may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture, Intercreditor Agreement or Security Document.
It shall not be necessary for the consent of the Holders of Notes under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuer shall deliver to the Holders of Notes affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuer to deliver such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver.
145
Without the consent of each Holder of Notes affected thereby, an amendment or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):
(1) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any such Note (or implement a grace period with respect to any such Stated Maturity);
(2) reduce the principal amount of, or the rate of interest on, any such Note;
(3) reduce any premium, if any, or alter the time at which Notes may be redeemed (or implement a grace period with respect to any such Stated Maturity) or the Redemption Price payable upon the redemption of any such Note pursuant to Section 3.07;
(4) reduce the amount of the principal of an original discount Note that would be due and payable upon a declaration of acceleration of the Maturity thereof;
(5) change any place of payment where, or the coin or currency in which, the principal of, premium, if any, or interest on any such Note is payable;
(6) eliminate the contractual right expressly set forth in this Indenture or any Note of any Holder to institute suit for the enforcement of any payment of principal of, premium, if any, or interest on such Note on or after the Stated Maturity or Redemption Date of any such Note;
(7) reduce the percentage in principal amount of the outstanding Notes, the consent of whose Holders is required to approve any such modification or amendment or for any waiver of compliance with, or Defaults under, this Indenture;
(8) modify or amend any of the provisions of Section 6.04 or this Section 9.02, except to increase any percentage vote required or to provide that certain other provisions of this Indenture may not be modified or waived without the consent of the Holder of each Note affected thereby;
(9) waive a Default in the payment of principal of or premium, if any, or interest on any Note (except a rescission or annulment of acceleration of such Note by the Holders of at least a majority in aggregate principal amount of the Notes and a waiver of the payment default that resulted from such acceleration), or in respect of a covenant or provision contained in this Indenture or any Note Guarantee that cannot be amended or modified without the consent of all Holders of such Note;
(10) modify or amend the ranking as to the right of payment of any Note in a manner that would adversely affect the Holders of such Note;
(11) except as expressly permitted by this Indenture, modify or amend the Note Guarantees of any Parent Guarantor or Significant Subsidiary in any manner materially adverse to the Holders of any Note; or
(12) modify or amend any of the provisions of this Section 9.02 (except as provided for herein).
146
Notwithstanding the foregoing, without the consent of the Holders of at least 90% in aggregate principal amount of the Notes then-outstanding, no amendment or waiver may (a) (i) make any change or have the effect of making any change in any Security Document, the Intercreditor Agreements or the provisions in this Indenture dealing with Collateral or application of trust proceeds of the Collateral with the effect of releasing the Liens on all or substantially all of the Collateral which secure the Obligations in respect of the Notes and the Note Guarantees or (ii) change, alter or have the effect of changing or otherwise altering the priority of the Liens securing the Obligations in respect of the Notes or the Note Guarantees or the priority of the Notes or the Note Guarantees as to the application of proceeds with respect to, and distributions made on account of, any Collateral, in each case, in any material portion of the Collateral in any way adverse to the Holders of the Notes in any material respect, other than, in each case, as provided under the terms of the Security Documents or the Intercreditor Agreements, (b) amend, otherwise modify or have the effect of amending or otherwise modifying Section 4.17 or the definition of the term “Priming Financing/Liability Management Transaction” or “Permitted LM Transaction” in any way adverse to the Holders of the Notes in any material respect or (c) amend, otherwise modify or have the effect of amending or otherwise modifying the provisions set forth in clause (1) of Section 4.07(e), except where all Holders are provided an opportunity to provide a pro rata share of any “senior” Indebtedness (including any Priming Debt) on the same terms and for the same fees and benefits.
SECTION 9.03. [Reserved].
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
The Issuer may, but shall not be obligated to, fix a Record Date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver. If a Record Date is fixed, then, notwithstanding the preceding paragraph, those Persons who were Holders at such Record Date (or their duly designated proxies), and only such Persons, shall be entitled to consent to such amendment, supplement, or waiver or to revoke any consent previously given, whether or not such Persons continue to be Holders after such Record Date. No such consent shall be valid or effective for more than 120 days after such Record Date unless the consent of the requisite number of Holders has been obtained.
SECTION 9.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuer in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
147
SECTION 9.06. Trustee and Notes Collateral Agent to Sign Amendments, Etc.
The Trustee and the Notes Collateral Agent, as applicable, shall sign any amendment, supplement or waiver authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee and the Notes Collateral Agent. The Issuer may not sign an amendment, supplement or waiver until its Board approves it. In executing any amendment, supplement or waiver, the Trustee shall receive and (subject to Section 7.01) shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture and that such amendment, supplement or waiver is the legal, valid and binding obligation of the Issuer and any Guarantors party thereto, enforceable against them in accordance with its terms, subject to customary exceptions, and complies with the provisions hereof.
ARTICLE 10
NOTE GUARANTEES
SECTION 10.01. Note Guarantee.
Subject to this Article 10, each of (i) the Guarantors hereby and (ii) any other Guarantors from time to time, upon the execution and delivery of any other supplemental indenture to this Indenture, hereby, jointly and severally, fully and unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (a) the principal of, premium, if any, or interest on the Notes shall be promptly paid in full when due, whether at Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Issuer to the Holders or the Trustee and the Notes Collateral Agent hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that this Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.
Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Notes Collateral Agent, the Trustee or any Holder in enforcing any rights under this Section 10.01.
148
If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Guarantors, any amount paid either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the Maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantees.
Each Note Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation or reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Note Guarantees, whether as a “voidable preference”, “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
In case any provision of any Note Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
The Note Guarantee issued by any Guarantor shall be a general senior obligation of such Guarantor and shall be pari passu in right of payment with all existing and future Senior Indebtedness of such Guarantor (including the guarantee of all Obligations of such Guarantor in respect of the Senior Credit Facilities Indebtedness, the Existing Notes, the Junior Lien Credit Facilities, the Unsecured Notes, the Exchange Second-Out First Lien Notes, the New First-Out First Lien Notes **** and any other Senior Indebtedness).
Each payment to be made by a Guarantor in respect of its Note Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
SECTION 10.02. Limitation on Guarantor Liability.
Subject to this Article 10, each of (i) the Guarantors and (ii) any other Guarantors from time to time, upon the execution and delivery of any other supplemental indenture to this Indenture, and, by its acceptance of Notes, each Holder, confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Guarantee. To effectuate the foregoing
149
intention, the Trustee, the Holders and the Guarantors irrevocably agree that the obligations of each Subsidiary Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Subsidiary Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Subsidiary Guarantor under its Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Note Guarantee shall be entitled upon payment in full of all guaranteed Obligations under this Indenture to a contribution from each other Guarantor in an amount equal to such other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP.
SECTION 10.03. Execution and Delivery.
To evidence its Note Guarantee set forth in Section 10.01, (i) each Guarantor as of the Issue Date shall execute and deliver this Indenture on the Issue Date and (ii) each other Guarantor from time to time shall execute and deliver a supplemental indenture to this Indenture (which may be substantially in the form of the supplemental indenture set forth in Exhibit D).
Upon the execution and delivery of this Indenture or any supplemental indenture to this Indenture, each Guarantor who executes this Indenture or such supplemental indenture agrees that its Note Guarantee set forth in Section 10.01 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
If an Officer whose signature is on a supplemental indenture to this Indenture no longer holds that office at the time the Trustee authenticates the Note, the Note Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.
If required by Section 4.15, the Issuer shall cause any of its Domestic Subsidiaries that is a Wholly-Owned Subsidiary and is a Restricted Subsidiary (other than the Guarantors or a Receivables Subsidiary) to comply with the provisions of Section 4.15 and this Article 10, to the extent applicable.
SECTION 10.04. Subrogation.
Upon the execution and delivery of this Indenture, each Guarantor and, upon the execution and delivery of any supplemental indenture to this Indenture, each other Guarantor, as applicable, shall be subrogated to all rights of Holders of Notes against the Issuer in respect of any amounts paid by any Guarantor pursuant to the provisions of Section 10.01; provided that, if an Event of Default has occurred and is continuing, no Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Issuer under this Indenture or the Notes shall have been paid in full.
SECTION 10.05. Benefits Acknowledged.
Upon the execution and delivery of this Indenture, each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
150
Upon the execution and delivery of any supplemental indenture to this Indenture, each other Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
SECTION 10.06. Release of Note Guarantees.
Each Note Guarantee of the Notes by a Guarantor shall provide by its terms that such Guarantor’s Obligations under this Indenture with respect to such Note Guarantee shall be automatically and unconditionally released and discharged, and no further action by such Guarantor, the Issuer or the Trustee is required for the release of such Guarantor’s Note Guarantee, upon:
(1) in the case of a Subsidiary Guarantor, any sale, exchange, transfer or other disposition (by merger, consolidation, amalgamation, dividend, distribution or otherwise) of the Capital Stock of such Subsidiary Guarantor, after which such Subsidiary Guarantor is no longer a Restricted Subsidiary if such sale, exchange, transfer or other disposition is permitted or not prohibited by the applicable provisions of this Indenture;
(2) in the case of a Subsidiary Guarantor, the release or discharge of the guarantee by (or direct obligation of) such Subsidiary Guarantor of the Senior Credit Facilities or the release or discharge of such other guarantee or direct obligation that resulted in the creation of such Note Guarantee, except a discharge or release by or as a result of payment under such guarantee or payment of such obligation after the occurrence of a payment default or acceleration thereunder (it being understood that a release subject to a contingent reinstatement is still a release);
(3) in the case of a Subsidiary Guarantor, the designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary as permitted or not prohibited by the applicable provisions of this Indenture;
(4) with respect to the Notes, the Issuer exercising the legal defeasance option or covenant defeasance option with respect to the Notes in accordance with Article 8 or the Issuer’s obligations under this Indenture with respect to the Notes being discharged in accordance with the terms of this Indenture and the applicable Security Documents or in accordance with the provisions of the Intercreditor Agreements;
(5) the merger, amalgamation or consolidation of any Subsidiary Guarantor with and into the Issuer or another Subsidiary Guarantor that is the surviving Person in such merger, amalgamation or consolidation, or upon the liquidation of a Subsidiary Guarantor;
(6) in the case of a Subsidiary Guarantor, upon the occurrence of an Investment Grade Event; provided that such Note Guarantee shall not be released pursuant to this clause (6) for so long as such Subsidiary Guarantor is an obligor with respect to any Indebtedness under the Senior Credit Facilities, any other First Lien Obligations, the New First-Out First Lien Notes or the Existing Notes; or
(7) in the case of Parent or any other Parent Guarantor, the release or discharge of the guarantees by (or direct obligation of) Parent or such Parent Guarantor of the Senior Credit Facilities, any other First Lien Obligations, the New First-Out First Lien Notes, the Existing Notes and any other Material Indebtedness of the Issuer (other than Obligations under the Notes) then guaranteed by Parent or such other Parent Guarantor, to the extent such guarantees or direct obligations have been released or discharged or are released or discharged substantially contemporaneously with the release or discharge of such guarantee under the Notes (the date on which such release or discharge occurs, the “Parent Guarantee Release Date”).
151
Notwithstanding the foregoing, the Note Guarantee of any Subsidiary Guarantor shall not be released from its Note Guarantee (i) in connection with or in furtherance of a Priming Financing/Liability Management Transaction, (ii) upon such Subsidiary Guarantor becoming a Restricted Subsidiary that is not a Wholly-Owned Subsidiary except in connection with a bona-fide joint venture with a Person that is not an Affiliate of the Issuer in the ordinary course of business or (iii) upon such Subsidiary Guarantor no longer remaining a Restricted Subsidiary primarily for the purpose of releasing its Note Guarantee. Any release of a Subsidiary Guarantor will be deemed to be the incurrence of an Investment in such released Subsidiary Guarantor at the time of such release in an amount equal to the portion of the fair market value (as determined in good faith by the Issuer) of the Issuer’s retained ownership interest, if any, in such Person; provided that such release will not be permitted unless such Investment is not prohibited by the applicable provisions of this Indenture.
Upon the Parent Guarantee Release Date, the Events of Default set forth in Section 6.01(a) shall cease to apply to Parent or such Parent Guarantor, as the case may be; provided that, if at any time after the Parent Guarantee Release Date, Parent or such Parent Guarantor, as the case may be, shall guarantee any Material Indebtedness of the Issuer, the guarantee obligations of Parent or such Parent Guarantor, as the case may be, shall be automatically reinstated, and the Events of Default set forth in Section 6.01(a) shall again apply to Parent or such Parent Guarantor, as the case may be. Parent or such Parent Guarantor, as the case may be, shall take all actions reasonably necessary in order to provide the same Note Guarantee as would be required had the Parent Guarantee Release Date never occurred.
ARTICLE 11
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture.
This Indenture shall, upon the Issuer’s request, cease to be of further effect with respect to the Notes specified by the Issuer and any related Note Guarantees (except as to any surviving rights of registration of transfer or exchange of Notes herein expressly provided for), and the Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to the Notes, when:
(1) either (A) all Notes theretofore authenticated and delivered (other than (i) Notes which have been mutilated, destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.07 and (ii) Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer or the Guarantors and thereafter repaid to the Issuer or the Guarantors or discharged from such trust), have been delivered to the Trustee for cancellation; or
(B) (w) all Notes not theretofore delivered to the Trustee for cancellation (i) have become due and payable by reason of the making of a notice of redemption or otherwise, (ii) will become due and payable at their Stated Maturity within one year or (iii) are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer;
152
(x) the Issuer or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders of the Notes, cash in U.S. dollars, U.S. Government Obligations, or a combination thereof, in an amount sufficient to pay and discharge the entire indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal, premium, if any, and accrued interest to the date of such deposit (in the case of Notes which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(y) no Event of Default (other than that resulting from borrowing funds to be applied to make such deposit or the grant of any Lien securing such borrowing or any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith) with respect to the Notes or this Indenture in respect of the Notes shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit, and such deposit will not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is bound (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith); and
(z) the Issuer has delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Notes at Maturity or the Redemption Date, as the case may be;
(2) the Issuer has paid or caused to be paid all other sums payable hereunder by the Issuer with respect to the Notes; and
(3) the Issuer has delivered an Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions) to the Trustee, each stating that all conditions precedent herein relating to the satisfaction and discharge of this Indenture as to the Notes have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Issuer to the Trustee under Section 7.07 and, if money shall have been deposited with the Trustee pursuant to subclause (1)(B) of this Section 11.01, the obligations of the Trustee under Section 11.02 and Section 8.06 shall survive.
SECTION 11.02. Application of Trust Money.
Subject to the provisions of Section 8.06, all money and U.S. Government Obligations deposited with the Trustee pursuant to Section 11.01 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto as set forth in the Registrar, of the principal, premium and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
153
If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with Section 11.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s and any Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01; provided that if the Issuer has made any payment of principal of, premium or interest on any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of the Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE 12
COLLATERAL
SECTION 12.01. Security Documents.
From and after the consummation of the Transactions and upon the execution and delivery of the Security Documents, the due and punctual payment of the principal of, premium, if any, or interest on the Notes when and as the same shall be due and payable, whether on an Interest Payment Date, at Maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of, premium, if any, or interest on the Notes and performance of all other Obligations of the Issuer and the Guarantors to the Holders or the Trustee under this Indenture, such Notes, the related Note Guarantees and the Security Documents with respect to the Notes, according to the terms hereunder or thereunder, shall be secured as provided in the Security Documents, which define the terms of the Liens that secure the Notes Obligations. The Trustee, the Issuer and the Guarantors hereby acknowledge and agree that the Notes Collateral Agent holds the Collateral in trust for the benefit of the Holders, the Trustee and the Notes Collateral Agent and pursuant to the terms of the Security Documents. Each Holder, by accepting a Note, consents and agrees to the terms of the Security Documents (including the provisions providing for the possession, use, release and foreclosure of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms and this Indenture, and authorizes and directs each of the Trustee and the Notes Collateral Agent to enter into the Security Documents to which it is named as a party on the Issue Date, and at any time after the Issue Date, if applicable, and to perform its obligations and exercise its rights thereunder in accordance therewith. Upon the execution and delivery of the Security Documents, the Issuer shall deliver to the Notes Collateral Agent copies of all documents required to be filed pursuant to the Security Documents, and will do or cause to be done all such acts and things as may be reasonably required by the next sentence of this Section 12.01, to assure and confirm to the Notes Collateral Agent the security interest in the Collateral contemplated hereby, by the Security Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and of the Notes secured hereby, according to the intent and purposes herein expressed. The Issuer shall, and shall cause the Guarantors to, take any and all actions and make all filings (including the filing of UCC financing statements, continuation statements and amendments thereto) required to cause the Security Documents to create and maintain, as security for the Obligations of the Issuer and the Guarantor to the secured parties under this Indenture, the Notes, the Note Guarantees and the Security Documents, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Security Documents), in favor of the Notes Collateral Agent for the benefit of the Holders, the Trustee and the Notes Collateral Agent subject to no Liens other than Permitted Liens. It is further understood and agreed that there shall be no Security Document (or other security agreements or pledge agreements) governed under the laws of any non-U.S. jurisdiction.
154
SECTION 12.02. Release of Collateral.
(a) Collateral may be released from the Lien and security interest created by the Security Documents at any time and from time to time with respect to the Notes in accordance with the provisions of the Security Documents and this Indenture. Notwithstanding anything to the contrary in the Security Documents and this Indenture, the Issuer and the Guarantors will be entitled to the release of property and other assets constituting Collateral from the Liens securing the Notes and the Notes Obligations under any one or more of the following circumstances:
(1) to enable the Issuer or any Guarantor to consummate the sale, transfer or other disposition of such property or assets to the extent not prohibited under Section 4.10 hereof;
(2) in the case of a Guarantor that is released from its Note Guarantee with respect to the Notes pursuant to the terms of this Indenture with respect to the property and other assets of such Guarantor, upon the release of such Guarantor from such Note Guarantee;
(3) with respect to Collateral that is Capital Stock, upon (i) the dissolution or liquidation of the issuer of that Capital Stock that is not prohibited by this Indenture or (ii) upon the designation by Issuer of the issuer of that Capital Stock as an Unrestricted Subsidiary;
(4) with respect to any Collateral that becomes an “Excluded Asset”, upon it becoming an Excluded Asset;
(5) upon the occurrence of an Investment Grade Event;
(6) in accordance with Section 4.12(b);
(7) to the extent the Liens on the Collateral securing the First Lien Obligations are released by the First Lien Representative in compliance with the terms of the First Lien Debt Documents (other than any release by, or as a result of, payment of such Obligations), upon the release of such Liens;
(8) in connection with any enforcement action taken by the First Lien Representative (acting on behalf of the relevant holders of the First Lien Obligations) in accordance with the terms of the First/Second/Third Lien Intercreditor Agreement; or
(9) pursuant to Article 9 hereof.
(b) The Liens on the Collateral securing the Notes and the related Note Guarantees also will be terminated and released:
(1) upon payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations with respect to the Notes under this Indenture, the related Note Guarantees and the Security Documents with respect to the Notes that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(2) upon a Legal Defeasance or Covenant Defeasance under this Indenture pursuant to Sections 8.02 and 8.03, respectively, or a satisfaction and discharge of this Indenture pursuant to Section 11.01; or
(3) pursuant to the Intercreditor Agreements and the Security Documents with respect to the Notes.
(c) Any Lien on any Collateral may be released or subordinated to the holder of any Lien on such Collateral securing any Financing Lease Obligations or any Lien on such Collateral that is permitted by clause (16) of the definition of “Permitted Liens” to the extent required by the terms of the Obligations secured by such Liens.
155
(d) With respect to any release of Collateral, upon receipt of an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent under this Indenture and the Security Documents, as applicable, to such release have been met and that it is permitted for the Trustee or the Notes Collateral Agent to execute and deliver the documents requested by the Issuer in connection with such release and any necessary or proper instruments of termination, satisfaction or release prepared by the Issuer, the Trustee and the Notes Collateral Agent shall, execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture, the Security Documents or the Intercreditor Agreements.
Neither the Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate or Opinion of Counsel, and notwithstanding any term hereof or in any Security Document to the contrary, the Trustee and the Notes Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officer’s Certificate and Opinion of Counsel.
SECTION 12.03. Suits to Protect the Collateral.
Subject to the provisions of Article 7 and the Security Documents, the Trustee may or may direct the Notes Collateral Agent to take all actions it determines in order to:
(a) enforce any of the terms of the Security Documents; and
(b) collect and receive any and all amounts payable in respect of the Obligations hereunder.
Subject to the provisions of the Security Documents (including the Intercreditor Agreements), the Trustee and the Notes Collateral Agent shall have power to institute and to maintain such suits and proceedings as the Trustee may determine to prevent any impairment of the Collateral by any acts which may be unlawful or in violation of any of the Security Documents or this Indenture, and such suits and proceedings as the Trustee may determine to preserve or protect its interests and the interests of the Holders in the Collateral, as applicable. Nothing in this Section 12.03 shall be considered to impose any such duty or obligation to act on the part of the Trustee or the Notes Collateral Agent.
SECTION 12.04. Authorization of Receipt of Funds by the Trustee Under the Security Documents.
Subject to the provisions of the Intercreditor Agreements, the Trustee is authorized to receive any funds for the benefit of the Holders distributed under the Security Documents, and to make further distributions of such funds to the Holders according to the provisions of this Indenture.
SECTION 12.05. Purchaser Protected.
In no event shall any purchaser in good faith of any property purported to be released hereunder be bound to ascertain the authority of the Notes Collateral Agent or the Trustee to execute the release or to inquire as to the satisfaction of any conditions required by the provisions hereof for the exercise of such authority or to see to the application of any consideration given by such purchaser or other transferee; nor shall any purchaser or other transferee of any property or rights permitted by this Article 12 to be sold be under any obligation to ascertain or inquire into the authority of the Issuer or the applicable Guarantor to make any such sale or other transfer.
156
SECTION 12.06. Powers Exercisable by Receiver or Trustee.
In case the Collateral shall be in the possession of a receiver or trustee, lawfully appointed, the powers conferred in this Article 12 upon the Issuer or a Guarantor with respect to the release, sale or other disposition of such property may be exercised by such receiver or trustee, and an instrument signed by such receiver or trustee shall be deemed the equivalent of any similar instrument of the Issuer or a Guarantor or of any Officer or Officers thereof required by the provisions of this Article 12; and if the Trustee shall be in the possession of the Collateral under any provision of this Indenture, then such powers may be exercised by the Trustee.
SECTION 12.07. Release Upon Termination of the Issuer’s Obligations.
In the event that the Issuer delivers to the Trustee an Officer’s Certificate certifying that (i) payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, such Notes, the related Note Guarantees and the Security Documents that were due and payable at or prior to the time such principal, together with accrued and unpaid interest, were paid or (ii) the Issuer shall have either (x) exercised their Legal Defeasance option or their Covenant Defeasance option, in each case in compliance with the provisions of Article 8 or (y) satisfied and discharged this Indenture in compliance with the provisions of Article 11, and in each case of (i) and (ii), an Opinion of Counsel stating that all conditions precedent to the release of such Lien in the Collateral by the Trustee have been satisfied, the Trustee and the Notes Collateral Agent shall deliver to the Issuer a release of Lien in the Collateral without recourse, representations or warranties and shall do or cause to be done (at the expense of the Issuer) all acts reasonably requested of them to release such Lien as soon as is reasonably practicable.
SECTION 12.08. Notes Collateral Agent.
(a) The Issuer and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture and the Security Documents and the Issuer and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on its behalf under the provisions of this Indenture and the Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent with respect to such Holder’s Notes by the terms of this Indenture and the Security Documents, and consents and agrees to the terms of each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 12.08. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture and the Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein with respect to such Holder’s Notes and therein shall be authorized and binding upon such Holder. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Security Documents, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Security Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or the Issuer or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the Security Documents or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with
157
reference to the Notes Collateral 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 merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture or the Security Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Security Document or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or a Guarantor or Affiliate of the Issuer or any Guarantor, or any Officer or Related Person thereof, contained in this Indenture or the Security Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture or the Security Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture or the Security Documents, or for any failure of the Issuer or any Guarantor or any other party to this Indenture or the Security Documents to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture or the Security Documents or to inspect the properties, books, or records of the Issuer or any Guarantor or any Affiliate of the Issuer or a Guarantor.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Guarantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture or the Security Documents unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be offered security or indemnity to its satisfaction by the Holders of such Notes against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Security Documents in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders of such Notes.
158
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 12.08).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor notes collateral agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture, the Issuer shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of Notes then outstanding, may appoint a successor notes collateral agent, subject to the consent of the Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default). If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. In addition, the Holders of at least a majority in aggregate principal amount of the Notes then outstanding shall have the right to require the resignation of the Notes Collateral Agent and immediately appoint a successor thereto. The Notes Collateral Agent shall be permitted to rely in good faith on customary certificates of beneficial ownership as evidence of holdings (and shall not require the provision of DTC proxies, medallion-stamped guarantees or other similar evidence) in connection with any determination with respect to the Holders of Notes giving any consent, instruction or authorization under this Indenture. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor notes collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 12.08 (and Section 7.07) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
(g) The Notes Collateral Agent shall be authorized to appoint co-Notes Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Security Documents, neither the Notes Collateral Agent nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The Notes Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Notes Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own gross negligence or willful misconduct.
159
(h) The Notes Collateral Agent is authorized and directed to (i) enter into the Security Documents to which it is party, whether executed on or after the Issue Date, (ii) make the representations of the Holders set forth in the Security Documents, (iii) bind the Holders on the terms as set forth in the Security Documents and (iv) perform and observe its obligations under the Security Documents.
(i) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Notes Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Notes Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 6, the Trustee shall promptly turn the same over to the Notes Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Notes Collateral Agent such proceeds to be applied by the Notes Collateral Agent pursuant to the terms of this Indenture and the Security Documents.
(j) The Notes Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon request from the Issuer, the Trustee shall notify the Notes Collateral Agent thereof and promptly shall deliver such Collateral to the Notes Collateral Agent or otherwise deal with such Collateral in accordance with the Notes Collateral Agent’s instructions.
(k) The Notes Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by the Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Notes Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer or Guarantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Notes Collateral Agent pursuant to this Indenture or any Security Document other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of Notes or as otherwise provided in the Security Documents.
(l) If the Issuer or any Guarantor (i) incurs any obligations in respect of First Lien Obligations or Second Lien Obligations at any time when no applicable intercreditor agreement is in effect or at any time when Indebtedness constituting First Lien Obligations or Second Lien Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the applicable Intercreditor Agreement) in favor of a designated agent or representative for the holders of the First Lien Obligations or Second Lien Obligations so incurred, together with an Opinion of Counsel, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement (at the sole expense and cost of the Issuer, including legal fees and expenses of the Notes Collateral Agent), bind the Holders of Notes secured as provided in the Security Documents and this Article 12 on the terms set forth therein and perform and observe its obligations thereunder; provided that neither an Officer’s Certificate nor an Opinion of Counsel shall be required in connection with the applicable Intercreditor Agreements to be entered into by the Notes Collateral Agent on the Issue Date.
(m) No provision of this Indenture or any Security Document shall require the Notes Collateral Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders (or the Trustee in the
160
case of the Notes Collateral Agent) if it shall have received indemnity satisfactory to the Notes Collateral Agent and the Trustee against potential costs and liabilities incurred by the Notes Collateral Agent relating thereto. Notwithstanding anything to the contrary contained in this Indenture or the Security Documents, in the event the Notes Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Notes Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the mortgages or take any such other action if the Notes Collateral Agent has determined that the Notes Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances. The Notes Collateral Agent shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient.
(n) The Notes Collateral Agent (i) shall not be liable for any action taken or omitted to be taken by it in connection with this Indenture and the Security Documents or instrument referred to herein or therein, except to the extent that any of the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct, (ii) shall not be liable for interest on any money received by it except as the Notes Collateral Agent may agree in writing with the Issuer (and money held in trust by the Notes Collateral Agent need not be segregated from other funds except to the extent required by law) and (iii) may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Notes Collateral Agent shall not be construed to impose duties to act.
(o) Neither the Notes Collateral Agent nor the Trustee shall be liable for delays or failures in performance resulting from acts caused by, directly or indirectly, forces beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Notes Collateral Agent nor the Trustee shall be liable for any indirect, special, punitive, incidental or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
(p) The Notes Collateral Agent does not assume any responsibility for any failure or delay in performance or any breach by the Issuer or any Guarantor under this Indenture and the Security Documents. The Notes Collateral Agent shall not be responsible to the Holders or any other Person for any recitals, statements, information, representations or warranties contained in this Indenture, the Security Documents or in any certificate, report, statement, or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture or any Security Document; the execution, validity, genuineness, effectiveness or enforceability of any Security Documents of any other party thereto; the genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral, or the validity, effectiveness, enforceability, sufficiency, extent, perfection or priority of any Lien therein; the validity, enforceability or collectability of any Obligations; the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any obligor; or for any failure of any obligor to perform its Obligations under this Indenture and the Security Documents. The Notes Collateral Agent shall have no obligation to any Holder or any other Person to ascertain or inquire into the existence of any Default or Event of Default, the observance or performance by any obligor of any terms of this Indenture and the Security Documents, or the satisfaction of any conditions precedent contained in this Indenture and any Security Documents. The Notes Collateral Agent shall not be required to initiate or conduct any litigation or collection or other proceeding under this Indenture and the Security Documents unless expressly set forth hereunder or thereunder. The Notes Collateral Agent shall have the right at any time to seek instructions from the Holders with respect to the administration of this Indenture and the Security Documents.
161
(q) The parties hereto and the Holders hereby agree and acknowledge that neither the Notes Collateral Agent nor the Trustee shall assume, be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including but not limited to, any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result of this Indenture, the Security Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture and the Security Documents, the Notes Collateral Agent may hold or obtain indicia of ownership primarily to protect the security interest of the Notes Collateral Agent in the Collateral and that any such actions taken by the Notes Collateral Agent shall not be construed as or otherwise constitute any participation in the management of such Collateral. In the event that the Notes Collateral Agent or the Trustee is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Notes Collateral Agent or the Trustee’s sole discretion may cause the Notes Collateral Agent or the Trustee to be considered an “owner or operator” under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause the Notes Collateral Agent or the Trustee to incur liability under CERCLA or any other federal, state or local law, the Notes Collateral Agent and the Trustee reserves the right, instead of taking such action, to either resign as the Notes Collateral Agent or the Trustee or arrange for the transfer of the title or control of the asset to a court-appointed receiver. Neither the Notes Collateral Agent nor the Trustee shall be liable to the Issuer, the Guarantors or any other Person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Notes Collateral Agent or the Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment. If at any time it is necessary or advisable for property to be possessed, owned, operated or managed by any Person (including the Notes Collateral Agent or the Trustee) other than the Issuer or the Guarantors, Holders of a majority in aggregate principal amount of the then outstanding Notes affected thereby shall direct the Notes Collateral Agent or the Trustee to appoint an appropriately qualified Person (excluding the Notes Collateral Agent or the Trustee) who they shall designate to possess, own, operate or manage, as the case may be, the property.
(r) Upon the receipt by the Notes Collateral Agent of a written request of the Issuer signed by an Officer (a “Security Document Order”), the Notes Collateral Agent is hereby authorized to execute and enter into, and shall execute and enter into, without the further consent of any Holder or the Trustee, any Security Document or amendment or supplement thereto, to be executed after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Notes Collateral Agent pursuant to, and is a Security Document Order referred to in, this Section 12.08(r), and (ii) instruct the Notes Collateral Agent to execute and enter into such Security Document or amendment or supplement thereto. Any such execution of a Security Document or amendment or supplement thereto, shall be at the direction and expense of the Issuer, upon delivery to the Notes Collateral Agent of an Officer’s Certificate and Opinion of Counsel stating that all conditions precedent to the execution and delivery of the Security Document or amendment or supplement thereto, have been satisfied. The Holders, by their acceptance of the Notes, hereby authorize and direct the Notes Collateral Agent to execute such Security Documents or amendment or supplement thereto.
162
(s) Subject to the provisions of the applicable Security Documents and the Intercreditor Agreements, each Holder, by acceptance of the Notes, agrees that the Notes Collateral Agent shall execute and deliver the Security Documents and Intercreditor Agreements to which it is a party and all agreements, documents and instruments incidental thereto, and act in accordance with the terms thereof. For the avoidance of doubt, the Notes Collateral Agent shall have no discretion under this Indenture, the Intercreditor Agreements or the Security Documents and shall not be required to make or give any determination, consent, approval, request or direction without the written direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes or the Trustee, as applicable.
(t) After the occurrence and continuance of an Event of Default, the Trustee, acting at the direction of the Holders of a majority of the aggregate principal amount of the then outstanding Notes, may direct the Notes Collateral Agent in connection with any action required or permitted by this Indenture, the Security Documents or the Intercreditor Agreements.
(u) The Notes Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, for turnover to the Trustee to make further distributions of such funds to itself, the Trustee and the Holders in accordance with the provisions of Section 6.13 and the other provisions of this Indenture.
(v) In each case that the Notes Collateral Agent may or is required hereunder or under any Security Document to take any action (an “Action”) with respect to the Notes, including without limitation to make any determination, to give consents, to exercise rights, powers or remedies, to release or sell Collateral or otherwise to act hereunder or under any Security Document, the Notes Collateral Agent may seek direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes. The Notes Collateral Agent shall not be liable with respect to any Action taken or omitted to be taken by it in accordance with the direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes. If the Notes Collateral Agent shall request direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes with respect to any Action, the Notes Collateral Agent shall be entitled to refrain from such Action unless and until the Notes Collateral Agent shall have received direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes, and the Notes Collateral Agent shall not incur liability to any Person by reason of so refraining.
(w) Notwithstanding anything to the contrary in this Indenture or in any Security Document, in no event shall the Notes Collateral Agent or the Trustee be responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security interests or Liens intended to be created by this Indenture, the Security Documents (including without limitation the filing or continuation of any UCC financing or continuation statements or similar documents or instruments), nor shall the Notes Collateral Agent or the Trustee be responsible for, and neither the Notes Collateral Agent nor the Trustee makes any representation regarding, the validity, effectiveness or priority of any of the Security Documents or the security interests or Liens intended to be created thereby.
(x) Before the Notes Collateral Agent acts or refrains from acting in each case at the request or direction of the Issuer or the Guarantors, it may require an Officer’s Certificate and an Opinion of Counsel, which shall conform to the provisions of this Section 12.08. The Notes Collateral Agent shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion.
163
(y) Notwithstanding anything to the contrary contained herein, the Notes Collateral Agent shall act pursuant to the instructions of the Holders and the Trustee solely with respect to the Security Documents and the Collateral.
SECTION 12.09. Other Limitations.
(a) Liens required to be granted from time to time pursuant to this Indenture shall be subject to exceptions and limitations set forth in the Security Documents;
(b) control agreements or other control or similar arrangements shall not be required with respect to deposit accounts, securities accounts, commodities accounts or other assets requiring perfection by control agreements;
(c) no actions in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction shall be required to be taken to create any security interests in assets located or titled outside of the United States (including any Equity Interests of any Foreign Subsidiary and foreign intellectual property) or to perfect or make enforceable any security interests in any such assets (it being understood that there shall be no Security Document (or other security agreements or pledge agreements) governed under the laws of any non-U.S. jurisdiction); and
(d) no actions shall be required to perfect a security interest in letter of credit rights (other than the filing of a UCC financing statement) and no perfection actions (other than the filing of a UCC financing statement) shall be required with respect to promissory notes evidencing debt for borrowed money in a principal amount of less than $10.0 million.
ARTICLE 13
MISCELLANEOUS
SECTION 13.01. [Reserved].
SECTION 13.02. Notices.
Any notice or communication by the Issuer, any Guarantor or the Trustee or the Notes Collateral Agent to the others is duly given if in writing and delivered in person or mailed by first-class mail (registered or certified, return receipt requested), or overnight air courier guaranteeing next day delivery, to the others’ address, or given electronically:
164
If to the Issuer and/or any Guarantor:
Sinclair Television Group, Inc.
10706 Beaver Dam Road
Hunt Valley, Maryland 21030
Attention: Lucy Rutishauser
Justin Bray
David Gibber
Email: LRutisha@sbgtv.com
JLBray@sbgtv.com
dbgibber@sbgtv.com
If to the Trustee or the Notes Collateral Agent:
U.S. Bank Trust Company, National Association
Corporate Trust Services, 18th Floor
1021 East Cary Street, Suite 1850
Richmond, Virginia 23219
Attention: Melody Scott
Email: melody.scott@usbank.com
The Issuer, any Guarantor, the Trustee or the Notes Collateral Agent, by notice to the others, may designate additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; on the first day on which publication is made, if given by publication; five calendar days after being deposited in the mail, postage prepaid, if mailed by first-class mail; at the time delivered, if sent by overnight air courier guaranteeing next day delivery; and at the time sent, if given electronically; provided that any notice or communication delivered to the Trustee or the Notes Collateral Agent shall be deemed effective upon actual receipt thereof. Notice otherwise given in accordance with the procedures of DTC will be deemed given on the date sent to DTC.
Any notice or communication to a Holder shall be mailed by first-class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. Notwithstanding anything to the contrary contained herein, as long as the Notes are in the form of a Global Note, notice to the Holders may be made electronically in accordance with procedures of the Depositary for such Note.
If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
If the Issuer delivers a notice or communication to Holders, it shall deliver a copy to the Trustee and the Notes Collateral Agent at the same time.
The Trustee and the Notes Collateral Agent agree to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail or other similar unsecured electronic methods. Electronic signatures believed by the Trustee and the Notes Collateral Agent to comply with the ESIGN Act of 2000 or other applicable law (including electronic images of handwritten signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign or any other digital signature provider
165
identified by any other party hereto and acceptable to the Trustee and the Notes Collateral Agent) shall be deemed original signatures for all purposes. If the Issuer, any Guarantor or any Holder elects to give the Trustee or the Notes Collateral Agent e-mail instructions (or instructions by a similar electronic method) and the Trustee or the Notes Collateral Agent in its discretion elects to act upon such instructions, the Trustee’s or the Notes Collateral Agent’s understanding of such instructions shall be deemed controlling. Neither the Trustee nor the Notes Collateral Agent shall be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s or the Notes Collateral Agent’s reliance upon and compliance with such instructions notwithstanding if such instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions and electronic signatures agrees to assume all risks arising out of the use of such electronic signatures and electronic methods to submit instructions and directions to the Trustee or the Notes Collateral Agent, including without limitation the risk of the Trustee or the Notes Collateral Agent acting on unauthorized instructions, and the risk of interception and misuse by third parties. Notwithstanding the foregoing, Agent may in any instance and in its sole discretion require that a Notice in the form of an original document bearing a manual signature be delivered to Agent in lieu of, or in addition to, any such electronic Notice.
SECTION 13.03. Communication by Holders of Notes with Other Holders of Notes.
Holders of Notes may communicate pursuant to Trust Indenture Act Section 312(b) with other Holders of Notes with respect to their rights under this Indenture or the Notes. The Issuer, the Trustee, the Registrar and anyone else shall have the protection of Trust Indenture Act Section 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer or any of the Guarantors to the Trustee to take any action under this Indenture, the Issuer or such Guarantor, as the case may be, shall furnish to the Trustee or, if such action relates to a Security Document or an Intercreditor Agreement, the Notes Collateral Agent:
(a) An Officer’s Certificate in form and substance reasonably satisfactory to the Trustee or the Notes Collateral Agent, as applicable (which shall include the statements set forth in Section 13.05), stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture and the Security Documents relating to the proposed action have been satisfied; and
(b) An Opinion of Counsel in form and substance reasonably satisfactory to the Trustee or the Notes Collateral Agent, as applicable (which shall include the statements set forth in Section 13.05) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
SECTION 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to Section 4.04) and shall include:
(a) a statement that the Person making such certificate or opinion has read such covenant or condition;
166
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with (and, in the case of an Opinion of Counsel, may be limited to reliance on an Officer’s Certificate as to matters of fact); and
(d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
SECTION 13.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
SECTION 13.07. No Personal Liability of Directors, Managers, Officers, Employees and Stockholders.
No past, present or future director, manager, officer, employee, incorporator, member, partner or stockholder of the Issuer or any Guarantor or any of their parent companies or entities (other than the Issuer in respect of the Notes and each Guarantor in respect of its Note Guarantee) shall have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Note Guarantees, this Indenture or the Security Documents (including any Intercreditor Agreements) or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder by accepting Notes waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
SECTION 13.08. Governing Law; Submission to Jurisdiction.
THIS INDENTURE, THE NOTES AND ANY NOTE GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Each of the parties hereto hereby irrevocably submits to the jurisdiction of any New York State court sitting in the Borough of Manhattan in the City of New York or any federal court sitting in the Borough of Manhattan in the City of New York inrespect of any suit, action or proceeding arising out of or relating to this Indenture, any Note Guarantee and the Notes, and irrevocably accepts for itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaidcourts.
SECTION 13.09. Waiver of Jury Trial.
EACH OF THE ISSUER, THE GUARANTORS, THE TRUSTEE AND EACH HOLDER OF A NOTE BY ITS ACCEPTANCE THEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 13.10. Force Majeure.
In no event shall the Trustee or the Notes Collateral Agent be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
167
SECTION 13.11. Foreign Account Tax Compliance Act (FATCA).
In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (“Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent, holder or other institution is or has agreed to be subject to related to this Indenture, the Issuer agrees (i) to use commercially reasonable efforts to provide to the Trustee sufficient information about Holders or other applicable parties and/or transactions related to this Indenture (including any modification to the terms of such transactions) so that the Trustee can determine whether it has tax related obligations under Applicable Law and (ii) that the Trustee shall be entitled to make any withholding or deduction from payments under this Indenture to the extent necessary to comply with Applicable Law for which the Trustee shall not have any liability. The terms of this Section 13.11 shall survive the termination of this Indenture.
SECTION 13.12. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer or a Guarantor or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 13.13. Successors.
All agreements of the Issuer in this Indenture and the Notes shall bind its successors. All agreements of the Trustee and the Notes Collateral Agent in this Indenture shall bind each of its successors. All agreements of each Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section 10.06.
SECTION 13.14. Severability.
In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 13.15. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
SECTION 13.16. Table of Contents, Headings, Etc.
The Table of Contents, Cross Reference Table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
168
SECTION 13.17. No Adverse Interpretation of Other Agreement.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer, any Guarantor or any other Restricted Subsidiary or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 13.18. Intercreditor Agreements.
Reference is made to the Intercreditor Agreements. Each Holder, by its acceptance of a Note, (a) agrees that it will be bound by and will take no actions contrary to the provisions of the Intercreditor Agreements and (b) authorizes and instructs the Trustee and the Notes Collateral Agent to enter into the Intercreditor Agreements as Trustee and as Notes Collateral Agent, as the case may be, and on behalf of such Holder, including without limitation, making the representations of the Holders contained therein. The foregoing provisions are intended as an inducement to the lenders under the Senior Credit Facilities to extend credit and such lenders are intended third party beneficiaries of such provisions and the provisions of the Intercreditor Agreements.
[Signatures on following page]
169
| SINCLAIR TELEVISION GROUP, INC., as the Issuer | |
|---|---|
| By: | /s/ Christopher S. Ripley |
| Name: | Christopher S. Ripley |
| Title: | President and Chief Executive Officer |
[Signature Page to Indenture]
| GUARANTORS: | |
|---|---|
| SINCLAIR BROADCAST GROUP, LLC | |
| By: | /s/ Christopher S. Ripley |
| Name: Christopher S. Ripley | |
| Title: President and Chief Executive Officer | |
| BIRMINGHAM (WABM-TV) LICENSEE, INC. | |
| FISHER MILLS INC. | |
| FISHER PROPERTIES INC. | |
| HARRISBURG TELEVISION, INC. | |
| NEW YORK TELEVISION, INC. | |
| PERPETUAL CORPORATION | |
| RALEIGH (WRDC-TV) LICENSEE, INC. | |
| SINCLAIR ACQUISITION IX, INC. | |
| SINCLAIR ACQUISITION VII, INC. | |
| SINCLAIR ACQUISITION VIII, INC. | |
| SINCLAIR MEDIA III, INC. | |
| SINCLAIR MEDIA VI, INC. | |
| SINCLAIR TELEVISION MEDIA, INC. | |
| SINCLAIR TELEVISION OF BAKERSFIELD, INC. | |
| SINCLAIR TELEVISION OF SEATTLE, INC. | |
| SINCLAIR TELEVISION OF WASHINGTON, INC. | |
| WGME, INC. | |
| WSMH, INC. | |
| WSYX LICENSEE, INC. | |
| WVTV LICENSEE, INC. | |
| KAME, LLC | |
| KENV, LLC | |
| KRNV, LLC | |
| KRXI, LLC | |
| KVCW, LLC | |
| KVMY, LLC | |
| By: | Chesapeake Media I, LLC, Sole Member |
| By: | Sinclair Television Group, Inc., Sole Member of Chesapeake Media I, LLC |
| WCWF LICENSEE, LLC | |
| WJAR LICENSEE, LLC | |
| WLUK LICENSEE, LLC | |
| By: | Harrisburg Television, Inc., Sole Member |
| SINCLAIR TELEVISION OF ILLINOIS, LLC | |
| --- | --- |
| WICD LICENSEE, LLC | |
| WICS LICENSEE, LLC | |
| By: | Illinois Television, LLC, Sole Member |
| By: | Sinclair Communications LLC, Sole Member of Illinois Television, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| KATV LICENSEE, LLC | |
| By: | KATV, LLC, Sole Member |
| By: | Sinclair Television Stations, LLC, Sole Member of KATV, LLC |
| By: | Perpetual Corporation, Sole Member of Sinclair Television Stations, LLC |
| KDSM LICENSEE, LLC | |
| By: | KDSM, LLC, Sole Member |
| By: | Sinclair Television Group, Inc., Sole Member of KDSM, LLC |
| KOKH LICENSEE, LLC | |
| By: | KOKH, LLC, Sole Member |
| By: | Sinclair Communications, LLC, Sole Member of KOKH, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| KTUL LICENSEE, LLC | |
| By: | KTUL, LLC, Sole Member |
| By: | Sinclair Television Stations, LLC, Sole Member of KTUL, LLC |
| By: | Perpetual Corporation, Sole Member of Sinclair Television Stations, LLC |
| WCGV LICENSEE, LLC | |
| By: | Milwaukee Television, LLC, Sole Member |
| By: | Sinclair Communications, LLC Sole Member of Milwaukee Television, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| WSMH LICENSEE, LLC | |
| By: | WSMH, Inc., Sole Member |
| SINCLAIR TELEVISION STATIONS, LLC | |
| --- | --- |
| By: | Perpetual Corporation, Sole Member |
| MJ PODCAST, LLC | |
| UMR PODCAST, LLC | |
| By: | Sinclair Audio, LLC |
| By: | Sinclair Television Group, Inc. |
| WKEF LICENSEE L.P. | |
| By: | Sinclair Communications, LLC, General Partner |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| CHESAPEAKE TELEVISION LICENSEE, LLC | |
| HARRISBURG LICENSEE, LLC | |
| ILLINOIS TELEVISION, LLC | |
| KABB LICENSEE, LLC | |
| KDNL LICENSEE, LLC | |
| KEYE LICENSEE, LLC | |
| KFDM LICENSEE, LLC | |
| KFOX LICENSEE, LLC | |
| KFXA LICENSEE, LLC | |
| KGAN LICENSEE, LLC | |
| KGBT LICENSEE, LLC | |
| KHGI LICENSEE, LLC | |
| KHQA LICENSEE, LLC | |
| KJZZ LICENSEE, LLC | |
| KOCB LICENSEE, LLC | |
| KOKH, LLC | |
| KPTH LICENSEE, LLC | |
| KRCG LICENSEE, LLC | |
| KRXI LICENSEE, LLC | |
| KSAS LICENSEE, LLC | |
| KTVL LICENSEE, LLC | |
| KTVO LICENSEE, LLC | |
| KUPN LICENSEE, LLC | |
| KUQI LICENSEE, LLC | |
| KUTV LICENSEE, LLC | |
| KVII LICENSEE, LLC | |
| MILWAUKEE TELEVISION, LLC | |
| SAN ANTONIO TELEVISION, LLC | |
| SINCLAIR PROPERTIES, LLC | |
| SINCLAIR TELEVISION OF EL PASO, LLC | |
| WACH LICENSEE, LLC | |
| WCWB LICENSEE, LLC | |
| WCWN LICENSEE, LLC | |
| WDKY LICENSEE, LLC | |
| WEAR LICENSEE, LLC | |
| --- | --- |
| WFGX LICENSEE, LLC | |
| WFXL LICENSEE, LLC | |
| WGFL LICENSEE, LLC | |
| WGXA LICENSEE, LLC | |
| WHOI LICENSEE, LLC | |
| WKRC LICENSEE, LLC | |
| WLFL LICENSEE, LLC | |
| WLOS LICENSEE, LLC | |
| WMSN LICENSEE, LLC | |
| WNAB LICENSEE, LLC | |
| WNWO LICENSEE, LLC | |
| WOAI LICENSEE, LLC | |
| WOLF LICENSEE, LLC | |
| WPBN LICENSEE, LLC | |
| WPDE LICENSEE, LLC | |
| WPEC LICENSEE, LLC | |
| WPGH LICENSEE, LLC | |
| WQMY LICENSEE, LLC | |
| WRDC, LLC | |
| WRGB LICENSEE, LLC | |
| WRGT LICENSEE, LLC | |
| WRLH LICENSEE, LLC | |
| WSBT LICENSEE, LLC | |
| WSTQ LICENSEE, LLC | |
| WSTR ACQUISITION, LLC | |
| WTGS LICENSEE, LLC | |
| WTOV LICENSEE, LLC | |
| WTTO LICENSEE, LLC | |
| WTVC LICENSEE, LLC | |
| WTVX LICENSEE, LLC | |
| WTVZ LICENSEE, LLC | |
| WTWC LICENSEE, LLC | |
| WUCW, LLC | |
| WUHF LICENSEE, LLC | |
| WUPN LICENSEE, LLC | |
| WUTV LICENSEE, LLC | |
| WUXP LICENSEE, LLC | |
| WWHO LICENSEE, LLC | |
| WWMT LICENSEE, LLC | |
| WXLV LICENSEE, LLC | |
| WZTV LICENSEE, LLC | |
| By: | Sinclair Communications, LLC, Sole Member |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| SINCLAIR DIGITAL NEWS, LLC | |
| --- | --- |
| WEST COAST DIGITAL, LLC | |
| By: | Sinclair Digital Group, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Digital Group, LLC |
| WCHS LICENSEE, LLC | |
| WVAH LICENSEE, LLC | |
| By: | Sinclair Media III, Inc., Sole Member |
| SINCLAIR MEDIA LICENSEE, LLC | |
| SINCLAIR TELEVISION OF ABILENE, LLC | |
| SINCLAIR TELEVISION OF BRISTOL, LLC | |
| SINCLAIR TELEVISION OF CALIFORNIA, LLC | |
| SINCLAIR TELEVISION OF MONTANA, LLC | |
| SINCLAIR TELEVISION OF NEW BERN, LLC | |
| WCTI LICENSEE, LLC | |
| By: | Sinclair Media VI, Inc., Sole Member |
| KBSI LICENSEE L.P. | |
| WMMP LICENSEE L.P. | |
| By: | Sinclair Properties, LLC, General Partner |
| By: | Sinclair Communications, LLC, Sole Member of Sinclair Properties, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| WDKA LICENSEE, LLC | |
| By: | Sinclair Properties, LLC, Sole Member |
| By: | Sinclair Communications, LLC, Sole Member of Sinclair Properties, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| ACTION TV, LLC | |
| CHESAPEAKE MEDIA I, LLC | |
| COMETTV, LLC | |
| DRIVE SALES, LLC | |
| FULL MEASURE, LLC | |
| HUMMINGBIRD, LLC | |
| HUNT VALLEY TRACKS, LLC | |
| KDSM, LLC | |
| NEST TV, LLC | |
| SINCLAIR AUDIO, LLC | |
| SINCLAIR COMMUNICATIONS, LLC | |
| SINCLAIR DIGITAL GROUP, LLC | |
| SINCLAIR GAMING SERVICES, LLC | |
| --- | --- |
| SINCLAIR NETWORKS GROUP, LLC | |
| SINCLAIR PROGRAMMING COMPANY, LLC | |
| SINCLAIR TELEVISION OF FRESNO, LLC | |
| SINCLAIR TELEVISION OF OMAHA, LLC | |
| TBD TV, LLC | |
| THE NATIONAL DESK, LLC | |
| By: | Sinclair Television Group, Inc., Sole Member |
| SINCLAIR BAKERSFIELD LICENSEE, LLC | |
| SINCLAIR BOISE LICENSEE, LLC | |
| SINCLAIR BROADCASTING OF SEATTLE, LLC | |
| SINCLAIR EUGENE LICENSEE, LLC | |
| SINCLAIR LEWISTON LICENSEE, LLC | |
| SINCLAIR MEDIA OF BOISE, LLC | |
| SINCLAIR MEDIA OF WASHINGTON, LLC | |
| SINCLAIR PORTLAND LICENSEE, LLC | |
| SINCLAIR SEATTLE LICENSEE, LLC | |
| SINCLAIR TELEVISION OF OREGON, LLC | |
| SINCLAIR MEDIA OF SEATTLE, LLC | |
| SINCLAIR TELEVISION OF PORTLAND, LLC | |
| SINCLAIR YAKIMA LICENSEE, LLC | |
| By: | Sinclair Television Media, Inc., Sole Member |
| SINCLAIR-CALIFORNIA LICENSEE, LLC | |
| By: | Sinclair Television of California, LLC, Sole Member |
| By: | Sinclair Media VI, Inc., Sole Member of Sinclair Television of California, LLC |
| KDBC LICENSEE, LLC | |
| By: | Sinclair Television of El Paso, LLC, Sole Member |
| By: | Sinclair Communications, LLC, Sole Member of Sinclair Television of El Paso, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| KFRE LICENSEE, LLC | |
| KMPH LICENSEE, LLC | |
| WJAC LICENSEE, LLC | |
| By: | Sinclair Television of Fresno, LLC, Sole Member |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Television of Fresno, LLC |
| KPTM LICENSEE, LLC | |
| By: | Sinclair Television of Omaha, LLC, Sole Member |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Television of Omaha, LLC |
| --- | --- |
| SINCLAIR KENNEWICK LICENSEE, LLC | |
| SINCLAIR LA GRANDE LICENSEE, LLC | |
| By: | Sinclair Television of Washington, Inc., Sole Member |
| ACC LICENSEE, LLC | |
| KATV, LLC | |
| KTUL, LLC | |
| WBMA LICENSEE, LLC | |
| WSET LICENSEE, LLC | |
| By: | Sinclair Television Stations, LLC, Sole Member |
| By: | Perpetual Corporation, Sole Member of Sinclair Television Stations, LLC |
| WGME LICENSEE, LLC | |
| By: | WGME, Inc., Sole Member |
| KLGT LICENSEE, LLC | |
| By: | WUCW, LLC, Sole Member |
| By: | Sinclair Communications, LLC, Sole Member of WUCW, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| By: | /s/ Christopher S. Ripley |
| Christopher S. Ripley, in his capacity as President and Chief Executive Officer | |
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee and Notes Collateral Agent | |
| --- | --- |
| By: | /s/ Melody M. Scott |
| Name: | Melody M. Scott |
| Title: | Assistant Vice President |
[Signature Page to Indenture]
EXHIBIT A
[Face of Note]
[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]
[Insert the Regulation S Temporary Global Note Legend, if applicable pursuant to the provisions of the Indenture]
A-1
CUSIP [ ]
ISIN [ ]
[RULE 144A][REGULATION S] [GLOBAL] NOTE
representing up to
[$______________]
9.750% Second Lien Secured Notes due 2033
| No. ___ | [$______________] |
|---|
SINCLAIR TELEVISION GROUP, INC.
promises to pay to CEDE & CO. or registered assigns, the principal sum [set forth on the Schedule of Exchanges of Interests in the Global Note attached hereto] [of ________________________ United States Dollars] on [ ].
Interest Payment Dates: February 15 and August 15, commencing on August 15, 2025
Record Dates: February 1 and August 1
A-2
IN WITNESS HEREOF, the Issuer has caused this instrument to be duly executed.
| Dated: | SINCLAIR TELEVISION GROUP, INC. | |
|---|---|---|
| By: | ||
| Name: | ||
| Title: |
A-3
This is one of the Notes referred to in the within-mentioned Indenture:
| Dated: | U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | |
|---|---|---|
| By: | ||
| Authorized Signatory |
A-4
[Back of Note]
9.750% Second Lien Secured Notes due 2033
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
INTEREST. Sinclair Television Group, Inc., a Maryland corporation (the “Issuer”), promises to pay interest on the principal amount of this Note at 9.750% per annum from [February 12, 2025]^1^ until Maturity. The Issuer shall pay interest semi-annually in arrears on February 15 and August 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from [February 12, 2025]^2^; provided that the first Interest Payment Date shall be [August 15, 2025]^3^. The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at the interest rate on the Notes to the extent lawful; the Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest from time to time on demand at the interest rate on the Notes. Interest shall be computed on the basis of a 360-day year comprised of twelve 30-day months. This note is one of the series designated on the face hereof (individually, a “Note” and, collectively, the “Notes”).
METHOD OF PAYMENT. The Issuer will pay interest on the Notes to the Persons who are registered Holders of the Notes at the close of business (if applicable) on the February 1 or August 1 (whether or not a Business Day), as the case may be, immediately preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. Payment of interest may be made by check mailed to the Holders of the Notes at their addresses set forth in the register of Holders; provided that all payments of principal of and interest and premium, if any, with respect to the Notes represented by one or more Global Notes will be made in accordance with DTC’s applicable procedures. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
PAYING AGENT AND REGISTRAR. Initially, U.S. Bank Trust Company, National Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Issuer may change any Paying Agent or Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may act in any such capacity.
| ^1^ | Revise in connection with the issuance of Additional Notes after the final settlement of the Private Exchanges.<br> |
|---|---|
| ^2^ | Revise in connection with the issuance of Additional Notes after the final settlement of the Private Exchanges.<br> |
| --- | --- |
| ^3^ | Revise in connection with the issuance of Additional Notes after the final settlement of the Private Exchanges.<br> |
| --- | --- |
A-5
INDENTURE. The Issuer issued the Notes under the Indenture, dated as of February 12, 2025 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), among the Issuer, the Guarantors party thereto, the Trustee and U.S. Bank Trust Company, National Association, as notes collateral agent (the “Notes Collateral Agent”). This Note is one of a duly authorized issue of Notes of the Issuer designated as its 9.750% Second Lien Secured Notes due 2033. The Issuer shall be entitled to issue Additional Notes constituting Notes pursuant to Sections 2.01, 4.09 and 4.12 of the Indenture. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms, and Holders of the Notes are referred to the Indenture for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
REDEMPTION AND REPURCHASE. The Notes are subject to optional redemption and may be the subject of a Change of Control Offer, an Asset Sale Offer or a redemption in connection with a Special Call Event, as further described in the Indenture. The Issuer shall not be required to make any mandatory redemption or sinking fund payments with respect to the Notes.
DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuer need not exchange or register the transfer of any Note or portion of a Note selected for redemption or tendered (and not withdrawn) for repurchase in connection with a Change of Control Offer, an Asset Sale Offer or other tender offer, in whole or in part, except for the unredeemed portion of any Note being redeemed in part. Also, the Issuer need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed.
PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes; provided, however, that in connection with the giving any consent, instruction or authorization for purposes of the provisions of Article 6, Article 9 and Sections 7.08 and 12.08(f) of the Indenture, beneficial owners of interests in a Note may constitute registered Holders, and in connection therewith, the Issuer, the Trustee, the Notes Collateral Agent, any Officer signing an Officer’s Certificate and any counsel delivering an Opinion of Counsel shall be permitted to rely in good faith on customary certificates of beneficial ownership as evidence of holdings of such interests (without, for the avoidance of doubt, DTC proxies, medallion-stamped guarantees or other similar evidence).
AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the Notes or the related Note Guarantees may be amended or supplemented as provided in the Indenture.
DEFAULTS AND REMEDIES. The Events of Default relating to the Notes are defined in Section 6.01 of the Indenture. Upon the occurrence of an Event of Default relating to the Notes, the rights and obligations of the Issuer, the Parent, the other Guarantors, the Trustee and the Holders of the Notes shall be as set forth in the applicable provisions of the Indenture.
AUTHENTICATION. This Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose until authenticated by the manual signature of the Trustee.
GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES.
A-6
CUSIP AND ISIN NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP and ISIN numbers and/or similar numbers to be printed on the Notes and the Trustee may use CUSIP and ISIN numbers and/or similar numbers in notices of redemption as a convenience to Holders of the Notes. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
SECURITY. The Notes and the related Note Guarantees shall be secured by the Collateral on the terms and subject to the conditions set forth in the Indenture and the Security Documents. The Trustee and the Notes Collateral Agent, as the case may be, shall hold the Collateral in trust for the benefit of the Holders of the Notes, in each case pursuant to the Notes. Each Holder of the Notes, by accepting this Note, consents and agrees to the terms of the Security Documents (including the provisions providing for the foreclosure and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms and the Indenture and authorizes and directs the Notes Collateral Agent to enter into the Security Documents on the Issue Date, and at any time after the Issue Date, if applicable, and to perform its obligations and exercise its rights thereunder in accordance therewith.
The Issuer will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to the Issuer at the following address:
Sinclair Television Group, Inc.
10706 Beaver Dam Road
Hunt Valley, Maryland 21030
Attention: Lucy Rutishauser
Justin Bray
David Gibber
Email: LRutisha@sbgtv.com
JLBray@sbgtv.com
dbgibber@sbgtv.com
A-7
ASSIGNMENT FORM
To assign this Note, fill in the form below:
| (I) or (we) assign and transfer this Note to: | ||
|---|---|---|
| (Insert assignee’s legal name) | ||
| --- | --- | |
| (Insert assignee’s soc. sec. or tax I.D. no.) | ||
| (Print or type assignee’s name, address and zip code) | ||
| and irrevocably<br>appoint to transfer this Note on<br>the books of the Issuer. The agent may substitute another to act for him. | ||
| --- | --- | --- |
| Date: _____________________ | ||
| Your Signature: | ||
| (Sign exactly as your name appears on the face of this Note) | ||
| Signature Guarantee:* __________________________________ | ||
| * | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to<br>the Trustee). | |
| --- | --- |
A-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.10 or 4.14 of the Indenture, check the appropriate box below:
[ ] Section 4.10 [ ] Section 4.14
If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.10 or Section 4.14 of the Indenture, state the amount you elect to have purchased:
| _______________ | |
|---|---|
| Date: _____________________ | |
| (Sign exactly as your name appears on the face of this Note) |
All values are in US Dollars.
| Tax Identification No.: | |
|---|---|
| Signature Guarantee:* __________________________________ | |
| * | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to<br>the Trustee). |
| --- | --- |
A-9
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The initial outstanding principal amount of this Global Note is $ . The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global or Definitive Note for an interest in this Global Note, have been made:
| Date of<br><br><br>Exchange | Amount of<br>decrease<br>in Principal<br>Amount | Amount of increase<br>in Principal<br>Amount of this<br>Global Note | Principal Amount<br>of<br>this Global Note<br>following such<br>decrease or<br>increase | Signature of<br>authorized officer<br>of Trustee or<br>Note Custodian |
|---|---|---|---|---|
| * | This schedule should be included only if the Note is issued in global form. | |||
| --- | --- |
A-10
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Sinclair Television Group, Inc.
10706 Beaver Dam Road
Hunt Valley, Maryland 21030
Attention: Lucy Rutishauser
Justin Bray
David Gibber
U.S. Bank Trust Company, National Association
Corporate Trust Services, 18th Floor
1021 East Cary Street, Suite 1850
Richmond, Virginia 23219
Attention: Melody Scott
Re: 9.750% Second Lien Secured Notes due 2033
Reference is hereby made to the Indenture, dated as of February 12, 2025 (as amended or supplemented from time to time, the “Indenture”), among the Issuer, the Guarantors party thereto, the Trustee and the Notes Collateral Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
_______________ (the “Transferor”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $___________ in such Note[s] or interests (the “Transfer”), to _______________ (the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
[ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States.
[ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such
B-1
Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Indenture and the Securities Act.
- [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Issuer, a Restricted Subsidiary or a Guarantor;
or
(c) [ ] such Transfer is being effected pursuant to an effective registration statement under the Securities Act and, if applicable, in compliance with the prospectus delivery requirements of the Securities Act.
- [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
B-2
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
B-3
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
| [Insert Name of Transferor] | |
|---|---|
| By: | |
| Name: | |
| Title: | |
| Dated: _______________________ | |
| --- |
B-4
ANNEX A TO CERTIFICATE OF TRANSFER
| 1. | The Transferor owns and proposes to transfer the following: |
|---|
[CHECK ONE OF (a) OR (b)]
| (a) | [ ] a beneficial interest in the: |
|---|---|
| (i) | [ ] 144A Global Note (CUSIP [ ]), or |
| --- | --- |
| (ii) | [ ] Regulation S Global Note (CUSIP [ ]), or |
| --- | --- |
| (b) | [ ] a Restricted Definitive Note. |
| --- | --- |
| 2. | After the Transfer the Transferee will hold: |
| --- | --- |
[CHECK ONE]
| (a) | [ ] a beneficial interest in the: |
|---|---|
| (i) | [ ] 144A Global Note (CUSIP [ ]), or |
| --- | --- |
| (ii) | [ ] Regulation S Global Note (CUSIP [ ]), or |
| --- | --- |
| (iii) | [ ] Unrestricted Global Note (CUSIP [ ]); or |
| --- | --- |
| (b) | [ ] a Restricted Definitive Note; or |
| --- | --- |
| (c) | [ ] an Unrestricted Definitive Note, in accordance with the terms of the Indenture.<br> |
| --- | --- |
B-5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Sinclair Television Group, Inc.
10706 Beaver Dam Road
Hunt Valley, Maryland 21030
Attention: Lucy Rutishauser
Justin Bray
David Gibber
U.S. Bank Trust Company, National Association
Corporate Trust Services, 18th Floor
1021 East Cary Street, Suite 1850
Richmond, Virginia 23219
Attention: Melody Scott
Re: 9.750% Second Lien Secured Notes due 2033
Reference is hereby made to the Indenture, dated as of February 12, 2025 (as amended or supplemented from time to time, the “Indenture”), among the Issuer, the Guarantors party thereto, the Trustee and the Notes Collateral Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
___________ (the “Owner”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $__________ in such Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:
1) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the United States Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
C-1
b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
2) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.
C-2
b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE] [ ] 144A Global Note [ ] Regulation S Global Note, with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
| [Insert Name of Transferor] | |
|---|---|
| By: | |
| Name: | |
| Title: | |
| Dated: _______________________ | |
| --- |
C-3
EXHIBIT D
[FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
SUPPLEMENTAL INDENTURE NO. [ ] (this “Supplemental Indenture”), dated as of [__________], by and between [__________________] (the “Guaranteeing Entity”), a subsidiary of [the Issuer], U.S. Bank Trust Company, National Association, as trustee (the “Trustee”) and notes collateral agent (the “Notes Collateral Agent”).
W I T N E S S E T H
WHEREAS, Sinclair Television Group, Inc., a Maryland corporation (the “Issuer”), the other parties that are signatories thereto as Guarantors, the Trustee and the Notes Collateral Agent have heretofore executed and delivered an indenture, dated as of February 12, 2025 (together with this Supplemental Indenture, and as further amended, supplemented or otherwise modified, the “Indenture”) providing for the issuance of $432.0 million aggregate principal amount of 9.750% Second Lien Secured Notes due 2033 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Entity shall execute and deliver to the Trustee and the Notes Collateral Agent a supplemental indenture pursuant to which the Guaranteeing Entity shall unconditionally guarantee, on a joint and several basis with the other Guarantors, all of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and the Notes Collateral Agent are authorized to execute and deliver this Supplemental Indenture to amend or supplement the Indenture without the consent of any Holder of Notes.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
(1) Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
(2) Agreement to Guarantee. The Guaranteeing Entity hereby agrees to be a Guarantor under the Indenture and to be bound by the terms of the Indenture applicable to a Guarantor, including Article 10 thereof.
(3) Execution and Delivery. The Guaranteeing Entity agrees that the Note Guarantee shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
D-1
(4) Governing Law. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(5) Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
(6) Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
(7) The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Entity.
[Signature Page Follows]
D-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
| GUARANTOR: | |
|---|---|
| [GUARANTEEING ENTITY] | |
| By: | |
| Name: | |
| Title: | |
| By: | |
| Name: | |
| Title: |
D-3
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee and Notes Collateral Agent | |
|---|---|
| By: | |
| Name: | |
| Title: |
D-4
Exhibit E
FORM OF SECURITY AGREEMENT
[Intentionally Omitted. To be provided to
the Securities and Exchange Commission
or its staff upon request.]
Exhibit F
FORM OF FIRST/SECOND/THIRD LIEN INTERCREDITOR AGREEMENT
[Intentionally Omitted. To be provided to
the Securities and Exchange Commission
or its staff upon request.]
Exhibit G
PRINCIPAL TERMS OF
SECOND LIEN PARI PASSU LIEN INTERCREDITOR AGREEMENT
[Intentionally Omitted. To be provided to
the Securities and Exchange Commission
or its staff upon request.]
EX-10.1
Exhibit 10.1
Certain portions of this exhibit (indicated by
“[*****]” have been omitted pursuant to
Item 601(b)(10) of Regulation S-K
CREDIT AGREEMENT
dated as of
February 12, 2025,
among
SINCLAIR BROADCAST GROUP, LLC,
as Parent
SINCLAIR TELEVISION GROUP, INC.,
as the Borrower,
The Issuing Banks and Lenders Party Hereto,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Collateral Trustee
JPMORGAN CHASE BANK, N.A.
as Lead Arranger and Bookrunner
TABLE OF CONTENTS
| Page | |||
|---|---|---|---|
| ARTICLE I | |||
| DEFINITIONS | |||
| SECTION 1.01 | Defined Terms | 2 | |
| SECTION 1.02 | Classification of Loans and Borrowings | 69 | |
| SECTION 1.03 | Terms Generally | 69 | |
| SECTION 1.04 | Accounting Terms; GAAP | 70 | |
| SECTION 1.05 | Effectuation of Transactions | 70 | |
| SECTION 1.06 | Limited Condition Transactions | 71 | |
| SECTION 1.07 | Divisions | 71 | |
| SECTION 1.08 | Interest Rates; Benchmark Notification | 72 | |
| ARTICLE II | |||
| THE CREDITS | |||
| SECTION 2.01 | Commitments | 72 | |
| SECTION 2.02 | Loans and Borrowings | 72 | |
| SECTION 2.03 | Requests for Borrowings | 73 | |
| SECTION 2.04 | Swingline Loans | 74 | |
| SECTION 2.05 | Letters of Credit | 75 | |
| SECTION 2.06 | Funding of Borrowings | 80 | |
| SECTION 2.07 | Interest Elections | 80 | |
| SECTION 2.08 | Termination and Reduction of Commitments | 81 | |
| SECTION 2.09 | Repayment of Loans; Evidence of Debt | 82 | |
| SECTION 2.10 | Amortization of Term Loans | 82 | |
| SECTION 2.11 | Prepayment of Loans | 83 | |
| SECTION 2.12 | Fees | 91 | |
| SECTION 2.13 | Interest | 92 | |
| SECTION 2.14 | Alternate Rate of Interest | 92 | |
| SECTION 2.15 | Increased Costs | 94 | |
| SECTION 2.16 | Break Funding Payments | 95 | |
| SECTION 2.17 | Taxes | 95 | |
| SECTION 2.18 | Payments Generally; Pro Rata Treatment; Sharing of Setoffs | 98 | |
| SECTION 2.19 | Mitigation Obligations; Replacement of Lenders | 99 | |
| SECTION 2.20 | Incremental Credit Extension | 100 | |
| SECTION 2.21 | Refinancing Amendments | 102 | |
| SECTION 2.22 | Defaulting Lenders | 103 | |
| SECTION 2.23 | Illegality | 104 | |
| SECTION 2.24 | Loan Modification Offers | 105 | |
| ARTICLE III | |||
| REPRESENTATIONS AND WARRANTIES | |||
| SECTION 3.01 | Organization; Powers | 106 | |
| SECTION 3.02 | Authorization; Enforceability | 106 | |
| SECTION 3.03 | Governmental Approvals; No Conflicts | 106 | |
| SECTION 3.04 | Financial Condition; No Material Adverse Effect | 106 | |
| SECTION 3.05 | Properties | 107 | |
| SECTION 3.06 | Litigation and Environmental Matters | 107 |
-i-
| SECTION 3.07 | Compliance with Laws and Agreements | 107 |
|---|---|---|
| SECTION 3.08 | Investment Company Status | 107 |
| SECTION 3.09 | Taxes | 107 |
| SECTION 3.10 | ERISA | 107 |
| SECTION 3.11 | Disclosure | 108 |
| SECTION 3.12 | Subsidiaries | 108 |
| SECTION 3.13 | Intellectual Property; Licenses, Etc. | 108 |
| SECTION 3.14 | Solvency | 108 |
| SECTION 3.15 | Senior Indebtedness | 108 |
| SECTION 3.16 | Federal Reserve Regulations | 108 |
| SECTION 3.17 | Use of Proceeds | 108 |
| SECTION 3.18 | PATRIOT Act, OFAC and FCPA | 109 |
| SECTION 3.19 | Broadcast Licenses | 109 |
| SECTION 3.20 | Plan Assets | 109 |
| SECTION 3.21 | Outbound Investment Rules | 109 |
| SECTION 3.22 | Affected Financial Institutions | 109 |
| ARTICLE IV | ||
| CONDITIONS | ||
| SECTION 4.01 | Effective Date | 110 |
| SECTION 4.02 | Each Credit Event | 111 |
| ARTICLE V | ||
| AFFIRMATIVE COVENANTS | ||
| SECTION 5.01 | Financial Statements and Other Information | 112 |
| SECTION 5.02 | Notices of Material Events | 114 |
| SECTION 5.03 | Information Regarding Collateral | 114 |
| SECTION 5.04 | Existence; Conduct of Business | 115 |
| SECTION 5.05 | Payment of Taxes, Etc. | 115 |
| SECTION 5.06 | Maintenance of Properties | 115 |
| SECTION 5.07 | Insurance | 115 |
| SECTION 5.08 | Books and Records; Inspection and Audit Rights | 115 |
| SECTION 5.09 | Compliance with Laws | 116 |
| SECTION 5.10 | Use of Proceeds and Letters of Credit | 116 |
| SECTION 5.11 | Additional Subsidiaries | 116 |
| SECTION 5.12 | Further Assurances | 116 |
| SECTION 5.13 | Ratings | 117 |
| SECTION 5.14 | Certain Post-Closing Obligations | 117 |
| SECTION 5.15 | Designation of Subsidiaries | 117 |
| SECTION 5.16 | Change in Business | 118 |
| SECTION 5.17 | Changes in Fiscal Periods | 118 |
| SECTION 5.18 | Plan Assets | 118 |
| ARTICLE VI | ||
| NEGATIVE COVENANTS | ||
| SECTION 6.01 | Indebtedness; Certain Equity Securities | 118 |
| SECTION 6.02 | Liens | 125 |
| SECTION 6.03 | Fundamental Changes; Holding Companies | 129 |
| SECTION 6.04 | Investments, Loans, Advances, Guarantees and Acquisitions | 130 |
| SECTION 6.05 | Asset Sales | 134 |
-ii-
| SECTION 6.06 | Outbound Investment Rules | 136 |
|---|---|---|
| SECTION 6.07 | Negative Pledge; Covenants Applicable to Parent | 136 |
| SECTION 6.08 | Restricted Payments; Certain Payments of Indebtedness | 138 |
| SECTION 6.09 | Transactions with Affiliates | 144 |
| SECTION 6.10 | Financial Covenant | 146 |
| SECTION 6.11 | License Subsidiaries | 146 |
| SECTION 6.12 | Covenant Suspension | 147 |
| SECTION 6.13 | Priming Financing/Liability Management Transactions | 147 |
| ARTICLE VII | ||
| EVENTS OF DEFAULT | ||
| SECTION 7.01 | Events of Default | 148 |
| SECTION 7.02 | Right to Cure | 150 |
| SECTION 7.03 | Application of Proceeds | 151 |
| ARTICLE VIII | ||
| THE ADMINISTRATIVE AGENT AND COLLATERAL TRUSTEE | ||
| SECTION 8.01 | Authorization and Action | 151 |
| SECTION 8.02 | Administrative Agent’s Reliance, Indemnification, Etc. | 153 |
| SECTION 8.03 | Posting of Communications | 154 |
| SECTION 8.04 | The Administrative Agent Individually | 155 |
| SECTION 8.05 | Successor Administrative Agent | 155 |
| SECTION 8.06 | Acknowledgments of Lenders and Issuing Banks | 157 |
| SECTION 8.07 | Collateral Matters | 159 |
| SECTION 8.08 | Credit Bidding | 159 |
| SECTION 8.09 | Certain ERISA Matters | 160 |
| ARTICLE IX | ||
| MISCELLANEOUS | ||
| SECTION 9.01 | Notices | 161 |
| SECTION 9.02 | Waivers; Amendments | 162 |
| SECTION 9.03 | Expenses; Indemnity; Damage Waiver | 166 |
| SECTION 9.04 | Successors and Assigns | 168 |
| SECTION 9.05 | Survival | 172 |
| SECTION 9.06 | Counterparts; Integration; Effectiveness | 172 |
| SECTION 9.07 | Severability | 173 |
| SECTION 9.08 | Right of Setoff | 173 |
| SECTION 9.09 | Governing Law; Jurisdiction; Consent to Service of Process | 173 |
| SECTION 9.10 | WAIVER OF JURY TRIAL | 174 |
| SECTION 9.11 | Headings | 174 |
| SECTION 9.12 | Confidentiality | 174 |
| SECTION 9.13 | USA Patriot Act | 175 |
| SECTION 9.14 | Release of Liens and Guarantees | 175 |
| SECTION 9.15 | No Fiduciary Relationship | 176 |
| SECTION 9.16 | Collateral Trust Agreement | 176 |
| SECTION 9.17 | Acknowledgement and Consent to Bail-In of Affected Financial Institutions | 177 |
| SECTION 9.18 | Acknowledgment Regarding Any Supported QFCs | 177 |
-iii-
| SCHEDULES: | ||
|---|---|---|
| Schedule 1.01(a) | — | Excluded Subsidiaries |
| Schedule 1.01(b) | — | Existing Swap Counterparties |
| Schedule 1.01(c) | — | Contract Stations |
| Schedule 1.01(e) | — | Owned Stations |
| Schedule 2.01(a) | — | Term Commitments |
| Schedule 2.01(b) | — | Revolving Commitments |
| Schedule 2.01(c) | — | Letter of Credit Commitments |
| Schedule 2.05(a) | — | Existing Letters of Credit |
| Schedule 3.12 | — | Subsidiaries |
| Schedule 3.19 | — | Broadcast Licenses |
| Schedule 5.14 | — | Certain Post-Closing Obligations |
| Schedule 6.01 | — | Existing Indebtedness |
| Schedule 6.02 | — | Existing Liens |
| Schedule 6.04(f) | — | Existing Investments |
| Schedule 6.07 | — | Existing Restrictions |
| Schedule 6.09 | — | Existing Affiliate Transactions |
| EXHIBITS: | ||
| Exhibit A | — | Form of Assignment and Assumption |
| Exhibit B | — | Form of Affiliated Lender Assignment and Assumption |
| Exhibit C | — | Form of Guarantee Agreement |
| Exhibit D | — | Form of Collateral Agreement |
| Exhibit E | — | Form of Collateral Trust Agreement |
| Exhibit F | — | Form of First/Second/Third Lien Intercreditor Agreement |
| Exhibit G | — | Form of Closing Certificate |
| Exhibit H | — | Form of Intercompany Note |
| Exhibit I | — | Form of Specified Discount Prepayment Notice |
| Exhibit J | — | Form of Specified Discount Prepayment Response |
| Exhibit K | — | Form of Discount Range Prepayment Notice |
| Exhibit L | — | Form of Discount Range Prepayment Offer |
| Exhibit M | — | Form of Solicited Discounted Prepayment Notice |
| Exhibit N | — | Form of Solicited Discounted Prepayment Offer |
| Exhibit O | — | Form of Acceptance and Prepayment Notice |
| Exhibit P-1 | — | Form of U.S. Tax Compliance Certificate (For Non-U.S. Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes) |
| Exhibit P-2 | — | Form of U.S. Tax Compliance Certificate (For Non-U.S. Lenders That Are Partnerships For U.S. Federal Income Tax Purposes) |
| Exhibit P-3 | — | Form of U.S. Tax Compliance Certificate (For Non-U.S. Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes) |
| Exhibit P-4 | — | Form of U.S. Tax Compliance Certificate (For Non-U.S. Participants That Are Partnerships For U.S. Federal Income Tax Purposes) |
-iv-
CREDIT AGREEMENT dated as of February 12, 2025 (this “Agreement”), among SINCLAIR TELEVISION GROUP, INC., a Maryland corporation (the “Borrower”), SINCLAIR BROADCAST GROUP, LLC, a Maryland limited liability company (“Parent”), the GUARANTORS party hereto, the LENDERS party hereto, JPMorgan Chase Bank, N.A., as Administrative Agent, JPMorgan Chase Bank, N.A., as Swingline Lender and each of the Issuing Banks and Lenders from time to time party hereto and U.S. Bank Trust Company, National Association, not in its individual capacity, but solely as collateral trustee for the Secured Parties under the Collateral Trust Agreement referred to below (together with its permitted successors, in such capacity, the “Collateral Trustee”).
WHEREAS, the Borrower has requested that certain lenders and issuing banks under the Existing Credit Agreement exchange their respective loans and commitments under the Existing Credit Agreement for certain Loans and Revolving Commitments under this Agreement, including that (a) the 2022A Revolving Lenders exchange on a dollar-for-dollar basis their 2022A Revolving Commitments and related outstanding 2022A Revolving Loans (each as defined in the Existing Credit Agreement in effect on the Effective Date) under the Existing Credit Agreement into Revolving Commitments and Revolving Loans to remain outstanding under and subject to the terms of this Agreement and make available new Revolving Loans to the Borrower hereunder, which shall be available (i) on the Effective Date to fund working capital, original issue discount or upfront fees required to be paid on the Effective Date and any Transactions Costs and (ii) at any time thereafter for working capital and general corporate purposes, and any other purposes not prohibited hereby, (b) the Issuing Banks extend Letter of Credit Commitments under this Agreement and issue Letters of Credit at any time during the Revolving Availability Period and prior to the fifth Business Day prior to the Revolving Maturity Date, in an aggregate face amount at any time outstanding not in excess of $50,000,000, (c) the Swingline Lender extend credit in the form of Swingline Loans at any time during the Revolving Availability Period, in an aggregate principal amount at any time outstanding not in excess of $50,000,000, (d) the Term B-3A Lenders under the Existing Credit Agreement exchange their Term B-3A Loans under the Existing Credit Agreement into Term B-6 Loans under this Agreement, and (e) the Term B-4A Lenders under the Existing Credit Agreement exchange their Term B-4A Loans under the Existing Credit Agreement into Term B-7 Loans under this Agreement;
WHEREAS, on the Effective Date, immediately prior to giving effect to the Exchange Transactions, (i) [reserved], (ii) certain Lenders held collectively $711,373,373.78 of Term B-3A Loans under the Existing Credit Agreement, (iii) certain Lenders held collectively $731,250,000 of Term B-4A Loans under the Existing Credit Agreement, (iv) certain Lenders held collectively no outstanding principal amount of Revolving Loans under the Existing Credit Agreement and $575,000,000 of outstanding 2022A Revolving Commitments and $835,234 of existing Letters of Credit under the Existing Credit Agreement; and
WHEREAS, on the Effective Date, (x) certain lenders party thereto (including each Exchanging Term B-3 Lender, each Exchanging Term B-4 Lender and each 2022A Revolving Lender (as defined in the Existing Credit Agreement in effect on the Effective Date)) each provided their consent to the amendments and other modifications to the Existing Credit Agreement as described in the Seventh Amendment to Credit Agreement, dated as of the Effective Date, by and among the Loan Parties (as defined below) and the lenders and agents party thereto (the “Existing Credit Agreement Amendment”) and (y) separately thereafter, (i) [reserved], (ii) each Exchanging Term B-3 Lender exchanged, its Term B-3A Loans on a dollar-for-dollar basis to the Borrower in exchange for consideration consisting of the Term B-6 Loans issued (and, pursuant to Section 2.01 hereof, made) hereunder, (iii) each Exchanging Term B-4 Lender exchanged, its Term B-4A Loans on a dollar-for-dollar basis to the Borrower in exchange for consideration consisting of the Term B-7 Loans issued (and, pursuant to Section 2.01 hereof, made) hereunder, and (iv) each 2022A Revolving Loan (if any) under, and as defined in, the Existing Credit Agreement in effect on the Effective Date was exchanged into an identical principal amount of 2022A Revolving Loans deemed made under this Agreement, and the principal amount of Revolving Commitments under, and as defined in, the Existing Credit Agreement in effect on the Effective Date was exchanged for a principal amount of Revolving Commitments hereunder, and each Existing Letter of Credit was deemed issued under this Agreement.
WHEREAS, (a) each financial institution party hereto as an Issuing Bank has agreed severally, on the terms and conditions set forth herein, to provide a portion of the Letters of Credit and to become an Issuing Bank for all purposes under this Agreement, and (b) the Swingline Lender has agreed, on the terms and conditions set forth herein, to provide Swingline Loans and to be the Swingline Lender for all purposes under this Agreement
1
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
“8.125% First Out First Lien Senior Secured Note Indenture” means the Indenture dated as of the Effective Date among Sinclair Television Group, Inc., the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and collateral trustee, relating to the 8.125% First Out First Lien Senior Secured Notes, as amended or supplemented from time to time.
“8.125% First Out First Lien Senior Secured Notes” means each series of 8.125% First Out First Lien Senior Secured Notes due 2033 evidenced or provided by the 8.125% First Out First Lien Senior Secured Note Indenture (including the Guarantees of such Indebtedness provided by any Guarantor thereunder).
“4.125% Senior Unsecured Note Indenture” means the Indenture dated as of December 4, 2020 among Sinclair Television Group, Inc., the guarantors party thereto and U.S. Bank National Association, as trustee and collateral agent, relating to the 4.125% Senior Unsecured Notes, as supplemented by that certain Supplemental Indenture No. 4, dated as of February 10, 2025, and as otherwise amended or supplemented from time to time.
“4.125% Senior Unsecured Notes” means each series of 4.125% Senior Unsecured Notes due 2030 evidenced or provided by the 4.125% Senior Unsecured Note Indenture (including the Guarantees of such Indebtedness provided by any Guarantor thereunder).
“4.375% Second Out First Lien Senior Secured Note Indenture” means the Indenture dated as of the Effective Date among Sinclair Television Group, Inc., the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and collateral trustee, relating to the 4.375% Second Out First Lien Senior Secured Notes, as amended or supplemented from time to time.
“4.375% Second Out First Lien Senior Secured Notes” means each series of 4.375% Second Out First Lien Senior Secured Notes due 2032 evidenced or provided by the 4.375% Second Out First Lien Senior Secured Note Indenture and issued in connection with the Existing Secured Notes Exchange (including the Guarantees of such Indebtedness provided by any Guarantor thereunder).
“5.125% Senior Unsecured Note Indenture” means the Indenture dated as of August 30, 2016 among Sinclair Television Group, Inc., the guarantors party thereto and U.S. Bank National Association, as trustee, relating to the 5.125% Senior Unsecured Notes, as amended or supplemented from time to time.
“5.125% Senior Unsecured Notes” means each series of 5.125% Senior Unsecured Notes due 2027 evidenced or provided by the 5.125% Senior Unsecured Note Indenture (including the Guarantees of such Indebtedness provided by any Guarantor thereunder).
“5.500% Senior Unsecured Note Indenture” means the Indenture dated as of November 27, 2019 among Sinclair Television Group, Inc., the guarantors party thereto and U.S. Bank National Association, as trustee, relating to the 5.500% Senior Unsecured Notes, as amended or supplemented from time to time.
“5.500% Senior Unsecured Notes” means each series of 5.500% Senior Unsecured Notes due 2030 evidenced or provided by the 5.500% Senior Unsecured Note Indenture (including the Guarantees of such Indebtedness provided by any Guarantor thereunder).
“9.750% Second Lien Secured Note Indenture” means the Indenture dated as of the Effective Date among Sinclair Television Group, Inc., the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and notes collateral agent, relating to the 9.750% Second Lien Secured Notes, as amended or supplemented from time to time.
2
“9.750% Second Lien Secured Notes” means each series of 9.750% Second Lien Secured Notes due 2033 evidenced or provided by the 9.750% Second Lien Secured Note Indenture and issued in connection with the Private Exchanges (including the Guarantees of such Indebtedness provided by any Guarantor thereunder).
“ABR” when used in reference to any Loan or Borrowing, refers to whether such Loan is, or the Loans comprising such Borrowing are, bearing interest at a rate determined by reference to the Alternate Base Rate.
“Acceptable Discount” has the meaning assigned to such term in Section 2.11(a)(ii)(D).
“Acceptable Prepayment Amount” has the meaning assigned to such term in Section 2.11(a)(ii)(D).
“Acceptance and Prepayment Notice” means an irrevocable written notice from a Term Lender accepting a Solicited Discounted Prepayment Offer to make a Discounted Term Loan Prepayment at the Acceptable Discount specified therein pursuant to Section 2.11(a)(ii)(D) substantially in the form of Exhibit O.
“Acceptance Date” has the meaning specified in Section 2.11(a)(ii)(D).
“Accepting Lenders” has the meaning specified in Section 2.24(a).
“Accounting Change” has the meaning specified in Section 1.04(d).
“Acquired EBITDA” means, with respect to any Pro Forma Entity for any period, the amount for such period of Consolidated EBITDA of such Pro Forma Entity (determined as if references to the Borrower and its Restricted Subsidiaries in the definition of the term “Consolidated EBITDA” were references to such Pro Forma Entity and its Subsidiaries that will become Restricted Subsidiaries), all as determined on a consolidated basis for such Pro Forma Entity.
“Acquired Entity or Business” has the meaning given such term in the definition of “Consolidated EBITDA.”
“Acquisition Transaction” means any Investment by the Borrower or any of its Restricted Subsidiaries in a Person that is engaged in a Similar Business if as a result of such Investment, (a) such Person becomes a Restricted Subsidiary or (b) such Person, in one transaction or a series of related transactions, is merged, consolidated, or amalgamated with or into, or transfers or conveys all or substantially all of its assets (or all or substantially all the assets constituting a business unit, division, product line or line of business) to, or is liquidated into, the Borrower or a Restricted Subsidiary, and, in each case, any Investment held by such Person (including, for the avoidance of doubt, any TV/Radio Acquisition).
“Ad Hoc Group” means that certain ad hoc group of holders of the Borrower’s preexisting Indebtedness, represented by Milbank LLP and party to that certain Transaction Support Agreement, dated as of January 12, 2025, among the Borrower, the Parent and the guarantors party thereto.
“Additional Lender” means any Additional Revolving Lender or any Additional Term Lender, as applicable.
“Additional Revolving Lender” means, at any time, any bank or other financial institution that agrees to provide any portion of any (a) Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments pursuant to an Incremental Facility Amendment in accordance with Section 2.20 or (b) Credit Agreement Refinancing Indebtedness pursuant to a Refinancing Amendment in accordance with Section 2.21; provided that each Additional Revolving Lender shall be subject to the approval of the Administrative Agent, each Issuing Bank and the Swingline Lender (in each case, such approval in each case not to be unreasonably withheld or delayed) and the Borrower.
3
“Additional Term Lender” means, at any time, any bank or other financial institution (including any such bank or financial institution that is a Lender at such time) that agrees to provide any portion of any (a) Incremental Term Loan pursuant to an Incremental Facility Amendment in accordance with Section 2.20 or (b) Credit Agreement Refinancing Indebtedness pursuant to a Refinancing Amendment in accordance with Section 2.21; provided that each Additional Term Lender (other than any Person that is a Lender, an Affiliate of a Lender or an Approved Fund of a Lender at such time) shall be subject to the approval of the Administrative Agent (such approval not to be unreasonably withheld or delayed) and the Borrower.
“Additional/Replacement Revolving Commitment” has the meaning assigned to such term in Section 2.20(a).
“Adjusted Daily Simple SOFR Rate” means, with respect to any Borrowing, an interest rate per annum equal to (a) the Daily Simple SOFR plus (b) 0.10%; provided that if the Adjusted Daily Simple SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjusted Term SOFR Rate” means, with respect to any Term Benchmark Borrowing of (a) Revolving Loans for (i) an Interest Period of one month, an interest rate per annum equal to (x) the Term SOFR Rate for such Interest Period, plus (y) 0.10%; (ii) an Interest Period of three months, an interest rate per annum equal to (x) the Term SOFR Rate for such Interest Period, plus (y) 0.15%; and (iii) an Interest Period of six months, an interest rate per annum equal to (x) the Term SOFR Rate for such Interest Period, plus (y) 0.25%; (b) Term B-6 Loans for (i) an Interest Period of one month, an interest rate per annum equal to (x) the Term SOFR Rate for such Interest Period, plus (y) 0.11448%; (ii) an Interest Period of three months, an interest rate per annum equal to (x) the Term SOFR Rate for such Interest Period, plus (y) 0.26161%; (iii) an Interest Period of six months, an interest rate per annum equal to (x) the Term SOFR Rate for such Interest Period, plus (y) 0.42826%; and (c) Term B-7 Loans for (i) an Interest Period of one month, an interest rate per annum equal to (x) the Term SOFR Rate for such Interest Period, plus (y) 0.10%; (ii) an Interest Period of three months, an interest rate per annum equal to (x) the Term SOFR Rate for such Interest Period, plus (y) 0.15%; and (iii) an Interest Period of six months, an interest rate per annum equal to (x) the Term SOFR Rate for such Interest Period, plus (y) 0.25%; provided that in the case of each of the foregoing clauses (a), (b) and (c), if the Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Administrative Agent” has the meaning assigned to such term in the preamble hereto.
“Administrative Questionnaire” means an administrative questionnaire in a form supplied by the Administrative Agent to the Borrower or any Lender, as the context requires.
“Affected Class” has the meaning specified in Section 2.24(a).
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to a specified Person, another Person that directly or indirectly Controls or is Controlled by or is under common Control with the Person specified. Notwithstanding the foregoing, no individual shall be deemed to be an Affiliate solely by reason of his or her being a director, officer or employee of the Borrower or any of its Subsidiaries.
“Affiliated Debt Fund” means an Affiliated Lender that is a bona fide debt fund primarily engaged in, or that advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds or similar extensions of credit or securities in the ordinary course of business and the investment decisions of which are not controlled by a private equity business of any beneficial owner of any Investor.
“Affiliated Lender” means, at any time, any Lender that is an Affiliate of the Borrower (other than Parent or any of its Subsidiaries) at such time.
4
“Affiliated Lender Assignment and Assumption” has the meaning assigned to such term in Section 9.04(f)(5).
“Affiliated Lender Cap” has the meaning assigned to such term in Section 9.04(f)(3).
“Agent” means the Administrative Agent, the Collateral Trustee, the Lead Arranger, the Joint Bookrunner and any successors and assigns in such capacity, and “Agents” means two or more of them.
“Aggregate Revolving Borrowing Limit” means $650,000,000, in the aggregate, of outstanding Revolving Exposure and outstanding “Revolving Exposure” (as defined in the Existing Credit Agreement in effect as of the Effective Date) at any one time, which amount shall be reduced by the amount of any permanent reduction of the commitments in respect thereof resulting from or accompanying any mandatory prepayments and voluntary permanent prepayments of principal thereof (other than in connection with any refinancing thereof).
“Agreement” has the meaning provided in the preamble hereto.
“AHG Bond Repurchases” means the repurchase or redemption for cash of up to approximately $59.3 million aggregate principal amount of the Existing Secured Notes held by certain Ad Hoc Group members at 84% of the principal amount thereof and up to approximately $104.6 million aggregate principal amount of the 5.125% Senior Unsecured Notes held by certain Ad Hoc Group members at 97% of the principal amount thereof, each together with any accrued and unpaid interest, in each case immediately prior to the Effective Date.
“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus 0.50% 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 (but without regard to the Floor) on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1.00%; provided that, for the purpose of this clause (i), the Adjusted Term SOFR Rate for any day shall be based on the Term SOFR Reference Rate at approximately 6:00 a.m., New York 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); provided, further, that (x) in the case of the Revolving Loans, if the Alternate Base Rate shall be less than 1.00%, such rate shall be deemed to be 1.00% for purposes of this Agreement and (y) in the case of all other Loans, if the Alternate Base Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate, as applicable, 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.
“Applicable Borrower Indebtedness” has the meaning assigned to such term in Section 9.14.
“Applicable Discount” has the meaning assigned to such term in Section 2.11(a)(ii)(C).
“Applicable Fronting Exposure” means, with respect to any Person that is an Issuing Bank or a Swingline Lender at any time, the sum of (a) the aggregate amount of all Letters of Credit issued by such Person in its capacity as an Issuing Bank (if applicable) that remains available for drawing at such time, (b) the aggregate amount of all LC Disbursements made by such Person in its capacity as an Issuing Bank (if applicable) that have not yet been reimbursed by or on behalf of the Borrower at such time and (c) the aggregate principal amount of all Swingline Loans made by such Person in its capacity as a Swingline Lender (if applicable) outstanding at such time.
“Applicable Parties” has the meaning assigned to such term in Section 8.03(c).
“Applicable Percentage” means, at any time with respect to any Revolving Lender, the percentage of the aggregate Revolving Commitments represented by such Lender’s Revolving Commitment at such time (or, if all the Revolving Commitments have terminated or expired, such Lender’s share of the total Revolving Exposure at that time); provided that, at any time any Revolving Lender shall be a Defaulting Lender, “Applicable Percentage” shall mean the percentage of the total Revolving Commitments (disregarding any such Defaulting Lender’s Revolving
5
Commitment) represented by such Lender’s Revolving Commitment. If all the Revolving Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Revolving Commitments most recently in effect, giving effect to any assignments pursuant to this Agreement and to any Lender’s status as a Defaulting Lender at the time of determination.
“Applicable Period” has the meaning assigned to such term in the definition of the term “Applicable Rate”.
“Applicable Rate” means, (a) with respect to any Term B-6 Loan, (i) 2.30% per annum in the case of an ABR Loan or (ii) 3.30% per annum in the case of a Term Benchmark Loan, (b) with respect to any Term B-7 Loan, (i) 3.10% per annum in the case of an ABR Loan or (ii) 4.10% per annum in the case of a Term Benchmark Loan, and (c) with respect to any Revolving Loan, (i) 1.00% per annum in the case of an ABR Loan or (ii) 2.00% per annum in the case of a Term Benchmark Loan.
“Applicable Revolving Commitment Fee Rate” means with respect to the unused Revolving Commitments, (i) until delivery of a certificate of a Financial Officer to the Administrative Agent pursuant to Section 5.01(d), 0.50%; and (ii) (A) if the First Lien Leverage Ratio as set forth in the most recent certificate of a Financial Officer received by the Administrative Agent pursuant to Section 5.01(d) is greater than 3.00 to 1.00, a percentage per annum equal to 0.50%, (B) if the First Lien Leverage Ratio as set forth in the most recent certificate of a Financial Officer received by the Administrative Agent pursuant to Section 5.01(d) is less than or equal to 3.00 to 1.00 and greater than 2.75 to 1.00, a percentage per annum equal to 0.375% and (C) if the First Lien Leverage Ratio as set forth in the most recent certificate of a Financial Officer received by the Administrative Agent pursuant to Section 5.01(d) is less than or equal to 2.75 to 1.00, a percentage per annum equal to 0.25%.
Any increase or decrease in the Applicable Revolving Commitment Fee Rate resulting from a change in the First Lien Leverage Ratio shall become effective as of the first Business Day immediately following the date a certificate of a Financial Officer is delivered pursuant to Section 5.01(d); provided that at the option of the Administrative Agent or the Required Lenders, the highest Applicable Revolving Commitment Fee Rate (i.e., 0.50%) shall apply as of the first Business Day after the date on which a certificate of a Financial Officer pursuant to Section 5.01(d) was required to have been delivered but was not delivered, and shall continue to so apply to and including the date on which such certificate is so delivered (and thereafter the Applicable Revolving Commitment Fee Rate otherwise determined in accordance with this definition shall apply).
Upon the request of the Administrative Agent or the Required Lenders on and after receipt of a notice that an Event of Default has occurred, the highest Applicable Revolving Commitment Fee Rate (i.e., 0.50%) shall apply as of the date of such Event of Default (as reasonably determined by the Borrower) and shall continue to so apply to but excluding the date on which such Event of Default shall cease to be continuing (and thereafter, in each case, the pricing level otherwise determined in accordance with this definition shall apply).
In the event that any financial statements under Section 5.01 or a Compliance Certificate is shown to be inaccurate at any time and such inaccuracy, if corrected, would have led to a higher Applicable Rate for any Applicable Period than the Applicable Rate applied for such Applicable Period, then (i) the Borrower shall promptly (and in no event later than five Business Days thereafter) deliver to the Administrative Agent a correct Compliance Certificate for such Applicable Period, (ii) the Applicable Rate shall be determined by reference to the corrected Compliance Certificate, and (iii) the Borrower shall pay to the Administrative Agent promptly upon written demand (and in no event later than five Business Days after written demand) any additional interest owing as a result of such increased Applicable Rate for such Applicable Period, which payment shall be promptly applied by the Administrative Agent in accordance with the terms hereof. Notwithstanding anything to the contrary in this Agreement, any additional interest hereunder shall not be due and payable until written demand is made for such payment pursuant to this paragraph and accordingly, any nonpayment of such interest as a result of any such inaccuracy shall not constitute a Default (whether retroactively or otherwise), and no such amounts shall be deemed overdue (and no amounts shall accrue interest at the rate set forth in Section 2.13(c)), at any time prior to the date that is five Business Days following such written demand.
“Approved Bank” has the meaning assigned to such term in the definition of the term “Permitted Investments.”
6
“Approved Electronic Platform” has the meaning assigned to it in Section 8.03(a).
“Approved Foreign Bank” has the meaning assigned to such term in the definition of the term “Permitted Investments.”
“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any Person whose consent is required by Section 9.04), or as otherwise required to be entered into under the terms of this Agreement, substantially in the form of Exhibit A or any other form reasonably approved by the Administrative Agent.
“Auction Agent” means (a) the Administrative Agent or (b) any other financial institution or advisor employed by the Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Discounted Term Loan Prepayment pursuant to Section 2.11(a)(ii); provided that the Borrower shall not designate the Administrative Agent as the Auction Agent without the written consent of the Administrative Agent (it being understood that the Administrative Agent shall not be under any obligation to agree to act as the Auction Agent).
“Available Amount,” means, on any date of determination, a cumulative amount equal to (without duplication):
(a) Cumulative EBITDA less 1.4 times Cumulative Consolidated Interest Expense, plus
(b) returns, profits, distributions and similar amounts received in cash or Permitted Investments and the Fair Market Value of any in-kind amounts received by the Borrower and its Restricted Subsidiaries on Investments made using the Available Amount (not to exceed the amount of such Investments), plus
(c) Investments of the Borrower or any of its Restricted Subsidiaries in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary or that has been merged or consolidated with or into the Borrower or any of its Restricted Subsidiaries (up to the lesser of (i) the Fair Market Value of the Investments of the Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time of such re-designation or merger or consolidation and (ii) the Fair Market Value of the original Investment by the Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary), plus
(d) the Net Proceeds of a sale or other Disposition of any Unrestricted Subsidiary (including the issuance or sale of Equity Interests of an Unrestricted Subsidiary) received by the Borrower or any of its Restricted Subsidiaries, plus
(e) to the extent not included in Consolidated Net Income, dividends or other distributions or returns on capital received by the Borrower or any of its Restricted Subsidiaries from an Unrestricted Subsidiary, plus
(f) the aggregate amount of any Retained Declined Proceeds since the Effective Date.
“Available Equity Amount” means a cumulative amount equal to (without duplication):
(a) the Net Proceeds of new public or private issuances of Qualified Equity Interests in Parent or any other Parent Entity of the Borrower which are contributed to the Borrower, plus
(b) capital contributions received by the Borrower or any Restricted Subsidiaries after the Effective Date in cash or Permitted Investments (other than (x) in respect of any Disqualified Equity Interest and (y) any Designated Parent Contribution) and the Fair Market Value of any in-kind contributions, plus
7
(c) the net cash proceeds or Permitted Investments received by the Borrower or any Restricted Subsidiaries from Indebtedness and Disqualified Equity Interest issuances issued after the Effective Date and which have been exchanged or converted into Qualified Equity Interests, plus
(d) returns, profits, distributions and similar amounts received in cash or Permitted Investments and the Fair Market Value of any in-kind amounts received by the Borrower and the Restricted Subsidiaries on Investments made using the Available Equity Amount (not to exceed the amount of such Investments);
provided that the Available Equity Amount shall not include any Cure Amount, any amounts used to incur Indebtedness pursuant to Section 6.01(a)(xxiv), any amounts used to make Investments pursuant to Section 6.04(p), any amounts used to make Restricted Payments pursuant to Section 6.08(a)(vi)(D) or Excluded Contributions.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency of making payments of interest calculated pursuant to this Agreement 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 clause (e) of Section 2.14.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Basel III” means, collectively, those certain agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A Global Regulatory Framework for More Resilient Banks and Banking Systems,” “Basel III: International Framework for Liquidity Risk Measurement, Standards and Monitoring,” and “Guidance for National Authorities Operating the Countercyclical Capital Buffer,” each as published by the Basel Committee on Banking Supervision in December 2010 (as revised from time to time), and as implemented by a Lender’s primary banking regulatory authority.
“Benchmark” means, initially, with respect to any Term Benchmark Loan, the Adjusted Term SOFR Rate; provided that if a Benchmark Transition Event, and the related Benchmark Replacement Date have occurred with respect to the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) of Section 2.14.
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent, in each case, for the applicable Benchmark Replacement Date:
(1) the Adjusted Daily Simple SOFR Rate; or
(2) the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for
8
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 the then-current Benchmark for syndicated credit facilities denominated in dollars at such time in the United States and (b) the related Benchmark Replacement Adjustment;
If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, 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 for the applicable Corresponding Tenor giving due consideration to (i) 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 on the applicable Benchmark Replacement Date and/or (ii) 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 syndicated credit facilities denominated in dollars.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement and/or any Term Benchmark Loan, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate”, the definition of “Business Day”, the definition of “U.S. Government Securities Business Day”, the definition of “Interest Period”, timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark and to permit the 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 such Benchmark exists, in such other manner of administration as the Administrative Agent decides in consultation with the Borrower is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event”, the later of (a) the date of the public statement or publication of information referenced therein and (b) 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
(2) in the case of clause (3) 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 no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) 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, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) 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).
9
“Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
(1) 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);
(2) 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 Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, 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), in each case, which states that the administrator of such Benchmark (or such component) 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); or
(3) 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 no longer, or as of a specified future date will no longer 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 Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.14(b) and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.14(b).
“Beneficial Ownership Certification” means a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code, or (c) any Person whose assets include (for purposes of the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. § 1841(k)) of such party.
“Board of Directors” means, with respect to any Person, (a) in the case of any corporation, the board of directors of such Person or any committee thereof duly authorized to act on behalf of such board, (b) in the case of any limited liability company, the board of managers, board of directors, manager or managing member of such Person or the functional equivalent of the foregoing, (c) in the case of any partnership, the board of directors, board of managers, manager or managing member of a general partner of such Person or the functional equivalent of the foregoing and (d) in any other case, the functional equivalent of the foregoing. In addition, the term “director” means a director or functional equivalent thereof with respect to the relevant Board of Directors.
10
“Board of Governors” means the Board of Governors of the Federal Reserve System of the United States of America.
“Bookrunner” means JPMorgan Chase Bank, N.A.
“Borrower” has the meaning provided in the preamble hereto.
“Borrower Materials” has the meaning specified in Section 5.01.
“Borrower Offer of Specified Discount Prepayment” means the offer by the Borrower to make a voluntary prepayment of Term Loans at a specified discount to par pursuant to Section 2.11(a)(ii)(B).
“Borrower Solicitation of Discount Range Prepayment Offers” means the solicitation by the Borrower of offers for, and the corresponding acceptance by a Term Lender of, a voluntary prepayment of Term Loans at a specified range at a discount to par pursuant to Section 2.11(a)(ii)(C).
“Borrower Solicitation of Discounted Prepayment Offers” means the solicitation by the Borrower of offers for, and the subsequent acceptance, if any, by a Term Lender of, a voluntary prepayment of Term Loans at a discount to par pursuant to Section 2.11(a)(ii)(D).
“Borrowing” means (a) Loans of the same Class and Type, made, converted or continued on the same date in the same currency and, in the case of Term Benchmark Loans, as to which a single Interest Period is in effect, or (b) a Swingline Loan.
“Borrowing Minimum” means (a) in the case of a Revolving Loan Borrowing, $1,000,000 and (b) in the case of a Swingline Loan, $100,000; provided that concurrent assignments to or from Affiliates and groups of funds will be aggregated and treated as a single assignment for purposes of determining whether such minimum amount has been met.
“Borrowing Multiple” means (a) in the case of a Revolving Loan Borrowing, $100,000 and (b) in the case of a Swingline Loan, $100,000.
“Borrowing Request” means a request by the Borrower for a Borrowing in accordance with Section 2.03.
“Broadcast Licenses” means (a) the licenses, permits, authorizations or certificates to construct, own or operate the Stations granted by the FCC, and all extensions, additions and renewals thereto or thereof, and (b) the licenses, permits, authorizations or certificates which are necessary to construct, own or operate the Stations granted by administrative law courts or any state, county, city, town, village or other local Governmental Authority, and all extensions, additions and renewals thereto or thereof. For the avoidance of doubt, “Broadcast Licenses” shall include any license, authorization, approval, or permit granted by the FCC pursuant to the Communications Act of 1934, as amended, and the rules, regulations, published orders and published and promulgated policy statements of the FCC, all as may be amended from time to time, to the Borrower or any of its Restricted Subsidiaries, or assigned or transferred to the Borrower or any Subsidiary Guarantor pursuant to FCC consent.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that when used in connection with a Term Benchmark Loan the term “Business Day” shall also exclude any day that is not a U.S. Government Securities Business Day.
“Capital Expenditures” means, for any period, (a) the aggregate of, without duplication, all expenditures (whether paid in cash or accrued as liabilities) by the Borrower and its Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as additions during such period to property, plant or equipment reflected in the consolidated balance sheet of Borrower and its Restricted Subsidiaries and (b) all Capitalized Software Expenditures.
11
“Capital Stock” means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
“Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by a Person and its Restricted Subsidiaries during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of a Person and its Restricted Subsidiaries.
“Cash Collateralize” means to pledge and deposit with or deliver to the Collateral Trustee, for the benefit of one or more of the Issuing Banks or Revolving Lenders, as collateral for LC Exposure or obligations of the Revolving Lenders to fund participations in respect of LC Exposure, cash or deposit account balances under the sole dominion and control of the Collateral Trustee or, if the Collateral Trustee and the applicable Issuing Bank 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 (in respect of the Revolving Credit Facility) and each applicable Issuing Bank. “Cash Collateral” and “Cash Collateralization” shall have meanings correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
“Cash Equivalents” has the meaning assigned to such term in the definition of “Permitted Investments”.
“Cash Management Obligations” means obligations of Parent, the Borrower or any of its Restricted Subsidiaries in respect of (a) any overdraft and related liabilities arising from treasury, depository, cash pooling arrangements and cash management or treasury services or any automated clearing house transfers of funds, (b) other obligations in respect of netting services, employee credit or purchase card programs and similar arrangements and (c) other services related, ancillary or complementary to the foregoing (including Cash Management Services).
“Cash Management Services” has the meaning assigned to such term in the definition of the term “Secured Cash Management Obligations”.
“Casualty Event” means any event that gives rise to the receipt by the Borrower or any of its Restricted Subsidiaries of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property.
“Change in Control”^^means (a) the failure by the Permitted Holders to beneficially own directly or indirectly Voting Equity Interests in Parent or the Borrower representing at least a majority of the aggregate votes entitled to vote for the election of directors of Parent or the Borrower, as applicable, having a majority of the aggregate votes on the Board of Directors of Parent or the Borrower, unless any Permitted Holder or Permitted Holders have the right (pursuant to contract, proxy or otherwise), to designate, nominate or appoint, directly or indirectly, directors of Parent or the Borrower, as applicable, having a majority of the aggregate votes on the Board of Directors or other governing body of Parent or the Borrower, as applicable, or (b) the occurrence and continuance of a “Change of Control” (or similar term), as defined in the documentation governing the Existing First Lien Senior Secured Notes and the 9.750% Second Lien Secured Notes (and any Permitted Refinancing thereof that constitutes
12
Material Indebtedness). Notwithstanding the foregoing, if any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), including any group acting for the purpose of acquiring, holding or disposing of Equity Interests of Parent or the Borrower (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) that are not Permitted Holders has the right (directly or indirectly) to appoint or nominate (in the aggregate) the members of the Board of Directors of the Borrower or Parent (including through having voting rights over Voting Equity Interests of Parent or the Borrower), in each case, having the right to vote a majority of the aggregate votes of the members on the Board of the Borrower or the Parent, a Change in Control will be deemed to have occurred.
For purposes of this definition, including other defined terms used herein in connection with this definition, (i) “beneficial ownership” shall be as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act as in effect on the Effective Date and (ii) the phrase Person or group is within the meaning of Section 13(d) or 14(d) of the Exchange Act, but excluding any employee benefit plan of such Person or group or its subsidiaries and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan. Any person shall be deemed to beneficially own directly or indirectly Voting Equity Interests in (1) any corporation, association or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total voting power of shares of Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof; and (2) any partnership, joint venture, limited liability company or similar entity of which (a) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise, and (b) such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
Notwithstanding anything to the contrary in this definition or any provision of Section 13d-3 of the Exchange Act, (A) if any group includes one or more Permitted Holders, the issued and outstanding Equity Interests of Parent, directly or indirectly owned by the Permitted Holders that are part of such group shall not be treated as being beneficially owned by such group or any other member of such group, (B) a Person or group shall not be deemed to beneficially own Equity Interests to be acquired by such Person or group pursuant to a stock or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the Equity Interests in connection with the transactions contemplated by such agreement and (C) a Person or group will not be deemed to beneficially own the Equity Interests of another Person as a result of its ownership of Equity Interests or other securities of such other Person’s parent (or related contractual rights) unless it owns more than 50% of the total voting power of the Equity Interests entitled to vote for the election of directors of such Person’s parent having a majority of the aggregate votes on the Board of Directors of such Person’s parent.
“Change in Law” means (a) the adoption of any rule, regulation, treaty or other law after the date of this Agreement, (b) any change in any rule, regulation, treaty or other law or in the administration, interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that, notwithstanding anything herein to the contrary, (i) any requests, rules, guidelines or directives under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or issued in connection therewith and (ii) any requests, rules, guidelines or directives promulgated by the Bank of 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,” to the extent enacted, adopted, promulgated or issued after the date of this Agreement, but only to the extent such rules, regulations, or published interpretations or directives are applied to the Borrower and its Subsidiaries by the Administrative Agent or any Lender in substantially the same manner as applied to other similarly situated borrowers under comparable syndicated credit facilities, including, without limitation, for purposes of Section 2.15.
13
“Channel Sharing Agreement” means an agreement governing the shared use of a television channel or other similar contractual arrangement that constitutes a channel sharing agreement within the meaning of 47 C.F.R. § 73.3700(a)(5).
“Class” when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Incremental Revolving Loans, Other Revolving Loans, Term B-6 Loans, Term B-7 Loans, Incremental Term Loans, Other Term Loans or Swingline Loans, (b) any Commitment, refers to whether such Commitment is a Revolving Commitment, Other Revolving Commitment, Term B-6 Commitment, Term B-7 Commitment or Other Term Commitment and (c) any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments. Other Term Commitments, Other Term Loans, Other Revolving Commitments (and the Other Revolving Loans made pursuant thereto) and Incremental Term Loans that have different terms and conditions shall be construed to be in different Classes.
“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a successor administrator).
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Collateral” means any and all assets and property, whether tangible or intangible, on which Liens are purported to be granted pursuant to the Security Documents as security for the Secured Obligations.
“Collateral Agreement” means the Collateral Agreement, dated as of the Effective Date, among Parent, the Borrower, each other Loan Party and the Collateral Trustee (together with its successors in such capacity), substantially in the form of Exhibit D.
“Collateral and Guarantee Requirement” means, at any time, the requirement that:
(a) the Administrative Agent shall have received from (i) the Borrower and each Guarantor (other than an Excluded Subsidiary) (1) either (x) a counterpart of the Guarantee Agreement duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes a Loan Party after the Effective Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Guarantee Agreement, in the form specified therein, duly executed and delivered on behalf of such Person and (2) either (x) a counterpart of the Collateral Agreement duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes a Loan Party after the Effective Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Collateral Agreement, in the form specified therein, duly executed and delivered on behalf of such Person, in each case under this clause (a) together with, in the case of any such Loan Documents executed and delivered after the Effective Date, documents of the type referred to in Section 4.01(c), and, to the extent reasonably requested by the Collateral Trustee, opinions of the type referred to in Section 4.01(b);
(b) all outstanding Equity Interests of the Borrower and its Restricted Subsidiaries (other than any Equity Interests constituting Excluded Assets or Equity Interests of Immaterial Subsidiaries) owned by or on behalf of any Loan Party shall have been pledged pursuant to the Collateral Agreement (and the Collateral Trustee shall have received certificates or other instruments representing all such Equity Interests (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank);
(c) if any Indebtedness for borrowed money of the Borrower or any Subsidiary in a principal amount of $10,000,000 or more is owing by such obligor to any Loan Party, such Indebtedness shall be evidenced by a promissory note, such promissory note shall have been pledged pursuant to the Collateral Agreement and the Collateral Trustee shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank; and
14
(d) all certificates, agreements, documents and instruments, including Uniform Commercial Code financing statements, required by the Security Documents, Requirements of Law and reasonably requested by the Collateral Trustee to be filed, delivered, registered or recorded to create the Liens intended to be created by the Security Documents and perfect such Liens to the extent required by, and with the priority required by, the Security Documents and the other provisions of the term “Collateral and Guarantee Requirement,” shall have been filed, registered or recorded or delivered to the Collateral Trustee for filing, registration or recording.
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, (a) the foregoing provisions of this definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Loan Parties, or the provision of Guarantees by any Subsidiary, if, and for so long as and to the extent that the Administrative Agent and the Borrower reasonably agree in writing that the cost of creating or perfecting such pledges or security interests in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such Guarantees (taking into account any material adverse Tax consequences to Parent, the Borrower and its Subsidiaries (including the imposition of withholding or other material Taxes)), shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (b) Liens required to be granted from time to time pursuant to the term “Collateral and Guarantee Requirement” shall be subject to exceptions and limitations set forth in the Security Documents as in effect on the Effective Date, (c) in no event shall control agreements or other control or similar arrangements be required with respect to deposit accounts, securities accounts, commodities accounts or other assets specifically requiring perfection by control agreements, (d) no perfection actions shall be required with respect to Vehicles and other assets subject to certificates of title, (e) no perfection actions shall be required with respect to commercial tort claims with a value less than $10,000,000 and no perfection actions shall be required with respect to promissory notes evidencing debt for borrowed money in a principal amount of less than $10,000,000, (f) no actions in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction shall be required to be taken to create any security interests in assets located or titled outside of the United States (including any Equity Interests of Foreign Subsidiaries and any foreign Intellectual Property) or to perfect or make enforceable any security interests in any such assets (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction), (g) no actions shall be required to perfect a security interest in letter of credit rights (other than the filing of UCC financing statements), (h) in no event shall the Collateral include any Excluded Assets and (i) no actions shall be required to perfect a security interest in owned or leased real property. The Collateral Trustee may grant extensions of time or waivers for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary (including extensions beyond the Effective Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Effective Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Security Documents.
“Collateral Trust Agreement” means the Collateral Trust Agreement, dated as of the Effective Date, among the Collateral Trustee (together with its successors in such capacity), the Administrative Agent, as first lien administrative agent, U.S. Bank Trust Company, National Association (together with its successors in such capacity), as first-out first lien notes representative, U.S. Bank Trust Company, National Association (together with its successors in such capacity), as second-out first lien notes representative, the Borrower, Parent and each other Loan Party party thereto from time to time as a grantor, substantially in the form of Exhibit E.
“Collateral Trustee” has the meaning assigned to it in the preamble hereto.
“Commercial Letter of Credit” means any Letter of Credit issued for the purpose of providing the primary payment mechanism in connection with the purchase of any materials, goods or services by the Borrower or its Subsidiaries in the ordinary course of business.
“Commitment” means (a) with respect to any Lender, its Revolving Commitment, Other Revolving Commitment of any Class, Term Commitment, and Other Term Commitment of any Class or any combination thereof (as the context requires) and (b) with respect to any Swingline Lender, its Swingline Commitment.
15
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Communications” has the meaning assigned to it in Section 8.03(c).
“Compliance Certificate” means a certificate of a Financial Officer required to be delivered pursuant to Section 5.01(d).
“Consolidated EBITDA” means, for any period, with respect to any Person, the Consolidated Net Income of such Person for such period, plus:
(a) without duplication and to the extent already deducted (and not added back) in arriving at such Consolidated Net Income for such period, the sum of the following amounts for such period:
(i) total interest expense of such Person and, to the extent not reflected in such total interest expense, any losses on hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, net of interest income and gains on such hedging obligations or such derivative instruments, and bank and letter of credit fees and costs of surety bonds in connection with financing activities, plus items excluded from the definition of “Consolidated Interest Expense” pursuant to clauses (n) through (z) thereof,
(ii) provision for taxes based on income, profits, revenue or capital, including federal, foreign and state income, franchise, excise, value added and similar taxes based on income, profits, revenue or capital and foreign withholding taxes of such Person paid or accrued during such period (including in respect of repatriated funds), including any penalties and interest relating to such taxes or arising from any tax examinations and (without duplication) any payments actually made to a Parent Entity pursuant to Section 6.08(a)(vii) in respect of such taxes,
(iii) the total amount of depreciation and amortization expense (including amortization of deferred financing fees or costs, internal labor costs, debt issuance costs, commissions, fees and expenses, capitalized expenditures (including Capitalized Software Expenditures), customer acquisition costs and incentive payments, content (including film) amortization, conversion costs and contract acquisition costs) of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP,
(iv) any other non-cash charges, expenses or losses, including any write offs, write downs, expenses, losses or items (each, a “non-cash charge”), except that if any non-cash charge represents an accrual or reserve for potential cash items in any future period (A) such Person may elect not to add back such non-cash charge in such period and (B) to the extent such Person elects to add back such non-cash charge (other than amortization of a prepaid cash item that was paid in a prior period) in such period, the cash payment in respect thereof in any future period shall be subtracted from Consolidated EBITDA,
(v) (i) the amount of any non-controlling interest or minority interest expense consisting of income attributable to non-controlling or minority equity interests of third parties (other than the Borrower or any of its Subsidiaries) in any non-wholly-owned Subsidiary deducted (and not added back) in such period to Consolidated Net Income and (ii) the amount of dividends or distributions or other payments to the Borrower or any of its Restricted Subsidiaries that are actually paid in cash or Cash Equivalents (or if not paid in cash or Cash Equivalents, but later converted into cash or Cash Equivalents, upon such conversion) by any Person during such period, in the case of each of clauses (i) and (ii), without duplication of cash distributions in respect thereof which are included in Consolidated Net Income for such period,
16
(vi) the amount of fees, expenses and indemnities paid to directors, including of the Borrower or any Parent Entity thereof,
(vii) losses or discounts on sales or dispositions of receivables and related assets in connection with any Permitted Receivables Financing,
(viii) cash receipts (or any netting arrangements resulting in reduced cash expenditures) not included in the calculation of Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to paragraph (c) below for any previous period and not added back,
(ix) any costs or expenses incurred by such Person or any Restricted Subsidiary pursuant to any management equity plan or stock option plan or phantom equity plan or any other management or employee benefit plan or agreement, any severance agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are non-cash or otherwise funded with cash proceeds contributed to the capital of such Person or Net Proceeds of an issuance of Equity Interests of such Person (other than Disqualified Equity Interests),
(x) any net pension or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at the date of initial application of FASB Accounting Standards Codification 715, and any other items of a similar nature, plus
(xi) any other adjustments, exclusions and add-backs reflected in the Information Memorandum;
plus
(b) without duplication, the amount reasonably projected by such Person of “run rate” cost savings, expenses, operating expense reductions, synergies and contractual retransmission revenue (including from increased pricing, if any, determined on an aggregate basis across all existing customer contracts) and charges (including restructuring and integration charges) to be realized by such Person as a result of actions (including actions taken or initiated before, on or after the Effective Date) that have been taken or initiated or are expected to be taken or initiated in connection with, pursuant to or as contemplated by the Transactions, any Specified Event or any joint venture or other arrangement of such Person or any of its Restricted Subsidiaries (even if not accounted for on the financial statements of any such joint venture or such Person) occurring on or prior to the date that is 12 full months after the date of final consummation of any investment, disposition of assets, property, Capital Stock or Indebtedness, incurrence, prepayment or repayment of Indebtedness, Restricted Payment, Subsidiary designation, restructuring, cost saving initiative or other initiative (including any Acquisition Transactions) (each such investment, disposition, incurrence, prepayment, repayment, Restricted Payment and Subsidiary designation, a “Specified Event”). Such cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) 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 from such actions if such cost savings are reasonably identifiable and factually supportable; provided, that any such amounts attributable to actions taken or initiated after the Effective Date (other than such amounts that are already included in Consolidated EBITDA calculations for periods prior to the Effective Date and/or attributable to specifically identifiable and measurable contractual retransmission revenue from contracts acquired in connection with Acquisition Transactions and Investments in the broadcast industry, but including any such cost savings, expenses, operating expense reductions, synergies, contractual retransmission revenue and charges that are otherwise included in the calculation of Consolidated EBITDA due to add-backs and exceptions specified in the definition of “Consolidated Net Income” and in other components of “Consolidated EBITDA”) shall not constitute more than twenty percent (20%) of Consolidated EBITDA for such period (before giving effect to add-backs pursuant to this clause (b)). No cost savings, expenses, operating expense reductions, synergies and
17
charges (including restructuring and integration charges) shall be added pursuant to this clause (b) to the extent duplicative of any cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) that are included in clause (a) above (it being understood and agreed that “run rate” shall mean the full recurring cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) that is associated with any action taken) and the share of any such cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) with respect to a joint venture that are to be allocated to such Person shall not exceed the total amount thereof proportionate to such Person’s economic interest in such joint venture for the relevant Test Period;
plus
(c) any Designated Parent Contribution;
less
(d) without duplication and to the extent included in arriving at such Consolidated Net Income, the sum of the following amounts for such period:
(i) non-cash gains (excluding any non-cash gain to the extent it represents the reversal of an accrual or reserve for a potential cash item that reduced Consolidated Net Income or Consolidated EBITDA in any prior period),
(ii) the amount of any non-controlling interest consisting of loss attributable to non-controlling interests of third parties in any non-wholly-owned subsidiary added (and not deducted in such period from Consolidated Net Income),
(iii) Film Cash Payments made during such period (and not deducted in such period from Consolidated Net Income),
in each case, as determined on a consolidated basis for such Person and its Restricted Subsidiaries in accordance with GAAP; provided that,
(I) there shall be included in determining Consolidated EBITDA for any period, without duplication, the Acquired EBITDA of any Person, property, business or asset acquired by the Borrower or any of its Restricted Subsidiaries during such period (other than any Unrestricted Subsidiary) whether such acquisition occurred before or after the Effective Date to the extent not subsequently sold, transferred or otherwise disposed of (but not including the Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired) (each such Person, property, business or asset acquired, including pursuant to the Transactions or pursuant to a transaction consummated prior to the Effective Date, and not subsequently so disposed of, an “Acquired Entity or Business”), and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during such period (each, a “Converted Restricted Subsidiary”), in each case based on the Acquired EBITDA of such Pro Forma Entity for such period (including the portion thereof occurring prior to such acquisition or conversion) determined on a historical Pro Forma Basis,
(II) there shall be (A) excluded in determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business or asset (other than any Unrestricted Subsidiary) sold, transferred or otherwise disposed of, closed or classified as discontinued operations by the Borrower or any of its Restricted Subsidiaries during such period (but if such operations are classified as discontinued due to the fact that they are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually disposed of) (each such Person, property, business or asset so sold, transferred or otherwise disposed of, closed or classified, a “Sold Entity or Business”), and the Disposed EBITDA of any Restricted
18
Subsidiary that is converted into an Unrestricted Subsidiary during such period (each, a “Converted Unrestricted Subsidiary”), in each case based on the Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer, disposition, closure, classification or conversion) determined on a historical Pro Forma Basis and (B) included in determining Consolidated EBITDA for any period in which a Sold Entity or Business is disposed, an adjustment equal to the Pro Forma Disposal Adjustment with respect to such Sold Entity or Business (including the portion thereof occurring prior to such disposal) as specified in the Pro Forma Disposal Adjustment certificate delivered to the Administrative Agent (for further delivery to the Lenders), and
(III) there shall be excluded from Consolidated EBITDA any management fees paid by or on behalf of Diamond Sports Group, LLC to the Borrower or any of its Restricted Subsidiaries prior to the Effective Date pursuant to the management services agreement between Diamond Sports Group, LLC and the Borrower dated August 23, 2019.
In addition, to the extent not already included in the Consolidated EBITDA of such Person and its Restricted Subsidiaries in any period, notwithstanding anything to the contrary in the foregoing, Consolidated EBITDA shall include additional adjustments evidenced by or contained in a due diligence or quality of earnings report prepared with respect to any Investment permitted under this Agreement that has been consummated (or, solely for purposes of determining the permissibility of any Investment that constitutes a Limited Condition Transaction, a definitive agreement or other binding obligation with respect to which has been entered into) and made available to the Administrative Agent by a nationally recognized accounting firm.
“Consolidated First Lien Debt” means, as of any date of determination, (a) the amount of Consolidated Total Debt (including in respect of the Loans hereunder) that is secured by all of the Collateral on an equal or super priority basis (but without regard to the control of remedies and/or payment priority as to the application of proceeds with respect to, and dispositions made on account of, any such Collateral) with Liens securing the Secured Obligations, minus (b) Unrestricted cash and Permitted Investments of such Person or any Restricted Subsidiary.
“Consolidated Interest Expense” means, with respect to any Person for any period, the sum, without duplication, of:
(1) consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (c) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark-to-market valuation of Swap Obligations or other derivative instruments pursuant to GAAP), (d) the interest component of Financing Lease Obligations, and (e) net payments, if any made (less net payments, if any, received), pursuant to interest rate Swap Obligations with respect to Indebtedness, and excluding (n) any interest expense attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto and with respect to the Transactions or any Specified Event, (o) annual agency or similar fees paid to the Administrative Agent, Collateral Trustee and other agents under this Agreement or other credit facilities, (p) any additional interest with respect to failure to comply with any registration rights agreement owing with respect to any securities, (q) costs associated with obtaining Swap Obligations, (r) any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting in connection with the Transactions or any acquisition, (s) penalties and interest relating to taxes, (t) any “additional interest” or “liquidated damages” with respect to other securities for failure to timely comply with registration rights obligations, (u) amortization or expensing of deferred financing fees, amendment and consent fees, debt issuance costs, commissions, fees, expenses and discounted liabilities, (v) any expensing of bridge, commitment and other financing fees and any other fees related to the Transactions or any acquisitions after the Effective Date, (w) commissions, discounts, yield and other fees and charges (including any interest expense) related to any Permitted Receivables Financing, (x) any accretion of accrued interest on discounted liabilities and any prepayment, make-whole or breakage premium, cost or penalty, (y) interest expense attributable to a Parent Entity resulting from push-down accounting, and (z) any lease, rental or other expense in connection with a Non-Financing Lease Obligation); plus
19
(2) consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less
(3) interest income of such Person and its Restricted Subsidiaries for such period.
For purposes of this definition, interest on a Financing Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Financing Lease Obligation in accordance with GAAP (or, if not implicit, as otherwise determined in accordance with GAAP).
“Consolidated Net Income” means, with respect to any Person for any period, the net income (loss) of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, excluding (and excluding the effect of), without duplication:
(a) extraordinary, exceptional, one-time, infrequent, non-recurring, non-operating or unusual gains or losses (less all fees and expenses relating thereto) and expenses (including any unusual or non-recurring operating expenses directly attributable to the implementation of cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges), initiatives and any accruals or reserves in respect of any extraordinary, non-recurring or unusual items), severance, relocation costs, contract termination costs, system establishment charges, integration and facilities’ opening costs and other business optimization expenses (including related to new product introductions and other strategic or cost saving initiatives), restructuring charges, accruals or reserves (including restructuring and integration costs related to acquisitions after the Effective Date and adjustments to existing reserves), whether or not classified as restructuring expense on the consolidated financial statements, recruiting and signing costs, retention or completion bonuses, other executive recruiting and retention costs, transition costs, charges or expenses attributable to legal or regulatory claims, suits, actions, disputes, hearings and other matters, asset divestitures, costs or cost inefficiencies related to labor, facility, property or broadcasting transmission slowdowns, shutdowns or disruptions (as applicable), costs related to closure/consolidation of facilities and curtailments or modifications to pension and post-retirement employee benefit plans (including any settlement of pension liabilities and charges resulting from changes in estimates, valuations and judgments thereof),
(b) the cumulative effect of a change in accounting principles and changes as a result of adoption or modification of accounting policies during such period to the extent included in Consolidated Net Income,
(c) Transaction Costs,
(d) the net income for such period of any Person that is an Unrestricted Subsidiary and any Person that is not a Subsidiary or that is accounted for by the equity method of accounting, except that Consolidated Net Income shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash or Permitted Investments (or, if not paid in cash or Permitted Investments, but later converted into cash or Permitted Investments, upon such conversion) by such Person to the Borrower or a Restricted Subsidiary thereof during such period,
(e) any fees and expenses (including any transaction or retention bonus or similar payment) incurred during such period, or any amortization thereof for such period, in connection with any Specified Event acquisition, Investment, asset disposition, issuance or repayment of debt, issuance of equity securities, refinancing transaction or amendment or other modification of, or the rating if by the Rating Agencies, any debt instrument (in each case, including any such transaction consummated prior to the Effective Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction, in each case whether or not successful or abandoned (including, for the avoidance of doubt, the effects of expensing all transaction-related expenses in accordance with FASB Accounting Standards Codification 805 and gains or losses associated with FASB Accounting Standards Codification 460),
20
(f) any income (loss) for such period attributable to the early extinguishment of Indebtedness, hedging agreements or other derivative instruments (including deferred financing costs written off and premiums paid),
(g) [reserved],
(h) all Non-Cash Compensation Expenses,
(i) any income (loss) attributable to deferred compensation plans or trusts,
(j) any income (loss) from investments recorded using the equity method of accounting (but including any cash dividends or distributions actually received by the Borrower or any of its Restricted Subsidiaries in respect of such investment),
(k) any gain (loss) on asset sales, disposals or abandonments (other than asset sales, disposals or abandonments in the ordinary course of business) or income (loss) from discontinued operations (but if such operations are classified as discontinued due to the fact that they are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually disposed of),
(l) any non-cash gain (loss) attributable to the mark to market movement in the valuation of hedging obligations or other derivative instruments pursuant to FASB Accounting Standards Codification 815-Derivatives and Hedging or mark to market movement of other financial instruments pursuant to FASB Accounting Standards Codification 825-Financial Instruments in such Test Period; provided that any cash payments or receipts relating to transactions realized in a given period shall be taken into account in such period,
(n) any non-cash gain (loss) related to currency remeasurements of Indebtedness, net loss or gain resulting from hedging agreements for currency exchange risk and revaluations of intercompany balances and other balance sheet items,
(o) any non-cash expenses, accruals or reserves related to adjustments to historical tax exposures (provided, in each case, that the cash payment in respect thereof in such future period shall be subtracted from Consolidated Net Income for the period in which such cash payment was made),
(p) any impairment charge or asset write-off or write-down (including related to intangible assets (including goodwill), long-lived assets, and investments in debt and equity securities, and write-offs and write-downs in connection with film and other programming costs),
(q) solely for the purpose of calculating the Available Amount, the net income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded to the extent the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its net income is not at the date of determination wholly permitted without any prior Governmental Approval (which has not been obtained) or, directly or indirectly, is otherwise restricted by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived or released (or the Borrower reasonably believes such restriction could be waived or released and is using commercially reasonable efforts to pursue such waiver or release); provided that Consolidated Net Income of the Borrower will be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash) or Permitted Investments to the Borrower or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein,
21
(r) [reserved],
(s) costs associated with, or in anticipation of, or preparation for, compliance with the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and other costs and expenses attributable to the Borrower or any Parent Entity thereof being a public company, and
(t) any expenses, charges or losses to the extent covered by insurance or indemnity and actually reimbursed, or, so long as such Person has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the extent that such amount is in fact reimbursed within 365 days of the date of the insurable or indemnifiable event (net of any amount so added back in any prior period to the extent not so reimbursed within the applicable 365 day period).
There shall be excluded from Consolidated Net Income for any period the effects from applying acquisition method accounting, including applying acquisition method accounting to inventory, property and equipment, loans and leases, software and other intangible assets and deferred revenue (including deferred costs related thereto and deferred rent) required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to such Person and its Restricted Subsidiaries), as a result of the Transactions, any Specified Event, acquisition or Investment consummated prior to the Effective Date and any other Specified Event or acquisition (by merger, consolidation, amalgamation or otherwise) or other Investment or the amortization or write-off of any amounts thereof.
In addition, to the extent not already included in Consolidated Net Income, Consolidated Net Income shall include (i) the amount of proceeds received or due from business interruption insurance or reimbursement of expenses and charges that are covered by indemnification and other reimbursement provisions in connection with any Specified Event, acquisition or other Investment or any disposition of any asset permitted hereunder (net of any amount so added back in any prior period to the extent not so reimbursed within a two-year period) and (ii) the amount of any cash tax benefits related to the tax amortization of intangible assets in such period.
“Consolidated Secured Debt” means, as of any date of determination, (a) the amount of Consolidated Total Debt (including in respect of the Loans hereunder) that is secured by the Collateral minus (b) Unrestricted cash and Permitted Investments of such Person or any Restricted Subsidiary.
“Consolidated Total Assets” means, as at any date of determination, the amount that would be set forth opposite the caption “total assets” (or any like caption) on the most recent consolidated balance sheet of the Borrower and its Restricted Subsidiaries in accordance with GAAP.
“Consolidated Total Debt” means, as of any date of determination, with respect to any Person and its Restricted Subsidiaries, an amount equal to (a) the sum of (1) the aggregate amount of all outstanding Indebtedness of such Person and its Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money, unreimbursed drawings under letters of credit, obligations in respect of Financing Lease Obligations, debt obligations evidenced by promissory notes and similar instruments, but excluding (A) all undrawn amounts under revolving credit facilities, (B) Swap Obligations, (C) performance bonds or any similar instruments, (D) the effects of any discounting of Indebtedness resulting from the application of acquisition method accounting in connection with the Transactions or any Specified Event, acquisition (by merger, consolidation, amalgamation, dividend, distribution or otherwise), or other Investment, and (E) all obligations relating to Permitted Receivables Financings and (2) the aggregate amount of all outstanding Disqualified Equity Interest of such Person and all Preferred Stock of its Restricted Subsidiaries on a consolidated basis, with the amount of such Disqualified Equity Interest and Preferred Stock equal to the greater of their respective voluntary or involuntary liquidation preferences and maximum fixed repurchase prices, in each case determined on a consolidated basis in accordance with GAAP; less (b) Unrestricted cash and Permitted Investments of such Person and its Restricted Subsidiaries. For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Equity Interest or Preferred Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Equity Interest or Preferred Stock as if such Disqualified Equity Interest or Preferred Stock were purchased on any date on which Consolidated Total Debt shall be required to be determined pursuant to this Agreement, and if such price is based upon, or measured by, the fair market value of such Disqualified Equity Interest or Preferred Stock, such fair market value shall be determined in good faith by the Board of Directors or senior management of such Person.
22
“Consolidated Working Capital” means, at any date, the excess of (a) the sum of all amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of Parent and the Restricted Subsidiaries at such date, excluding the current portion of current and deferred income taxes over (b) the sum of all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of Parent and the Restricted Subsidiaries on such date, including deferred revenue but excluding, without duplication, (i) the current portion of any Funded Debt, (ii) all Indebtedness consisting of Loans and obligations under letters of credit to the extent otherwise included therein, (iii) the current portion of interest and (iv) the current portion of current and deferred income taxes; provided that, for purposes of calculating Excess Cash Flow, increases or decreases in working capital (A) arising from acquisitions or dispositions by Parent and the Restricted Subsidiaries shall be measured from the date on which such acquisition or disposition occurred and not over the period in which Excess Cash Flow is calculated and (B) shall exclude (I) the impact of non-cash adjustments contemplated in the Excess Cash Flow calculation, (II) the impact of adjusting items in the definition of “Consolidated Net Income” and (III) any changes in current assets or current liabilities as a result of (x) the effect of fluctuations in the amount of accrued or contingent obligations, assets or liabilities under hedging agreements or other derivative obligations, (y) any reclassification, other than as a result of the passage of time, in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent or (z) the effects of acquisition method accounting.
“Contract Station” means (a) each television or radio station identified as such in Schedule 1.01(c), (b) each television or radio station that is the subject of an Acquisition Transaction consummated by the Borrower or any Subsidiary on or after the date hereof and (c) any television or radio station with which the Borrower or any Subsidiary has entered into any Program Services Agreement, Outsourcing Agreement or other similar agreement on or after the date hereof, in each case until such time, if any, as the Borrower or any Subsidiary acquires the Broadcast License of such television or radio station and such station becomes an Owned Station.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies, or the dismissal or appointment of the management, of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Converted Restricted Subsidiary” has the meaning given such term in the definition of “Consolidated EBITDA.”
“Converted Unrestricted Subsidiary” has the meaning assigned to such term in the definition of the term “Consolidated EBITDA.”
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Covenant Suspension Event” has the meaning specified in Section 6.12.
“Covered Assets” has the meaning specified in Section 5.15.
“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).
“Covered Party” has the meaning specified in Section 9.18.
23
“Credit Agreement Refinancing Indebtedness” means Indebtedness issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) by a Loan Party (and which is not provided by an Affiliate thereof) in exchange for, or to extend, renew, replace or refinance, in whole or part, any Class of existing Term Loans or Revolving Loans (or unused Revolving Commitments) (“Refinanced Debt”); provided that such exchanging, extending, renewing, replacing or refinancing Indebtedness (a) is in an original aggregate principal amount not greater than the aggregate principal amount of the Refinanced Debt (plus any reasonable and customary call premiums, accrued interest and fees and expenses incurred in connection with such exchange, extension, renewal, replacement or refinancing), (b) does not mature earlier than or, except in the case of Revolving Commitments, have a Weighted Average Life to Maturity shorter than the Refinanced Debt, (c) shall not be guaranteed by any entity that is not a Loan Party, (d) in the case of any secured Indebtedness (i) is not secured by any assets not securing the Secured Obligations, (ii) is Second Out Debt or junior (as to the priority of the Liens securing such Indebtedness or as to the priority of payment with respect to the proceeds of the Collateral) to the Second Out Obligations and (iii) is subject to the relevant Intercreditor Agreements, (e) the pricing for such Indebtedness, including the interest rate margins, fees, premiums, funding discounts, maturity date and amortization which are at then-prevailing market rates for similarly situated borrowers or issuers and (f) has terms and conditions (excluding pricing, interest rate margins, rate floors, discounts, fees, premiums and prepayment or redemption provisions) that are not materially more favorable (when taken as a whole) to the lenders or investors providing such Indebtedness than the terms and conditions of this Agreement (when taken as a whole) are to the Term Lenders (except for covenants or other provisions applicable only to periods after the Latest Maturity Date at the time of such refinancing) as determined by the Borrower in good faith (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, such indebtedness shall be deemed not materially more favorable (when taken as a whole) to the lenders or investors providing such Indebtedness solely by virtue of such financial maintenance covenant and no consent shall be required by the Administrative Agent or any of the Lenders, if such financial maintenance covenant is either (i) also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (ii) only applicable after the Latest Maturity Date at the time of such refinancing).
“Cumulative Consolidated Interest Expense” means, as of any date of determination, Consolidated Interest Expense from the first date of the Borrower’s fiscal quarter during which the Effective Date occurs to the end of the Borrower’s most recently ended full fiscal quarter prior to such date, taken as a single accounting period.
“Cumulative EBITDA” means, as of any date of determination, Consolidated EBITDA from the first date of the Borrower’s fiscal quarter during which the Effective Date occurs to the end of the Borrower’s most recently ended full fiscal quarter prior to such date, taken as a single accounting period.
“Cure Amount” has the meaning specified in Section 7.02.
“Cure Right” has the meaning specified in Section 7.02.
“Daily Simple SOFR”^^means, for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day, a “SOFR Determination Date”) that is five U.S. Government Securities Business Days prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower.
“Default” means any event or condition that constitutes an Event of Default or that upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
“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.
24
“Defaulting Lender” means any Lender that has (a) failed to fund any portion of its Loans or participations in Letters of Credit or Swingline Loans within one Business Day of the date on which such funding is required hereunder, (b) notified the Borrower, the Administrative Agent, any Issuing Bank, any Swingline Lender or any Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement or provided any written notification to any Person to the effect that it does not intend to comply with its funding obligations under this Agreement or generally under other agreements in which it commits to extend credit, (c) failed, within three Business Days after request by the Administrative Agent (whether acting on its own behalf or at the reasonable request of the Borrower (it being understood that the Administrative Agent shall comply with any such reasonable request)) or by any Issuing Bank or any Swingline Lender, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans, (d) otherwise failed to pay over to the Administrative Agent, any Issuing Bank or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute or subsequently cured, or (e) after the Effective Date (i) become or is insolvent or has a parent company that has become or is insolvent, (ii) become the subject of a bankruptcy or insolvency proceeding or any action or proceeding of the type described in Section 7.01(h) or (i), or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be deemed to be a Defaulting Lender solely by virtue of the ownership or acquisition of any capital stock in such Lender or its direct or indirect parent 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.
“Defaulting Lender Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to any Issuing Bank, such Defaulting Lender’s Applicable Percentage of the outstanding Letter of Credit obligations other than Letter of Credit obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or cash collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s Applicable Percentage of Swingline Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or cash collateralized in accordance with the terms hereof.
“Delaware Divided LLC” means any Delaware LLC which has been formed upon the consummation of a Delaware LLC Division.
“Delaware LLC” means any limited liability company organized or formed under the laws of the State of Delaware.
“Delaware LLC Division” means the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18- 217 of the Delaware Limited Liability Company Act.
“Designated Non-Cash Consideration” means the Fair Market Value of non-cash consideration received by the Borrower or a Subsidiary in connection with a Disposition pursuant to Section 6.05(k) that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower, setting forth the basis of such valuation, less the amount of cash or Permitted Investments received in connection with a subsequent sale of or collection on or other disposition of such Designated Non-Cash Consideration. A particular item of Designated Non-Cash Consideration will no longer be considered to be outstanding when and to the extent it has been paid, redeemed, sold or otherwise disposed of or returned in exchange for consideration in the form of cash or Permitted Investments in compliance with Section 6.05.
“Designated Parent Contribution” means any cash equity contribution made by Parent to the Borrower and designated by the Borrower as a “Designated Parent Contribution”.
25
“Designated SBG Subsidiary” means each Subsidiary of Parent that is designated as a “Designated SBG Subsidiary” prior to the Effective Date pursuant to Section 6.10(a) of the Existing Credit Agreement or after the Effective Date pursuant to Section 5.15(a), in each case so long as such Subsidiary remains a Designated SBG Subsidiary hereunder. As of the Effective Date, there are no Designated SBG Subsidiaries.
“director” has the meaning assigned to such term in the definition of “Board of Directors.”
“Discount Prepayment Accepting Lender” has the meaning assigned to such term in Section 2.11(a)(ii)(B).
“Discount Range” has the meaning assigned to such term in Section 2.11(a)(ii)(C).
“Discount Range Prepayment Amount” has the meaning assigned to such term in Section 2.11(a)(ii)(C).
“Discount Range Prepayment Notice” means a written notice of a Borrower Solicitation of Discount Range Prepayment Offers made pursuant to Section 2.11(a)(ii)(C) substantially in the form of Exhibit K.
“Discount Range Prepayment Offer” means the irrevocable written offer by a Term Lender, substantially in the form of Exhibit L, submitted in response to an invitation to submit offers following the Auction Agent’s receipt of a Discount Range Prepayment Notice.
“Discount Range Prepayment Response Date” has the meaning assigned to such term in Section 2.11(a)(ii)(C).
“Discount Range Proration” has the meaning assigned to such term in Section 2.11(a)(ii)(C).
“Discounted Prepayment Determination Date” has the meaning assigned to such term in Section 2.11(a)(ii)(D).
“Discounted Prepayment Effective Date” means, in the case of a Borrower Offer of Specified Discount Prepayment or Borrower Solicitation of Discount Range Prepayment Offer, five Business Days following the receipt by each relevant Term Lender of notice from the Auction Agent in accordance with Section 2.11(a)(ii)(B), Section 2.11(a)(ii)(C) or Section 2.11(a)(ii)(D), as applicable, unless a shorter period is agreed to between the Borrower and the Auction Agent.
“Discounted Term Loan Prepayment” has the meaning assigned to such term in Section 2.11(a)(ii)(A).
“Disposed EBITDA” means, with respect to any Sold Entity or Business or Converted Unrestricted Subsidiary for any period, the amount for such period of Consolidated EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary (determined as if references to the Borrower and its Restricted Subsidiaries in the definition of the term “Consolidated EBITDA” (and in the component financial definitions used therein) were references to such Sold Entity or Business and its subsidiaries or to such Converted Unrestricted Subsidiary and its subsidiaries), all as determined on a consolidated basis for such Sold Entity or Business or Converted Unrestricted Subsidiary.
“Disposition” has the meaning assigned to such term in Section 6.05.
“Disqualified Equity Interest” means, with respect to any Person, any Equity Interest in such Person that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable, either mandatorily or at the option of the holder thereof), or upon the happening of any event or condition:
(a) matures or is mandatorily redeemable (other than solely for Equity Interests in such Person or in any Parent Entity that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests), whether pursuant to a sinking fund obligation or otherwise;
26
(b) is convertible or exchangeable, either mandatorily or at the option of the holder thereof, for Indebtedness or Equity Interests (other than solely for Equity Interests in such Person or in any Parent Entity that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests); or
(c) is redeemable (other than solely for Equity Interests in such Person or in any Parent Entity that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests) or is required to be repurchased by such Person or any of its Affiliates, in whole or in part, at the option of the holder thereof;
in each case, on or prior to the date 91 days after the Latest Maturity Date; provided, however, that (i) an Equity Interest in any Person that would not constitute a Disqualified Equity Interest but for terms thereof giving holders thereof the right to require such Person to redeem or purchase such Equity Interest upon the occurrence of an “asset sale,” “condemnation event,” a “change of control” or similar event shall not constitute a Disqualified Equity Interest if any such requirement becomes operative only after repayment in full of all the Loans and all other Loan Document Obligations that are accrued and payable and the termination of the Commitments and (ii) if an Equity Interest in any Person is issued pursuant to any plan for the benefit of employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries or by any such plan to such employees, such Equity Interest shall not constitute a Disqualified Equity Interest solely because it may be required to be repurchased by the Borrower (or any direct or indirect parent company thereof) or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations of such Person or as a result of such employee’s termination, death, or disability.
“Disqualified Lenders” means, unless otherwise consented to by the Borrower in writing (including by email), (a) those banks, financial institutions and other institutional lenders identified in writing by a Permitted Holder or the Borrower to the Bookrunner in writing prior to the Effective Date, (b) those Persons who are competitors of the Loan Parties and each of their respective Subsidiaries identified by a Permitted Holder or the Borrower to the Administrative Agent from time to time in writing (including by email) prior to the Effective Date and (c) in the case of each Persons identified pursuant to clauses (a) and (b) above, any of their Affiliates that are either (i) identified in writing (including by email) by the Borrower from time to time or (ii) reasonably identifiable as Affiliates on the basis of such Affiliate’s name (other than, in the case of this clause (c), Affiliates that are bona fide debt funds). The Disqualified Lender list and any updates thereto shall be sent by the Borrower to the Administrative Agent by email to [*****] in order to be deemed received and/or effective; provided, that no updates to the Disqualified Lender list shall be deemed to retroactively disqualify any parties that have previously acquired an assignment or participation in respect of the Loans from continuing to hold or vote such previously acquired assignments and participations on the terms set forth herein for Lenders that are not Disqualified Lenders; provided, further, that any such updates to the Disqualified Lender list shall not take effect until three Business Days after the updated list of Disqualified Lenders is made available to the Lenders. For the avoidance of doubt, the Borrower shall have the right to remove Disqualified Lenders from the Disqualified Lender list (including by email to the email address provided above).
“dollars” or “$” refers to lawful money of the United States of America.
“Domestic Subsidiary” means any Subsidiary that is not a Foreign Subsidiary.
“DSG Cash Tax Payments” means cash tax payments to be paid by or on behalf of the Borrower and its Restricted Subsidiaries related to the Diamond Sports Group, LLC bankruptcy.
“ECF Percentage” means, with respect to the prepayment required by Section 2.11(d) with respect to any fiscal year of the Borrower, if the First Lien Leverage Ratio (prior to giving effect to the applicable prepayment pursuant to Section 2.11(d), but after giving effect to any voluntary prepayments made pursuant to Section 2.11(a) prior to the date of such prepayment) as of the end of such fiscal year is (a) greater than 4.00 to 1.00, 50% of Excess Cash Flow for such fiscal year, (b) greater than 3.00 to 1.00 but less than or equal to 4.00 to 1.00, 25% of Excess Cash Flow for such fiscal year and (c) equal to or less than 3.00 to 1.00, 0% of Excess Cash Flow for such fiscal year.
27
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means February 12, 2025.
“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and (d) any other Person (including, subject to the requirements of Section 9.04(f), (g) and (h), as applicable, Parent, the Borrower or any of their Affiliates), other than, in each case, (i) a natural person, (ii) a Defaulting Lender or (iii) a Disqualified Lender.
“EMU Legislation” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.
“Environmental Laws” means applicable common law and all applicable treaties, rules, regulations, codes, ordinances, judgments, orders, decrees and other applicable Requirements of Law, and all applicable injunctions or binding agreements issued, promulgated or entered into by or with any Governmental Authority, in each instance relating to the protection of the environment, including with respect to the preservation or reclamation of natural resources or the Release or threatened Release of any Hazardous Material, or to the extent relating to exposure to Hazardous Materials, the protection of human health or safety.
“Environmental Liability” means any liability, obligation, loss, claim, action, order or cost, contingent or otherwise (including any liability for damages, costs of medical monitoring, costs of environmental remediation or restoration, administrative oversight costs, consultants’ fees, fines, penalties and indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) any actual or alleged violation of any Environmental Law or permit, license or approval issued thereunder, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with any Loan Party, is treated as a single employer under Section 414(b) or 414(c) of the Code or Section 4001(14) of ERISA or, solely for 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” means (a) 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); (b) any failure by any Plan to satisfy the minimum funding standards (within the meaning of Section 412 or Section 430 of the Code or Section 302 of ERISA) applicable to such Plan, whether or not waived; (c) the filing pursuant to Section 412 of the Code or Section 302 of ERISA of an application for a waiver of the minimum funding standard
28
with respect to any Plan; (d) a determination that any Plan is in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); (e) the incurrence by a Loan Party or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (f) the receipt by a Loan Party or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (g) the incurrence by a Loan Party or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan (including any liability under Section 4062(e) of ERISA) or Multiemployer Plan; or (h) the receipt by a Loan Party or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from a Loan Party or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is insolvent, within the meaning of Title IV of ERISA, or in endangered or critical status, within the meaning of Section 305 of ERISA.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“euro” means the single currency of the European Union as constituted by the Treaty on European Union and as referred to in the EMU Legislation.
“Event of Default” has the meaning assigned to such term in Section 7.01.
“Excess Cash Flow” means, for any period, an amount equal to the excess of:
(a) the sum, without duplication, of:
(i) Consolidated Net Income for such period,
(ii) an amount equal to the amount of all non-cash charges to the extent deducted in arriving at such Consolidated Net Income (provided, in each case, that if any non-cash charge represents an accrual or reserve for cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Excess Cash Flow in such future period),
(iii) decreases in Consolidated Working Capital, long-term receivables and long-term prepaid assets and increases in long-term deferred revenue and long-term programming obligations for such period,
(iv) an amount equal to the aggregate net non-cash loss on dispositions by Parent, Borrower and the Restricted Subsidiaries during such period (other than dispositions in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income, and
(v) extraordinary gains; less:
(b) the sum, without duplication, of:
(i) an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income (including any amounts included in Consolidated Net Income pursuant to the last sentence of the definition of “Consolidated Net Income” to the extent such amounts are due but not received during such period) and cash charges included in clauses (a) through (t) of the definition of “Consolidated Net Income” (other than cash charges in respect of Transaction Costs paid on or about the Effective Date to the extent financed with the proceeds of Indebtedness incurred on the Effective Date),
(ii) without duplication of amounts deducted pursuant to clause (x) below in prior fiscal years, the amount of Capital Expenditures made in cash or accrued during such period, to the extent that such Capital Expenditures were financed with internally generated cash flow of Borrower or the Restricted Subsidiaries,
29
(iii) (x) the aggregate amount of all mandatory payments of Indebtedness and the aggregate amount of any premium, make-whole or penalty payments paid by Parent, Borrower and the Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of Indebtedness, and (y) scheduled amortization payments in respect of Indebtedness that is pari passu with or junior to the Second Out Obligations,
(iv) an amount equal to the aggregate net non-cash gain on Dispositions by Parent, Borrower and the Restricted Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income,
(v) increases in Consolidated Working Capital and long-term receivables, long-term prepaid assets and decreases in long-term deferred revenue and long-term programming obligations for such period,
(vi) cash payments by Parent, Borrower and the Restricted Subsidiaries during such period in respect of purchase price holdbacks, earn out obligations, or long-term liabilities of Parent, Borrower and the Restricted Subsidiaries other than Indebtedness to the extent such payments are not expensed during such period or are not deducted in calculating Consolidated Net Income and to the extent such payments are financed with internally generated cash flow of Borrower or the Restricted Subsidiaries,
(vii) without duplication of amounts deducted pursuant to clause (x) below in prior fiscal years, the amount of Investments (other than Investments in Permitted Investments) and acquisitions permitted or not prohibited by this Agreement, to the extent that such Investments and acquisitions are made (A) not in reliance on Section 6.04(t) and (B) for bona fide business purposes in Persons that are not Restricted Subsidiaries,
(viii) without duplication of amounts deducted pursuant to clause (x) below in prior fiscal years, the amount of Restricted Payments and other dividends and distributions paid in cash during such period and permitted or not prohibited by this Agreement, to the extent that such Restricted Payments, dividends or distributions were not made in reliance on Sections 6.08(a)(viii), 6.08(a)(xiv) or 6.08(a)(xv),
(ix) the aggregate amount of expenditures actually made by Parent, Borrower and the Restricted Subsidiaries in cash during such period (including expenditures for the payment of financing fees and cash restructuring charges) to the extent that such expenditures are not expensed during such period or are not deducted in calculating Consolidated Net Income, to the extent that such expenditure was financed with internally generated cash flow of Borrower or the Restricted Subsidiaries,
(x) without duplication of amounts deducted from Excess Cash Flow in prior periods, (A) the aggregate consideration required to be paid in cash by Parent, Borrower or any of the Restricted Subsidiaries pursuant to binding contract commitments, letters of intent or purchase orders (the “Contract Consideration”), in each case, entered into prior to or during such period and (B) to the extent set forth in a certificate of a Responsible Officer delivered to the Administrative Agent at or before the time the Compliance Certificate for the period ending simultaneously with such fiscal year is required to be delivered pursuant to Section 5.01(d), the aggregate amount of cash that is reasonably expected to be paid in respect of planned cash expenditures by Parent, Borrower or any of the Restricted Subsidiaries (the “Planned Expenditures”), in the case of each of clauses (A) and (B), relating to Permitted Acquisitions, other Investments (other than Investments in Permitted Investments), Restricted Payments or other dividends or distributions, or Capital Expenditures or payments and distributions to joint ventures or other similar arrangements, pursuant to joint venture, licensing or similar agreements (including one-time put option payments and one-time upfront bonus payments), in each case, to be consummated or made during the immediately succeeding twelve month period; provided, that the amount of any Contract Consideration or Planned Expenditures payable in cash shall be deemed to be restricted for cash
30
“netting” purposes until such cash expenditures are actually made; and provided further that if the cash amount actually expended in connection with such Contract Consideration or Planned Expenditures during the relevant fiscal year is less than the amounts previously projected, the amount of such difference shall (x) be added to the calculation of Excess Cash Flow at the end of such Test Period and (y) any additional amount that would have been previously paid pursuant to Section 2.11(d) if such shortfall amount was included in the calculation of Excess Cash Flow during such period shall accrue interest from the date that such amount would have been so previously payable to the date that such amount is otherwise paid pursuant to Section 2.11(d) or otherwise during such period at the rate of interest that applied to the applicable Term Loans pursuant to Section 2.13 for such period,
(xi) the amount of taxes (including penalties and interest and tax distributions) paid in cash and/or tax reserves set aside or payable (without duplication) in such period to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period,
(xii) extraordinary losses,
(xiii) cash expenditures in respect of Swap Agreements during such period to the extent not deducted in arriving at such Consolidated Net Income, and
(xiv) without duplication of amounts deducted pursuant to clause (x) above in prior fiscal years, the amount of required payments and distributions for such period to joint ventures or other similar arrangements pursuant to joint venture, licensing or similar agreements (including one-time put option payments and one-time upfront bonus payments) permitted or not prohibited by this Agreement, to the extent that such payments and distributions were financed with internally generated cash flow of Borrower or the Restricted Subsidiaries; less
(c) the Excess Cash Flow for such period attributable to any non-wholly-owned Subsidiary (determined as otherwise provided for in this definition), except that Excess Cash Flow shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash or Cash Equivalents (or if not paid in cash or Cash Equivalents, but later converted into cash or Cash Equivalents, upon such conversion) by such Person to the referent Person or a Restricted Subsidiary thereof during such period.
Notwithstanding anything to the contrary contained elsewhere in the definition of “Excess Cash Flow”, any changes to Consolidated Working Capital from time to time caused by changes in accounts receivable and cash balances under or in connection with any Permitted Receivables Financing shall be excluded from the calculation of Excess Cash Flow.
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended from time to time.
“Exchange Transactions” means the exchange, on the Effective Date, by certain lenders under the Existing Credit Agreement, of their loans (and, in the case of the Revolving Lenders, commitments) under the Existing Credit Agreement to the Borrower in exchange for consideration consisting of (A) in the case of the Exchanging Term B-3 Lenders, the Term B-6 Loans issued hereunder, (B) in the case of the Exchanging Term B-4 Lenders, the Term B-7 Loans issued hereunder, and (C) in the case of the existing 2022A Revolving Lenders under, and as defined in, the Existing Credit Agreement in effect on the Effective Date, the Revolving Loans and Revolving Commitments, the deemed issuance of the Existing Letters of Credit under this Agreement and the termination of all obligations of the 2022A Revolving Lenders under the Existing Credit Agreement pursuant to the Existing Credit Agreement Amendment.
“Exchanging Term B-3 Lenders” means, collectively, the “Term B-3 Lenders” under the Existing Credit Agreement that have agreed to exchange on a dollar-for-dollar basis their “Term B-3A Loans” under the Existing Credit Agreement for Term B-6 Loans under this Agreement.
31
“Exchanging Term B-4 Lenders” means, collectively, the “Term B-4 Lenders” under the Existing Credit Agreement that have agreed to exchange on a dollar-for-dollar basis their “Term B-4A Loans” under the Existing Credit Agreement for Term B-7 Loans under this Agreement.
“Excluded Assets” means (a) all fee-owned real property (including real property existing on the Effective Date and on the date of acquisition for after acquired real property), (b) all leasehold interests in real property, (c) any governmental licenses or state or local franchises, charters or authorizations, to the extent a security interest in any such license, franchise, charter or authorization would be prohibited or restricted thereby (including any legally effective prohibition or restriction, but excluding any prohibition or restriction that is ineffective under the Uniform Commercial Code of any applicable jurisdiction), (d) any asset if, to the extent that and for so long as the grant of a Lien thereon to secure the Secured Obligations is prohibited by any Requirements of Law, including, without limitation, to the extent the Collateral Trustee may not validly possess a security interest in any applicable FCC licenses pursuant to the Communications Act of 1934, as amended, and the rules, regulations, published orders and published and promulgated policy statements of the FCC, all as may be amended from time to time (other than to the extent that any such prohibition would be rendered ineffective pursuant to any other applicable Requirements of Law) or would require consent or approval of any Governmental Authority, (e) margin stock and, to the extent prohibited by, or creating an enforceable right of termination in favor of any other party thereto under (other than any Loan Party) the terms of any applicable Organizational Documents, joint venture agreement, shareholders’ agreement, or similar arrangement, Equity Interests in any Person other than wholly-owned Restricted Subsidiaries, (f) assets to the extent a security interest in such assets would result in material adverse tax consequences to Parent, the Borrower or one of its subsidiaries as reasonably determined by the Borrower in consultation with the Administrative Agent, (g) any intent-to-use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, (h) any lease, license or other agreement or any property subject thereto (including pursuant to a purchase money security interest or similar arrangement) to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or purchase money arrangement or create a breach, default or right of termination in favor of any other party thereto (other than any Loan Party) after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code of any applicable jurisdiction or other similar applicable law, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code of any applicable jurisdiction or other similar applicable law notwithstanding such prohibition, (i) [reserved], (j) receivables and related assets (or interests therein) (i) sold to any Receivables Subsidiary or (ii) otherwise pledged, factored, transferred or sold in connection with any Permitted Receivables Financing, (k) commercial tort claims with a value of less than $10,000,000 and letter-of-credit rights with a value of less than $10,000,000 (except to the extent a security interest therein can be perfected by a UCC filing), (l) Vehicles and other assets subject to certificates of title, (m) any aircraft, airframes, aircraft engines or helicopters, or any equipment or other assets constituting a part thereof, (n) any and all assets and personal property owned or held by any Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary), (o) any Equity Interests in Unrestricted Subsidiaries and (p) any proceeds from any issuance of Indebtedness permitted to be incurred under Section 6.01 that are paid into an escrow account to be released upon satisfaction of certain conditions or the occurrence of certain events, including cash or Permitted Investments set aside at the time of the incurrence of such Indebtedness, to the extent such cash or Permitted Investments prefund the payment of interest or premium or discount on such indebtedness (or any costs related to the issuance of such indebtedness) and are held in such escrow account or similar arrangement to be applied for such purpose. Notwithstanding the foregoing, no asset or property shall be an Excluded Asset if it is pledged to secure any Junior Lien Indebtedness, First Out Obligations or Second Out Obligations.
“Excluded Contribution” means net cash proceeds, the fair market value of marketable securities or the fair market value of Qualified Proceeds received by the Borrower from:
(1) contributions to its common equity capital,
(2) dividends, distributions, fees and other payments from any Unrestricted Subsidiaries or joint ventures or Investments in entities that are not Restricted Subsidiaries, and
(3) the sale (other than to a Subsidiary of the Borrower or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of the Borrower) of Capital Stock (other than Disqualified Equity Interest and Preferred Stock) of the Borrower,
32
in each case designated as Excluded Contributions pursuant to an officer’s certificate executed by the principal financial officer of the Borrower within 30 days of the date such capital contributions are made, the date such dividends distributions, fees or other payments are received or the date such Equity Interests are sold, as the case may be, which are (or were) excluded from the calculation of Available Equity Amount; provided that any such dividends, distributions, fees or other payments so designated pursuant to clause (2) of this definition shall be excluded from the definition of “Consolidated Net Income” for all purposes under this Agreement.
“Excluded Subsidiary” means (a) any Subsidiary that is not a wholly-owned subsidiary of the Borrower, (b) each Subsidiary listed on Schedule 1.01(a), (c) each Unrestricted Subsidiary, (d) each Immaterial Subsidiary, (e) any Subsidiary that is prohibited by (i) applicable Requirements of Law or (ii) any contractual obligation existing on the Effective Date or on the date any such Subsidiary is acquired (so long in respect of any such contractual prohibition such prohibition is not incurred in contemplation of such acquisition), in each case from guaranteeing the Secured Obligations or which would require governmental (including regulatory) consent, approval, license or authorization to provide a Guarantee (unless such consent, approval, license or authorization has been obtained), or for which the provision of a Guarantee would result in a material adverse tax consequence to Parent, the Borrower or one of its subsidiaries (as reasonably determined by the Borrower in consultation with the Administrative Agent), (f) any Foreign Subsidiary, (g) [reserved], (h) [reserved], (i) any other Subsidiary excused from becoming a Loan Party pursuant to clause (a) of the last paragraph of the definition of the term “Collateral and Guarantee Requirement,” (j) each Receivables Subsidiary and (k) any not-for-profit Subsidiaries, captive insurance companies or other special purpose subsidiaries designated by the Borrower from time to time. Notwithstanding the foregoing, (A) no Subsidiary shall be an Excluded Subsidiary unless it is also an “Excluded Subsidiary” (or an analogous concept) for purposes of the documents governing all Junior Lien Indebtedness, all First Out Obligations, all Second Out Obligations and all other Indebtedness incurred under Section 6.01(a)(ii)(C), in each case, in an aggregate principal amount in excess of $100,000,000, and (B) no Subsidiary shall be an Excluded Subsidiary if it is, directly or indirectly, an obligor or guarantor (including by way of a pledge of assets) under any Indebtedness of the Loan Parties or if such Subsidiary has incurred Indebtedness for which any of the Loan Parties is, directly or indirectly, an obligor or guarantor (including by way of a pledge of assets), in each case, in an aggregate principal amount in excess of $100,000,000.
“Excluded Swap Obligation” means, with respect to any Guarantor, (a) 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, as applicable, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the U.S. 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 contract participant” as defined in the Commodity Exchange Act (determined after giving effect to any applicable keep well, support, or other agreement for the benefit of such Guarantor and any and all Guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the time the Guarantee of such Guarantor, or a grant by such Guarantor of a security interest, becomes effective with respect to such Swap Obligation or (b) any other Swap Obligation designated as an “Excluded Swap Obligation” of such Guarantor as specified in any agreement between the relevant Loan Parties and counterparty applicable to such Swap Obligations. 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 excluded in accordance with the first sentence of this definition.
“Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, (a) Taxes imposed on (or measured by) its net income or profits (however denominated), branch profits Taxes, and franchise Taxes, in each case imposed by (i) a jurisdiction as a result of such recipient being organized or having its principal office located in or, in the case of any Lender, having its applicable lending office located in the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) any jurisdiction as a result of any other present or former connection between such recipient and the jurisdiction imposing such Tax (other than a connection arising solely from such recipient having executed, delivered, or become a party to, performed its obligations or received payments under, received or perfected a security interest under, sold or assigned of an interest in, engaged in any other transaction pursuant to, or enforced, any Loan Documents), (b) any withholding Tax that is attributable to a Lender’s failure to comply with Section 2.17(e), (c) except in the case of an assignee pursuant to a request by the Borrower under Section 2.19, any U.S. federal withholding Taxes imposed due to a Requirement of Law in
33
effect at the time a Lender becomes a party hereto (or designates a new lending office), except to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the time of designation of a new lending office (or assignment), to receive additional amounts with respect to such withholding Tax under Section 2.17(a) and (d) any U.S. federal withholding Tax imposed pursuant to FATCA.
“Existing Credit Agreement” means the Seventh Amended and Restated Credit Agreement dated as of August 23, 2019 (as amended, supplemented or otherwise modified from time to time) by and among the Borrower, Parent, the guarantors party thereto, CSC Delaware Trust Company, as successor to JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, the swingline lender and each of the issuing banks and lenders from time to time party thereto. As used in this Agreement, Existing Credit Agreement shall refer to the Existing Credit Agreement as amended by the Existing Credit Agreement Amendment except where otherwise specified or the context otherwise requires.
“Existing Credit Agreement Amendment” has the meaning assigned to such term in the recitals to this Agreement.
“Existing First Lien Senior Secured Notes” means, collectively, the 8.125% First Out First Lien Senior Secured Notes and the 4.375% Second Out First Lien Senior Secured Notes.
“Existing Letters of Credit” has the meaning assigned to such term in Section 2.05(a).
“Existing LMT Debt” has the meaning assigned to such term in the definition of “Priming Financing/Liability Management Transaction”.
“Existing Secured Notes” means each series of 4.125% Senior Secured Notes due 2030 evidenced or provided by the 4.125% Senior Unsecured Note Indenture (including the Guarantees of such Indebtedness provided by any Guarantor thereunder).
“Existing Secured Notes Exchange” means the offer and exchange of all eligible holders’ Existing Secured Notes (or, following the Effective Date, 4.125% Senior Unsecured Notes) and for 4.375% Second Out First Lien Senior Secured Notes.
“Existing Senior Unsecured Notes” means, collectively, the 4.125% Senior Unsecured Notes, the 5.125% Senior Unsecured Notes and the 5.500% Senior Unsecured Notes.
“Existing Term Loans” means the outstanding “Term B-2 Loans”, the “Term B-3 Loans”, the “Term B-3A Loans”, the “Term B-4 Loans” and the “Term B-4A Loans,” each as defined in the Existing Credit Agreement in effect on the Effective Date.
“Fair Market Value” means with respect to any asset or group of assets on any date of determination, the value of the consideration obtainable in a sale of such asset at such date of determination assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and arranged in an orderly manner over a reasonable period of time having regard to the nature and characteristics of such asset. Except as otherwise expressly set forth herein, such value shall be determined in good faith by the Borrower.
“Fair Value” means the amount at which the assets (both tangible and intangible), in their entirety, of the Borrower and its Subsidiaries taken as a whole would change hands between a willing buyer and a willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, with neither being under any compulsion to act.
“FATCA” means Sections 1471 through 1474 of the Code as in effect on the Effective Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future Treasury regulations or official administrative interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code and any intergovernmental agreements (and related legislation or official guidance) entered into in connection with the implementation of such current Sections of the Code (or any such amended or successor version described above).
34
“FCC” means the Federal Communications Commission or any Governmental Authority substituted therefor.
“FCPA” has the meaning assigned to such term in Section 3.18(b).
“Federal Funds Effective Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the preceding Business Day as so published on the next succeeding Business Day.
“Fee Letters” mean, collectively, (i) that certain Arranger Fee Letter, dated as of September 24, 2024, between the Borrower and the Bookrunner party thereto, as the same may be amended, supplemented or otherwise modified from time to time; (ii) that certain Agency Fee Letter, dated as of September 24, 2024, between the Borrower and the Administrative Agent, as the same may be amended, supplemented or otherwise modified from time to time and (iii) that certain fee letter, dated as of January 17, 2025, between the Borrower and the Collateral Trustee, as the same may be amended, supplemented or otherwise modified from time to time.
“Film Cash Payments” means, for any period, the sum (determined on a consolidated basis and without duplication) of all payments by the Borrower and its Restricted Subsidiaries made during such period in respect of Film Obligations, which were previously reflected in the consolidated balance sheet with the Borrower and its Restricted Subsidiaries as a liability; provided that amounts applied to the prepayment of Film Obligations owing under any contract evidencing a Film Obligation under which the amount owed by the Borrower or any of its Restricted Subsidiaries exceeds the remaining value of such contract to the Borrower or such Subsidiary, as reasonably determined by the Borrower, shall not be deemed to be Film Cash Payments.
“Film Obligations” means obligations in respect of the purchase, use, license or acquisition of programs, programming materials, films, and similar assets used in connection with the business and operations of the Borrower and its Subsidiaries.
“Financial Officer” means the chief financial officer, principal accounting officer, treasurer or controller of the Borrower.
“Financial Performance Covenant” means the covenant set forth in Section 6.10.
“Financing Lease Obligation” means, at the time any determination thereof is to be made, an obligation that is required to be accounted for as a financing or capital lease (and, for the avoidance of doubt, not a straight-line or operating lease) on both the balance sheet and income statement for financial reporting purposes in accordance with GAAP. At the time any determination thereof is to be made, the amount of the liability in respect of a financing or capital lease would be the amount required to be reflected as a liability on such balance sheet (excluding the footnotes thereto) in accordance with GAAP.
“First/Second/Third Lien Intercreditor Agreement” means the First/Second/Third Lien Intercreditor Agreement, dated as of the Effective Date, among Collateral Trustee (together with its successors in such capacity), as first lien representative, U.S. Bank Trust Company, National Association, the trustee and notes collateral agent under the 9.750% Second Lien Secured Note Indenture (together with its successors in such capacity ) as second lien notes agent, CSC Delaware Trust Company, the collateral agent under the Existing Credit Agreement (together with its successors in such capacity) as third lien agent, and Parent, the Borrower and any other Loan Parties which may from time to time be party thereto.
“First Lien Leverage Ratio” means, on any date, the ratio of (a) Consolidated First Lien Debt as of such date to (b) Consolidated EBITDA for the Test Period as of such date. Unless otherwise specified or the context requires otherwise, all references to “First Lien Leverage Ratio” herein shall refer to the First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period.
35
“First Out Debt” means the Indebtedness under the First Out Facilities, the 8.125% First Out First Lien Senior Secured Notes and any Other First Out First Lien Debt.
“First Out Facilities” means the Revolving Credit Facility and any Other First Out First Lien Debt incurred under this Agreement.
“First Out First Lien Leverage Ratio” means, on any date, with respect to any Person and its Restricted Subsidiaries, the ratio of (1) Consolidated Total Debt of such Person and its Restricted Subsidiaries that constitutes First Out Debt, computed as of the end of the most recent fiscal quarter for which internal financial statements are available immediately preceding such date, minus Unrestricted cash and Permitted Investments of such Person and its Restricted Subsidiaries to (2) such Person’s Consolidated EBITDA for the applicable Test Period, in each case with such Pro Forma Adjustments to First Out Debt and Consolidated EBITDA as permitted hereunder. Unless otherwise specified or the context requires otherwise, all references to “First Out First Lien Leverage Ratio” herein shall refer to the First Out First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period.
“First Out Obligations” means the Loan Document Obligations in respect of the Revolving Loans, Letters of Credit and the Secured Letter of Credit Obligations.
“First Priority Lien” means a Lien that constitutes a “First Lien” as defined in the First/Second/Third Lien Intercreditor Agreement.
“Fitch” means Fitch Inc., a subsidiary of Fimalac, S.A. and any successor to its rating agency business.
“Floor” means the benchmark rate floor, if any, provided in this Agreement with respect to the Adjusted Term SOFR Rate or Adjusted Daily Simple SOFR Rate, as applicable. For the avoidance of doubt, the Floor for each of the Term B-6 Loans, Term B-7 Loans and Revolving Loans for each of the Adjusted Term SOFR Rate and Adjusted Daily Simple SOFR Rate shall be 0.00%.
“Foreign Prepayment Event” has the meaning assigned to such term in Section 2.11(g).
“Foreign Subsidiary” means any Subsidiary that is organized under the laws of a jurisdiction other than the United States of America, any State thereof or the District of Columbia.
“Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“Funded Debt” means all Indebtedness of the Borrower and the Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of the Borrower or the Restricted Subsidiaries, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including Indebtedness in respect of the Loans.
“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time; provided that all terms of an accounting or financial nature used in this Agreement shall be construed, and all computations of amounts and ratios referred to in this Agreement shall be made without giving effect to any election under FASB Accounting Standards Codification Topic 825—Financial Instruments, or any successor thereto (including pursuant to the FASB Accounting Standards Codification), to value any Indebtedness of the Borrower or any Subsidiary at “fair value,” as defined therein.
36
“Governmental Approvals” means all authorizations, consents, approvals, permits, licenses and exemptions of, registrations and filings with, and reports to, Governmental Authorities.
“Governmental Authority” means 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).
“Granting Lender” has the meaning assigned to such term in Section 9.04(e).
“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness of any other Person (the “primary obligor”) in any manner (including a pledge of assets as credit support (other than a non-recourse pledge of the Equity Interests of a Receivables Subsidiary to secure a Permitted Receivables Financing), letters of credit and reimbursement agreements in respect thereof), whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness of the payment thereof, (c) 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 (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness; provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Effective Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined in good faith by a Financial Officer. The term “Guarantee” as a verb has a corresponding meaning.
“Guarantee Agreement” means the Guarantee Agreement among the Loan Parties, the Administrative Agent and the Collateral Trustee (together with its successors in such capacity), substantially in the form of Exhibit C.
“Guarantee Release Date” has the meaning assigned to such term in Section 9.14.
“Guarantors” means collectively, Parent and the Subsidiary Loan Parties.
“Hazardous Materials” means all explosive, radioactive, hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum by-products or distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated as hazardous or toxic, or any other term of similar import, pursuant to any Environmental Law.
“Identified Participating Lenders” has the meaning assigned to such term in Section 2.11(a)(ii)(C).
“Identified Qualifying Lenders” has the meaning specified in Section 2.11(a)(ii)(D).
“Immaterial Subsidiary” means any Subsidiary that is not a Material Subsidiary.
“Immediate Family Members” means with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, qualified domestic partner, sibling, mother-in-law, father-in-law, son-in-law and daughter-in-law (including adoptive relationships) and any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals or any private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which any such individual is the donor.
37
“Incremental Cap” means, as of any date of determination (a) an amount equal to the then outstanding principal amount of the 5.125% Senior Unsecured Notes at the time of incurrence of Indebtedness using the capacity under this clause (a) solely to the extent the proceeds of such Indebtedness are used to prepay an equal or greater principal amount of the 5.125% Senior Unsecured Notes substantially concurrently with the incurrence of such Indebtedness, plus (b) the maximum aggregate principal amount that can be incurred without causing (1) if such Indebtedness is Second Out Debt, the First Lien Leverage Ratio, after giving effect to the incurrence or establishment, as applicable, of any Incremental Facilities or Incremental Equivalent Debt (which shall assume that all such Indebtedness constitute Second Out Debt and the full amounts of any Incremental Revolving Commitment Increase and Additional/Replacement Revolving Commitments established at such time are fully drawn) and the use of proceeds thereof, on a Pro Forma Basis (but without giving effect to any substantially simultaneous incurrence of any Incremental Facility or Incremental Equivalent Debt made pursuant to the foregoing clauses (a) and (b) in connection therewith), to exceed (i) 3.75:1.00 for the most recent Test Period then ended or (ii) in the case of any such amount being applied to finance a Permitted Acquisition or other Investment permitted or not prohibited hereunder, either 3.75:1.00 for the most recent Test Period then ended or the First Lien Leverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment, (2) if such Indebtedness is Junior Lien Indebtedness, the Secured Leverage Ratio, after giving effect to the incurrence or establishment, as applicable, of any Incremental Facilities or Incremental Equivalent Debt (which shall assume that the full amounts of any Incremental Revolving Commitment Increase and Additional/Replacement Revolving Commitments established at such time are fully drawn) and the use of proceeds thereof, on a Pro Forma Basis (but without giving effect to any substantially simultaneous incurrence of any Incremental Facility or Incremental Equivalent Debt made pursuant to the foregoing clauses (a) and (b) in connection therewith), to exceed (i) 5.00:1.00 for the most recent Test Period then ended or (ii) in the case of any such amount being applied to finance a Permitted Acquisition or other Investment permitted or not prohibited hereunder, either 5.00:1.00 for the most recent Test Period then ended or the Secured Leverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment, or (3) if such Indebtedness is unsecured, after giving effect to the incurrence or establishment, as applicable, of any Incremental Facilities or Incremental Equivalent Debt (which shall assume that the full amounts of any Incremental Revolving Commitment Increase and Additional/Replacement Revolving Commitments established at such time are fully drawn) and the use of proceeds thereof, on a Pro Forma Basis (but without giving effect to any substantially simultaneous incurrence of any Incremental Facility or Incremental Equivalent Debt made pursuant to the foregoing clauses (a) and (b) in connection therewith), (1) the Total Leverage Ratio to exceed, either (i) 7.00:1.00 for the most recent Test Period then ended or (ii) in the case of any such amount being applied to finance a Permitted Acquisition or other Investment permitted or not prohibited hereunder, either 7.00:1.00 for the most recent Test Period then ended or the Total Leverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment or (2) the Interest Coverage Ratio to be less than (i) 2.00:1.00 for the most recent Test Period then ended or (ii) in the case of any such amount being applied to finance a Permitted Acquisition or other Investment permitted or not prohibited hereunder, either 2.00:1.00 for the most recent Test Period then ended or the Interest Coverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment.
“Incremental Equivalent Debt” means Indebtedness incurred pursuant to Section 6.01(a)(xxiii).
“Incremental Facilities” has the meaning assigned to such term in Section 2.20(a).
“Incremental Facility Amendment” has the meaning assigned to such term in Section 2.20(f).
“Incremental Revolving Commitment Increase” has the meaning assigned to such term in Section 2.20(a).
“Incremental Revolving Loan” means Revolving Loans made pursuant to Additional/Replacement Revolving Commitments.
“Incremental Term Loans” has the meaning assigned to such term in Section 2.20(a).
“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by
38
such Person, (d) all obligations of such Person in respect of the deferred and unpaid purchase price of property or services (excluding trade accounts or similar obligations payable in the ordinary course of business or consistent with industry or past practice, and any earn-out obligation until such earn-out obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and if not paid or satisfied within 120 days after being due and payable), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person of Indebtedness of others, (g) all Financing Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances and (j) Non-Financing Lease Obligations. If any Indebtedness of any Parent Entity would appear on the balance sheet of the Borrower solely by reason of push down accounting under GAAP shall be excluded. All guarantees in respect of Indebtedness specified in clause (a) through (c) of this definition (other than any exclusion therefrom) of another Person shall be included. To the extent not otherwise included, the obligations of the type referred to in clauses (a) through (c) of this definition (other than any exclusion therefrom) of another Person secured by a consensual Lien (other than a Lien permitted pursuant to Section 6.02) on any assets owned by such Person, whether or not such Indebtedness is assumed by such Person shall be included to such extent, but the amount of such Indebtedness will be the lesser of (x) the fair market value of such assets at such date of determination and (y) the amount of such Indebtedness of such other Person (it being understood, however, that Indebtedness shall in no event include any amounts payable or other liabilities to trade creditors (including undrawn letters of credit) arising in the ordinary course of business or consistent with industry or past practice). Indebtedness of the Borrower and its Restricted Subsidiaries shall exclude (i) intercompany liabilities arising from their cash management and accounting operations and intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any rollover or extensions of terms) and made in the ordinary course of business or consistent with industry or past practice, (ii) deferred or prepaid revenues, (iii) accrued expenses and royalties, (iv) any liabilities for taxes, (v) Capital Stock and Disqualified Equity Interests, (vi) Film Obligations, (vii) obligations under any Program Services Agreement, Outsourcing Agreement or other similar agreement, (viii) any Put Obligations and (ix) any liability shown on the balance sheet of such Person solely as a result of the application of FASB Accounting Standards Codification Topic 810 and for which such Person is not primarily or contingently liable for payment.
“Indemnified Taxes” means all 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.
“Indemnitee” has the meaning assigned to such term in Section 9.03(b).
“Information” has the meaning assigned to such term in Section 9.12(a).
“Information Memorandum” means the Local Media Overview investor presentation dated January 2025 relating to, among other things, the Loan Parties and the Transactions.
“Intellectual Property” has the meaning assigned to such term in the Collateral Agreement.
“Intercreditor Agreements” means the Collateral Trust Agreement and the First/Second/Third Lien Intercreditor Agreement.
“Interest Coverage Ratio” means, as of any date, the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest Expense, in each case for the Test Period as of such date. Unless otherwise specified or the context requires otherwise, all references to “Interest Coverage Ratio” herein shall refer to the Interest Coverage Ratio of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period.
“Interest Election Request” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.07.
39
“Interest Payment Date” means (a) with respect to any ABR Loan, the last Business Day of March, June, September and December and (b) with respect to any Term Benchmark Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Term Benchmark Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period.
“Interest Period” means the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, three or six months thereafter as selected by the Borrower in its Borrowing Request, provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the preceding Business Day, and (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period; provided, further, that no Interest Period shall extend beyond the maturity date applicable to such Loan.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or Indebtedness or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other Indebtedness or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person (excluding, (w) in the case of the Borrower and its Restricted Subsidiaries, intercompany loans, advances, or Indebtedness having a term not exceeding 364 days (inclusive of any rollover or extensions of terms), (x) accounts receivables in connection with the sale of programming or advertising time owing by such Persons or (y) obligations in respect of the lease or other use of spectrum space relating to sub-channels owing by Person, in each case made in the ordinary course of business) or (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person. The amount, as of any date of determination, of (i) any Investment in the form of a loan or an advance shall be the principal amount thereof outstanding on such date, minus any cash payments actually received by such investor representing interest in respect of such Investment (to the extent any such payment to be deducted does not exceed the remaining principal amount of such Investment and without duplication of amounts increasing the Available Amount or the Available Equity Amount), but without any adjustment for write-downs or write-offs (including as a result of forgiveness of any portion thereof) with respect to such loan or advance after the date thereof, (ii) any Investment in the form of a Guarantee shall be equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof, as determined in good faith by a Financial Officer, (iii) any Investment in the form of a transfer of Equity Interests or other non-cash property by the investor to the investee, including any such transfer in the form of a capital contribution, shall be the Fair Market Value of such Equity Interests or other property as of the time of the transfer, minus any payments actually received by such investor representing a return of capital of, or dividends or other distributions in respect of, such Investment (to the extent such payments do not exceed, in the aggregate, the original amount of such Investment and without duplication of amounts increasing the Available Amount or the Available Equity Amount), but without any other adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the date of such Investment, and (iv) any Investment (other than any Investment referred to in clause (i), (ii) or (iii) above) by the specified Person in the form of a purchase or other acquisition for value of any Equity Interests, evidences of Indebtedness or other securities of any other Person shall be the original cost of such Investment (including any Indebtedness assumed in connection therewith), plus (A) the cost of all additions thereto and minus (B) the amount of any portion of such Investment that has been repaid to the investor in cash as a repayment of principal or a return of capital, and of any cash payments actually received by such investor representing interest, dividends or other distributions in respect of such Investment (to the extent the amounts referred to in this clause (B) do not, in the aggregate, exceed the original cost of such Investment plus the costs of additions thereto and without duplication of amounts increasing the Available Amount or the Available Equity Amount), but without any other adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the date of such Investment. For purposes of Section 6.04, if an Investment involves the acquisition of more than one Person, the amount of such Investment shall be allocated among the acquired Persons in accordance with GAAP; provided that pending the final determination of the amounts to be so allocated in accordance with GAAP, such allocation shall be as reasonably determined by a Financial Officer.
40
“Investor” means each of (1) (i) David D. Smith, Frederick G. Smith, J. Duncan Smith and Robert E. Smith, (ii) Immediate Family Members of the Persons described in clause (1)(i), (iii) any Affiliates, related estate plan and trusts created for the benefit of the Persons described in clause (1)(i), (ii) or (iv) or any trust for the benefit of any such Affiliate, estate plan or trust, or (iv) in the event of the incompetence of death of any of the Persons described in clause (1)(i) and (ii), such Persons’ estate, executor, administrator, committee or other personal representative or beneficiaries, in each case who at any particular date shall beneficially own or have the right to acquire, directly or indirectly, Equity Interests of the Borrower, any Parent Entity of the Borrower or any Subsidiary thereof and their respective Affiliates, and any funds, partnerships or other co-investment vehicles managed, advised or controlled by the foregoing or their respective Affiliates and (2) Parent.
“ISP98” means the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“Issuing Bank” means (a) each Person listed on Schedule 2.01(c) with respect to such Person’s Letter of Credit Commitment only, (b) with respect to its Existing Letter of Credit, Bank of America
, N.A., and (c) each Revolving Lender that shall have become an Issuing Bank hereunder as provided in Section 2.05(k) (other than any Person that shall have ceased to be an Issuing Bank as provided in Section 2.05(l)), each in its capacity as an issuer of Letters of Credit hereunder. Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate and for all purposes of the Loan Documents. In the event that there is more than one Issuing Bank at any time, references herein and in the other Loan Documents to the Issuing Bank shall be deemed to refer to the Issuing Bank in respect of the applicable Letter of Credit or to all Issuing Banks, as the context requires.
“Junior Debt Prepayment” has the meaning specified in Section 6.08(b)(iv).
“Junior Financing” means Junior Lien Indebtedness and any unsecured Material Indebtedness (other than any permitted intercompany Indebtedness owing to the Borrower or any of its Restricted Subsidiaries); provided that the 5.125% Senior Unsecured Notes shall not constitute a “Junior Financing”.
“Junior Lien Indebtedness” means the 9.750% Second Lien Secured Notes, the Third Lien Revolving Credit Facility, the Third Lien Term Loans and any other Indebtedness secured by Liens only on all or a portion of the Collateral that is permitted under this Agreement to have Liens on the Collateral on a junior Lien basis relative to the First Out Facilities and the Second Out Facilities pursuant to the First/Second/Third Lien Intercreditor Agreement; provided that the holders of such Indebtedness or their Senior Representative shall have entered into the First/Second/Third Lien Intercreditor Agreement and such Indebtedness shall constitute “Junior Lien Obligations” as defined therein.
“Junior Lien Revolving Exposure” means outstanding loans and applicable letters of credit under the Junior Lien Revolving Credit Facilities.
“Junior Lien Revolving Credit Facilities” means the Third Lien Revolving Credit Facility (including any refinancings and replacements thereof) and any other revolving credit facility constituting Junior Lien Indebtedness.
“Latest Maturity Date” means, at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration date of any Other Term Loan, or any Other Term Commitment, in each case as extended in accordance with this Agreement from time to time.
“Latest Second Out Maturity Date” means, at any date of determination, the latest maturity or expiration date applicable to the Second Out Obligations hereunder at such time, in each case as extended in accordance with this Agreement from time to time.
“LC Application” has the meaning set forth in Section 2.05(b).
41
“LC Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of Credit.
“LC Exposure” means, at any time, the sum of (a) the aggregate amount of all Letters of Credit that remains available for drawing at such time (including, without limitation, any and all Letters of Credit for which documents have been presented that have not been honored or dishonored) and (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Revolving Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.13 or Rule 3.14 of the ISP98, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, that with respect to any Letter of Credit that, by its terms or the terms of any document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
“LCT Election” has the meaning provided in Section 1.06.
“LCT Test Date” has the meaning provided in Section 1.06.
“Lead Arranger” means JPMorgan Chase Bank, N.A.
“Lenders” means the Term Lenders, the Revolving Lenders and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, an Incremental Facility Amendment, a Loan Modification Agreement or a Refinancing Amendment, in each case, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context otherwise requires, the term “Lenders” includes the Swingline Lenders and each Issuing Bank.
“Letter of Credit” means any letter of credit, or bank guarantees issued pursuant to this Agreement other than any such letter of credit or bank guarantee that shall have ceased to be a “Letter of Credit” outstanding hereunder pursuant to Section 9.05, and shall include the Existing Letters of Credit.
“Letter of Credit Commitments” means, with respect to any Person, the amount set forth opposite the name of such Person on Schedule 2.01(c). As of the Effective Date, the aggregate amount of the Letter of Credit Commitments of all such Persons is $50,000,000.
“Liabilities” means the recorded liabilities (including contingent liabilities that would be recorded in accordance with GAAP) of the Borrower and its Subsidiaries taken as a whole, as of the Effective Date after giving effect to the consummation of the Transactions, determined in accordance with GAAP consistently applied.
“License Subsidiaries” means (a) with respect to each Station that is an Owned Station on the date hereof, the Subsidiary of the Borrower listed on Schedule 1.01(e) as the holder of the Broadcast Licenses for such Owned Station and (b) with respect to any Owned Station hereafter acquired by the Borrower or any of its Subsidiaries, the Subsidiary of the Borrower formed, created, or acquired after the date hereof that holds the Broadcast Licenses for such Owned Station, and in each case any other Subsidiary into which any such License Subsidiary may be merged pursuant to Section 6.03.
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset; provided that in no event shall a Non-Financing Lease Obligation be deemed to constitute a Lien.
42
“Limited Condition Transaction” means (1) any Investment or acquisition (whether by merger, amalgamation, consolidation or other business combination or the acquisition of Capital Stock or otherwise), whose consummation is not conditioned on the availability of, or on obtaining, third party financing, (2) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Equity Interest or Preferred Stock requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment, (3) any Restricted Payment requiring irrevocable notice in advance thereof, and (4) any asset sale or a Disposition excluded from the definition of “Disposition”.
“Loan Document Obligations” means (a) the due and punctual payment by the Borrower of (i) the principal of and interest at the applicable rate or rates provided in this Agreement (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans including all obligations in respect of the LC Exposure, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise and (ii) all other monetary obligations of the Borrower under or pursuant to this Agreement and each of the other Loan Documents, including obligations to reimburse LC Disbursements and pay fees, expense reimbursement obligations and indemnification obligations, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), (b) the due and punctual payment and performance of all other obligations of the Borrower under or pursuant to each of the Loan Documents and (c) the due and punctual payment and performance of all the obligations of each other Loan Party under or pursuant to this Agreement and each of the other Loan Documents (including interest and monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding).
“Loan Documents” means this Agreement, any Refinancing Amendment, any Loan Modification Agreement, the Guarantee Agreement, the Collateral Agreement, the Intercreditor Agreements (including the Collateral Trust Agreement), the other Security Documents, and except for purposes of Section 9.02, any promissory notes delivered pursuant to Section 2.09(e).
“Loan Modification Agreement” means a loan modification agreement, in form reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and one or more Accepting Lenders, effecting one or more Permitted Amendments and such other amendments hereto and to the other Loan Documents as are contemplated by Section 2.24.
“Loan Modification Offer” has the meaning specified in Section 2.24(a).
“Loan Parties” means Parent, the Borrower, the Subsidiary Loan Parties and any other Guarantor.
“Loans” means the loans made by the Lenders to the Borrower pursuant to this Agreement.
“Management Investor” means any current and/or former director, officer and employee of the Borrower and/or any of its subsidiaries who is (directly or indirectly through one or more investment vehicles) an Investor on the Effective Date.
“Master Agreement” has the meaning assigned to such term in the definition of “Swap Agreement.”
“Material Adverse Effect” means any event, circumstance or condition that has had, or could reasonably be expected to have, a materially adverse effect on (a) the business or financial condition of the Borrower and its Restricted Subsidiaries, taken as a whole, (b) the ability of the Borrower and the Guarantors, taken as a whole, to perform their payment obligations under the Loan Documents or (c) the rights and remedies of the Administrative Agent and the Lenders under the Loan Documents.
“Material Broadcast License” shall mean a Broadcast License that is, in the reasonable, good-faith determination of the Borrower, material to the operation of the business of the Borrower and its Restricted Subsidiaries, taken as a whole.
43
“Material Indebtedness” means any Indebtedness for borrowed money (other than the Loan Document Obligations), Financing Lease Obligations, purchase money Indebtedness, unreimbursed drawings under letters of credit, third party Indebtedness obligations evidenced by notes or similar instruments or obligations in respect of one or more Swap Agreements, of any one or more of the Borrower and the wholly-owned Restricted Subsidiaries in an aggregate principal amount exceeding $150,000,000; provided that in no event shall any Permitted Receivables Financing be considered Material Indebtedness for any purpose. For purposes of determining Material Indebtedness, the “principal amount” of the obligations in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Restricted Subsidiary would be required to pay if such Swap Agreement were terminated at such time.
“Material Intellectual Property” means any Intellectual Property that is, in the reasonable, good-faith determination of the Borrower, material to the operation of the business of the Borrower and its Restricted Subsidiaries, taken as a whole.
“Material Subsidiary” means (a) each wholly-owned Restricted Subsidiary that, as of the last day of the fiscal quarter of the Borrower most recently ended for which financial statements are available, had revenues or total assets for such quarter in excess of 2.5% of the consolidated revenues or total assets, as applicable, of the Borrower for such quarter or that is designated by the Borrower as a Material Subsidiary and (b) any group comprising wholly-owned Restricted Subsidiaries that each would not have been a Material Subsidiary under clause (a) but that, taken together, as of the last day of the fiscal quarter of the Borrower most recently ended for which financial statements are available, had revenues or total assets for such quarter in excess of 10.0% of the consolidated revenues or total assets, as applicable, of the Borrower for such quarter.
“Media for Equity Transactions” means a transaction in the ordinary course of business in which the Borrower or any Restricted Subsidiary sells or exchanges advertising and/or other media inventory for consideration in the form of Equity Interests in, or Indebtedness issued by, the purchaser or in an Affiliate (including a parent entity) of the purchaser.
“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA, and in respect of which a Loan Party or any ERISA Affiliate is an “employer” (as defined in Section 3(5) of ERISA) or has an obligation to contribute.
“Net Proceeds” means, with respect to any event, (a) the proceeds received in respect of such event in cash or Permitted Investments, including (i) any cash or Permitted Investments received in respect of any non-cash proceeds, including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment or earn-out (but excluding any interest payments), but only as and when received, (ii) in the case of a casualty, insurance proceeds that are actually received, and (iii) in the case of a condemnation or similar event, condemnation awards and similar payments that are actually received, minus (b) the sum of (i) all fees and out-of-pocket expenses paid by the Borrower and its Restricted Subsidiaries in connection with such event (including attorney’s fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, underwriting discounts and commissions, other customary expenses and brokerage, consultant, accountant and other customary fees), (ii) in the case of a Disposition of an asset (including pursuant to a Sale Leaseback or Casualty Event or similar proceeding), (A) any funded escrow established pursuant to the documents evidencing any Disposition to secure any indemnification obligations or adjustments to the purchase price associated with any such sale or disposition; provided that the amount of any subsequent reduction of such escrow (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Proceeds occurring on the date of such reduction solely to the extent that the Borrower and/or any Restricted Subsidiaries receives cash in an amount equal to the amount of such reduction, (B) the amount of all payments that are permitted hereunder and are made by the Borrower and its Restricted Subsidiaries as a result of such event to repay Indebtedness (other than the Loans) secured by such asset or otherwise subject to mandatory prepayment as a result of such event, (C) the pro rata portion of net cash proceeds thereof (calculated without regard to this clause (C)) attributable to minority interests and not available for distribution to or for the account of the Borrower and its Restricted Subsidiaries as a result thereof and (D) the amount of any liabilities directly associated with such asset and retained by the Borrower or the
44
Restricted Subsidiaries, (iii) the amount of all taxes paid (or reasonably estimated to be payable, including any withholding taxes estimated to be payable in connection with the repatriation of such Net Proceeds), and the amount of any reserves established by the Borrower and its Restricted Subsidiaries to fund contingent liabilities reasonably estimated to be payable, that are associated with such event, provided that any reduction at any time in the amount of any such reserves (other than as a result of payments made in respect thereof) shall be deemed to constitute the receipt by the Borrower at such time of Net Proceeds in the amount of such reduction and (iv) any amounts paid by the Borrower and any of its Subsidiaries in connection with any Channel Sharing Agreement related to the asset that is the subject of such event or any option agreement related thereto.
“New LMT Debt” has the meaning assigned to such term in the definition of “Priming Financing/Liability Management Transaction”.
“Non-Accepting Lender” has the meaning assigned to such term in Section 2.24(c).
“Non-Cash Compensation Expense” means any non-cash expenses and costs that result from the issuance of stock-based awards, partnership interest-based awards and similar incentive based compensation awards or arrangements.
“Non-Consenting Lender” has the meaning assigned to such term in Section 9.02(d).
“Non-Financing Lease Obligation” means a lease obligation that is not required to be accounted for as a financing or capital lease on both the balance sheet and the income statement for financial reporting purposes in accordance with GAAP. For the avoidance of doubt, a straight-line or operating lease shall be considered a Non-Financing Lease Obligation.
“Non-Media Subsidiary” means any direct or indirect Subsidiary of the Borrower (including, for this purpose, any Designated SBG Subsidiary) that is not engaged in, and does derive any income from, (a) the business of owning and operating the Stations (and related retransmission facilities), (b) the commercial utilization of frequencies licensed, granted or leased to the Borrower or any of its Subsidiaries by the FCC, any other Governmental Authority or any other Person in connection with the television or radio broadcasting businesses or (c) the production of programming broadcast on television stations or syndicated to others.
“Non-Recourse Indebtedness” means Indebtedness (a) as to which neither the Borrower nor any Subsidiary (other than any Unrestricted Subsidiary) is directly or indirectly liable (by virtue of the Borrower or any such Subsidiary being the primary obligor on, guarantor of, or otherwise liable in any respect to, such Indebtedness) and (b) which, upon the occurrence of a default with respect thereto, does not result in, or permit any holder of any other Indebtedness of the Borrower or any Subsidiary (other than any Unrestricted Subsidiary) to declare, a default on such Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity.
“Not Otherwise Applied” means, with reference to the Available Amount or the Available Equity Amount, as applicable, that was not previously applied pursuant to Section 6.04(n), Section 6.08(a)(viii) or Section 6.08(b)(iv).
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“OFAC” has the meaning assigned to such term in Section 3.18(c).
45
“Offered Amount” has the meaning assigned to such term in Section 2.11(a)(ii)(D).
“Offered Discount” has the meaning assigned to such term in Section 2.11(a)(ii)(D).
“Operating Subsidiary” has the meaning assigned to such term in Section 6.11(a).
“Organizational Documents” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Other First Out First Lien Debt” means other Indebtedness of the Borrower or any Loan Party incurred on a pari passu basis (as to payment and lien priority, including as to the application of proceeds with respect to, and distributions made on account of, Collateral) with other First Out Debt (if any), whether in the form of bonds, notes, loans or other debt instruments, which may be issued or incurred in accordance with this Agreement prior to, on or after the Effective Date, that has substantially the same collateral securing such Indebtedness as the First Out Obligations and the holders of Indebtedness or the Senior Representative of which is or becomes party to the Collateral Trust Agreement, and such Indebtedness shall constitute “First-Out First Lien Debt Obligations” as defined therein.
“Other Loans” means one or more Classes of Loans that result from a Refinancing Amendment or a Loan Modification Agreement.
“Other Material Assets” has the meaning assigned to such term in Section 5.15(a).
“Other Revolving Commitments” means one or more Classes of revolving credit commitments hereunder or extended Revolving Commitments that result from a Refinancing Amendment or a Loan Modification Agreement.
“Other Revolving Loans” means the Revolving Loans made pursuant to any Other Revolving Commitment or a Loan Modification Agreement.
“Other Taxes” means any and all present or future recording, stamp, documentary, transfer, sales, property or similar Taxes arising from any payment made under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document.
“Other Term Commitments” means one or more Classes of term loan commitments hereunder that result from a Refinancing Amendment or Loan Modification Agreement.
“Other Term Loans” means one or more Classes of Term Loans that result from a Refinancing Amendment or Loan Modification Agreement.
“Outbound Investment Rules” means 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, or any similar law or regulation; as of the date of this Agreement, and as codified at 31 C.F.R. § 850.101 et seq.
“Outsourcing Agreements” means (a) any agreement to which the Borrower or any of its Subsidiaries is a party which provides for the Borrower or any of its Subsidiaries to deliver or receive non-programming related management and/or consulting services of any television station, and (b) any put or option agreement entered into in connection with any agreement referred to in clause (a) above that provides for the Borrower or any of its Subsidiaries to acquire or sell the license or non-license assets of the related television station.
46
“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight eurodollar borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
“Owned Station” means (a) each television or radio station identified as such in Schedule 1.01(e) and (b) any television or radio station the Broadcast Licenses of which are owned or held by the Borrower or any of its Subsidiaries on or after the date hereof.
“Parent” has the meaning assigned to such term in the preamble hereto.
“Parent Entity” means any Person that, with respect to another Person, owns (directly or indirectly) 50% or more of the total voting power of the Voting Equity Interests entitled to vote for the election of directors of such other Person having a majority of the aggregate votes on the Board of Directors of such other Person. Unless the context otherwise requires, any references to Parent Entity refer to a Parent Entity of the Borrower (including Parent or Sinclair).
“Participant” has the meaning assigned to such term in Section 9.04(c)(i).
“Participant Register” has the meaning assigned to such term in Section 9.04(c)(iii).
“Participating Lender” has the meaning assigned to such term in Section 2.11(a)(ii)(C).
“Payment” has the meaning assigned to such term in Section 8.06(c).
“Payment Notice” has the meaning assigned to such term in Section 8.06(c).
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Permitted Acquisition” means an Acquisition Transaction; provided that (a) with respect to each such Acquisition Transaction, all actions required to be taken with respect to any such newly created or acquired Subsidiary (including each subsidiary thereof) or assets in order to satisfy the requirements set forth in clauses (a), (b), (c) and (d) of the definition of the term “Collateral and Guarantee Requirement” to the extent applicable shall have been taken (or arrangements for the taking of such actions after the consummation of the Permitted Acquisition shall have been made that are reasonably satisfactory to the Administrative Agent) (unless such newly created or acquired Subsidiary is designated as an Unrestricted Subsidiary pursuant to Section 5.15 or is otherwise an Excluded Subsidiary) and (b) after giving effect to any such purchase or other acquisition, no Event of Default under clause (a), (b), (h) or (i) of Section 7.01 shall have occurred and be continuing.
“Permitted Amendment” means an amendment to this Agreement and, if applicable the other Loan Documents, effected in connection with a Loan Modification Offer pursuant to Section 2.24, providing for an extension of a maturity date applicable to all, or any portion of, the Loans and/or Commitments of any Class of the Accepting Lenders and, in connection therewith, (a) a change in the Applicable Rate with respect to the Loans and/or Commitments of such Accepting Lenders and/or (b) a change in the fees payable to, or the inclusion of new fees to be payable to, such Accepting Lenders and/or (c) additional covenants or other provisions applicable only to periods after the Latest Maturity Date at the time of such Loan Modification Offer (it being understood that to the extent that any financial maintenance covenant is added for the benefit of any such Loans and/or Commitments, no consent shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is either (i) also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Loans and/or Commitments or (ii) only applicable after the Latest Maturity Date at the time of such Loan Modification Offer).
47
“Permitted Asset Swap” means the concurrent purchase and sale or exchange of Related Business Assets or a combination of Related Business Assets and cash or Permitted Investments between the Borrower or a Restricted Subsidiary and another Person.
“Permitted Encumbrances” means:
(a) Liens for taxes, assessments or other governmental charges that are not overdue for a period of more than 60 days or that are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(b) Liens imposed by law, such as carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or construction contractors’ Liens and other similar Liens arising in the ordinary course of business that secure amounts not overdue for a period of more than 60 days or, if more than 60 days overdue, are unfiled and no other action has been taken to enforce such Liens or that are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP, in each case so long as such Liens do not individually or in the aggregate have a Material Adverse Effect;
(c) Liens incurred or deposits made in the ordinary course of business or consistent with industry or past practice (i) in connection with workers’ compensation, unemployment insurance and other social security legislation and (ii) securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrower or any of its Restricted Subsidiaries or otherwise supporting the payment of items set forth in the foregoing clause (i);
(d) Liens incurred or deposits made to secure the performance of bids, trade contracts, governmental contracts and leases, statutory obligations, surety, stay, customs and appeal bonds, performance bonds, bankers’ acceptance facilities and other obligations of a like nature (including those to secure health, safety and environmental obligations) and obligations in respect of letters of credit, bank guarantees or similar instruments that have been posted to support the same, incurred in the ordinary course of business or consistent with past practices;
(e) easements, rights-of-way, restrictions, encroachments, protrusions, zoning restrictions and other similar encumbrances and minor title defects affecting real property that, in the aggregate, do not in any case materially interfere with the ordinary conduct of the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(f) Liens securing, or otherwise arising from, judgments not constituting an Event of Default under Section 7.01(j);
(g) Liens on goods the purchase price of which is financed by a documentary letter of credit issued for the account of the Borrower or any of its Subsidiaries or Liens on bills of lading, drafts or other documents of title arising by operation of law or pursuant to the standard terms of agreements relating to letters of credit, bank guarantees and other similar instruments, provided that such Lien secures only the obligations of the Borrower or such subsidiaries in respect of such letter of credit to the extent such obligations are permitted by Section 6.01;
(h) rights of set-off, banker’s lien, netting agreements and other Liens arising by operation of law or by of the terms of documents of banks or other financial institutions in relation to the maintenance of administration of deposit accounts, securities accounts, cash management arrangements or in connection with the issuance of letters of credit, bank guarantees or other similar instruments; and
(i) Liens arising from precautionary Uniform Commercial Code financing statements or any similar filings made in respect of operating leases entered into by the Borrower or any of its subsidiaries.
48
“Permitted First Out Refinancing Debt” means any secured Indebtedness incurred by the Borrower or any other Loan Party in the form of one or more series of senior secured notes or loans; provided that (i) such Indebtedness is secured by the Collateral on an equal priority basis (including as to Lien priority and priority as to payment from proceeds of Collateral but without regard to control of remedies) with the First Out Obligations and is not secured or junior secured by any property or assets of the Borrower or any Subsidiary other than the Collateral, (ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness (for this purpose without regard to the condition set forth in clause (d)(ii) of the definition of “Credit Agreement Refinancing Indebtedness”) in respect of Loans (including portions of Classes of Loans or Other Loans), (iii) such Indebtedness does not have mandatory redemption features (other than customary asset sale, insurance and condemnation proceeds events, excess cash flow sweeps, change of control offers or events of default) that could result in redemptions of such Indebtedness prior to the maturity of the Refinanced Debt and (iv) a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to the applicable Intercreditor Agreements. Permitted First Priority Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
“Permitted First Priority Refinancing Debt” means any Permitted First Out Refinancing Debt and any Permitted Second Out Refinancing Debt.
“Permitted Holder” means (1) each Investor, (2) each Management Investor and its Permitted Transferees, (3) any Person who is acting solely as an underwriter in connection with a public or private offering of Capital Stock of the Borrower or any Parent Entity, acting in such capacity, (4) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) of which any of the foregoing Persons described in clauses (1) and (2) or any Permitted Holder specified in the last sentence of this definition are members and any member of such group; provided, that such Persons, without giving effect to the existence of such group or any other group, collectively own, directly or indirectly, more than 50% of the total voting power of the Voting Equity Interests entitled to vote for the election of directors of the Borrower having a majority of the aggregate votes on the Board of Directors of the Borrower held by such group, (5) any Permitted Parent and (6) any Permitted Plan, in each case of the foregoing clauses (1) through (5), whether holding Equity Interests of the Borrower directly or indirectly. Any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) whose acquisition of beneficial ownership constitutes a Change in Control will thereafter, together with its Affiliates, constitute an additional Permitted Holder.
“Permitted Investments” means any of the following, to the extent owned by the Borrower or any of its Restricted Subsidiaries:
(a) Canadian dollars, euro, pounds, sterling, any national currency of any participating member state of the EMU or such other currencies held by it from time to time in the ordinary course of business;
(b) readily marketable obligations issued or directly and fully guaranteed or insured by the government or any agency or instrumentality of (i) the United States (which shall include, but not be limited to, Export-Import Bank of the United States, Farmers Home Administration, Federal Housing Administration, General Services Administration, and Government National Mortgage Association) or instrumentality (which shall include, but not be limited to, The Federal National Mortgage Association, Federal Home Loan Banks, Federal Home Loan Mortgage Corporation, Federal Land Banks, Federal Intermediate Credit Banks, Banks for Cooperative and the Farm Credit System, and The Student Loan Marketing Association) or (ii) any member nation of the European Union rated A-2 (or the equivalent thereof) or better by S&P or P-2 (or the equivalent thereof) or better by Moody’s or F2 (or the equivalent thereof) or better by Fitch, having average maturities of not more than 24 months from the date of acquisition thereof; provided that the full faith and credit of the United States or such member nation of the European Union is pledged in support thereof;
(c) time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) is a Lender or (ii) has combined capital and surplus of at least (x) $250,000,000 in the case of U.S. banks and (y) $100,000,000 (or the dollar equivalent as of the date of determination) in the case of non-U.S. banks (any such bank meeting the requirements of clause (i) or (ii) above being an “Approved Bank”), in each case with average maturities of not more than 12 months from the date of acquisition thereof;
49
(d) commercial paper and variable or fixed rate notes issued by an Approved Bank (or by the parent company thereof) or any variable or fixed rate note issued by, or guaranteed by, a corporation rated A-2 (or the equivalent thereof) or better by S&P or P-2 (or the equivalent thereof) or better by Moody’s or F2 (or the equivalent thereof) or better by Fitch, in each case with average maturities of not more than 24 months from the date of acquisition thereof;
(e) repurchase agreements entered into by any Person with an Approved Bank, a bank or trust company (including any of the Lenders) or recognized securities dealer, in each case, having capital and surplus in excess of (i) $250,000,000 in the case of U.S. banks and (ii) $100,000,000 (or the dollar equivalent as of the date of determination) in the case of non-U.S. banks, in each case, for direct obligations issued by or fully guaranteed or insured by the government or any agency or instrumentality of (i) the United States or (ii) any member nation of the European Union rated A (or the equivalent thereof) or better by S&P and A2 (or the equivalent thereof) or better by Moody’s or F1 (or the equivalent thereof) or better by Fitch, in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a Fair Market Value of at least 100% of the amount of the repurchase obligations;
(f) marketable short-term money market and similar highly liquid funds either (i) having assets in excess of (x) $250,000,000 in the case of U.S. banks or other U.S. financial institutions and (y) $100,000,000 (or the dollar equivalent as of the date of determination) in the case of non-U.S. banks or other non-U.S. financial institutions or (ii) having a rating of at least A-2 or P-2 or F2 from either S&P or Moody’s or Fitch (or, if at any time neither S&P, Moody’s nor Fitch shall be rating such obligations, an equivalent rating from another nationally recognized rating service);
(g) securities with average maturities of 24 months or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, or by any political subdivision or taxing authority of any such state, commonwealth or territory having an investment grade rating from either S&P, Moody’s or Fitch (or the equivalent thereof);
(h) investments with average maturities of 24 months or less from the date of acquisition in mutual funds rated A (or the equivalent thereof) or better by S&P or A2(or the equivalent thereof) or better by Moody’s or F1 (or the equivalent thereof) or better by Fitch;
(i) instruments equivalent to those referred to in clauses (a) through (h) above denominated in euro or any other foreign currency comparable in credit quality and tenor to those referred to above and customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Subsidiary organized in such jurisdiction;
(j) investments, classified in accordance with GAAP as current assets, in money market investment programs that are registered under the Investment Company Act of 1940 or that are administered by financial institutions having capital of at least $250,000,000, and, in either case, the portfolios of which are limited such that substantially all of such investments are of the character, quality and maturity described in clauses (a) through (i) of this definition;
(k) with respect to any Foreign Subsidiary: (i) obligations of the national government of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business, provided such country is a member of the Organization for Economic Cooperation and Development, in each case maturing within one year after the date of investment therein, (ii) certificates of deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business, provided such country is a member of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least “A-2”
50
or the equivalent thereof or from Moody’s is at least “P-2” or the equivalent thereof or from Fitch is at least F2 (any such bank being an “Approved Foreign Bank”), and in each case with maturities of not more than 24 months from the date of acquisition and (iii) the equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank; and
(l) investment funds investing at least 90% of their assets in securities of the types described in clauses (a) through (k) above.
For the avoidance of doubt, any items identified as Permitted Investments under this definition will be deemed to be “Cash Equivalents” for all purposes regardless of the treatment of such items under GAAP.
For the avoidance of doubt, any items identified as Permitted Investments under this definition will be deemed to be “Cash Equivalents” for all purposes regardless of the treatment of such items under GAAP.
“Permitted LM Transaction” has the meaning assigned to such term in Section 6.13.
“Permitted Parent” means any Parent Entity that at the time it became a Parent Entity of the Borrower was a Permitted Holder pursuant to clause (1) of the definition thereof and was not formed in connection with, or in contemplation of, a transaction (other than the Transactions) that (assuming such parent was not formed) would otherwise constitute a Change in Control.
“Permitted Plan” means any employee benefits plan of the Borrower or its Affiliates and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan.
“Permitted Receivables Financing” means, collectively, (a) with respect to a financing (including any factoring program) of accounts receivable and related accounts receivable, collections, proceeds, records and other similar assets (or interests therein) sold, contributed and/or financed in an aggregate outstanding amount under this clause (a) not to exceed the greater of $375,000,000 and 40.0% of Consolidated EBITDA for the last Test Period (the “Permitted Receivables Financing Cap”) (provided that with respect to Permitted Receivables Financings incurred in the form of a factoring program under this clause (a), the outstanding amount of such Permitted Receivables Financing for the purposes of this definition shall be deemed to be equal to the Permitted Receivables Net Investment for the last Test Period), so long as such financings are non-recourse to Borrower and its Restricted Subsidiaries, other than any Receivables Subsidiary (except for customary representations, warranties, covenants and indemnities made in connection with such facilities), (b) any modifications, refinancings, renewals, replacements or extensions thereof; provided that, in the case of this clause (b) the terms of the applicable Permitted Receivables Financing, after giving effect to any modifications, refinancings, renewals, replacements or extensions thereof would satisfy the requirements set forth in clause (a) above and (c) the financings and factoring facilities existing on the Effective Date (if any) and any modifications, refinancings, renewals, replacements or extensions thereof; provided that any recourse to Borrower and its Restricted Subsidiaries (other than any Receivables Subsidiary) is not expanded in any material respect by any such modification, refinancing, renewal, replacement or extension and the aggregate outstanding amount of such facilities is not increased after the Effective Date, in each case, except to the extent such recourse or increase would otherwise be permitted by clause (a) above (and is deemed a usage thereof); provided further that (A) no Permitted Receivables Financing shall be effectuated in connection with or in furtherance of a Priming Financing/Liability Management Transaction; and (B) no “whole business” or intellectual property securitization shall constitute a Permitted Receivables Financing. The Equity Interests of any Receivables Subsidiary shall constitute Collateral to the extent not prohibited by such Permitted Receivables Financing (and if prohibited, the Equity Interests of any such Receivables Subsidiary shall not be pledged to secure any other Indebtedness or other obligations or residual amounts).
“Permitted Receivables Financing Cap” has the meaning assigned to such term in the definition of the term “Permitted Receivables Financing”.
51
“Permitted Receivables Net Investment” means the aggregate cash amount paid by the purchasers under any Permitted Receivables Financing in the form of a factoring program in connection with their purchase of accounts receivable and related accounts receivable, collections, proceeds, records and other similar assets (or interests therein), as the same may be reduced from time to time by collections with respect to such accounts receivable and related accounts receivable, collections, proceeds, records and other similar assets (or interests therein) or otherwise in accordance with the terms of such Permitted Receivables Financing (but excluding any such collections used to make payments of commissions, discounts, yield and other fees and charges incurred in connection with any Permitted Receivables Financing in the form of a factoring program which are payable to any Person other than the Borrower or a Restricted Subsidiary).
“Permitted Refinancing” means, with respect to any Person, any modification, refinancing, refunding, renewal, extension, exchange for or replacement of all or any portion of Indebtedness, Disqualified Equity Interests or Preferred Stock 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, Disqualified Equity Interests or Preferred Stock so modified, refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest and premium thereon plus other amounts paid, and fees and expenses incurred, in connection with such modification, refinancing, refunding, renewal, extension, exchange or replacement and by an amount equal to any existing revolving commitments unutilized thereunder to the extent that the portion of any existing and unutilized revolving commitment being refinanced was permitted to be drawn under Section 6.01 and Section 6.02 of this Agreement immediately prior to such refinancing (other than by reference to a Permitted Refinancing) and such drawing shall be deemed to have been made;
(b) Indebtedness resulting from such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended;
(c) if the Indebtedness being modified, refinanced, refunded, renewed or extended is (i) subordinated in right of payment, Indebtedness resulting from such modification, refinancing, refunding, renewal or extension shall be subordinated in right of payment at least to the same extent as the Indebtedness being refinanced, (ii) unsecured, Indebtedness resulting from such modification, refinancing, refunding, renewal or extension shall be unsecured or constitute Junior Lien Indebtedness, (iii) Disqualified Equity Interests or Preferred Stock, such Indebtedness resulting from such modification, refinancing, refunding, renewal or extension shall be Disqualified Equity Interests or Preferred Stock for Disqualified Equity Interests, or Preferred Stock for Preferred Stock, (iv) secured, (A) such Indebtedness shall be secured by Liens with a Lien priority equal to or junior to the Liens securing the Indebtedness being modified, refinanced, refunded, renewed or extended (except in the case of Indebtedness that modifies, refinances, refunds, renews or extends Junior Lien Indebtedness, in which case such Indebtedness may be secured by a Lien ranking junior to the First Priority Liens), (B) such Indebtedness shall be equal or junior as to priority of payment from the proceeds of Collateral compared to the Indebtedness being modified, refinanced, refunded, removed or extended (except in the case of Indebtedness that modifies, refinances, refunds, renews or extends Junior Lien Indebtedness, so long as such Indebtedness is junior as to priority of payment from the proceeds from the proceeds of Collateral compared to the First Priority Liens) and (C) such Indebtedness shall not be secured by a Lien on any asset or property that did not secure the Indebtedness being modified, refinanced, refunded, renewed or extended;
(d) immediately after giving effect thereto, no Event of Default shall have occurred and be continuing;
(e) if the Indebtedness being modified, refinanced, refunded, renewed or extended is permitted pursuant to Section 6.01(a)(ii), (vii), (xix), (xxi), (xxii) or (xxiii), (i) the terms and conditions (excluding as to subordination, interest rate (including whether such interest is payable in cash or in kind), rate floors, fees, discounts and premiums) of Indebtedness resulting from such modification, refinancing, refunding, renewal or extension are, taken as a whole, not materially more favorable to the investors providing such Indebtedness than the terms and conditions of the Indebtedness being modified, refinanced, refunded, renewed or extended (except for covenants or other provisions applicable to periods after the Latest Maturity Date at the time such Indebtedness is incurred) (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any such Permitted Refinancing, the terms shall not be considered materially more favorable if such financial maintenance covenant is either (A) also added for the benefit of any corresponding Loans remaining outstanding after the
52
issuance or incurrence of such Permitted Refinancing or (B) only applicable after the Latest Maturity Date at the time of such refinancing); provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least five Business Days prior to such modification, refinancing, refunding, renewal or extension, together with a reasonably detailed description of the material terms and conditions of such resulting Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees) and (ii) the primary obligor in respect of, and/or the Persons (if any) that Guarantee, the Indebtedness resulting from such modification, refinancing, refunding, renewal or extension are the primary obligor in respect of, and/or Persons (if any) that Guaranteed the Indebtedness being modified, refinanced, refunded, renewed or extended; and
(f) (i) the Indebtedness resulting from such modification, refinancing, refunding, renewal or extension shall be on terms at the time of issuance, taken as a whole, not materially more restrictive than the terms of the then outstanding Term Loans under this Agreement (as determined in good faith by the Borrower); provided that no financial maintenance covenant shall be added for the benefit of any such Permitted Refinancing unless such financial maintenance covenant is either (A) also added for the benefit of any Loans remaining outstanding after the issuance or incurrence of such Permitted Refinancing or (B) only applicable after the Latest Maturity Date at the time of such refinancing and (ii) the primary obligor in respect of, and/or the Persons (if any) that Guarantee, the Indebtedness resulting from such modification, refinancing, refunding, renewal or extension are the primary obligor in respect of, and/or Persons (if any) that Guaranteed the Indebtedness being modified, refinanced, refunded, renewed or extended.
For the avoidance of doubt, it is understood that a Permitted Refinancing may constitute a portion of an issuance of Indebtedness in excess of the amount of such Permitted Refinancing; provided that such excess amount is otherwise permitted to be incurred under Section 6.01. For the avoidance of doubt, it is understood and agreed that a Permitted Refinancing includes successive Permitted Refinancings of the same Indebtedness.
“Permitted Second Out Refinancing Debt” means any secured Indebtedness incurred by the Borrower or any other Loan Party in the form of one or more series of senior secured notes or loans; provided that (i) such Indebtedness is secured by the Collateral on an equal Lien priority basis and equal as to priority of payment from proceeds of Collateral (but without regard to control of remedies) with the Second Out Obligations and is not secured by any property or assets of the Borrower or any Subsidiary other than the Collateral, (ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness in respect of Loans (including portions of Classes of Loans or Other Loans), (iii) such Indebtedness does not have mandatory redemption features (other than customary asset sale, insurance and condemnation proceeds events, excess cash flow sweeps, change of control offers or events of default) that could result in redemptions of such Indebtedness prior to the maturity of the Refinanced Debt and (iv) a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to the applicable Intercreditor Agreements. Permitted Second Out Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
“Permitted Second Priority Refinancing Debt” means any secured Indebtedness incurred by the Borrower or any other Loan Party (other than Parent) in the form of one or more series of junior lien secured notes or junior lien secured loans; provided that (i) such Indebtedness is Junior Lien Indebtedness and is not secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral, (ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness in respect of Loans (including portions of Classes of Loans or Other Loans), (iii) such Indebtedness does not have mandatory redemption features (other than customary asset sale, insurance and condemnation proceeds events, excess cash flow sweeps, change of control offers or events of default) that could result in redemptions of such Indebtedness prior to the maturity of the Refinanced Debt and (iv) a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to the applicable Intercreditor Agreements. Permitted Second Priority Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
“Permitted Transferees” means, with respect to any Person that is a natural person (and any Permitted Transferee of such Person), (a) such Person’s Immediate Family Members, including his or her spouse, ex-spouse, children, step-children and their respective lineal descendants and (b) without duplication with any of the foregoing, such Person’s heirs, executors and/or administrators upon the death of such Person and any other Person who was an Affiliate of such Person upon the death of such Person and who, upon such death, directly or indirectly owned Equity Interests in the Borrower.
53
“Permitted Unsecured Refinancing Debt” means unsecured Indebtedness incurred by the Borrower or any other Loan Party (other than Parent) in the form of one or more series of senior unsecured notes or loans; provided that (i) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness in respect of Loans (including portions of Classes of Loans or Other Loans), (ii) such Indebtedness does not have mandatory redemption features (other than customary asset sale, insurance and condemnation proceeds events, change of control offers or events of default) that could result in redemptions of such Indebtedness prior to the maturity of the Refinanced Debt and (iii) such Indebtedness is not secured by any Lien on any property or assets of the Borrower or any of its Restricted Subsidiaries. Permitted Unsecured Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means 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 a Loan Party 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.
“Plan Asset Regulations” means 29 C.F.R. § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time.
“Platform” has the meaning specified in Section 5.01.
“Post-Transaction Period” means, with respect to any Specified Transaction, the period beginning on the date on which such Specified Transaction is consummated and ending on the last day of the eighth full consecutive fiscal quarter of the Borrower immediately following the date on which such Specified Transaction is consummated.
“Preferred Stock” means any Equity Interest with preferential rights of payment of dividends or upon liquidation, dissolution, or winding up.
“Prepayment Event” means:
(a) any sale, transfer or other Disposition of any property or asset of the Borrower or any of its Restricted Subsidiaries pursuant to clauses (j) and (k) (other than with respect to any asset exchange, any Channel Sharing Agreement and/or any other agreement related thereto) of Section 6.05 other than Dispositions resulting in aggregate Net Proceeds not exceeding $75,000,000 in the case of any single transaction or series of related transactions (provided that if the aggregate amount of all such individual Dispositions or related series of Dispositions that are $75,000,000 or less in any fiscal year exceeds $150,000,000 in the aggregate, then the foregoing $75,000,000 amount shall refer to the purchase price of all such Dispositions in such fiscal year in excess of $75,000,000); or
(b) the incurrence by the Borrower or any of its Restricted Subsidiaries of any Indebtedness, other than Indebtedness permitted under Section 6.01 (other than Permitted Unsecured Refinancing Debt, Permitted First Priority Refinancing Debt, Permitted Second Priority Refinancing Debt and Other Term Loans resulting from a Refinancing Amendment) or permitted by the Required Lenders pursuant to Section 9.02.
“Present Fair Saleable Value” means the amount that could be obtained by an independent willing seller from an independent willing buyer if the assets of the Borrower and its Subsidiaries taken as a whole are sold with reasonable promptness in an arm’s-length transaction under present conditions for the sale of comparable business enterprises insofar as such conditions can be reasonably evaluated.
54
“primary obligor” has the meaning assigned to such term in the definition of “Guarantee.”
“Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the 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.
“Priming Financing/Liability Management Transaction” means any exchange, refinancing, amendment or extension transaction (or any transaction specifically designed to circumvent the restrictions set forth in Section 6.13 but contemporaneously achieve the same effect as an exchange, refinancing, amendment or extension transaction) of any existing Indebtedness of the Borrower or any of its Restricted Subsidiaries (the “Existing LMT Debt”) with any other Indebtedness or Preferred Stock (including that of the Borrower or any of its Affiliates or of any other Person) (the “New LMT Debt”) in a transaction that is designed to directly or indirectly “uptier”, or has the effect of, “uptiering”, holders of such Existing LMT Debt into contractually, effectively (including as to lien priority or recourse to additional assets or through a “double dip” or “pari plus” structure), temporally (i.e., having a shorter maturity) or structurally senior New LMT Debt (“Priming Debt”) or the issuance of Priming Debt, in each case, other than: (1) Permitted LM Transactions, (2) the incurrence of Indebtedness to finance an acquisition secured by the acquired assets and/or guaranteed by an acquired entity, so long as such Indebtedness and the acquisition are otherwise permitted under this Agreement, and any acquired assets that constitute Collateral are pledged to the lenders and holders of such other Indebtedness and any acquired entity that is or becomes a Restricted Subsidiary grants a Guarantee of the Secured Obligations under this Agreement and of such other Indebtedness, in each case to the extent required (and within the time periods required) under this Agreement, and (3) the refinancing of Financing Lease Obligations incurred in the ordinary course or of other Indebtedness secured by assets not constituting Collateral with other Indebtedness otherwise permitted under this Agreement.
“Private Exchanges” means the issuance to certain holders of Existing Secured Notes of up to $432,000,000 aggregate principal amount of 9.750% Second Lien Secured Notes in exchange for up to $432,000,000 aggregate principal amount of Existing Secured Notes, together with accrued and unpaid interest to, but excluding, the Effective Date on the exchanged amount of Existing Secured Notes being paid in cash at the time of such exchange; provided that any 9.750% Second Lien Secured Notes issued in connection with such exchange after the Effective Date shall be issued with pre-accrued interest from the Effective Date.
“Pro Forma Adjustment” means, for any Test Period, any adjustment to Consolidated EBITDA made in accordance with clause (b) of the definition of that term.
“Pro Forma Basis,” “Pro Forma Compliance” and “Pro Forma Effect” means, with respect to compliance with any test, financial ratio or covenant hereunder required by the terms of this Agreement to be made on a Pro Forma Basis, that (a) to the extent applicable, the Pro Forma Adjustment shall have been made and (b) all Specified Transactions and the following transactions in connection therewith that have been made during the applicable period of measurement or subsequent to such period and prior to or simultaneously with the event for which the calculation is made shall be deemed to have occurred as of the first day of the applicable period of measurement in such test, financial ratio or covenant: (i) income statement items (whether positive or negative) attributable to the property or Person subject to such Specified Transaction, (A) in the case of a Disposition of all or substantially all Equity Interests in any subsidiary of the Borrower or any division, business line, or facility used for operations of the Borrower or any of its Restricted Subsidiaries, shall be excluded, and (B) in the case of a Permitted Acquisition or Investment described in the definition of “Specified Transaction,” shall be included, (ii) any retirement of Indebtedness, (iii) any Indebtedness incurred or assumed by the Borrower or any of its Restricted Subsidiaries in connection therewith (but without giving effect to any simultaneous incurrence of any Indebtedness pursuant to any fixed dollar basket or Consolidated EBITDA grower basket) and if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect to such Indebtedness as at the relevant date of determination and (iv) cash and Permitted Investments of such Person or any Restricted Subsidiary shall be calculated on the date of the consummation of the Specified Transaction after giving pro forma effect to such Specified Transaction (other
55
than, for the avoidance of doubt, the cash proceeds of any Indebtedness the incurrence of which is a Specified Transaction or that is incurred to finance such Specified Transaction); provided that, without limiting the application of the Pro Forma Adjustment pursuant to clause (a) above, the foregoing pro forma adjustments may be applied to any such test, financial ratio or covenant solely to the extent that such adjustments are consistent with the definition of “Consolidated EBITDA” (and subject to the provisions set forth in clause (b) thereof) and give effect to events (including cost savings, operating expense reductions and synergies) that are (i) (x) directly attributable to such transaction, (y) expected to have a continuing impact on the Borrower and any of the Restricted Subsidiaries and (z) factually supportable or (ii) otherwise consistent with the definition of “Pro Forma Adjustment.”
“Pro Forma Disposal Adjustment” means, for any four-quarter period that includes all or a portion of a fiscal quarter included in any Post-Transaction Period with respect to any Sold Entity or Business, the pro forma increase or decrease in Consolidated EBITDA projected by the Borrower in good faith as a result of contractual arrangements between the Borrower or any of its Restricted Subsidiaries entered into with such Sold Entity or Business at the time of its disposal or within the Post-Transaction Period and which represent an increase or decrease in Consolidated EBITDA which is incremental to the Disposed EBITDA of such Sold Entity or Business for the most recent four-quarter period prior to its disposal.
“Pro Forma Entity” means any Acquired Entity or Business or any Converted Restricted Subsidiary.
“Program Services Agreements” means any agreement entered into by the Borrower or any of its Subsidiaries (other than License Subsidiaries) in accordance with Section 5.16 relating to a Contract Station, pursuant to which agreement the Borrower or any of its Subsidiaries (other than License Subsidiaries) will obtain the right to program and/or sell advertising on a substantial portion of such Contract Station’s inventory of broadcast time.
“Proposed Change” has the meaning assigned to such term in Section 9.02(d).
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender” has the meaning specified in Section 5.01.
“Purchasing Borrower Party” means Parent or any subsidiary of Parent.
“Put Obligations” means the obligations of the Borrower or any of its Subsidiaries to purchase certain assets of any Station with respect to which the Borrower or such Subsidiary shall have entered into an Outsourcing Agreement.
“PWP Fee Letter” means that certain letter dated January 12, 2025, among Perella Weinberg Partners LP, Milbank LLP and Parent.
“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).
“QFC Credit Support” has the meaning assigned to it in Section 9.18.
“Qualified Equity Interests” means Equity Interests in the Borrower other than Disqualified Equity Interests.
“Qualified Proceeds” means assets that are used or useful in, or Equity Interests of any Person engaged in, a Similar Business.
“Qualifying Lender” has the meaning assigned to such term in Section 2.11(a)(ii)(D).
56
“Rating Agency” means (1) S&P, Moody’s and Fitch or (2) if S&P, Moody’s or Fitch or each of them shall not make a corporate rating with respect to the Borrower or a rating on the Loans publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by Borrower with the consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned), which shall be substituted for any or all of S&P, Moody’s or Fitch, as the case may be, with respect to such corporate rating or the rating of the applicable Term Loans, as the case may be.
“Ratings Condition” means that, at the time of determination, the Borrower (or its successor) has received and maintains corporate family/corporate credit ratings of at least Baa3 (or the equivalent) by Moody’s, BBB- (or the equivalent) by S&P and BBB- (or the equivalent) by Fitch, or the equivalent investment grade credit rating from any other Rating Agency substituted for Moody’s, S&P or Fitch pursuant to clause (2) of the definition of “Rating Agency”.
“Receivables Subsidiary” means any Special Purpose Entity established in connection with a Permitted Receivables Financing.
“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Term SOFR Rate, 6:00 a.m., New York time, on the day that is two Business Days preceding the date of such setting, and (2) if such Benchmark is not the Term SOFR Rate, the time determined by the Administrative Agent in its reasonable discretion.
“Refinanced Debt” has the meaning assigned to such term in the definition of “Credit Agreement Refinancing Indebtedness.”
“Refinancing Amendment” means an amendment to this Agreement executed by each of (a) the Borrower and Parent, (b) the Administrative Agent and (c) each Additional Lender and Lender that agrees to provide all or any portion of the Credit Agreement Refinancing Indebtedness being incurred pursuant thereto, in accordance with Section 2.21.
“Register” has the meaning assigned to such term in Section 9.04(b)(iv).
“Registered Equivalent Notes” means, with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act of 1933, substantially identical notes (having substantially the same Guarantees) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.
“Related Business Assets” means assets (other than cash or Permitted Investments) used or useful in a Similar Business; provided that any assets received by the Borrower or the Restricted Subsidiaries in exchange for assets transferred by the Borrower or the Restricted Subsidiaries shall not be deemed to be Related Business Assets if they consist of securities of a Person, unless upon receipt of the securities of such Person, such Person would become a Restricted Subsidiary.
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the partners, directors, officers, employees, trustees, agents, controlling persons, advisors and other representatives of such Person and of each of such Person’s Affiliates and permitted successors and assigns.
“Release” means 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) and including the environment within any building or other structure.
“Relevant Governmental Body” means the Federal Reserve Board and/or the NYFRB, the CME Term SOFR Administrator, as applicable, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto.
57
“Required First Out Lenders” means, at any time, Lenders under the First Out Facilities, having Loans and unused Commitments (exclusive of Swingline Commitments) representing more than 50.0% of the aggregate outstanding Loans and unused Commitments (exclusive of Swingline Commitments) under the First Out Facilities outstanding at such time; provided that (a) the Revolving Exposures, any term loans and unused Commitments of the Borrower or any Affiliate thereof (other than an Affiliated Debt Fund) and (b) whenever there are one or more Defaulting Lenders, the total outstanding term loans, if any, and Revolving Exposures of, and the unused Revolving Commitments of, each Defaulting Lender, shall, in each case of clauses (a) and (b), be excluded for purposes of making a determination of Required First Out Lenders.
“Required Lenders” means, at any time, Lenders having Revolving Exposures, Term Loans and unused Commitments (exclusive of Swingline Commitments) representing more than 50.0% of the aggregate Revolving Exposures, outstanding Term Loans and unused Commitments (exclusive of Swingline Commitments) at such time; provided that (a) the Revolving Exposures, Term Loans and unused Commitments of the Borrower or any Affiliate thereof (other than an Affiliated Debt Fund) and (b) whenever there are one or more Defaulting Lenders, the total outstanding Term Loans and Revolving Exposures of, and the unused Revolving Commitments of, each Defaulting Lender, shall, in each case of clauses (a) and (b), be excluded for purposes of making a determination of Required Lenders.
“Required Revolving Lenders” means, at any time, Lenders having Revolving Exposures, and unused Revolving Commitments (exclusive of Swingline Commitments) representing more than 50.0% of the aggregate Revolving Exposures, and unused Revolving Commitments (exclusive of Swingline Commitments) at such time; provided that (a) the Revolving Exposures, and unused Revolving Commitments of the Borrower or any Affiliate thereof (other than an Affiliated Debt Fund) and (b) whenever there are one or more Defaulting Lenders, the total Revolving Exposures of, and the unused Revolving Commitments of, each Defaulting Lender, shall, in each case of clauses (a) and (b), be excluded for purposes of making a determination of Required Revolving Lenders.
“Required Second Out Lenders” means, at any time, Lenders under the Second Out Facilities and any other Second Out Debt incurred under this Agreement, having Loans and unused Commitments (exclusive of Swingline Commitments) representing more than 50.0% of the aggregate outstanding Loans and unused Commitments (exclusive of any Swingline Commitments) under the Second Out Facilities outstanding at such time; provided that (a) the Revolving Exposures, any term loans and unused Commitments of the Borrower or any Affiliate thereof (other than an Affiliated Debt Fund) and (b) whenever there are one or more Defaulting Lenders, the total outstanding term loans, if any, and Revolving Exposures of, and the unused Revolving Commitments of, each Defaulting Lender, shall, in each case of clauses (a) and (b), be excluded for purposes of making a determination of Required Second Out Lenders.
“Required Term Loan Lenders” means, at any time, Lenders having Term Loans representing more than 50.0% of the aggregate outstanding Term Loans at such time; provided that (a) the Term Loans of the Borrower or any Affiliate thereof (other than an Affiliated Debt Fund) and (b) whenever there are one or more Defaulting Lenders, the total outstanding Term Loans of each Defaulting Lender, shall, in each case of clauses (a) and (b), be excluded purposes of making a determination of Required Lenders and Required Term Loan Lenders.
“Requirements of Law” means, with respect to any Person, any statutes, laws, treaties, rules, regulations, orders, decrees, writs, injunctions or determinations of any arbitrator or court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer, president, vice president, chief financial officer, treasurer or assistant treasurer, or other similar officer, manager or a director of a Loan Party and with respect to certain limited liability companies or partnerships that do not have officers, any manager, sole member, managing member or general partner thereof, and as to any document delivered on the Effective Date or thereafter pursuant to paragraph (a) of the definition of the term “Collateral and Guarantee Requirement,” any secretary or assistant secretary of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
58
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the Borrower or any other Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests in the Borrower or any of its Restricted Subsidiaries or any option, warrant or other right to acquire any such Equity Interests.
“Restricted Subsidiary” means any Subsidiary of the Borrower (including, for the avoidance of doubt, any Designated SBG Subsidiary) other than an Unrestricted Subsidiary.
“Retained Declined Proceeds” has the meaning assigned to such term in Section 2.11(d).
“Reversion Date” has the meaning specified in Section 6.12.
“Revolving Acceleration” has the meaning assigned to such term in Section 7.01.
“Revolving Availability Period” means the period from and including the Effective Date to but excluding the earlier of (a) the Revolving Maturity Date, and (b) the date of termination of the Revolving Commitments.
“Revolving Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum possible aggregate amount of such Lender’s Revolving Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Lender pursuant to an Assignment and Assumption or (ii) a Refinancing Amendment or a Loan Modification Agreement. The initial amount of each Lender’s Revolving Commitment is set forth on Schedule 2.01(b), or in the Assignment and Assumption, Incremental Facility Amendment, Loan Modification Agreement or Refinancing Amendment pursuant to which such Lender shall have assumed its Revolving Commitment, as the case may be. The initial aggregate amount of the Lenders’ Revolving Commitments as of the Effective Date is $575,000,000.
“Revolving Credit Facility” means the Revolving Commitments and the provisions herein related to the Revolving Loans, Swingline Loans and Letters of Credit.
“Revolving Exposure” means, with respect to any Revolving Lender at any time, the sum of the outstanding principal amount of such Revolving Lender’s Revolving Loans and its LC Exposure and Swingline Exposure at such time.
“Revolving Lender” means a Lender with a Revolving Commitment or, if the Revolving Commitments have terminated or expired, a Lender with Revolving Exposure.
“Revolving Loan” means a Loan made pursuant to clause (b) of Section 2.01.
“Revolving Maturity Date” means February 12, 2030; provided that, in the event that more than $25,000,000 in principal amount of any of (i) the Term B-3 Loans (as defined in the Existing Credit Agreement in effect on the Effective Date), (ii) the Term B-4 Loans (as defined in the Existing Credit Agreement in effect on the Effective Date), (iii) the Existing Senior Unsecured Notes or (iv) any tranche of First Out Facilities, 8.125% First Out First Lien Senior Secured Notes or Second Out Debt, in each case, outstanding as of the Effective Date remains outstanding on the date that is the date that is 91 days prior to the respective stated maturity date of such existing outstanding Indebtedness (including any amendment, refinancing, or replacement of such tranche or notes, and as such maturity date may be extended in any such amendment, refinancing or replacement), the Revolving Maturity Date shall be such date, with only the principal amount of such existing Indebtedness tranche outstanding on the date that is 91 days prior to its stated maturity date counting towards the $25,000,000 limit for such tranche.
59
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and any successor to its rating agency business.
“Sale Leaseback” means any transaction or series of related transactions pursuant to which the Borrower or any other Restricted Subsidiary (a) sells, transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and (b) as part of such transaction, thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold, transferred or disposed of.
“Sanctions” means economic sanctions administered or enforced by the United States Government (including without limitation, sanctions enforced by OFAC), the United Nations Security Council, the European Union or His Majesty’s Treasury.
“SEC” means the Securities and Exchange Commission or any Governmental Authority succeeding to any of its principal functions.
“Second Out Debt” means the Second Out Obligations, the 4.375% Second Out First Lien Senior Secured Notes and any Indebtedness that is permitted hereunder to be incurred on a pari passu basis in right of payment, Lien priority and as to the application of proceeds with respect to Collateral, with the Second Out Obligations as provided in the Collateral Trust Agreement, provided that the holders of such other Indebtedness shall have entered into the Collateral Trust Agreement and such Indebtedness shall constitute “Second-Out First Lien Debt Obligations” as defined therein.
“Second Out Facilities” means the credit facilities in respect of the Term Loan B-6 Loans and the Term B-7 Loans.
“Second Out Obligations” means the Loan Document Obligations in respect of the Term B-6 Loans and the Term B-7 Loans.
“Second Priority Lien” means a Lien that constitutes a “Second Lien” as defined in the First/Second/Third Lien Intercreditor Agreement.
“Secured Cash Management Obligations” means the due and punctual payment and performance of all obligations of Parent, the Borrower and its Restricted Subsidiaries in respect of any overdraft and related liabilities arising from treasury, depository, cash pooling arrangements and cash management services, corporate credit and purchasing cards and related programs or any automated clearing house transfers of funds (collectively, “Cash Management Services”) provided to Parent, the Borrower or any Subsidiary (whether absolute or contingent and howsoever and whenever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor)) that are (a) owed to the Administrative Agent or any of its Affiliates, (b) owed on the Effective Date to a Person that is a Lender or an Affiliate of a Lender as of the Effective Date or (c) owed to a Person that is an Agent, a Lender or an Affiliate of an Agent or Lender at the time such obligations are incurred.
“Secured Letter of Credit Obligations” means the obligations of any of the Borrower and its Restricted Subsidiaries in respect of letters of credit, bank guarantees or similar instruments that, when issued, are incurred pursuant to Section 6.01(a)(xvi)(B) and that are (a) owed to the Administrative Agent or any of its Affiliates, (b) owed on the Effective Date to a Person that is a Lender or an Affiliate of a Lender as of the Effective Date or (c) owed to a Person that is an Agent, a Lender or an Affiliate of an Agent or Lender at the time any such letter of credit, bank guarantee or similar instrument is issued.
“Secured Leverage Ratio” means, on any date, the ratio of (a) Consolidated Secured Debt as of such date to (b) Consolidated EBITDA for the Test Period as of such date. Unless otherwise specified or the context requires otherwise, all references to “Secured Leverage Ratio” herein shall refer to the Secured Leverage Ratio of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period.
60
“Secured Obligations” means (a) the Loan Document Obligations, (b) the Secured Cash Management Obligations, (c) the Secured Swap Obligations (excluding with respect to any Loan Party, Excluded Swap Obligations of such Loan Party) and (d) Secured Letter of Credit Obligations.
“Secured Parties” means (a) each Lender and Issuing Bank, (b) the Administrative Agent and the Collateral Trustee, (c) the Bookrunner, (d) each Person to whom any Secured Cash Management Obligations are owed, (e) each counterparty to any Swap Agreement the obligations under which constitute Secured Swap Obligations, (f) each Person to whom any Secured Letter of Credit Obligations are owed and (g) the permitted successors and assigns of each of the foregoing.
“Secured Swap Obligations” means the due and punctual payment and performance of all obligations of Parent, the Borrower and its Restricted Subsidiaries under each Swap Agreement that (a) is with a counterparty that is the Administrative Agent or any of its Affiliates, (b) is in effect on the Effective Date with a counterparty that is a Lender, an Agent or an Affiliate of a Lender or an Agent as of the Effective Date, (c) is entered into after the Effective Date with any counterparty that is a Lender, an Agent or an Affiliate of a Lender or an Agent at the time such Swap Agreement is entered into or (d) until the 180th day after the Effective Date (or such later date as agreed to by the Administrative Agent in its reasonable discretion), are owed to any other Person set forth on Schedule 1.01(b).
“Security Documents” means the Collateral Agreement, and each other security agreement or pledge agreement executed and delivered pursuant to the Collateral and Guarantee Requirement, Section 4.01(f), Section 5.11, Section 5.12 or Section 5.14 to secure any of the Secured Obligations. For the avoidance of doubt, Security Documents shall not include any mortgage, deed of trust, assignment of leases and rents, leasehold mortgage or other security document granting a Lien on any real property to secure the Secured Obligations.
“Senior Representative” means, with respect to any series of Permitted First Priority Refinancing Debt, Permitted Second Priority Refinancing Debt, Junior Lien Indebtedness or other Indebtedness, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.
“Senior Unsecured Debt” means (a) the 5.125% Senior Unsecured Notes, (b) the 5.500% Senior Unsecured Notes, (c) the 4.125% Senior Unsecured Notes, (d) any Permitted Unsecured Refinancing Debt, and (e) any unsecured Indebtedness incurred under clauses (vii), (xix) and (xxvi) of Section 6.01(a) (including the senior unsecured Guarantees of such Indebtedness provided by any Guarantor thereunder).
“Significant Subsidiary” means any Restricted Subsidiary that, or any group of Restricted Subsidiaries that, taken together, as of the last day of the fiscal quarter of the Borrower most recently ended for which financial statements are available, had revenues or total assets for such quarter in excess of 10.0% of the consolidated revenues or total assets, as applicable, of the Borrower for such quarter; provided that solely for purposes of Section 7.01(h) and (i), each Restricted Subsidiary forming part of such group is subject to an Event of Default under one or more of such Sections.
“Similar Business” means any business conducted or proposed to be conducted by Borrower and its Restricted Subsidiaries on the Effective Date or any business that is similar (including, without limitation, (a) business of owning and operating the Stations (and related retransmission facilities), (b) the commercial utilization of frequencies licensed, granted or leased to the Borrower or any of its Subsidiaries by the FCC, any other Governmental Authority or any other Person in connection with the television or radio broadcasting businesses, including using or leasing spectrum for the distribution of data and/or ancillary and supplementary services, (c) the production of streaming programming, programming broadcast on television stations or syndicated to others, (d) the utilization of digital media, including, but not limited to, websites, mobile applications, podcasts, channel sharing, spectrum datacasting and social media, to promote or distribute programming and to assist other businesses to reach audiences, customers and consumers, (e) the business of broadcasting in a mobile environment, (f) the business of managing and/or consulting to television stations other than the Owned Stations and/or (g) from the technology, media and telecommunications industries, including sports team broadcasting, ownership or management and any sports gaming or wagering business), complementary, reasonably related, synergistic, incidental or ancillary thereto, or is a reasonable extension, development or expansion thereof, including using, sharing, combining or leasing spectrum for the distribution of data and/or ancillary and supplementary services.
61
“Sinclair” means Sinclair, Inc., a Maryland corporation, and, as of the Effective Date, the direct or indirect parent of each of Parent and Borrower, or any successor thereto.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SOFR Determination Date” has the meaning specified in the definition of “Daily Simple SOFR”.
“SOFR Rate Day” has the meaning specified in the definition of “Daily Simple SOFR”.
“Sold Entity or Business” has the meaning given such term in the definition of “Consolidated EBITDA”.
“Solicited Discount Proration” has the meaning assigned to such term in Section 2.11(a)(ii)(D).
“Solicited Discounted Prepayment Amount” has the meaning assigned to such term in Section 2.11(a)(ii)(D).
“Solicited Discounted Prepayment Notice” means an irrevocable written notice of the Borrower Solicitation of Discounted Prepayment Offers made pursuant to Section 2.11(a)(ii)(D) substantially in the form of Exhibit M.
“Solicited Discounted Prepayment Offer” means the irrevocable written offer by each Lender, substantially in the form of Exhibit N, submitted following the Administrative Agent’s receipt of a Solicited Discounted Prepayment Notice.
“Solicited Discounted Prepayment Response Date” has the meaning assigned to such term in Section 2.11(a)(ii)(D).
“Solvent” means (a) the Fair Value of the assets of the Borrower and its Subsidiaries on a consolidated basis taken as a whole exceeds their Liabilities, (b) the Present Fair Saleable Value of the assets of the Borrower and its Subsidiaries on a consolidated basis taken as a whole exceeds their Liabilities, (c) the Borrower and its Subsidiaries on a consolidated basis taken as a whole after consummation of the Transactions is a going concern and has sufficient capital to reasonably ensure that it will continue to be a going concern for the period from the Effective Date through the Latest Maturity Date taking into account the nature of, and the needs and anticipated needs for capital of, the particular business or businesses conducted or to be conducted by the Borrower and its Subsidiaries on a consolidated basis as reflected in the projected financial statements and in light of the anticipated credit capacity and (d) for the period from the Effective Date through the Latest Maturity Date, the Borrower and its Subsidiaries on a consolidated basis taken as a whole will have sufficient assets and cash flow to pay their Liabilities as those liabilities mature or (in the case of contingent Liabilities) otherwise become payable, in light of business conducted or anticipated to be conducted by the Borrower and its Subsidiaries as reflected in the projected financial statements and in light of the anticipated credit capacity.
“Special Purpose Entity” means a direct or indirect subsidiary of Borrower, whose organizational documents contain restrictions on its purpose and activities and impose requirements intended to preserve its separateness from Borrower and/or one or more Subsidiaries of Borrower.
62
“Specified Discount” has the meaning assigned to such term in Section 2.11(a)(ii)(B).
“Specified Discount Prepayment Amount” has the meaning assigned to such term in Section 2.11(a)(ii)(B).
“Specified Discount Prepayment Notice” means an irrevocable written notice of a Borrower Offer of Specified Discount Prepayment made pursuant to Section 2.11(a)(ii)(B) substantially in the form of Exhibit I.
“Specified Discount Prepayment Response” means the irrevocable written response by each Lender, substantially in the form of Exhibit J, to a Specified Discount Prepayment Notice.
“Specified Discount Prepayment Response Date” has the meaning assigned to such term in Section 2.11(a)(ii)(B).
“Specified Discount Proration” has the meaning assigned to such term in Section 2.11(a)(ii)(B).
“Specified Event” has the meaning assigned to such term in the definition of “Consolidated EBITDA.”
“Specified Transaction” means, with respect to any period, any Investment, Disposition, incurrence or repayment of Indebtedness, Restricted Payment, subsidiary designation or other event that by the terms of the Loan Documents requires “Pro Forma Compliance” with a test or covenant hereunder or requires such test or covenant to be calculated on a “Pro Forma Basis.”
“SPV” has the meaning assigned to such term in Section 9.04(e).
“Standby Letter of Credit” means any Letter of Credit other than a Commercial Letter of Credit or a bank guarantee.
“Standstill Period” has the meaning assigned to such term in Section 7.01(d).
“Stations” means the Owned Stations and the Contract Stations
“Statutory Reserve Rate” means, with respect to any currency, a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve, liquid asset or similar percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by any Governmental Authority of the United States or of the jurisdiction of such currency or any jurisdiction in which Loans in such currency are made to which banks in such jurisdiction are subject for any category of deposits or liabilities customarily used to fund loans in such currency or by reference to which interest rates applicable to Loans in such currency are determined. Such reserve, liquid asset or similar percentages shall include those imposed pursuant to Regulation D of the Board of Governors, and if any Lender is required to comply with the requirements of The Bank of England and/or the Prudential Regulation Authority (or any authority that replaces any of the functions thereof) or the requirements of the European Central Bank. Term Benchmark Loans shall be deemed to be subject to such reserve, liquid asset or similar requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under Regulation D or any other applicable law, rule or regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“Submitted Amount” has the meaning assigned to such term in Section 2.11(a)(ii)(C).
“Submitted Discount” has the meaning assigned to such term in Section 2.11(a)(ii)(C).
“Subordinated Film Indebtedness” means Film Obligations of the Borrower and its Subsidiaries which are subordinated to the obligations of the Borrower and its Subsidiaries hereunder on terms and conditions, and the other provisions of which are, satisfactory to the Administrative Agent.
63
“subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, 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 well as any other corporation, limited liability company, partnership, association or other entity (a) 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 (b) 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.
“Subsidiary” means, unless otherwise specified, any subsidiary of the Borrower. Notwithstanding anything to the contrary in the foregoing, however, each Designated SBG Subsidiary shall be deemed to be a Subsidiary of the Borrower for all purposes of this Agreement.
“Subsidiary Loan Party” means (a) each Subsidiary that is a party to the Guarantee Agreement and (b) any other Domestic Subsidiary of the Borrower that may be designated by the Borrower (by way of delivering to the Collateral Trustee a supplement to the Collateral Agreement and a supplement to the Guarantee Agreement, in each case, duly executed by such Subsidiary) in its sole discretion from time to time to be a guarantor in respect of the Secured Obligations, whereupon such Subsidiary shall be obligated to comply with the other requirements of Section 5.11 as if it were newly acquired; provided that, after giving effect to such designation such subsidiary cannot be subsequently designated as a non-Guarantor unless such designation is permitted by Article VI of this Agreement.
“Successor Borrower” has the meaning assigned to such term in Section 6.03(d).
“Supported QFC” has the meaning assigned to such term in Section 9.18.
“Suspension Covenant” has the meaning specified in Section 6.12.
“Suspension Period” means the period of time between the date of a Covenant Suspension Event and the Reversion Date.
“Swap” means any agreement, contract, or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Swap Agreement” means (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 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 (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Swap Obligation” means, with respect to any Person, any obligation to pay or perform under any Swap.
“Swingline Commitment” means the commitment of each Swingline Lender to make Swingline Loans.
“Swingline Exposure” means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Revolving Lender at any time shall be its Applicable Percentage of the aggregate Swingline Exposure at such time.
64
“Swingline Lender” means (a) JPMorgan Chase Bank, N.A., in its capacity as lender of Swingline Loans hereunder and (b) each Revolving Lender that shall have become a Swingline Lender hereunder as provided in Section 2.04(d) (other than any Person that shall have ceased to be a Swingline Lender as provided in Section 2.04(e)), each in its capacity as a lender of Swingline Loans hereunder.
“Swingline Loan” means a Loan made pursuant to Section 2.04.
“Swingline Sublimit” means $50,000,000.
“Tax Group” has the meaning assigned to such term in Section 6.08(a)(vii)(A).
“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.
“Term Benchmark” when used in reference to any Loan or Borrowing, refers to whether such Loan is, or the Loans comprising such Borrowing are, bearing interest at a rate determined by reference to the Adjusted Term SOFR Rate, other than pursuant to clause (i)(c) of the definition of “Alternate Base Rate”.
“Term B-6 Commitment” means, as to each Term B-6 Lender, its obligation to make (or otherwise fund, exchange or convert into, including by way of a cashless roll) a Term B-6 Loan to the Borrower hereunder, expressed as an amount representing the maximum principal amount of the Term B-6 Loan to be made (or otherwise be funded, exchanged or converted into, including by way of a cashless roll, a Term B-6 Loan) by such Term B-6 Lender under this Agreement, as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Term B-6 Lender pursuant to an Assignment and Assumption, (ii) an Incremental Facility Amendment, (iii) a Loan Modification Agreement or (iv) a Refinancing Amendment. The initial amount of each Term B-6 Lender’s Term B-6 Commitment is set forth on Schedule 2.01(a) or in the Assignment and Assumption pursuant to which such Term Lender shall have assumed its Term Commitment or an Incremental Facility Amendment, a Loan Modification Agreement or a Refinancing Amendment, as applicable. As of the Effective Date, the total Term B-6 Commitment is $711,373,373.78.
“Term B-6 Facility” means the Term B-6 Loans and any Incremental Term Loans with respect thereto or any refinancing thereof.
“Term B-6 Lenders” means the Persons listed on Schedule 2.01(a) as a “Term B-6 Lender” and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, an Incremental Facility Amendment in respect of any Term B-6 Loans, or a Loan Modification Agreement or a Refinancing Amendment in respect of any Term B-6 Loans, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
“Term B-6 Loan” means a Term Loan made pursuant to clause (a)(i) of Section 2.01.
“Term B-6 Loan Maturity Date” means December 31, 2029.
“Term B-7 Commitment” means, as to each Term B-7 Lender, its obligation to make (or otherwise fund, exchange or convert into, including by way of a cashless roll) a Term B-7 Loan to the Borrower hereunder, expressed as an amount representing the maximum principal amount of the Term B-7 Loan to be made (or otherwise be funded, exchanged or converted into, including by way of a cashless roll, a Term B-7 Loan) by such Term B-7 Lender under this Agreement, as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Term B-7 Lender pursuant to an Assignment and Assumption, (ii) an Incremental Facility Amendment, (iii) a Loan Modification Agreement or (iv) a Refinancing Amendment. The initial amount of each Term B-7 Lender’s Term B-7 Commitment is set forth on Schedule 2.01(a) or in the Assignment and Assumption pursuant to which such Term Lender shall have assumed its Term Commitment or an Incremental Facility Amendment, a Loan Modification Agreement or a Refinancing Amendment, as applicable. As of the Effective Date, the total Term B-7 Commitment is $731,250,000.
65
“Term B-7 Facility” means the Term B-7 Loans and any Incremental Term Loans with respect thereto or any refinancing thereof.
“Term B-7 Lenders” means the Persons listed on Schedule 2.01(a) as a “Term B-7 Lender” and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, an Incremental Facility Amendment in respect of any Term B-7 Loans, or a Loan Modification Agreement or a Refinancing Amendment in respect of any Term B-7 Loans, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
“Term B-7 Loan” means a Term Loan made pursuant to clause (a)(ii) of Section 2.01.
“Term B-7 Loan Maturity Date” means December 31, 2030.
“Term Commitments” means each of the Term B-6 Commitments and the Term B-7 Commitments.
“Term Lenders” means the Term B-6 Lenders, the Term B-7 Lenders and each Additional Term Lender.
“Term Loans” means, individually or collectively as the context requires, the Term B-6 Loans and the Term B-7 Loans.
“Term SOFR Determination Day” has the meaning assigned to it under the definition of “Term SOFR Reference Rate”.
“Term SOFR Rate” means, with respect to any Term Benchmark Borrowing and for any tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate at approximately 6:00 a.m., New York 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” means, for any day and time (such day, the “Term SOFR Determination Day”), with respect to any Term Benchmark Borrowing and for any tenor comparable to the applicable Interest Period, the rate per annum determined 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 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 Business Day is not more than five Business Days prior to such Term SOFR Determination Day.
“Termination Date” means the date on which (a) all Commitments shall have been terminated, (b) all Loan Document Obligations (other than in respect of contingent indemnification and contingent expense reimbursement claims not then due) have been paid in full and (c) all Letters of Credit (other than those that have been 100% Cash Collateralized) have been cancelled or have expired (without any drawing having been made thereunder that has not been rejected or honored) and all amounts drawn or paid thereunder have been reimbursed in full.
“Test Period” means, at any date of determination, the most recently completed eight consecutive fiscal quarters of the Borrower ending on or prior to such date for which financial statements have been (or were required to have been) delivered pursuant to Section 5.01(a) or 5.01(b). When used in reference to (x) a measurement of Consolidated EBITDA, the Consolidated EBITDA for such Test Period shall be measured as the Consolidated EBITDA for such eight consecutive fiscal quarters, divided by two and (y) a measurement of the Interest Coverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio or the Total Leverage Ratio, the applicable ratio shall be calculated using the Consolidated EBITDA (in the numerator or the denominator of such ratio, as applicable) for such eight consecutive fiscal quarters, divided by two.
66
“Third Lien Revolving Credit Facility” means the “Revolving Credit Facility” as defined in the Existing Credit Agreement in effect on the Effective Date to the extent that any such Revolving Credit Facility remains available to the Borrower on the Effective Date (after giving effect to the Exchange Transactions).
“Third Lien Term Loans” means the Existing Term Loans that remain outstanding under the Existing Credit Agreement on and after the Effective Date (after giving effect to the Exchange Transactions).
“Third Priority Lien” means a Lien that constitutes a “Third Lien” as defined in the First/Second/Third Lien Intercreditor Agreement.
“TLB-2 Refinancing” means the prepayment, exchange, redemption or other refinancing of all of the outstanding Term B-2 Loans (as defined in the Existing Credit Agreement in effect on the Effective Date), together with accrued interest thereon and related fees and expenses in connection therewith.
“Total Leverage Ratio” means, on any date, the ratio of (a) Consolidated Total Debt as of such date to (b) Consolidated EBITDA for the Test Period as of such date. Unless otherwise specified or the context requires otherwise, all references to “Total Leverage Ratio” herein shall refer to the Total Leverage Ratio of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period.
“Transaction Costs” means any fees or expenses incurred or paid by the Borrower, its Restricted Subsidiaries, any Parent Entity and any of their Affiliates and any Investors in connection with the Transactions (including, without limitation, expenses in connection with hedging transactions and any original issue discount or upfront fees, as well as any legal, filing, auditing and printing fees and expenses), this Agreement, the 8.125% First Out First Lien Senior Secured Notes, the 4.375% Second Out First Lien Senior Secured Notes, the 9.750% Second Lien Secured Notes, the Existing Credit Agreement Amendment, and the transactions contemplated hereby and thereby.
“Transactions” means, collectively, (a) the funding (or deemed funding or exchange, including by cashless roll) of the Term Loans on the Effective Date and the consummation of the other transactions contemplated by this Agreement, (b) the issuance and exchange in respect of the 8.125% First Out First Lien Senior Secured Notes, (c) the issuance and exchange in respect of the 4.375% Second Out First Lien Senior Secured Notes, (d) the issuance and/or exchange in respect of the 9.750% Second Lien Secured Notes, (e) the repayment and/or exchange of certain of the term loans under the Existing Credit Agreement (including the TLB-2 Refinancing), (f) the Existing Credit Agreement Amendment, (g) the consummation of any other transactions in connection with the foregoing and (h) the payment of the fees and expenses incurred in connection with any of the foregoing (including the Transaction Costs).
“TV/Radio Acquisition” means (a) the acquisition by the Borrower or any of its Subsidiaries in accordance with the terms hereof of substantially all of the assets (including Broadcast Licenses) of a television or radio station in the United States in a single transaction (i.e., not by means of the acquisition of an option for such assets and the subsequent exercise of such option), (b) (i) the acquisition by the Borrower or any of its Subsidiaries in accordance with the terms hereof of (x) substantially all of the assets (other than Broadcast Licenses and other property required pursuant to the rules and regulations of the FCC to be sold in connection with the transfer of such Broadcast Licenses) of a television or radio station in the United States and (y) an option to acquire the Broadcast Licenses and such other assets of such television or radio station and (ii) the entering into by the Borrower or any of its Subsidiaries of an agreement contemplated by the definition of “Program Services Agreement” in this Section with respect to such station and (c) the consummation of the acquisition of assets by the Borrower or any of its Subsidiaries pursuant to the exercise of an option referred to in the preceding clause (b)(i)(y), together with the termination of the related Program Services Agreement referred to in the preceding clause (b)(ii). As used in this definition, the acquisition of assets shall be deemed to include reference to the acquisition of the voting Capital Stock of the Person that owns such assets and references to the acquisition and exercise of an option to acquire assets shall be deemed to include the acquisition and exercise of the option to acquire voting Capital Stock of the Person that owns such assets.
67
“Type,” when used in reference to any 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 Rate or the Alternate Base Rate.
“UCC” or “Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that, at any time, if by reason of mandatory provisions of law, any or all of the perfection or priority of the Collateral Trustee’s security interest in any item or portion of the Collateral (as defined in the Collateral Agreement in effect on the Effective Date) is governed by the Uniform Commercial Code as in effect in a U.S. jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect, at such time, in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions relating to such provisions.
“UCP” means the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 600 (or such later version as may be in effect at the time of issuance).
“UK Financial Institutions” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” **** means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unrestricted” means, when referring to cash and Cash Equivalents of the Borrower and its Restricted Subsidiaries, that such cash and Cash Equivalents (a) do not appear or would not be required to appear as “restricted” on the financial statements of the Borrower or any such Restricted Subsidiary (unless related to the Loan Documents or the Liens created thereunder), (b) are not the proceeds of long-term Indebtedness (it being understood revolving facility draws (including Revolving Loans) are not long-term Indebtedness for these purposes) incurred to finance the relevant transaction for which a relevant ratio under this Agreement, including incurrence of Indebtedness, is being tested, (c) are not reserved or treated as spent during any applicable period in connection with any prospective costs and expenses that have been deducted from Excess Cash Flow under clause (b) of that definition for such period or (d) are not otherwise unavailable to the Borrower or such Restricted Subsidiary; provided that the aggregate amount of Unrestricted cash and Cash Equivalents as of any date of determination shall be deemed to be reduced by the amount of the then unpaid DSG Cash Tax Payments but, in any event, to an amount not less than $0.
“Unrestricted Subsidiary” means (a) any Subsidiary (other than the Borrower) designated by the Borrower as an Unrestricted Subsidiary pursuant to Section 5.15 subsequent to the Effective Date and (b) any Subsidiary of any such Unrestricted Subsidiary.
“USA Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended from time to time.
“U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) 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. Special Resolution Regimes” has the meaning assigned to such term in Section 9.18.
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 2.17(e).
68
“Vehicles” means all railcars, cars, trucks, trailers, construction and earth moving equipment and other vehicles covered by a certificate of title law of any state and all tires and other appurtenances to any of the foregoing.
“Voting Equity Interests” means Equity Interests that are entitled to vote generally for the election of directors to the Board of Directors of the issuer thereof. Shares of Preferred Stock that have the right to elect one or more directors to the Board of Directors of the issuer thereof only upon the occurrence of a breach or default by such issuer thereunder shall not be considered Voting Equity Interests as long as the directors that may be elected to the Board of Directors of the issuer upon the occurrence of such a breach or default represent a minority of the aggregate voting power of all directors of Board of Directors of the issuer. The percentage of Voting Equity Interests of any issuer thereof beneficially owned by a Person shall be determined by reference to the percentage of the aggregate voting power of all Voting Equity Interests of such issuer that are represented by the Voting Equity Interests beneficially owned by such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required 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.
“wholly-owned subsidiary” means, with respect to any Person at any date, a subsidiary of such Person of which securities or other ownership interests representing 100% of the Equity Interests (other than (a) directors’ qualifying shares and (b) nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law) are, as of such date, owned, controlled or held by such Person or one or more wholly-owned subsidiaries of such Person or by such Person and one or more wholly-owned subsidiaries of such Person.
“Withdrawal Liability” means 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.
“Withholding Agent” means any Loan Party, the Administrative Agent and, in the case of any U.S. federal withholding tax, any other withholding agent, if applicable.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any 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 1.02 Classification of Loans and Borrowings. For purposes of this Agreement, Loans and Borrowings may be classified and referred to by Class (e.g., a “Term Loan”) or by Type (e.g., a “Term Benchmark Loan”) or by Class and Type (e.g., a “Term Benchmark Term Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Term Loan Borrowing”) or by Type (e.g., a “Term Benchmark Borrowing”) or by Class and Type (e.g., a “Term Benchmark Term Borrowing”).
SECTION 1.03 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.” Unless the context requires otherwise, (a) any definition of or reference to any agreement (including this Agreement and the other Loan Documents), instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, amended
69
and restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein, (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) 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.
SECTION 1.04 Accounting Terms; GAAP.
(a) All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with GAAP.
(b) Notwithstanding anything to the contrary herein, for purposes of determining compliance with any test contained in this Agreement, the First Lien Leverage Ratio, the Interest Coverage Ratio, the Total Leverage Ratio and the Secured Leverage Ratio shall be calculated on a Pro Forma Basis to give effect to all Specified Transactions (including the Transactions) that have been made during the applicable period of measurement or subsequent to such period and prior to or simultaneously with the event for which the calculation is made.
(c) Where reference is made to “Borrower and its Restricted Subsidiaries on a consolidated basis” or similar language, such consolidation shall not include any Subsidiaries of the Borrower other than the Restricted Subsidiaries; provided that any calculations or measure shall be determined hereunder with respect to Borrower (including, without limitation, Consolidated EBITDA, Consolidated Interest Expense, Consolidated Net Income, Consolidated Total Assets, Consolidated Total Debt, the First Lien Leverage Ratio, the Interest Coverage Ratio, Permitted Receivables Financing, Total Leverage Ratio and the Secured Leverage Ratio) on a consolidated basis, which consolidation shall only include the Borrower and its Restricted Subsidiaries.
(d) If there occurs a change in GAAP occurring after the Effective Date and such change would cause a change in the method of calculation of any term or measure used in this Agreement (an “Accounting Change”), then the Borrower may elect, as evidenced by a written notice of the Borrower to the Administrative Agent, that such term or measure shall be calculated as if such Accounting Change had not occurred; provided that, with respect to any Accounting Change (other than an Accounting Change in respect of the treatment of leases), in Borrower’s good faith and commercially reasonable determination, Borrower’s election to calculate such term or measure as if such Accounting Change had not occurred will not be less favorable to the Lenders in any material respect than the method of calculation of such term or measure as in effect on the Effective Date. If such an election is made, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such Accounting Change (subject to the approval of the Required Lenders).
(e) Unless otherwise specified or the context requires otherwise, all references to First Lien Leverage Ratio, the Interest Coverage Ratio, the Total Leverage Ratio and the Secured Leverage Ratio and any financial definitions (including, without limitation, Consolidated EBITDA, Consolidated Interest Expense, Consolidated Net Income, Consolidated Total Assets, Consolidated Total Debt, the First Lien Leverage Ratio, the Interest Coverage Ratio, Permitted Receivables Financing, Total Leverage Ratio and the Secured Leverage Ratio) herein shall refer to the calculation thereof in respect of the Borrower and its Restricted Subsidiaries on a consolidated basis for the most recently ended Test Period.
SECTION 1.05 Effectuation of Transactions. All references herein to Parent, the Borrower and their subsidiaries shall be deemed to be references to such Persons, and all the representations and warranties of Parent, the Borrower and the other Loan Parties contained in this Agreement and the other Loan Documents shall be deemed made, in each case, after giving effect to the Transactions to occur on the Effective Date, unless the context otherwise requires.
70
SECTION 1.06 Limited Condition Transactions.
When determining compliance with, or inapplicability of, any provision or term of this Agreement in connection with or related to any Limited Condition Transaction and any actions or transactions related or appurtenant thereto, at the option of the Borrower, including for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of the Interest Coverage Ratio, the Secured Leverage Ratio, the Total Leverage Ratio or the First Lien Leverage Ratio;
(ii) determining the accuracy of representations and warranties and/or whether a Default or Event of Default shall have occurred and be continuing (or any subset of Defaults or Events of Default); or
(iii) testing availability under baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets or by reference to the Available Amount or the Available Equity Amount);
in each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of compliance with, or inapplicability of, such provision or term shall be deemed to be the first date (the “LCT Test Date”) any of the definitive agreements for such Limited Condition Transaction are entered into. If after giving pro forma effect to the Limited Condition Transaction and any actions or transactions related or appurtenant thereto, the Borrower or any of its Restricted Subsidiaries would have been permitted or not prohibited to consummate such Limited Condition Transaction and any actions or transactions related or appurtenant thereto on the relevant LCT Test Date in compliance with such term or provision, such term or provision shall be deemed to have been complied with (or satisfied) for all purposes; provided that (a) if financial statements are available for one or more fiscal quarters after such LCT Test Date, the Borrower may elect in its sole discretion to determine such compliance or inapplicability of such terms or provisions on the basis of such financial statements, and the LCT Test Date shall be the date of determination of such compliance or inapplicability after the date of availability of such financial statements, (b) no determination of compliance or inapplicability of any such term or provision shall be required at any time after the applicable LCT Test Date for such Limited Condition Transaction and any actions or transactions related or appurtenant thereto and (c) Consolidated Interest Expense for purposes of the Interest Coverage Ratio will be calculated using an assumed interest rate as reasonably determined by the Borrower.
For the avoidance of doubt, if the Borrower has made an LCT Election, (1) if any term or provision of this Agreement for which compliance was determined or tested as of the LCT Test Date would at any time after the LCT Test Date otherwise not be complied with for any reason, such terms and provisions will nevertheless continue to be determined to be complied with; (2) no such determination of compliance or inapplicability of any such term or provision of this Agreement shall be affected by any subsequent Default or Event of Default and such Default or Event of Default shall be deemed not to have occurred or be continuing solely for purposes of such compliance or inapplicability; and (3) all determinations of compliance with or inapplicability of any term or provision of this Agreement for any action or inaction that are not comprised within the action or inaction contemplated or related to such Limited Condition Transaction after the LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that such Limited Condition Transaction is terminated, expires or is abandoned, shall be determined after giving pro forma effect to such Limited Condition Transaction.
SECTION 1.07 Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws), (a) 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 and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized and acquired on the first date of its existence by the holders of its Equity Interests at such time.
71
SECTION 1.08 Interest Rates; Benchmark Notification. The interest rate on a Loan may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section 2.14(b) provides a mechanism for determining an alternative rate of interest. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any interest rate used in this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its Affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower or its Subsidiaries. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
ARTICLE II
THE CREDITS
SECTION 2.01 Commitments. Subject to the terms and conditions set forth herein, (a)(i) each Term B-6 Lender severally agrees to make (or otherwise fund, exchange or convert into, including by way of a cashless roll, in each case as agreed by the Lender and the Administrative Agent) a Term B-6 Loan to the Borrower on the Effective Date denominated in dollars in a principal amount not exceeding its Term B-6 Commitment, (ii) each Term B-7 Lender severally agrees to make (or otherwise fund, exchange or convert into, including by way of a cashless roll, in each case, as agreed by the Lender and the Administrative Agent) a Term B-7 Loan to the Borrower on the Effective Date denominated in dollars in a principal amount not exceeding its Term B-7 Commitment and (b) each Revolving Lender severally agrees to make (or otherwise fund, exchange or convert into, including by way of a cashless roll, in each case, as agreed by the Lender and the Administrative Agent) Revolving Loans to the Borrower denominated in dollars from time to time during the Revolving Availability Period in an aggregate principal amount which will not result in such Lender’s Revolving Exposure exceeding such Lender’s Revolving Commitment (or result in exceeding the Aggregate Revolving Borrowing Limit). The Borrower may borrow, prepay and reborrow Revolving Loans. Amounts repaid or prepaid in respect of Term Loans may not be reborrowed.
SECTION 2.02 Loans and Borrowings.
(a) Each Loan (other than a Swingline Loan) shall be made (or, in the case of the Term B-6 Loans and Term B-7 Loans, deemed made, as applicable) as part of a Borrowing consisting of Loans of the same Class and Type made by the Lenders ratably in accordance with their respective Commitments of the applicable Class; provided that, for the avoidance of doubt, all Revolving Loans will be made by all Revolving Lenders in accordance with their respective Applicable Percentages until the Revolving Maturity Date. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder, provided that the Commitments of the Lenders are several and, other than as expressly provided herein with respect to a Defaulting Lender, no Lender shall be responsible for any other Lender’s failure to make Loans as required hereby.
(b) Subject to Section 2.14, each Borrowing shall be comprised entirely of ABR Loans or Term Benchmark Loans as the Borrower may request in accordance herewith; provided that all Borrowings made on the Effective Date must be made as ABR Borrowings unless the Borrower shall have given the notice required for a Term Benchmark Borrowing under Section 2.03. Each Swingline Loan shall be an ABR Loan.
(c) At the commencement of each Interest Period for any Term Benchmark Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum; provided that a Term Benchmark Borrowing that results from a continuation of an outstanding Term Benchmark Borrowing may be in an aggregate amount that is equal to such outstanding Borrowing. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum. Each Swingline Loan shall be in an amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum. Borrowings of more than one Type and Class may be outstanding at the same time.
72
(d) Notwithstanding anything to the contrary in this Agreement, the Borrower agrees that at all times, (i) the sum of (x) the aggregate outstanding amount of Revolving Exposure of all of the Lenders plus (y) the then outstanding aggregate amount the Junior Lien Revolving Exposure, shall not exceed the Aggregate Revolving Borrowing Limit, and (ii) unless an Event of Default has occurred and is continuing, no Person other than a commercial bank will be permitted to be a Revolving Lender or a lender under any Junior Lien Revolving Credit Facilities (provided that no Revolving Lender or lender under any Junior Lien Revolving Credit Facilities shall be retroactively disqualified or prohibited from being a Revolving Lender or lender under any Junior Lien Revolving Credit Facilities if any such Event of Default is no longer continuing). For the avoidance of doubt, this clause (d) shall be for the benefit of all Lenders, including the Revolving Lenders and the Term Lenders.
SECTION 2.03 Requests for Borrowings. To request a Borrowing, the Borrower shall notify the Administrative Agent of such request in writing (a) in the case of a Term Benchmark Borrowing, not later than 2:00 p.m., New York City time, three Business Days before the date of the proposed Borrowing (or, in the case of any Term Benchmark Borrowing to be made on the Effective Date, such shorter period of time as may be agreed to by the Administrative Agent) or (b) in the case of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of the proposed Borrowing; provided that any such notice of an ABR Revolving Loan Borrowing to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(f) may be given no later than 10:00 a.m., New York City time, on the date of the proposed Borrowing. Each such Borrowing Request shall be irrevocable and shall be delivered by hand delivery, facsimile or other electronic transmission to the Administrative Agent and shall be signed by the Borrower. Each such Borrowing Request shall specify the following information:
(i) the Class of the requested Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Term Benchmark Borrowing;
(v) in the case of a Term Benchmark Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”;
(vi) the location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.06 or, in the case of any ABR Revolving Loan Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement; and
(vii) except on the Effective Date and with respect to the initial Borrowings, that, as of the date of such Borrowing, the conditions set forth in Section 4.02(a) and Section 4.02(b) are satisfied.
If no election as to the Type of Borrowing is specified as to any Borrowing, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Term Benchmark Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the applicable Class of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.
73
SECTION 2.04 Swingline Loans.
(a) Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (ii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) in writing(including by facsimile or electronic communication), if arrangements for doing so have been approved by the applicable Issuing Bank not later than 11:00 a.m., New York City time, or, if agreed by the Swingline Lender, 3:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and in the case of any ABR Revolving Loan Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to any accounts of the Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other Person on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrower, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
(d) The Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder.
74
(e) The Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.
(f) Any Swingline Lender may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Swingline Lender and the successor Swingline Lender. The Administrative Agent shall notify the Lenders of any such replacement of a Swingline Lender. At the time any such replacement shall become effective, the Borrower shall pay all unpaid interest accrued for the account of the replaced Swingline Lender pursuant to Section 2.13(a). From and after the effective date of any such replacement, (x) the successor Swingline Lender shall have all the rights and obligations of the replaced Swingline Lender under this Agreement with respect to Swingline Loans made thereafter and (y) references herein to the term “Swingline Lender” shall be deemed to refer to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline Lenders, as the context shall require. After the replacement of a Swingline Lender hereunder, the replaced Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to its replacement, but shall not be required to make additional Swingline Loans.
Subject to the appointment and acceptance of a successor Swingline Lender, any Swingline Lender may resign as a Swingline Lender at any time upon 30 days’ prior written notice to the Administrative Agent, the Borrower and the Lenders, in which case, such Swingline Lender shall be replaced in accordance with Section 2.04(f) above.
SECTION 2.05 Letters of Credit.
(a) General. Subject to the terms and conditions set forth herein (including Section 2.22), each Issuing Bank that is so requested by the Borrower agrees, in reliance upon the agreement of the Revolving Lenders set forth in this Section 2.05, to issue Letters of Credit denominated in dollars for the Borrower’s own account (or for the account of any Subsidiary so long as the Borrower and such other Subsidiary are co-applicants and jointly and severally liable in respect of such Letter of Credit), in a form reasonably acceptable to the Administrative Agent and the applicable Issuing Bank, which shall reflect the standard operating procedures of such Issuing Bank, at any time and from time to time during the Revolving Availability Period and prior to the fifth Business Day prior to the applicable Revolving Maturity Date, provided that, if the applicable Issuing Bank’s standard operating procedures do not provide for the issuance of electronic Letters of Credit, it shall only be required to issue paper Letters of Credit hereunder; provided, further, that Goldman Sachs Bank USA, Royal Bank of Canada and Deutsche Bank AG Branch shall only be required to issue Standby Letters of Credit. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with, any Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. Subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired (without any drawing having been made thereunder that has not been rejected or honored) or that have been drawn upon and reimbursed. The letters of credit issued and outstanding under the Existing Credit Agreement on the Effective Date as described on Schedule 2.05(a) (the “Existing Letters of Credit”) shall be deemed to be “Letters of Credit” for all purposes of this Agreement and the other Loan Documents (and, for avoidance of doubt, the interests and participations therein of all the Revolving Lenders in the Existing Letters of Credit as of the Effective Date shall be deemed re-allocated ratably in proportion to their respective Revolving Commitments as of such date).
75
(b) Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall deliver in writing by hand delivery or facsimile (or transmit by electronic communication, if arrangements for doing so have been approved by the recipient) to the applicable Issuing Bank and the Administrative Agent (at least five Business Days before the requested date of issuance, amendment, renewal or extension or such shorter period as the applicable Issuing Bank and the Administrative Agent may agree) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (d) of this Section 2.05), the currency and 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. If requested by the applicable Issuing Bank, the Borrower also shall submit a letter of credit or bank guarantee application on such Issuing Bank’s standard form in connection with any request for a Letter of Credit (an “LC Application”). A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of any Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension, (i) without the consent of each applicable Issuing Bank, subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of each Issuing Bank shall not exceed its Letter of Credit Commitment or its Revolving Commitment, (ii) the aggregate Revolving Exposures shall not exceed the aggregate Revolving Commitments, (iii) the Revolving Exposure of the applicable Issuing Bank shall not exceed its Revolving Commitment, (iv) the aggregate LC Exposure shall not exceed the aggregate Letter of Credit Commitments and (v) without the consent of the applicable Issuing Bank, the LC Exposure of the applicable Issuing Bank shall not exceed its Letter of Credit Commitment. No Issuing Bank shall be under any obligation to issue (or amend) any Letter of Credit if (i) any order, judgment or decree of any Governmental Authority or arbitrator shall enjoin or restrain such Issuing Bank from issuing (or amending) the Letter of Credit, or any law applicable to such Issuing Bank or any directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit the issuance (or amendment) of letters of credit generally or the Letter of Credit in particular or shall impose upon such Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which such Issuing Bank in good faith deems material to it, (ii) the issuance of such Letter of Credit would violate one or more policies of general application of such Issuing Bank now or hereafter applicable to letters of credit generally, (iii) except as otherwise agreed by such Issuing Bank, the Letter of Credit is in an initial stated amount less than $250,000 or (iv) any Lender is at that time a Defaulting Lender, if after giving effect to Section 2.22(a)(iv), any Defaulting Lender Fronting Exposure remains outstanding, unless such Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, reasonably satisfactory to such Issuing Bank with the Borrower or such Lender to eliminate such Issuing Bank’s Defaulting Lender Fronting Exposure arising from either the Letter of Credit then proposed to be issued (or amended) or such Letter of Credit and all other LC Exposure as to which such Issuing Bank has Defaulting Lender Fronting Exposure.
(c) Notice. Each Issuing Bank agrees that it shall not permit any issuance, amendment, renewal or extension of a Letter of Credit to occur unless it shall have given to the Administrative Agent any written notice thereof required under paragraph (m) of this Section and each Issuing Bank hereby agrees to give such notice.
(d) Expiration Date. Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date that is one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (ii) the date that is five Business Days prior to the applicable Revolving Maturity Date; provided that if such expiry date is not a Business Day, such Letter of Credit shall expire at or prior to close of business on the next succeeding Business Day; provided, however, that any Letter of Credit may, upon the request of the Borrower, include a provision whereby such Letter of Credit shall be renewed automatically for additional consecutive periods of one year or less (but not beyond the date that is five Business Days prior to the applicable Revolving Maturity Date) unless the applicable Issuing Bank notifies the beneficiary thereof within the time period specified in such Letter of Credit or, if no such time period is specified, at least 30 days prior to the then-applicable expiration date, that such Letter of Credit will not be renewed.
76
(e) Participations. By the issuance of a Letter of Credit or an amendment to a Letter of Credit increasing the amount thereof, and without any further action on the part of the Issuing Bank that is the issuer thereof or the Lenders, such Issuing Bank hereby grants to each Revolving Lender, and each Revolving Lender hereby irrevocably and unconditionally acquires from such Issuing Bank without recourse or warranty (regardless of whether the conditions set forth in Section 4.02 shall have been satisfied), a participation in such Letter of Credit equal to such Revolving Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of such Issuing Bank, such Revolving Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (f) of this Section 2.05 in dollars, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(f) Reimbursement. If an Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Issuing Bank, with notice of such payment given to the Administrative Agent, an amount equal to such LC Disbursement in the same currency as the LC Disbursement not later than 4:00 p.m., New York City time, on the Business Day immediately following the day that the Borrower receives notice of such LC Disbursement; provided that, if such LC Disbursement is not less than $1,000,000, the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 or Section 2.04 that such payment be financed with an ABR Revolving Loan Borrowing or a Swingline Loan, in each case in an equivalent amount, and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting ABR Revolving Loan Borrowing or Swingline Loan. If the Borrower fails to make such payment when due, the Administrative Agent shall notify each Revolving Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such Revolving Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each Revolving Lender shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the Borrower, in dollars and in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the applicable Issuing Bank the amounts so received by it from the Revolving Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank in dollars or, to the extent that Revolving Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Revolving Lenders and such Issuing Bank as their interests may appear. Any payment made by a Revolving Lender pursuant to this paragraph to reimburse any Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.
(g) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (f) of this Section 2.05 and the obligations of the Revolving Lenders as provided in paragraph (e) of this Section 2.05 is absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement or any of the other Loan Documents, or any term or provision therein, (ii) 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, (iii) payment by an Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, (iv) the occurrence of any Default or Event of Default, (v) the existence of any claim, counterclaim, setoff, defense or other right that the Borrower may have at any time against any beneficiary, the Issuing Bank or any other person, or (vi) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.05, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. None of the Administrative Agent, the Lenders, the Issuing Banks or any of their Affiliates 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 in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating
77
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 any Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to consequential, exemplary 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 such Issuing Bank’s failure to exercise care when determining whether drafts and 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 an Issuing Bank (as determined by a court of competent jurisdiction in a final, non-appealable judgment), such Issuing Bank shall be deemed to have exercised 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, an 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, and any such acceptance or refusal shall be deemed not to constitute gross negligence or willful misconduct.
(h) Disbursement Procedures. The applicable Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. Such Issuing Bank shall promptly notify the Administrative Agent and the Borrower in writing (by hand delivery, facsimile or electronic communication (if arrangements for doing so have been approved by the applicable Issuing Bank)) of such demand for payment and whether such Issuing Bank has made an 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 such Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement in accordance with paragraph (f) of this Section.
(i) Interim Interest. If an Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement, at the rate per annum then applicable to ABR Revolving Loans; provided that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (f) of this Section 2.05, then Section 2.13(c) shall apply. Interest accrued pursuant to this paragraph shall be paid to the Administrative Agent, for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender pursuant to paragraph (f) of this Section 2.05 to reimburse such Issuing Bank shall be for the account of such Lender to the extent of such payment and shall be payable within two Business Days of demand or, if no demand has been made, within two Business Days of the date on which the Borrower reimburses the applicable LC Disbursement in full. If any Revolving Lender shall not have made its Applicable Percentage of such LC Disbursement available to the Administrative Agent as provided in clause (f) above, such Revolving Lender shall agree to pay interest on such amount, for each day from and including the date such amount is required to be paid at a rate determined by the Administrative Agent in accordance with banking industry rules or practices on interbank compensation.
(j) Cash Collateralization. If any Event of Default under clause (a), (b), (h) or (i) of Section 7.01 shall occur and be continuing, on the Business Day on which the Borrower receives notice from the Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated, Revolving Lenders with LC Exposure representing more than 50.0% of the aggregate LC Exposure of all Revolving Lenders) demanding the deposit of Cash Collateral 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 Issuing Banks and the Lenders, an amount of cash in dollars equal to the portions of the LC Exposure attributable to Letters of Credit, as of such date plus any accrued and unpaid interest thereon; provided that the obligation to deposit such Cash Collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other 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 7.01. The Borrower also shall deposit Cash Collateral pursuant to this paragraph as and to the extent required by Section 2.11(b). Each 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. At any time that there shall exist a Defaulting Lender, if any Defaulting Lender Fronting Exposure remains outstanding (after giving effect
78
to Section 2.22(a)(iv)), then promptly upon the request of the Administrative Agent, any Issuing Bank or the Swingline Lender, the Borrower shall deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover such Defaulting Lender Fronting Exposure (after giving effect to any Cash Collateral provided by the Defaulting Lender). The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. 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 in Permitted Investments and at the Borrower’s risk and expense, such deposits shall not bear interest. Interest or 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 Issuing Banks for LC Disbursements for which they have not been reimbursed and, to the extent not 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 (but subject to the consent of Revolving Lenders with LC Exposure representing more than 50.0% of the aggregate LC Exposure of all the Revolving Lenders), be applied to satisfy other obligations of the Borrower under this Agreement in accordance with the terms of the Loan Documents. If the Borrower is required to provide an amount of Cash Collateral hereunder as a result of the occurrence of an Event of Default or the existence of a Defaulting Lender, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default have been cured or waived or after the termination of Defaulting Lender status, as applicable. If the Borrower is required to provide an amount of Cash Collateral hereunder pursuant to Section 2.11(b), such amount (to the extent not applied as aforesaid) shall be returned to the Borrower as and to the extent that, after giving effect to such return, the Borrower would remain in compliance with Section 2.11(b) and no Event of Default shall have occurred and be continuing.
(k) Designation of Additional Issuing Banks. The Borrower may, at any time and from time to time, designate as additional Issuing Banks one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as an Issuing Bank hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Revolving Lender and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of an Issuing Bank under this Agreement and (ii) references herein to the term “Issuing Bank” shall be deemed to include such Revolving Lender in its capacity as an issuer of Letters of Credit hereunder.
(l) Termination of an Issuing Bank. The Borrower may terminate the appointment of any Issuing Bank as an “Issuing Bank” hereunder by providing a written notice thereof to such Issuing Bank, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Issuing Bank’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the LC Exposure attributable to Letters of Credit issued by such Issuing Bank (or its Affiliates) shall have been reduced to zero. At the time any such termination shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the terminated Issuing Bank pursuant to Section 2.12(b). Notwithstanding the effectiveness of any such termination, the terminated Issuing Bank shall remain a party hereto and shall continue to have all the rights of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such termination, but shall not issue any additional Letters of Credit.
(m) Issuing Bank Reports to the Administrative Agent. Unless otherwise agreed by the Administrative Agent, each Issuing Bank shall, in addition to its notification obligations set forth elsewhere in this Section, report in writing to the Administrative Agent (i) periodic activity (for such period or recurrent periods as shall be reasonably requested by the Administrative Agent) in respect of Letters of Credit issued by such Issuing Bank, including all issuances, extensions, amendments and renewals, all expirations and cancellations and all disbursements and reimbursements, (ii) within five Business Days following the time that such Issuing Bank issues, amends, renews or extends any Letter of Credit, the date of such issuance, amendment, renewal or extension, and the currency and face amount of the Letters of Credit issued, amended, renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension (and whether the amounts thereof shall have changed), (iii) on each Business Day on which such Issuing Bank makes any LC Disbursement, the date, currency and amount of such LC Disbursement, (iv) on any Business Day on which the Borrower fails to reimburse an LC Disbursement required to be reimbursed to such Issuing Bank on such day, the date of such failure and currency and amount of such LC Disbursement and (v) on any other Business Day, such other information as the Administrative Agent shall reasonably request as to the Letters of Credit issued by such Issuing Bank.
79
(n) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by the Issuing Bank and the Borrower, when a Letter of Credit is issued, (i) the rules of the ISP98 shall apply to each Standby Letter of Credit, and (ii) the rules of UCP shall apply to each Commercial Letter of Credit, and as to all matters not governed thereby, the laws of the State of New York.
SECTION 2.06 Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it hereunder (other than, for the avoidance of doubt, Term B-6 Loans and Term B-7 Loans, which shall be deemed to have been made on the Effective Date in accordance with this Agreement) on the proposed date thereof by wire transfer of immediately available funds in dollars by 2:00 p.m., New York City time, to the applicable account of the Administrative Agent most-recently designated by it for such purpose by notice to the Lenders; provided that Swingline Loans shall be made as provided in Section 2.04. The Administrative Agent will make such Loans (other than the Term B-6 Loans and the Term B-7 Loans) available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower designated by the Borrower in the applicable Borrowing Request; provided that ABR Revolving Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f) shall be remitted by the Administrative Agent to the applicable Issuing Bank or, to the extent that Revolving Lenders have made payments pursuant to Section 2.05(f) to reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as their interests may appear.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing 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 share available on such date in accordance with paragraph (a) of this Section and may, in reliance on such assumption and in its sole discretion, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender agrees to pay to the Administrative Agent an amount equal to such share on demand of the Administrative Agent. If such Lender does not pay such corresponding amount forthwith upon demand of the Administrative Agent therefor, the Administrative Agent shall promptly notify the Borrower, and the Borrower agrees to pay such corresponding amount to the Administrative Agent forthwith on demand. The Administrative Agent shall also be entitled to recover from such Lender or the Borrower interest on such corresponding amount, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, the rate reasonably determined by the Administrative Agent to be its cost of funding such amount, or (ii) in the case of the Borrower, the interest rate applicable to such Borrowing in accordance with Section 2.13. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.
(c) Obligations of the Lenders hereunder to make Term Loans and Revolving Loans, to fund participations in Letters of Credit and Swingline Loans and to make payments pursuant to Section 9.03(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 9.03(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and, other than as expressly provided herein with respect to a Defaulting Lender, no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 9.03(c).
SECTION 2.07 Interest Elections.
(a) Each Revolving Loan Borrowing and Term Loan Borrowing initially shall be of the Type specified in the applicable Borrowing Request or designated by Section 2.03 and, in the case of a Term Benchmark Borrowing, shall have an initial Interest Period as specified in such Borrowing Request or designated by Section 2.03. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Term Benchmark Borrowing, may elect Interest Periods therefor, all as provided in
80
this Section. 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 the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. This Section shall not apply to Swingline Loans, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election in a written Interest Election Request signed by the Borrower by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such Interest Election Request shall be irrevocable.
(c) Each Interest Election Request shall specify the following information in compliance with Section 2.03:
(i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Term Benchmark Borrowing; and
(iv) if the resulting Borrowing is to be a Term Benchmark Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period.”
If any such Interest Election Request requests a Term Benchmark Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
(d) Promptly following receipt of an Interest Election Request in accordance with this Section, the Administrative Agent shall advise each Lender of the applicable Class of the details thereof and of such Lender’s portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a Term Benchmark Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period, the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
SECTION 2.08 Termination and Reduction of Commitments.
(a) Unless previously terminated, the respective Term Commitments of the Term Lenders shall terminate upon the earlier of (i) 5:00 p.m., New York City time, on the Effective Date and (ii) the funding of the applicable Term Loans to the Borrower. The Revolving Commitments shall terminate on the last day of the Revolving Availability Period.
(b) The Borrower may at any time terminate, or from time to time reduce, the Commitments of any Class; provided that (i) each reduction of the Commitments of any Class shall be in an amount that is an integral multiple of $500,000 and not less than $1,000,000 and (ii) the Borrower shall not terminate or reduce the Revolving Commitments if, after giving effect to any concurrent prepayment of the Revolving Loans or Swingline Loans in accordance with Section 2.11, the aggregate Revolving Exposures would exceed the aggregate Revolving Commitments.
81
(c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Commitments under paragraph (b) of this Section at least one Business Day prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided that a notice of termination of the Commitments delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities or the receipt of the proceeds from the issuance of other Indebtedness or the occurrence of some other identifiable event or condition, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date of termination) if such condition is not satisfied. Any termination or reduction of the Commitments of any Class shall be permanent. Each reduction of the Commitments of any Class shall be made ratably among the Lenders in accordance with their respective Commitments of such Class.
SECTION 2.09 Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Revolving Loan of such Lender on the applicable Revolving Maturity Date, (ii) to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Term Loan of such Lender as provided in Section 2.10 and (iii) to the Swingline Lender the then unpaid principal amount of each Swingline Loan made by the Swingline Lender on the earlier to occur of (A) the date that is 10 Business Days after such Loan is made and (B) the Revolving Maturity Date; provided that on each date that a Revolving Loan Borrowing is made, the Borrower shall repay all Swingline Loans that were outstanding on the date such Borrowing was requested.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein, provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to pay any amounts due hereunder in accordance with the terms of this Agreement. In the event of any inconsistency between the entries made pursuant to paragraphs (b) and (c) of this Section, the accounts maintained by the Administrative Agent pursuant to paragraph (c) of this Section shall control.
(e) Any Lender may request through the Administrative Agent that Loans of any Class made by it be evidenced by a promissory note. In such event, the Borrower shall execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form provided by the Administrative Agent and approved by the Borrower.
SECTION 2.10 Amortization of Term Loans.
(a) Subject to adjustment pursuant to paragraph (b) of this Section, the Borrower shall repay Term B-6 Loan Borrowings and Term B-7 Loan Borrowings on the last Business Day of each of March, June, September and December (commencing on June 30, 2025) in the amount equal to (i) in the case of the Term B-6 Loans, (A) in the case of each such installment due prior to the Term B-6 Loan Maturity Date, 0.25% of the aggregate original principal amount of the Term B-6 Loans outstanding as of the Effective Date and (B) in the case of the installment due on the Term B-6 Loan Maturity Date, the entire remaining balance of the Term B-6 Loan and (ii) in the case of the Term B-7 Loans, (A) in the case of each such installment due prior to the Term B-7 Loan Maturity Date, 0.25% of the aggregate original principal amount of the Term B-7 Loans outstanding as of the Effective Date and (B) in the case of the installment due on the Term B-7 Loan Maturity Date, the entire remaining balance of the Term B-7 Loans.
82
(b) Any prepayment of a Term Loan Borrowing of any Class (i) pursuant to Section 2.11(a)(i) shall be applied to reduce the subsequent scheduled and outstanding repayments of the Term Loan Borrowings of such Class to be made pursuant to this Section as directed by the Borrower (and absent such direction in direct order of maturity) and (ii) pursuant to Section 2.11(c) shall be applied to reduce the subsequent scheduled and outstanding repayments of the Term Loan Borrowings of such Class to be made pursuant to this Section, or, except as otherwise provided in any Refinancing Amendment or Loan Modification Offer, pursuant to the corresponding section of such Refinancing Amendment or Loan Modification Offer, as applicable, in direct order of maturity.
(c) Prior to any repayment of any Term Loan Borrowings of any Class hereunder, the Borrower shall select the Borrowing or Borrowings of the applicable Class to be repaid and shall notify the Administrative Agent in writing of such election not later than 2:00 p.m., New York City time, two Business Day before the scheduled date of such repayment. In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall make such designation in its reasonable discretion with a view, but no obligation, to minimize breakage costs owing under Section 2.16. Each repayment of a Borrowing shall be applied ratably to the Loans included in the repaid Borrowing. Repayments of Term Loan Borrowings shall be accompanied by accrued interest on the amount repaid.
SECTION 2.11 Prepayment of Loans.
(a) (i) 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.
(i) Notwithstanding anything in any Loan Document to the contrary, so long as no Default or Event of Default has occurred and is continuing, the Borrower may prepay the outstanding Term Loans on the following basis:
(A) The Borrower shall have the right to make a voluntary prepayment of Term Loans at a discount to par (such prepayment, the “Discounted Term Loan Prepayment”) pursuant to a Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offers or Borrower Solicitation of Discounted Prepayment Offers, in each case made in accordance with this Section 2.11(a)(ii); provided that (x) the Borrower shall not make any Borrowing of Revolving Loans to fund any Discounted Term Loan Prepayment and (y) the Borrower shall not initiate any action under this Section 2.11(a)(ii) in order to make a Discounted Term Loan Prepayment with respect to any Class unless (I) at least ten Business Days shall have passed since the consummation of the most recent Discounted Term Loan Prepayment with respect to such Class as a result of a prepayment made by the Borrower on the applicable Discounted Prepayment Effective Date; or (II) at least three Business Days shall have passed since the date the Borrower was notified that no Term Lender was willing to accept any prepayment of any Term Loan and/or Other Term Loan at the Specified Discount, within the Discount Range or at any discount to par value, as applicable, or in the case of Borrower Solicitation of Discounted Prepayment Offers, the date of the Borrower’s election not to accept any Solicited Discounted Prepayment Offers.
(B) (1) Subject to the proviso to subsection (A) above, the Borrower may from time to time offer to make a Discounted Term Loan Prepayment by providing the Auction Agent with three Business Days’ notice in the form of a Specified Discount Prepayment Notice; provided that (I) any such offer shall be made available, at the sole discretion of the Borrower, to each Term Lender and/or each Lender with respect to any Class of Term Loans on an individual tranche basis, (II) any such offer shall specify the aggregate principal amount offered to be prepaid (the “Specified Discount Prepayment Amount”) with respect to each applicable tranche, the tranche or tranches of Term Loans subject to such offer and the specific percentage discount to par (the “Specified Discount”) of such Term Loans to be prepaid (it being understood that different Specified Discounts and/or Specified Discount Prepayment Amounts may be offered with respect
83
to different tranches of Term Loans and, in such an event, each such offer will be treated as a separate offer pursuant to the terms of this Section), (III) the Specified Discount Prepayment Amount shall be in an aggregate amount not less than $10,000,000 and whole increments of $1,000,000 in excess thereof and (IV) each such offer shall remain outstanding through the Specified Discount Prepayment Response Date. The Auction Agent will promptly provide each relevant Term Lender with a copy of such Specified Discount Prepayment Notice and a form of the Specified Discount Prepayment Response to be completed and returned by each such Term Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., New York time, on the third Business Day after the date of delivery of such notice to the relevant Term Lenders (the “Specified Discount Prepayment Response Date”).
(2) Each relevant Term Lender receiving such offer shall notify the Auction Agent (or its delegate) by the Specified Discount Prepayment Response Date whether or not it agrees to accept a prepayment of any of its relevant then outstanding Term Loans at the Specified Discount and, if so (such accepting Term Lender, a “Discount Prepayment Accepting Lender”), the amount and the tranches of such Term Lender’s Term Loans to be prepaid at such offered discount. Each acceptance of a Discounted Term Loan Prepayment by a Discount Prepayment Accepting Lender shall be irrevocable. Any Term Lender whose Specified Discount Prepayment Response is not received by the Auction Agent by the Specified Discount Prepayment Response Date shall be deemed to have declined to accept the Borrower Offer of Specified Discount Prepayment.
(3) If there is at least one Discount Prepayment Accepting Lender, the Borrower will make prepayment of outstanding Term Loans pursuant to this paragraph (B) to each Discount Prepayment Accepting Lender in accordance with the respective outstanding amount and tranches of Term Loans specified in such Term Lender’s Specified Discount Prepayment Response given pursuant to subsection (2); provided that, if the aggregate principal amount of Term Loans accepted for prepayment by all Discount Prepayment Accepting Lenders exceeds the Specified Discount Prepayment Amount, such prepayment shall be made pro-rata among the Discount Prepayment Accepting Lenders in accordance with the respective principal amounts accepted to be prepaid by each such Discount Prepayment Accepting Lender and the Auction Agent (in consultation with the Borrower and subject to rounding requirements of the Auction Agent made in its reasonable discretion) will calculate such proration (the “Specified Discount Proration”). The Auction Agent shall promptly, and in any case within three Business Days following the Specified Discount Prepayment Response Date, notify (I) the Borrower of the respective Term Lenders’ responses to such offer, the Discounted Prepayment Effective Date and the aggregate principal amount of the Discounted Term Loan Prepayment and the tranches to be prepaid, (II) each Term Lender of the Discounted Prepayment Effective Date, and the aggregate principal amount and the tranches of Term Loans to be prepaid at the Specified Discount on such date and (III) each Discount Prepayment Accepting Lender of the Specified Discount Proration, if any, and confirmation of the principal amount, tranche and Type of Loans of such Term Lender to be prepaid at the Specified Discount on such date. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the Borrower and Term Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Borrower shall be due and payable by the Borrower on the Discounted Prepayment Effective Date in accordance with subsection (F) below (subject to subsection (J) below).
(C) (1) Subject to the proviso to subsection (A) above, the Borrower may from time to time solicit Discount Range Prepayment Offers by providing the Auction Agent with three Business Days’ notice in the form of a Discount Range Prepayment Notice; provided that (I) any such solicitation shall be extended, at the sole discretion of the Borrower, to each Term Lender and/or each Lender with respect to any Class of Loans on an individual tranche basis, (II) any such
84
notice shall specify the maximum aggregate principal amount of the relevant Term Loans (the “Discount Range Prepayment Amount”), the tranche or tranches of Term Loans subject to such offer and the maximum and minimum percentage discounts to par (the “Discount Range”) of the principal amount of such Term Loans with respect to each relevant tranche of Term Loans willing to be prepaid by the Borrower (it being understood that different Discount Ranges and/or Discount Range Prepayment Amounts may be offered with respect to different tranches of Term Loans and, in such an event, each such offer will be treated as a separate offer pursuant to the terms of this Section), (III) the Discount Range Prepayment Amount shall be in an aggregate amount not less than $10,000,000 and whole increments of $1,000,000 in excess thereof and (IV) each such solicitation by the Borrower shall remain outstanding through the Discount Range Prepayment Response Date. The Auction Agent will promptly provide each relevant Term Lender with a copy of such Discount Range Prepayment Notice and a form of the Discount Range Prepayment Offer to be submitted by a responding relevant Term Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., New York time, on the third Business Day after the date of delivery of such notice to the relevant Term Lenders (the “Discount Range Prepayment Response Date”). Each relevant Term Lender’s Discount Range Prepayment Offer shall be irrevocable and shall specify a discount to par within the Discount Range (the “Submitted Discount”) at which such Lender is willing to allow prepayment of any or all of its then outstanding Term Loans of the applicable tranche or tranches and the maximum aggregate principal amount and tranches of such Term Lender’s Term Loans (the “Submitted Amount”) such Term Lender is willing to have prepaid at the Submitted Discount. Any Term Lender whose Discount Range Prepayment Offer is not received by the Auction Agent by the Discount Range Prepayment Response Date shall be deemed to have declined to accept a Discounted Term Loan Prepayment of any of its Term Loans at any discount to their par value within the Discount Range.
(2) The Auction Agent shall review all Discount Range Prepayment Offers received on or before the applicable Discount Range Prepayment Response Date and shall determine (in consultation with the Borrower and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) the Applicable Discount and Term Loans to be prepaid at such Applicable Discount in accordance with this subsection (C). The Borrower agrees to accept on the Discount Range Prepayment Response Date all Discount Range Prepayment Offers received by Auction Agent by the Discount Range Prepayment Response Date, in the order from the Submitted Discount that is the largest discount to par to the Submitted Discount that is the smallest discount to par, up to and including the Submitted Discount that is the smallest discount to par within the Discount Range (such Submitted Discount that is the smallest discount to par within the Discount Range being referred to as the “Applicable Discount”) which yields a Discounted Term Loan Prepayment in an aggregate principal amount equal to the lower of (I) the Discount Range Prepayment Amount and (II) the sum of all Submitted Amounts. Each Term Lender that has submitted a Discount Range Prepayment Offer to accept prepayment at a discount to par that is larger than or equal to the Applicable Discount shall be deemed to have irrevocably consented to prepayment of Term Loans equal to its Submitted Amount (subject to any required proration pursuant to the following subsection (3)) at the Applicable Discount (each such Term Lender, a “Participating Lender”).
(3) If there is at least one Participating Lender, the Borrower will prepay the respective outstanding Term Loans of each Participating Lender in the aggregate principal amount and of the tranches specified in such Term Lender’s Discount Range Prepayment Offer at the Applicable Discount; provided that if the Submitted Amount by all Participating Lenders offered at a discount to par greater than the Applicable Discount exceeds the Discount Range Prepayment Amount, prepayment of the principal amount of the relevant Term Loans for those Participating Lenders whose Submitted Discount is a discount to par greater than or equal to the Applicable Discount (the “Identified Participating Lenders”) shall be made pro-rata among the Identified Participating Lenders in accordance with the Submitted Amount of each such Identified Participating Lender and the Auction Agent (in consultation with the Borrower and subject to rounding
85
requirements of the Auction Agent made in its sole reasonable discretion) will calculate such proration (the “Discount Range Proration”). The Auction Agent shall promptly, and in any case within five Business Days following the Discount Range Prepayment Response Date, notify (I) the Borrower of the respective Lenders’ responses to such solicitation, the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate principal amount of the Discounted Term Loan Prepayment and the tranches to be prepaid, (II) each Term Lender of the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate principal amount and tranches of Term Loans to be prepaid at the Applicable Discount on such date, (III) each Participating Lender of the aggregate principal amount and tranches of such Term Lender to be prepaid at the Applicable Discount on such date, and (IV) if applicable, each Identified Participating Lender of the Discount Range Proration. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the Borrower and Term Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Borrower shall be due and payable by the Borrower on the Discounted Prepayment Effective Date in accordance with subsection (F) below (subject to subsection (J) below).
(D) (1) Subject to the proviso to subsection (A) above, the Borrower may from time to time solicit Solicited Discounted Prepayment Offers by providing the Auction Agent with three Business Days’ notice in the form of a Solicited Discounted Prepayment Notice; provided that (I) any such solicitation shall be extended, at the sole discretion of the Borrower, to each Term Lender and/or each Lender with respect to any Class of Term Loans on an individual tranche basis, (II) any such notice shall specify the maximum aggregate dollar amount of the Term Loans (the “Solicited Discounted Prepayment Amount”) and the tranche or tranches of Term Loans the Borrower is willing to prepay at a discount (it being understood that different Solicited Discounted Prepayment Amounts may be offered with respect to different tranches of Term Loans and, in such an event, each such offer will be treated as a separate offer pursuant to the terms of this Section), (III) the Solicited Discounted Prepayment Amount shall be in an aggregate amount not less than $10,000,000 and whole increments of $1,000,000 in excess thereof and (IV) each such solicitation by the Borrower shall remain outstanding through the Solicited Discounted Prepayment Response Date. The Auction Agent will promptly provide each relevant Term Lender with a copy of such Solicited Discounted Prepayment Notice and a form of the Solicited Discounted Prepayment Offer to be submitted by a responding Term Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., New York time on the third Business Day after the date of delivery of such notice to the relevant Term Lenders (the “Solicited Discounted Prepayment Response Date”). Each Term Lender’s Solicited Discounted Prepayment Offer shall (x) be irrevocable, (y) remain outstanding until the Acceptance Date, and (z) specify both a discount to par (the “Offered Discount”) at which such Term Lender is willing to allow prepayment of its then outstanding Term Loan and the maximum aggregate principal amount and tranches of such Term Loans (the “Offered Amount”) such Term Lender is willing to have prepaid at the Offered Discount. Any Term Lender whose Solicited Discounted Prepayment Offer is not received by the Auction Agent by the Solicited Discounted Prepayment Response Date shall be deemed to have declined prepayment of any of its Term Loans at any discount.
(2) The Auction Agent shall promptly provide the Borrower with a copy of all Solicited Discounted Prepayment Offers received on or before the Solicited Discounted Prepayment Response Date. The Borrower shall review all such Solicited Discounted Prepayment Offers and select the largest of the Offered Discounts specified by the relevant responding Term Lenders in the Solicited Discounted Prepayment Offers that is acceptable to the Borrower (the “Acceptable Discount”), if any. If the Borrower elects to accept any Offered Discount as the Acceptable Discount, then as soon as practicable after the determination of the Acceptable Discount, but in no event later than by the third Business Day after the date of receipt by the Borrower from the Auction Agent of a copy of all Solicited Discounted Prepayment Offers pursuant to the first sentence of this subsection (2) (the “Acceptance Date”), the Borrower shall submit an Acceptance and Prepayment Notice to the Auction Agent setting forth the Acceptable Discount. If the Auction Agent shall fail to receive an Acceptance and Prepayment Notice from the Borrower by the Acceptance Date, the Borrower shall be deemed to have rejected all Solicited Discounted Prepayment Offers.
86
(3) Based upon the Acceptable Discount and the Solicited Discounted Prepayment Offers received by Auction Agent by the Solicited Discounted Prepayment Response Date, within three Business Days after receipt of an Acceptance and Prepayment Notice (the “Discounted Prepayment Determination Date”), the Auction Agent will determine (in consultation with the Borrower and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) the aggregate principal amount and the tranches of Term Loans (the “Acceptable Prepayment Amount”) to be prepaid by the Borrower at the Acceptable Discount in accordance with this Section 2.11(a)(ii)(D). If the Borrower elects to accept any Acceptable Discount, then the Borrower agrees to accept all Solicited Discounted Prepayment Offers received by Auction Agent by the Solicited Discounted Prepayment Response Date, in the order from largest Offered Discount to smallest Offered Discount, up to and including the Acceptable Discount. Each Term Lender that has submitted a Solicited Discounted Prepayment Offer with an Offered Discount that is greater than or equal to the Acceptable Discount shall be deemed to have irrevocably consented to prepayment of Term Loans equal to its Offered Amount (subject to any required pro-rata reduction pursuant to the following sentence) at the Acceptable Discount (each such Term Lender, a “Qualifying Lender”). The Borrower will prepay outstanding Term Loans pursuant to this subsection (D) to each Qualifying Lender in the aggregate principal amount and of the tranches specified in such Term Lender’s Solicited Discounted Prepayment Offer at the Acceptable Discount; provided that if the aggregate Offered Amount by all Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount exceeds the Solicited Discounted Prepayment Amount, prepayment of the principal amount of the Term Loans for those Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount (the “Identified Qualifying Lenders”) shall be made pro rata among the Identified Qualifying Lenders in accordance with the Offered Amount of each such Identified Qualifying Lender and the Auction Agent (in consultation with the Borrower and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) will calculate such proration (the “Solicited Discount Proration”). On or prior to the Discounted Prepayment Determination Date, the Auction Agent shall promptly notify (I) the Borrower of the Discounted Prepayment Effective Date and Acceptable Prepayment Amount comprising the Discounted Term Loan Prepayment and the tranches to be prepaid, (II) each Lender of the Discounted Prepayment Effective Date, the Acceptable Discount, and the Acceptable Prepayment Amount of all Term Loans and the tranches to be prepaid to be prepaid at the Applicable Discount on such date, (III) each Qualifying Lender of the aggregate principal amount and the tranches of such Term Lender to be prepaid at the Acceptable Discount on such date, and (IV) if applicable, each Identified Qualifying Lender of the Solicited Discount Proration. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the Borrower and Term Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Borrower shall be due and payable by the Borrower on the Discounted Prepayment Effective Date in accordance with subsection (F) below (subject to subsection (J) below).
(E) In connection with any Discounted Term Loan Prepayment, the Borrower and the Term Lenders acknowledge and agree that the Auction Agent may require as a condition to any Discounted Term Loan Prepayment, the payment of customary fees and expenses from the Borrower in connection therewith.
87
(F) If any Term Loan is prepaid in accordance with paragraphs (B) through (D) above, the Borrower shall prepay such Term Loans on the Discounted Prepayment Effective Date. The Borrower shall make such prepayment to the Auction Agent, for the account of the Discount Prepayment Accepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable, at the Administrative Agent’s office in immediately available funds not later than 11:00 a.m., New York City time, on the Discounted Prepayment Effective Date and all such prepayments shall be applied to the remaining principal installments of the relevant tranche of Term Loans on a pro rata basis across such installments. The Term Loans so prepaid shall be accompanied by all accrued and unpaid interest on the par principal amount so prepaid up to, but not including, the Discounted Prepayment Effective Date. Each prepayment of the outstanding Term Loans pursuant to this Section 2.11(a)(ii) shall be paid to the Discount Prepayment Accepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable. The aggregate principal amount of the tranches and installments of the relevant Term Loans outstanding shall be deemed reduced by the full par value of the aggregate principal amount of the tranches of Term Loans prepaid on the Discounted Prepayment Effective Date in any Discounted Term Loan Prepayment.
(G) To the extent not expressly provided for herein, each Discounted Term Loan Prepayment shall be consummated pursuant to procedures consistent, with the provisions in this Section 2.11(a)(ii), established by the Auction Agent acting in its reasonable discretion and as reasonably agreed by the Borrower.
(H) Notwithstanding anything in any Loan Document to the contrary, for purposes of this Section 2.11(a)(ii), each notice or other communication required to be delivered or otherwise provided to the Auction Agent (or its delegate) shall be deemed to have been given upon Auction Agent’s (or its delegate’s) actual receipt during normal business hours of such notice or communication; provided that any notice or communication actually received outside of normal business hours shall be deemed to have been given as of the opening of business on the next Business Day.
(I) Each of the Borrower and the Term Lenders acknowledges and agrees that the Auction Agent may perform any and all of its duties under this Section 2.11(a)(ii) by itself or through any Affiliate of the Auction Agent and expressly consents to any such delegation of duties by the Auction Agent to such Affiliate and the performance of such delegated duties by such Affiliate. The exculpatory provisions pursuant to this Agreement shall apply to each Affiliate of the Auction Agent and its respective activities in connection with any Discounted Term Loan Prepayment provided for in this Section 2.11(a)(ii) as well as activities of the Auction Agent.
(J) The Borrower shall have the right, by written notice to the Auction Agent, to revoke in full (but not in part) its offer to make a Discounted Term Loan Prepayment and rescind the applicable Specified Discount Prepayment Notice, Discount Range Prepayment Notice or Solicited Discounted Prepayment Notice therefor at its discretion at any time on or prior to the applicable Specified Discount Prepayment Response Date (and if such offer is revoked pursuant to this subclause (J), any failure by the Borrower to make any prepayment to a Term Lender, as applicable, pursuant to this Section 2.11(a)(ii) shall not constitute a Default or Event of Default under Section 7.01 or otherwise).
Notwithstanding anything to contrary, the provisions of this Section 2.11(a)(ii) shall permit any transaction permitted by such section to be conducted on a Class by Class basis and on a non-pro rata basis across Classes (but not within a single Class), in each case, as selected by the Borrower.
(b) In the event and on each occasion that the aggregate Revolving Exposures exceed the aggregate Revolving Commitments, the Borrower shall prepay Revolving Loan Borrowings or Swingline Loans (or, if no such Borrowings are outstanding, deposit Cash Collateral in an account with the Administrative Agent pursuant to Section 2.05(j)) in an aggregate amount necessary to eliminate such excess.
88
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any of its Restricted Subsidiaries in respect of any Prepayment Event, the Borrower shall, within ten Business Days after such Net Proceeds are received (or, in the case of a Prepayment Event described in clause (b) of the definition of the term “Prepayment Event,” on the date of such Prepayment Event), prepay Term Loan Borrowings in an aggregate amount equal to the amount of such Net Proceeds; provided that, in the case of any event described in clause (a) of the definition of the term “Prepayment Event,” if the Borrower and its Restricted Subsidiaries invest (or commit to invest) the Net Proceeds from such event (or a portion thereof) within 365 days after receipt of such Net Proceeds in the business of the Borrower and the other Subsidiaries (including any acquisitions or other Investment permitted under Section 6.04), then no prepayment shall be required pursuant to this paragraph in respect of such Net Proceeds in respect of such event (or the applicable portion of such Net Proceeds, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so invested (or agreed or committed to be invested) by the end of such 365 day period (or if agreed or committed to be so invested within such 365 day period, have not been so invested within 545 days after receipt thereof), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so invested (or committed to be invested); provided, further, subject to Section 2.11(h), the Borrower may use a portion of such Net Proceeds to prepay or repurchase any (i) First Out Debt (and in the case of First Out Debt consisting of revolving obligations, to correspondingly reduce commitments with respect thereto) and/or (ii) Second Out Debt, in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness and the denominator of which is the aggregate outstanding principal amount of Term Loans and such other Second Out Debt.
(d) Following the end of each fiscal year of Parent, commencing with the fiscal year ending December 31, 2025, the Borrower shall prepay Term B-6 Loans and Term B-7 Loans (on a ratable basis) in an aggregate amount equal to the ECF Percentage of Excess Cash Flow for the fiscal year ended December 31, 2025, and thereafter, for each subsequent fiscal year, the Borrower shall prepay the Term B-6 Loans and Term B-7 Loans (on a ratable basis) in an aggregate amount equal to the ECF Percentage of Excess Cash Flow for the Test Period ended on the last day of each such fiscal year, divided by two; provided that (A) such amount shall be reduced by (i) the aggregate amount of prepayments of Term Loans made pursuant to Section 2.11 during such period, (ii) prepayments of Revolving Loans or Swingline Loans during such period to the extent such prepayments also result in a permanent reduction of the Revolving Commitments, (iii) the aggregate amount of prepayments and repurchases of other First Priority Lien Indebtedness during such period and (iv) repurchases or redemptions of the 5.125% Senior Unsecured Notes, to the extent such repurchases or redemptions were financed with internally generated cash flow of Borrower or the Restricted Subsidiaries, together with any premiums, fees or penalties that are payable in connection with such prepayments, repurchases and redemptions described in the foregoing clauses (i), (ii), (iii) and (iv), in each case during such fiscal year or after such fiscal year and prior to the time such prepayment is due as provided below (provided that such reduction as a result of prepayments pursuant to Section 2.11(a)(ii) thereof shall be limited to the actual amount of such cash prepayment), excluding all such prepayments funded with the proceeds of other long-term Indebtedness or the issuance of Equity Interests and (B) no prepayment shall be required under this Section 2.11(d) unless the amount thereof (after giving effect to the foregoing clause (A)) would equal or exceed $25,000,000; provided that only amounts in excess of such $25,000,000 shall be prepaid pursuant to this Section 2.11(d). Each prepayment pursuant to this paragraph shall be made on or before the date that is ten Business Days after the date on which financial statements are required to be delivered pursuant to Section 5.01 with respect to the fiscal year for which Excess Cash Flow is being calculated.
(e) Prior to any optional or mandatory prepayment of Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term Loan Borrowings made at a time when Term Loan Borrowings of more than one Class remain outstanding, the Borrower shall, subject to Section 2.11(h), select which Class (or Classes) of Term Loan Borrowings are to be prepaid in their sole discretion; provided that the aggregate amount of such prepayment is allocated pro rata among the Term Loan Borrowings of each such Class; provided, further, that any Lender (and, to the extent provided in the Refinancing Amendment or Loan Modification Offer for any Class of Other Term Loans, any Lender that holds Other Term Loans of such Class) may elect, by notice to the Administrative Agent in writing at least one Business Day prior to the prepayment date, to decline all or any portion of any prepayment of its Term Loans or Other Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a)(i) of this Section or a mandatory prepayment as a result of the Prepayment Event set forth in clause (b) of the definition thereof, which
89
may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Term Loans or Other Term Loans of any such Class but was so declined shall be retained by the Borrower and its Restricted Subsidiaries (such amounts, “Retained Declined Proceeds”). Optional prepayments of Term Loan Borrowings shall be allocated among the Classes of Term Loan Borrowings as directed by the Borrower. In the absence of a designation by the Borrower as described in the preceding provisions of this paragraph of the Type of Borrowing of any Class, the Administrative Agent shall make such designation in its reasonable discretion with a view, but no obligation, to minimizing breakage costs owing under Section 2.16.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) in writing of any prepayment hereunder (i) in the case of prepayment of a Term Benchmark Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that a notice of optional prepayment may state that such notice is conditional upon the effectiveness of other credit facilities or the receipt of the proceeds from the issuance of other Indebtedness or the occurrence of some other identifiable event or condition, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.13. At the Borrower’s election in connection with any prepayment pursuant to this Section 2.11, such prepayment shall not be applied to any Term Loan or Revolving Loan of a Defaulting Lender and shall be allocated ratably among the relevant non-Defaulting Lenders.
(g) Notwithstanding any other provisions of Section 2.11(c), (A) to the extent that any of or all the Net Proceeds of any Prepayment Event set forth in clause (a) of the definition thereof by a Foreign Subsidiary giving rise to a prepayment pursuant to Section 2.11(c) (a “Foreign Prepayment Event”) are prohibited or delayed by any Requirement of Law from being repatriated to the Borrower, the portion of such Net Proceeds so affected will not be required to be applied to repay Term Loans at the times provided in Section 2.11(c) and such amounts may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable Requirement of Law will not permit repatriation to the Borrower (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable Requirement of Law to permit such repatriation), and once such repatriation of any of such affected Net Proceeds is permitted under the applicable Requirement of Law, such repatriation will be promptly effected and such repatriated Net Proceeds will be promptly (and in any event not later than three Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to Section 2.11(c) and (B) to the extent that and for so long as the Borrower has determined in good faith that repatriation of any or all of the Net Proceeds of any Foreign Prepayment Event would have a material adverse tax consequence with respect to such Net Proceeds, the Net Proceeds so affected will not be required to be applied to repay Term Loans at the times provided in Section 2.11(c) and such amounts may be retained by the applicable Foreign Subsidiary; provided that when the Borrower determines in good faith that repatriation of any of or all the Net Proceeds of any Foreign Prepayment Event would no longer have a material adverse tax consequence with respect to such Net Proceeds, such Net Proceeds shall be promptly (and in any event not later than three Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to Section 2.11(c); provided that in the case of clause (A), on or before the date on which any such Net Proceeds so retained would otherwise have been required as permitted to be applied to reinvestments or prepayments pursuant to Section 2.11, the Borrower may apply an amount equal to such Net Proceeds to such reinvestments or prepayments, as applicable, as if such Net Proceeds had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds had been repatriated (or, if less, the Net Proceeds that would be calculated if received by such Foreign Subsidiary).
90
(h) Notwithstanding anything to the contrary in Sections 2.11(c) and (d), no mandatory prepayments of outstanding Second Out Obligations shall be required pursuant to Section 2.11(c) or (in the event that any First Out Debt is outstanding that includes “excess cash flow” sweep provisions, Section 2.11(d)) until the repayment in full in cash of, and the termination or expiration of all commitments to extend credit under (other than Revolving Commitments hereunder), the applicable First Out Debt has occurred, other than with “Retained Declined Proceeds” pursuant to Section 2.11(e), which shall be applied, subject to Section 2.11(e) or with the applicable proceeds offered and not tendered, purchased or repaid pursuant to an asset sale offer under the 8.125% First Out First Lien Senior Secured Note Indenture or other similar provisions under Other First Out First Lien Debt, as a mandatory prepayment hereunder in accordance with the relevant terms of this Section 2.11.
SECTION 2.12 Fees.
(a) The Borrower agrees to pay to the Administrative Agent in dollars for the account of each Revolving Lender a commitment fee, which shall accrue at the Applicable Revolving Commitment Fee Rate on the average daily unused amount of the Revolving Commitment of such Lender during the period from and including the Effective Date to but excluding the date on which the Revolving Commitments terminate. Accrued commitment fees shall be payable in arrears on the third Business Day following the last day of each of the Borrower’s fiscal quarters and on the date on which the Revolving Commitments terminate, commencing on the first such date to occur after the Effective Date. All commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). For purposes of computing commitment fees, a Revolving Commitment of a Lender shall be deemed to be used to the extent of the outstanding Revolving Loans and LC Exposure of such Lender (and the Swingline Exposure of such Lender shall be disregarded for such purpose).
(b) The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender (other than any Defaulting Lender) a participation fee with respect to its participations in Letters of Credit, which shall accrue at the Applicable Rate, in each case, used to determine the interest rate applicable to Term Benchmark Revolving Loans, as applicable, on the daily amount of such Revolving Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements), during the period from and including the Effective Date to but excluding the later of the date on which such Revolving Lender’s Revolving Commitment terminates and the date on which such Revolving Lender ceases to have any LC Exposure. In addition, the Borrower agrees to pay to each Issuing Bank, for its own account, a fronting fee, in respect of each Letter of Credit issued by such Issuing Bank to the Borrower for the period from the date of issuance of such Letter of Credit through the expiration date of such Letter of Credit (or if terminated on an earlier date to the termination date of such Letter of Credit), computed at a rate equal to 0.125% per annum or such other percentage per annum to be agreed upon between the Borrower and such Issuing Bank of the daily outstanding amount of such Letter of Credit, as well as such Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder. Participation fees and fronting fees accrued through and including the last day of each March, June, September and December shall be payable in accordance with clause (c) below; 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 until the expiration or cancellation of all outstanding Letters of Credit. All participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed.
(c) All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent (or to an Issuing Bank, in the case of fees payable to it) for distribution, in the case of commitment fees and participation fees, to the Revolving Lenders entitled thereto. Fees paid hereunder shall not be refundable under any circumstances.
(d) The Borrower agrees to pay to the Administrative Agent, for its own account, an agency fee payable in the amount and at the times separately agreed upon between Borrower and the Administrative Agent.
(e) Notwithstanding the foregoing, and subject to Section 2.22, the Borrower shall not be obligated to pay any amounts to any Defaulting Lender pursuant to this Section 2.12; provided that such amounts shall be payable to any non-Defaulting Lender that assumes the obligations of a Defaulting Lender pursuant to Section 2.22(a)(iv).
91
(f) The Borrower agrees to pay to the Agents, without duplication, such fees as shall have been separately agreed upon in writing, as set forth in the Fee Letters in the amounts and at the times so specified therein.
SECTION 2.13 Interest.
(a) The Loans comprising each ABR Borrowing (including each Swingline Loan) shall bear interest at the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Term Benchmark Borrowing shall bear interest at the Adjusted Term SOFR Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.
(c) During the continuance of an Event of Default under clauses (a) or (b) of Section 7.01, the Borrower shall pay interest on past due amounts owing by it hereunder, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2.00% per annum plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount, 2.00% per annum plus the rate applicable to ABR Revolving Loans as provided in paragraph (a) of this Section; provided that no amount shall be payable pursuant to this Section 2.13(c) to a Defaulting Lender so long as such Lender shall be a Defaulting Lender; provided, further, that no amounts shall accrue pursuant to this Section 2.13(c) on any overdue amount, reimbursement obligation in respect of any LC Disbursement or other amount payable to a Defaulting Lender so long as such Lender shall be a Defaulting Lender; provided, further, that such amounts shall be payable to any non-Defaulting Lender that assumes the obligations of a Defaulting Lender pursuant to Section 2.22(a)(iv).
(d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan and, in the case of Revolving Loans, upon termination of the Revolving Commitments, provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of the Revolving Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Term Benchmark Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.
(e) All computations of interest for ABR Loans (including ABR Loans determined by reference to the Adjusted Term SOFR Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.18, bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
SECTION 2.14 Alternate Rate of Interest.
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.14, if, prior to the commencement of any Interest Period for a Term Benchmark Borrowing:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted Term SOFR Rate or the Term SOFR Rate, as applicable (including because the Term SOFR Reference Rate is not available or published on a current basis) for such Interest Period; or
(ii) the Administrative Agent is advised by the Required Lenders that the Adjusted Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period,
92
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone, electronic mail or facsimile as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Term Benchmark Borrowing shall be ineffective and (ii) if any Borrowing Request requests a Term Benchmark Borrowing then such Borrowing shall be made as an ABR Borrowing and the utilization of the Term SOFR Rate component in determining the Alternate Base Rate shall be suspended; provided, however, that, in each case, the Borrower may revoke any Borrowing Request that is pending when such notice is received.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes in consultation with the Borrower from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (e) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.14, 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 2.14.
(e) 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 the Term SOFR 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 or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” 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 or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
93
(f) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Term Benchmark Borrowing of, conversion to or continuation of Term Benchmark Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to an ABR Borrowing. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to the Adjusted Term SOFR Rate applicable to such Term Benchmark Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.14, (A) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such day.
SECTION 2.15 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 against assets of, deposits with or for the account of, or credit extended by, any Lender or any Issuing Bank (except any such reserve requirement reflected in the Adjusted Term SOFR Rate); or
(ii) impose on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than with respect to Taxes) affecting this Agreement or Term Benchmark Loans made by such Lender or any Letter of Credit or participation therein; or
(iii) subject any Lender to any Taxes on its Loans, letters of credit, Commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
and the result of any of the foregoing shall be to increase the actual cost to such Lender of making or maintaining any Term Benchmark Loan (or of maintaining its obligation to make any such Loan) or to increase the actual cost to such Lender or Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or issue any Letter of Credit) or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or otherwise), then, from time to time upon request of such Lender or Issuing Bank, the Borrower will 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, as the case may be, for such increased costs actually incurred or reduction actually suffered, provided that to the extent any such costs or reductions are incurred by any Lender as a result of any requests, rules, guidelines or directives enacted or promulgated under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and Basel III after the Effective Date, then such Lender shall be compensated pursuant to this Section 2.15(a) only to the extent such Lender is imposing such charges on similarly situated borrowers under the other syndicated credit facilities that such Lender is a lender under. Notwithstanding the foregoing, this paragraph (a) will not apply to (A) Indemnified Taxes or Other Taxes or (B) Excluded Taxes.
(b) If any Lender or Issuing Bank determines that any Change in Law regarding capital or liquidity requirements has 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 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 such 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 and liquidity requirements), then, from time to time upon request of such Lender or Issuing Bank, the Borrower will 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 actually suffered.
94
(c) A certificate of a Lender or Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or Issuing Bank or its holding company in reasonable detail, as the case may be, as specified in paragraph (a) or (b) of this Section delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or Issuing Bank, as the case may be, the amount shown as due on any such certificate within 15 Business Days after receipt thereof.
(d) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section for any increased costs incurred or reductions suffered more than 180 days prior to the date that such Lender or Issuing Bank, 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 or Issuing Bank’s intention to claim compensation therefor; provided, further, that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.16 Break Funding Payments. In the event of (a) the optional payment of any principal of any Term Benchmark Borrowing other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Term Benchmark Borrowing other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or optionally prepay any Revolving Loan or Term Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.11(f) and is revoked in accordance therewith) or (d) the assignment of any Term Benchmark Borrowing other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.19 or Section 9.02(d), then, in any such event, the Borrower shall, after receipt of a written request by any Lender affected by any such event (which request shall set forth in reasonable detail the basis for requesting such amount), compensate each Lender for the actual loss, cost and expense attributable to such event. For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 2.16, each Lender shall be deemed to have funded each Term Benchmark Borrowing made by it at the Adjusted Term SOFR Rate for such Loan by a matching deposit or other borrowing for a comparable amount and for a comparable period, whether or not such Term Benchmark Borrowing was in fact so funded. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section delivered within ten Business Days of such event to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 15 Business Days after receipt of such demand. Notwithstanding the foregoing, this Section 2.16 will not apply to losses, costs or expenses resulting from Taxes, as to which Section 2.17 shall govern.
SECTION 2.17 Taxes.
(a) Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made free and clear of and without deduction for any Taxes, provided that if the applicable Withholding Agent shall be required by applicable Requirements of Law to deduct any Taxes from such payments, then (i) the applicable Withholding Agent shall make such deductions, (ii) the applicable Withholding Agent shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Requirements of Law and (iii) if the Tax in question is an Indemnified Tax or Other Tax, the amount payable by the applicable Loan Party shall be increased as necessary so that after all required deductions have been made (including deductions applicable to additional amounts payable under this Section 2.17) the Administrative Agent or Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made.
(b) Without limiting the provisions of paragraph (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with Requirements of Law.
(c) The Borrower shall indemnify the Administrative Agent and each Lender, within 30 days after written demand therefor, for the full amount of any Indemnified Taxes paid by the Administrative Agent or such Lender, as the case may be, and any Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.17) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth in reasonable detail the basis and calculation of the amount of such payment or liability delivered to the Borrower by a Lender or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
95
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a Loan Party to a Governmental Authority pursuant to this Section 2.17, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Each Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Requirements of Law and such other documentation reasonably requested by the Borrower or the Administrative Agent (i) as will permit such payments to be made without, or at a reduced rate of, withholding or (ii) as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to withholding or information reporting requirements. Each Lender shall, whenever a lapse or time or change in circumstances renders such documentation obsolete, expired or inaccurate in any material respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrower or the Administrative Agent) or promptly notify the Borrower and the Administrative Agent in writing of its inability to do so.
Without limiting the foregoing:
(1) Each Lender that is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent) two properly completed and duly signed original copies of Internal Revenue Service Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding.
(2) Each Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent) whichever of the following is applicable:
(A) two properly completed and duly signed original copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any successor forms) claiming eligibility for the benefits of an income tax treaty to which the United States is a party,
(B) two properly completed and duly signed original copies of Internal Revenue Service Form W-8ECI (or any successor forms),
(C) in the case of a Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or Section 881(c) of the Code, (x) two properly completed and duly signed certificates substantially in the form of Exhibit P-1, P-2, P-3 and P-4, as applicable, (any such certificate, a “U.S. Tax Compliance Certificate”) and (y) two properly completed and duly signed original copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any successor forms),
(D) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two properly completed and duly signed original copies of Internal Revenue Service Form W-8IMY (or any successor forms) of the Lender, accompanied by a Form W-8ECI, W-8BEN, W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY or any other required information (or any successor forms) from each beneficial owner that would be required under this Section 2.17(e) if such beneficial owner were a Lender, as applicable (provided that, if the Lender is a partnership for U.S. federal income tax purposes (and not a participating Lender) and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)), or
96
(E) two properly completed and duly signed original copies of any other form prescribed by applicable U.S. federal income tax laws as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding tax on any payments to such Lender under the Loan Documents, together with such supplementary 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.
(3) 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, to determine whether such Lender has or has not complied with such Lender’s obligations under FATCA and, if necessary, to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (3), “FATCA” shall include any amendments made to FATCA after the Effective Date.
Notwithstanding any other provisions of this clause (e), a Lender shall not be required to deliver any form or other documentation that such Lender is not legally eligible to deliver.
(f) If the Borrower determines in good faith that a reasonable basis exists for contesting any Taxes for which indemnification has been demanded hereunder, the Administrative Agent or the relevant Lender, as applicable, shall use commercially reasonable efforts to cooperate with the Borrower in a reasonable challenge of such Taxes if so requested by the Borrower; provided that (a) the Administrative Agent or such Lender determines in its reasonable discretion that it would not be subject to any unreimbursed third party cost or expense or otherwise be prejudiced by cooperating in such challenge, (b) the Borrower pays all related expenses of the Administrative Agent or such Lender, as applicable and (c) the Borrower indemnifies the Administrative Agent or such Lender, as applicable, for any liabilities or other costs incurred by such party in connection with such challenge. The Administrative Agent or a Lender shall claim any refund that it determines is reasonably available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. If the Administrative Agent or a Lender receives a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 2.17, it shall pay over such refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of the Administrative Agent or such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the request of the Administrative Agent or such Lender, agrees promptly to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. The Administrative Agent or such Lender, as the case may be, shall, at the Borrower’s request, provide the Borrower with a copy of any notice of assessment or other evidence of the requirement to repay such refund received from the relevant taxing authority (provided that the Administrative Agent or such Lender may delete any information therein that the Administrative Agent or such Lender deems confidential). Notwithstanding anything to the contrary, this Section 2.17(f) shall not be construed to require the Administrative Agent or any Lender to make available its Tax returns (or any other information relating to Taxes which it deems confidential to any Loan Party or any other Person).
(g) The agreements in this Section 2.17 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
97
(h) For purposes of this Section 2.17, the term “Lender” shall include any Issuing Bank and the Swingline Lender.
(i) In addition, if applicable, the Administrative Agent shall deliver to the Borrower (x)(I) in the case of the Administrative Agent, prior to the date on which the first payment by the Borrower is due hereunder or (II) in the case of any successor Administrative Agent appointed pursuant to Article VIII that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code, prior to the first date on or after the date on which the Administrative Agent becomes a successor Administrative Agent pursuant to Article VIII on which payment by the Borrower is due hereunder, as applicable, two copies of a properly completed and executed IRS Form W-8IMY certifying that the Administrative Agent is a U.S. branch and intends to be treated as a U.S. person for purposes of withholding under Chapter 3 of the Code pursuant to Section 1.1441-1(b)(2)(iv) or Section 1.441-1T(b)(2)(iv), as applicable, of the United States Treasury Regulations, and (y) on or before the date on which any such previously delivered documentation expires or becomes obsolete or invalid, after the occurrence of any event requiring a change in the most recent documentation previously delivered by it to the Borrower, and from time to time if reasonably requested by the Borrower, two further copies of such documentation.
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of Setoffs.
(a) The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees, or reimbursement of LC Disbursement or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Section 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. 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 (other than payments on the Term Benchmark Borrowings) under any Loan Document 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. If any payment on a Term Benchmark Borrowing becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all applicable amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of applicable interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the applicable amounts of interest and fees then due to such parties, and (ii) second, towards payment of applicable principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans of a given Class or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans of such Class or participations in LC Disbursements or Swingline Loans and accrued interest thereon than the proportion received by any other Lender with outstanding Loans of the same Class or participations in LC Disbursements or Swingline Loans, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans of such Class or 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 of such Class or participations in
98
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 (A) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from existence of a Defaulting Lender), (B) 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 to any assignee or participant (including a Purchasing Borrower Party) or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. 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 setoff 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. Except to the extent otherwise provided herein: (i) each Borrowing of a particular Class shall be made from the relevant Lenders, each payment of commitment fee under Section 2.12 shall be made for account of the relevant Lenders, and each termination or reduction of the amount of the Commitments of a particular Class under Section 2.08 shall be applied to the respective Commitments of such Class of the relevant Lenders, pro rata according to the amounts of their respective Commitments of such Class; (ii) each Borrowing of any Class shall be allocated pro rata among the relevant Lenders according to the amounts of their respective Commitments of such Class (in the case of the making of Loans) or their respective Loans of such Class (in the case of conversions and continuations of Loans); (iii) each payment or prepayment of principal of Revolving Loans, Term Loans, Incremental Revolving Loans and Incremental Term Loans by the Borrower shall be made for account of the relevant Lenders pro rata in accordance with the respective unpaid principal amounts of the Loans of such Class held by them; and (iv) each payment of interest on Revolving Loans, Term Loans, Incremental Revolving Loans and Incremental Term Loans by the Borrower shall be made for account of the relevant Lenders pro rata in accordance with the amounts of interest on such Loans then due and payable to the respective Lenders.
(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 and in its sole discretion, distribute to the Lenders or the Issuing Banks, as the case may be, the amount 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 Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), Section 2.05(e), Section 2.05(f), Section 2.06(a), Section 2.06(b), Section 2.06(c), Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as Cash Collateral for, and to be applied to, any future funding obligations of such Lender under any such Section.
SECTION 2.19 Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.15, 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 2.17 or any event that gives rise to the operation of Section 2.23, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or its participation in any Letter of Credit affected by such event, or to assign and delegate its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of such Lender, such designation or assignment and delegation (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or Section 2.17 or mitigate the applicability of Section 2.23, as the case may be, and (ii) would not subject such Lender to any unreimbursed cost or expense reasonably deemed by such Lender to be material and would not be inconsistent with the internal policies of, or otherwise be disadvantageous in any material economic, legal or regulatory respect to, such Lender.
99
(b) If (i) any Lender requests compensation under Section 2.15 or gives notice under Section 2.23, (ii) the Borrower is required to pay any additional amount to any Lender or to any Governmental Authority for the account of any Lender pursuant to Section 2.17, or (iii) any Lender becomes a Defaulting Lender, then the Borrower may, at its sole expense and effort, 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 contained in Section 9.04), all its interests, rights and obligations under this Agreement and the other Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender or an Affiliated Lender, if a Lender accepts such assignment and delegation), provided that (A) the Borrower shall have received the prior written consent of the Administrative Agent to the extent such consent would be required under Section 9.04(b) for an assignment of Loans or Commitments, as applicable (and if a Revolving Commitment is being assigned and delegated, each Issuing Bank and each Swingline Lender), which consents, in each case, shall not unreasonably be withheld or delayed, (B) such Lender shall have received payment of an amount equal to the then market value of the outstanding principal of its Loans and unreimbursed participations in LC Disbursements and Swingline Loans, accrued but unpaid interest thereon, accrued but unpaid fees and all other amounts payable to it hereunder from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts), (C) the Borrower or such assignee shall have paid (unless waived) to the Administrative Agent the processing and recordation fee specified in Section 9.04(b)(ii) and (D) in the case of any such assignment resulting from a claim for compensation under Section 2.15, payment required to be made pursuant to Section 2.17 or a notice given under Section 2.23, such assignment will result in a material reduction in such compensation or payments. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise (including as a result of any action taken by such Lender under paragraph (a) above), the circumstances entitling the Borrower to require such assignment and delegation cease to apply. Each party hereto agrees that an assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee and that the Lender required to make such assignment need not be a party thereto.
SECTION 2.20 Incremental Credit Extension.
(a) The Borrower may at any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, by notice to the Administrative Agent request (i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.06, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, (x) no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment permitted or not prohibited by the terms of this Agreement or irrevocable repayment, repurchase or redemption of any Indebtedness, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01 having occurred and being continuing) and (y) the aggregate amount of Revolving Commitments hereunder, shall not exceed $650,000,000. Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Facilities (including, without duplication, the aggregate outstanding principal amount of any Incremental Equivalent Debt issued in lieu of Incremental Term Loans) shall not at the time of incurrence of any such Incremental Facilities (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). Notwithstanding anything to the contrary, no Incremental Facilities (i) may, directly or indirectly, have borrowers, guarantors or other obligors other than the Loan Parties or (ii) may be secured, directly or indirectly, by any assets other than Collateral.
100
(b) Each Incremental Term Loan shall comply with the following clauses (A) through (G): (A) the maturity date of any Incremental Term Loans shall not be earlier than the Latest Second Out Maturity Date at the time of incurrence, and the Weighted Average Life to Maturity of any Incremental Term Loans shall not be earlier than the Weighted Average Life to Maturity of the then outstanding Term Loans with the Latest Second Out Maturity Date, except that Incremental Term Loans under the Term B-6 Loan Facility may have a maturity date and Weighted Average Life to Maturity earlier than the Term B-7 Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders, but notwithstanding the foregoing, Incremental Term Loans shall bear interest at then-prevailing market rates for similarly situated borrowers or issuers, (C) (i) the Incremental Term Loans shall be Second Out Debt, Junior Lien Indebtedness or unsecured Indebtedness (and, in the case of secured Indebtedness, subject to the applicable Intercreditor Agreements specifying the appropriate Lien priority and priority as to payments from proceeds of Collateral) and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors, (D) if such Incremental Term Loans are incurred utilizing clause (a) of the definition of “Incremental Cap”, the proceeds of such Incremental Term Loans utilizing such clause (a) shall be applied to repurchase or redeem an equal or greater principal amount of outstanding 5.125% Senior Unsecured Notes, (E) any Incremental Term Loan that has terms and conditions consistent with the Term Loans in the reasonable determination of the Borrower shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders, (F) no Incremental Term Loans may be borrowed from or provided by an Affiliate of the Borrower and (G) if secured, such Incremental Term Loans shall not secured by any assets other than Collateral; provided, that to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date).
(c) Any Incremental Revolving Commitment Increase may only be provided by commercial banks regularly engaged in the provision of revolving credit facilities and shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)); provided that the proceeds of any Incremental Revolving Commitment Increase cannot be used in connection with or in furtherance of any Priming Financing/Liability Management Transaction and shall only be used in a manner consistent with Section 5.10 in respect of the usage of the Revolving Credit Facility.
(d) Any Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment with the Revolving Loans, shall be secured only by the Collateral securing the Secured Obligations and shall only be guaranteed by only the Loan Parties, (ii) shall not mature, require scheduled amortization payments or require mandatory reduction of the such Additional/Replacement Revolving Commitments, in each case, earlier than the latest Revolving Maturity Date, (iii) subject to clause (v) below, shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the Borrower and the lenders of such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the Borrower and the lenders of such commitments and (v) may otherwise have terms and conditions different from those of the Revolving Credit Facility; provided that (x) except with respect to matters contemplated by clauses (i), (ii) (iii) and (iv) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant for the benefit of each facility (provided, further, however, that, (x) if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for
101
the benefit of any term loan facility hereunder)) and (y) to the extent that any financial maintenance covenant is added for the benefit of any Additional/Replacement Revolving Commitments and is only applicable after the Latest Maturity Date, no such financial maintenance covenant shall be required to be added to this Agreement; provided, further, that the proceeds of any Additional/Replacement Revolving Commitments cannot be used in connection with or in furtherance of any Priming Financing/Liability Management Transaction and shall be used in a manner consistent with Section 5.10 in respect of the usage of Revolving Loans.
(e) Each notice from the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Term Loans, Incremental Revolving Commitment Increases or Additional/Replacement Revolving Commitments.
(f) Commitments in respect of Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank and the Swingline Lender. Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, appropriate or advisable (including changing the amortization schedule of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans), in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The Borrower may use the proceeds of the Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose permitted or not prohibited by this Agreement.
(g) Notwithstanding anything to the contrary, (i) this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary and (ii) this Section 2.20 cannot be used in connection with or in furtherance of a Priming Financing/Liability Management Transaction.
(h) The Borrower may elect to have used amounts under clause (b) of the definition of “Incremental Cap”, if any prior to utilization of clause (a) of the definition of “Incremental Cap” and the Borrower may elect to have used amounts under clause (b) of the definition of “Incremental Cap” prior to utilization of clause (a) of the definition of “Incremental Cap”.
SECTION 2.21 Refinancing Amendments.
(a) At any time after the Effective Date, the Borrower may obtain, from any Lender or any Additional Lender, Credit Agreement Refinancing Indebtedness in respect of (a) all or any portion of any Class of Term Loans then outstanding under this Agreement (which for purposes of this clause (a) will be deemed to include any then outstanding Other Term Loans) or (b) all or any portion of the Revolving Loans (or unused Revolving Commitments) under this Agreement (which for purposes of this clause (b) will be deemed to include any then outstanding Other Revolving Loans and Other Revolving Commitments), in the form of (x) Other Term Loans or Other Term Commitments or (y) Other Revolving Loans or Other Revolving Commitments, as the case may be, in each case pursuant to a Refinancing Amendment; provided that the Net Proceeds of such Credit Agreement Refinancing Indebtedness shall be applied, substantially concurrently with the incurrence thereof, to the prepayment of outstanding Term Loans or reduction of Revolving Commitments being so refinanced, as the case may be; provided further that the terms and conditions applicable to such Credit Agreement Refinancing Indebtedness may provide for any additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders thereof and applicable only during periods after the Latest Maturity Date that is in effect on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained. Each Class of Credit
102
Agreement Refinancing Indebtedness incurred under this Section 2.21 shall be in an aggregate principal amount that is (x) not less than $10,000,000 in the case of Other Term Loans or $10,000,000 in the case of Other Revolving Loans and (y) an integral multiple of $1,000,000 in excess thereof (in each case unless the Borrower and the Administrative Agent otherwise agree). Any Refinancing Amendment may provide for the issuance of Letters of Credit for the account of the Borrower, or the provision to the Borrower of Swingline Loans, pursuant to any Other Revolving Commitments established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit and Swingline Loans under the Revolving Commitments and reasonably satisfactory to the Issuing Banks and the Swingline Lender. The Administrative Agent shall promptly notify each applicable Lender as to the effectiveness of each Refinancing Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Loans and Commitments subject thereto as Other Term Loans, Other Revolving Loans, Other Revolving Commitments and/or Other Term Commitments). Any Refinancing Amendment 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 reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. In addition, if so provided in the relevant Refinancing Amendment and with the consent of each Issuing Bank, participations in Letters of Credit expiring on or after the latest Revolving Maturity Date shall be reallocated from Lenders holding Revolving Commitments to Lenders holding extended revolving commitments in accordance with the terms of such Refinancing Amendment; provided, however, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Revolving Commitments, be deemed to be participation interests in respect of such Revolving Commitments and the terms of such participation interests (including, without limitation, the commission applicable thereto) shall be adjusted accordingly.
(b) Notwithstanding anything to the contrary, (i) this Section 2.21 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary and (ii) this Section 2.21 cannot be used in connection with or in furtherance of a Priming Financing/Liability Management Transaction.
SECTION 2.22 Defaulting Lenders.
(a) General. Notwithstanding anything to the contrary contained in this Agreement (except as set forth in Section 9.17), if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(i) Waivers and Amendments. 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 Section 9.02.
(ii) Reallocation of Payments. Subject to the last sentence of Section 2.11(f), any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 9.08), 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 that Defaulting Lender to the Administrative Agent hereunder; second, in the case of a Revolving Lender, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to each Issuing Bank and the Swingline Lender hereunder; third, 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 that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; fifth, in the case of a Revolving Lender, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; 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, such Issuing Bank or the Swingline Lender against that Defaulting Lender as a result of that
103
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 any Loan Party as a result of any judgment of a court of competent jurisdiction obtained by any Loan Party against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction.
(iii) Certain Fees. That Defaulting Lender (x) shall not be entitled to receive or accrue any commitment fee pursuant to Section 2.12(a) 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) and (y) shall be limited in its right to receive Letter of Credit fees as provided in Section 2.12(b).
(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure. During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Swingline Loans and Letters of Credit pursuant to Section 2.04 and Section 2.05, the “Applicable Percentage” of each non-Defaulting Lender shall be computed without giving effect to the Revolving Commitment of that Defaulting Lender; provided that the aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit and Swingline Loans shall not exceed the positive difference, if any, of (1) the Revolving Commitment of that non-Defaulting Lender minus (2) the aggregate principal amount of the Revolving Loans of that non-Defaulting Lender.
(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, the Swingline Lender and each Issuing Bank agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be 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, such Lender will, to the extent applicable, purchase 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 on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.22(a)(iv)), whereupon that 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.
SECTION 2.23 Illegality. If any Lender determines that any law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender to make, maintain or fund Loans whose interest is determined by reference to the Adjusted Term SOFR Rate, or to determine or charge interest rates based upon the Adjusted Term SOFR Rate, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such Lender to make or continue Term Benchmark Loans or to convert ABR Loans to Term Benchmark Loans, as applicable, shall be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Borrower shall, upon three Business Days’ notice from such Lender (with a copy to the Administrative Agent), in the case of Term Benchmark Loans, prepay or, if applicable, convert all Term Benchmark Loans of such Lender to ABR Loans either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Term Benchmark Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Term Benchmark Loans, and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Adjusted Term SOFR Rate, the Administrative Agent shall, during the period of such suspension, compute the Alternate Base Rate applicable to such Lender without reference to the Adjusted Term SOFR Rate, as applicable, component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Adjusted Term SOFR Rate, as applicable. Each Lender agrees to notify the Administrative Agent and the Borrower in writing promptly upon becoming aware that it is no longer illegal for such Lender to determine or charge interest rates based upon the Adjusted Term SOFR Rate, as applicable. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
104
SECTION 2.24 Loan Modification Offers.
(a) At any time after the Effective Date, the Borrower may on one or more occasions, by written notice to the Administrative Agent, make one or more offers (each, a “Loan Modification Offer”) to all the Lenders of one or more Classes (each Class subject to such a Loan Modification Offer, an “Affected Class”) to effect one or more Permitted Amendments relating to such Affected Class pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower (including mechanics to permit conversions, cashless rollovers and exchanges by Lenders and other repayments and reborrowings of Loans of Accepting Lenders or Non-Accepting Lenders replaced in accordance with this Section 2.24). Such notice shall set forth (i) the terms and conditions of the requested Permitted Amendment and (ii) the date on which such Permitted Amendment is requested to become effective. Permitted Amendments shall become effective only with respect to the Loans and Commitments of the Lenders of the Affected Class that accept the applicable Loan Modification Offer (such Lenders, the “Accepting Lenders”) and, in the case of any Accepting Lender, only with respect to such Lender’s Loans and Commitments of such Affected Class as to which such Lender’s acceptance has been made.
(b) A Permitted Amendment shall be effected pursuant to a Loan Modification Agreement executed and delivered by Parent, the Borrower, each applicable Accepting Lender and the Administrative Agent; provided that no Permitted Amendment shall become effective unless Parent and the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall be reasonably requested by the Administrative Agent in connection therewith. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each Loan Modification Agreement may, without the consent of any Lender other than the applicable Accepting 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 give effect to the provisions of this Section 2.24, including any amendments necessary to treat the applicable Loans and/or Commitments of the Accepting Lenders as a new “Class” of loans and/or commitments hereunder.
(c) If, in connection with any proposed Loan Modification Offer, any Lender declines to consent to such Loan Modification Offer on the terms and by the deadline set forth in such Loan Modification Offer (each such Lender, a “Non-Accepting Lender”) then the Borrower may, on notice to the Administrative Agent and the Non-Accepting Lender, replace such Non-Accepting Lender in whole or in part by causing such Lender to (and such Lender shall be obligated to) assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04) all or any part of its interests, rights and obligations under this Agreement in respect of the Loans and Commitments of the Affected Class to one or more Eligible Assignees (which Eligible Assignee may be another Lender, if a Lender accepts such assignment); provided that neither the Administrative Agent nor any Lender shall have any obligation to the Borrower to find a replacement Lender; provided, further, that (a) the applicable assignee shall have agreed to provide Loans and/or Commitments on the terms set forth in the applicable Permitted Amendment, (b) such Non-Accepting Lender shall have received payment of an amount equal to the outstanding principal of the Loans of the Affected Class assigned by it pursuant to this Section 2.24(c), accrued interest thereon, accrued fees and all other amounts payable to it hereunder from the Eligible Assignee (to the extent of such outstanding principal and accrued interest and fees) and (c) unless waived, the Borrower or such Eligible Assignee shall have paid to the Administrative Agent the processing and recordation fee specified in Section 9.04(b).
(d) No rollover, conversion or exchange (or other repayment or termination) of Loans or Commitments pursuant to any Loan Modification Agreement in accordance with this Section 2.24 shall constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement.
(e) Notwithstanding anything to the contrary, this Section 2.24 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
105
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of Parent (as to Sections 3.01, 3.02, 3.03, 3.07, 3.08 and 3.16 only), the Borrower and the Subsidiary Loan Parties party hereto represents and warrants to the Lenders as of the Effective Date that:
SECTION 3.01 Organization; Powers. Each of Parent, the Borrower and each Restricted Subsidiary is (a) duly organized, validly existing and in good standing (to the extent such concept exists in the relevant jurisdictions) under the laws of the jurisdiction of its organization, (b) has the corporate or other organizational power and authority to carry on its business as now conducted and to execute, deliver and perform its obligations under each Loan Document to which it is a party and (c) is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required, except in the case of clause (a) (other than with respect to any Loan Party), clause (b) (other than with respect to Parent and the Borrower) and clause (c), where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.02 Authorization; Enforceability. This Agreement has been duly authorized, executed and delivered by each of Parent and the Borrower and constitutes, and each other Loan Document to which any Loan Party is to be a party, when executed and delivered by such Loan Party, will constitute, a legal, valid and binding obligation of Parent, the Borrower or such Loan Party, as the case may be, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03 Governmental Approvals; No Conflicts. The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except (i) such as have been obtained or made and are in full force and effect and except filings necessary to perfect Liens created under the Loan Documents, (ii) the reporting and/or disclosure of certain Loan Documents as required by Sections 73.3526 and 73.3613 of the FCC’s rules and (iii) the approval by the FCC of the acquisition of any Broadcast License, (b) will not violate (i) the Organizational Documents of Parent, the Borrower or any other Loan Party, or (ii)any Requirements of Law applicable to Parent, the Borrower or any of its Restricted Subsidiaries, (c) will not violate or result in a default under any indenture or other agreement or instrument binding upon Parent, the Borrower or any other Restricted Subsidiary or their respective assets, or give rise to a right thereunder to require any payment, repurchase or redemption to be made by Parent, the Borrower or any of its Restricted Subsidiaries, or give rise to a right of, or result in, termination, cancellation or acceleration of any obligation thereunder, and (d) will not result in the creation or imposition of any Lien on any asset of Parent, the Borrower or any of its Restricted Subsidiaries, except Liens created under the Loan Documents, except (in the case of each of clauses (a), (b)(ii) and (c)) to the extent that the failure to obtain or make such consent, approval, registration, filing or action, or such violation, default or right as the case may be, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
SECTION 3.04 Financial Condition; No Material Adverse Effect.
(a) Parent has heretofore furnished to the Lenders its consolidated balance sheets and statements of income, stockholders’ equity and cash flows as of and for (i) the fiscal year ended December 31, 2023, reported on by Pricewaterhouse Coopers LLP, independent public accountants, and (ii) as of and for the fiscal quarters ended March 31, June 30 and September 30, 2024 on an unaudited basis. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of Parent and its Subsidiaries as of such respective dates and for such respective fiscal years on a consolidated basis in accordance with GAAP, subject, in the case of quarterly financial statements, to the absence of footnotes and to normal year-end adjustments.
(b) Since September 30, 2024, there has been no material adverse change in the business, assets, operations, prospects or condition, financial or otherwise, of the Borrower and its Subsidiaries, taken as a whole.
106
SECTION 3.05 Properties. Each of the Borrower and each Restricted Subsidiary has good title to, or valid leasehold interests in, all its personal property material to its business, if any, (i) free and clear of all Liens except for Liens permitted by Section 6.02 and (ii) except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or as proposed to be conducted or to utilize such properties for their intended purposes, in each case, except as could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 3.06 Litigation and Environmental Matters.
(a) There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower, threatened in writing against or affecting the Borrower or any of its Restricted Subsidiaries that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
(b) Except with respect to any other matters that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, none of the Borrower or any of its Restricted Subsidiaries (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, to the knowledge of the Borrower, become subject to any Environmental Liability, (iii) has received written notice of any claim with respect to any Environmental Liability or (iv) has, to the knowledge of the Borrower, any basis to reasonably expect that the Borrower or any of its Restricted Subsidiaries will become subject to any Environmental Liability.
SECTION 3.07 Compliance with Laws and Agreements. Each of Parent, the Borrower and each Restricted Subsidiary is in compliance with (a) its Organizational Documents, (b) all Requirements of Law applicable to it or its property and (c) all indentures and other agreements and instruments binding upon it or its property, except, in the case of clauses (b) and (c) of this Section, where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.08 Investment Company Status. None of Parent, the Borrower or any other Loan Party is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended from time to time.
SECTION 3.09 Taxes. Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Borrower and each Restricted Subsidiary (a) have timely filed or caused to be filed all Tax returns required to have been filed and (b) have paid or caused to be paid all Taxes required to have been paid (whether or not shown on a Tax return) including in their capacity as tax withholding agents, except any Taxes (i) that are not overdue by more than 30 days or (ii) that are being contested in good faith by appropriate proceedings, provided that the Borrower or such Restricted Subsidiary, as the case may be, has set aside on its books adequate reserves therefor in accordance with GAAP.
SECTION 3.10 ERISA.
(a) Except as could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each Plan is in compliance with the applicable provisions of ERISA, the Code and other federal or state laws.
(b) Except as could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, (i) no ERISA Event has occurred during the five year period prior to the date on which this representation is made or deemed made or is reasonably expected to occur, (ii) no Plan has failed to satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, whether or not waived, (iii) neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Plan (other than premiums due and not delinquent under Section 4007 of ERISA), (iv) neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan and (v) neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that could reasonably be subject to Section 4069 or 4212(c) of ERISA.
107
SECTION 3.11 Disclosure. As of the Effective Date, neither (i) the Information Memorandum nor (ii) any of the other reports, financial statements, certificates or other written information furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the negotiation of any Loan Document or delivered thereunder (as modified or supplemented by other information so furnished) when taken as a whole contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading, provided that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed by them to be reasonable at the time delivered and, if such projected financial information was delivered prior to the Effective Date, only as of the Effective Date, it being understood that any such projected financial information may vary from actual results and such variations could be material. As of the Effective Date, to the knowledge of the Borrower, the information included in the Beneficial Ownership Certification provided on or prior to the Effective Date to any Lender in connection with this Agreement is true and correct in all respects.
SECTION 3.12 Subsidiaries. As of the Effective Date, Schedule 3.12 sets forth the name of, and the ownership interest of the Borrower and each Subsidiary of the Borrower in, each Subsidiary.
SECTION 3.13 Intellectual Property; Licenses, Etc. Each of the Borrower and each Restricted Subsidiary owns, licenses or possesses the right to use, all of the rights to Intellectual Property that are reasonably necessary for the operation of its business as currently conducted, and, without conflict with the rights of any Person, except to the extent such conflicts, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. The Borrower or any of its Restricted Subsidiaries do not, in the operation of their businesses as currently conducted, infringe upon any Intellectual Property rights held by any Person except for such infringements, individually or in the aggregate, which could not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any of the Intellectual Property owned by the Borrower or any of its Restricted Subsidiaries is pending or, to the knowledge of the Borrower, threatened in writing against the Borrower or any of its Restricted Subsidiaries, which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
SECTION 3.14 Solvency. On the Effective Date, immediately after the consummation of the Transactions to occur on the Effective Date, the Borrower and its Subsidiaries are, on a consolidated basis after giving effect to the Transactions, Solvent.
SECTION 3.15 Senior Indebtedness. The Loan Document Obligations constitute “Senior Indebtedness” (or any comparable term) under and as defined in the documentation in effect on the Effective Date governing any Junior Financing.
SECTION 3.16 Federal Reserve Regulations. None of Parent, the Borrower or any of its Restricted Subsidiaries is engaged or will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U of the Board of Governors), or extending credit for the purpose of purchasing or carrying margin stock. No part of the proceeds of the Loans will be used, directly or indirectly, to purchase or carry any margin stock or to refinance any Indebtedness originally incurred for such purpose, or for any other purpose that entails a violation (including on the part of any Lender) of the provisions of Regulations U or X of the Board of Governors.
SECTION 3.17 Use of Proceeds. The Borrower will use the cash proceeds (if applicable) of (a) the Term Loans made and any Revolving Loans drawn on the Effective Date in a manner consistent with Section 5.10 and (b) the Revolving Credit Facility to replace the commitments of certain of the Revolving Lenders (as defined in the Existing Credit Agreement in effect on the Effective Date) under the Revolving Credit Facility under and as defined in the Existing Credit Agreement in effect on the Effective Date, and the Revolving Loans after the Effective Date for working capital, general corporate purposes or any other purpose permitted or not prohibited by this Agreement.
108
SECTION 3.18 PATRIOT Act, OFAC and FCPA.
(a) The Borrower will not, directly or indirectly, use the proceeds of the transaction, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, for the purpose of funding (i) any activities of or business with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions, or (ii) any other transaction that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(b) The Borrower and its Restricted Subsidiaries will not use the proceeds of the Loans directly, or, to the knowledge of the Borrower, indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”).^^
(c) To the knowledge of the Borrower, none of the Borrower or the Restricted Subsidiaries has, in the past three years, committed a violation of applicable regulations of the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), Title III of the USA Patriot Act or the FCPA in any material respect.
(d) None of Parent, the Borrower, the Restricted Subsidiaries, or, to the knowledge of the Borrower, no director, officer, employee or agent thereof is an individual or entity currently on OFAC’s list of Specially Designated Nationals and Blocked Persons, nor is the Borrower or any of its Restricted Subsidiaries located, organized or resident in a country or territory that is the subject of Sanctions.
SECTION 3.19 Broadcast Licenses. Schedule 3.19 accurately and completely lists, as of the Effective Date, all Broadcast Licenses issued by the FCC for each Owned Station granted or assigned to the Borrower or its Subsidiaries, and the Borrower or its Subsidiaries have the right to operate each such Owned Station. The Broadcast Licenses listed in Schedule 3.19 with respect to any Owned Station include all material authorizations, licenses and permits issued by the FCC that are required or necessary for the operation of such Owned Station, and the conduct of the business of the Borrower and its Subsidiaries with respect to such Owned Station, as now conducted or proposed to be conducted. The Broadcast Licenses listed in Schedule 3.19 are issued in the name of the respective License Subsidiary for the Owned Station being operated under authority of such Broadcast Licenses and are on the Effective Date validly issued and in full force and effect, and the Borrower and its Subsidiaries have fulfilled and performed in all material respects all of their obligations with respect thereto and have full power and authority to operate thereunder.
SECTION 3.20 Plan Assets. None of the Loan Parties or Subsidiaries is an entity deemed to hold “plan assets” within the meaning of the Plan Asset Regulations.
SECTION 3.21 Outbound Investment Rules. None of the Loan Parties nor any of their Subsidiaries is a “covered foreign person” as that term is used in the Outbound Investment Rules. None of the Loan Parties or any of their Subsidiaries currently engages, or has any present 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 or any Lender to be in violation of the Outbound Investment Rules or cause the Administrative Agent or any Lender to be legally prohibited by the Outbound Investment Rules from performing under this Agreement.
SECTION 3.22 Affected Financial Institutions. No Loan Party is an Affected Financial Institution.
109
ARTICLE IV
CONDITIONS
SECTION 4.01 Effective Date. The obligations of the Lenders to make Loans and each Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions shall be satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a written opinion (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of (i) Pillsbury Winthrop Shaw Pittman LLP, special New York and Maryland counsel for the Loan Parties, (ii) Saltzman Mugan Dushoff, special Nevada counsel for the Loan Parties and (iv) Stoel Rives LLP, special Washington counsel for the Loan Parties. The Borrower hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section or, if applicable, certify that no changes have been made since the date of the last delivery of a certificate of a Responsible Officer.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of Loan Documents to which it is a party, certified as of the Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agents, the Collateral Trustee or the other relevant recipients shall have received all fees and other amounts previously agreed in writing by the Administrative Agents, the Collateral Trustee and the Borrower, Perella Weinberg Partners LP and Milbank LLP, as applicable, to be due and payable on or prior to the Effective Date, including all amounts due under the Fee Letters and including, to the extent invoiced at least three Business Days prior to the Effective Date (except as otherwise reasonably agreed by the Borrower), reimbursement or payment of all out-of-pocket expenses (including, in the case of legal counsel to the Lenders, only the reasonable fees, charges and disbursements of Milbank LLP as counsel to certain Term Lenders, and, in the case of a financial advisor to the Lenders, only the fees, charges and disbursements of Perella Weinberg Partners LP as financial advisor to certain Term Lenders, in accordance with the PWP Fee Letter, in the case of legal counsel to the Administrative Agent, the fees, charges and disbursements of Simpson Thacher & Bartlett LLP, as counsel to the Administrative Agent and, in the case of legal counsel to the Collateral Trustee, the fees, charges and disbursements of Ballard Spahr LLP, as counsel to the Collateral Trustee).
(f) Subject to Section 5.14, the Collateral and Guarantee Requirement shall have been satisfied.
(g) The Administrative Agent shall have received a certificate from the chief financial officer, chief accounting officer or treasurer (or another senior Responsible Officer with similar responsibilities) of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are Solvent.
110
(h) The Administrative Agent and the Bookrunner shall have received all documentation at least three Business Days prior to the Effective Date and other information about the Loan Parties that shall have been reasonably requested in writing at least 10 Business Days prior to the Effective Date and that the Administrative Agent or the Bookrunner have reasonably determined is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation Title III of the USA Patriot Act. If the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered to the Administrative Agent, at least 3 Business Days prior to the Effective Date, a Beneficial Ownership Certification to the extent requested by the Administrative Agent at least 10 Business Days prior to the Effective Date.
(i) The representations and warranties set forth in this Agreement shall be true and correct in all material respects (except to the extent such representations are subject to a materiality qualifier, in which case such representations shall be true and correct in all respects) on and as of the Effective Date, except to the extent that any such representation and warranty relates to an earlier date (in which case such representation and warranty shall have been true and correct in all material respects (except to the extent such representations are subject to a materiality qualifier, in which case such representations shall be true and correct in all respects as of such earlier date)), and as of the Effective Date, no Default or Event of Default has occurred and is continuing.
(j) The Administrative Agent shall have received executed copies of each of the Collateral Agreement, the Collateral Trust Agreement and the First/Second/Third Lien Intercreditor Agreement.
(k) Prior to or substantially concurrently with the Effective Date, (A) the Exchange Transactions solely with respect to (1) the exchange on a dollar-for-dollar basis of the Term B-3A Loans under the Existing Credit Agreement for the Term B-6 Loans and (2) the exchange on a dollar-for-dollar basis of the Term B-4A Loans under the Existing Credit Agreement for the Term B-7 Loans, shall have been consummated, (B) the Existing Credit Agreement Amendment shall have been duly executed and delivered by each Loan Party that is party thereto (and each of the “Term B-3A/B-4A Loan Exchange” and the “2022A Revolving Commitments Exchange” (each as defined in and contemplated in the Existing Credit Agreement Amendment) shall have been consummated) and (C) the TLB-2 Refinancing shall have been consummated.
SECTION 4.02 Each Credit Event. The obligation of (i) each Lender to make a Loan on the occasion of any Borrowing and (ii) of each Issuing Bank to issue, amend, renew or extend any Letter of Credit, in each case other than on the Effective Date or in connection with any Incremental Facility, Loan Modification Offer or Permitted Amendment, is subject to receipt of the request therefor in accordance herewith and to the satisfaction of the following conditions:
(a) The representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects on and as of the date of such Borrowing, the date of issuance, amendment, renewal or extension of such Letter of Credit or the date of such extension, as the case may be (in each case, unless such date is the Effective Date); provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on the date of such credit extension or on such earlier date, as the case may be.
(b) At the time of and immediately after giving effect to such Borrowing, the issuance, amendment, renewal or extension of such Letter of Credit or such extension, as the case may be, no Default or Event of Default shall have occurred and be continuing or would result therefrom.
(c) To the extent this Section 4.02 is applicable, each Borrowing (provided that a conversion or a continuation of a Borrowing shall not constitute a “Borrowing” for purposes of this Section) and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses (a) and (b) of this Section.
111
With respect to any Borrowing of Revolving Loans or Swingline Loans, or issuance of a Letter of Credit, at the time of such Borrowing or issuance, the aggregate then-outstanding Revolving Exposure, plus the aggregate amount of then-outstanding Junior Lien Revolving Exposure, shall not be greater than $650,000,000.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Termination Date shall have occurred, each of Parent and Borrower covenants and agrees with the Lenders that:
SECTION 5.01 Financial Statements and Other Information.
Parent or the Borrower will furnish to the Administrative Agent, on behalf of each Lender:
(a) beginning with the fiscal year ended December 31, 2024, on or before the date that is 120 days after the end of each such fiscal year of Parent, audited consolidated balance sheets, statements of operations and statements of cash flows of Parent as of the end of and for such fiscal year, and related notes thereto, setting forth in each case in comparative form the figures for the previous fiscal year (or in the case of the balance sheet, as of the end of such previous fiscal year), all reported on by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit (other than any exception or explanatory paragraph, but not a qualification, that is expressly solely with respect to, or expressly resulting solely from, (A) an upcoming maturity date of any Indebtedness occurring within one year from the time such opinion is delivered or (B) any potential inability to satisfy a financial maintenance covenant on a future date or in a future period)) to the effect that such consolidated financial statements present fairly in all material respects the financial position and results of operations and cash flows of Parent and its Subsidiaries as of the end of and for such year on a consolidated basis in accordance with GAAP consistently applied;
(b) commencing with the financial statements for the fiscal quarter ending March 31, 2025 with respect to each of the first three fiscal quarters of each fiscal year of Parent on or before the date that is 60 days after the end of each such fiscal quarter, consolidated balance sheets, statements of operations and statements of cash flows of Parent as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer as presenting fairly in all material respects the financial position and results of operations and cash flows of Parent and its Subsidiaries as of the end of and for such fiscal quarter (except in the case of cash flows) and such portion of the fiscal year on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) [reserved];
(d) not later than five Business Days after any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto and (ii) setting forth (1) the First Lien Leverage Ratio as of the most recently ended Test Period; (2) the First Out First Lien Leverage Ratio as of the most recently ended Test Period; (3) the percentages of the total assets, total revenue and total operating income of Parent and its Subsidiaries represented by (i) all Restricted Subsidiaries of Parent and Borrower that are not Guarantors and (ii) all Unrestricted Subsidiaries, (4) unless the ECF Percentage is zero percent (0%), reasonably detailed calculations in the case of financial statements delivered under paragraph (a) above, beginning with the financial statements for the fiscal year of Parent ending December 31, 2025, of Excess Cash Flow for such fiscal year; and (5) the Available Amount as of the end of the period for which such financial statements are delivered;
112
(e) not later than 120 days after the commencement of each fiscal year of the Borrower, a detailed forecast for the Borrower and its Subsidiaries for the next following fiscal year setting forth anticipated income, expense and capital expenditure items for each quarter during such fiscal year in form substantially similar to forecasts historically provided by Parent or other Affiliates of the Borrower (in the good faith judgment of Parent); provided that if the Ratings Condition is satisfied at such time, the Borrower shall only be required to deliver a consolidated statement of operations pursuant to this Section 5.01(e);
(f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and registration statements (other than amendments to any registration statement (to the extent such registration statement, in the form it became effective, is delivered to the Administrative Agent), exhibits to any registration statement and, if applicable, any registration statement on Form S-8) filed by Parent, the Borrower or any Subsidiary with the SEC or with any national securities exchange;
(g) promptly after the same become publicly available, copies of any and all periodic or special reports filed by Parent, the Borrower or any of the Borrower’s Subsidiaries with the FCC or with any other Federal, state or local Governmental Authority, if such reports indicate any material adverse change in the business, operations, affairs or condition of the Borrower or any of its Subsidiaries or if copies thereof are requested by any Lender or the Administrative Agent, and copies of any and all material notices and other material communications from the FCC or from any other Federal, state or local Governmental Authority with respect to the Borrower, any of its Subsidiaries or any Station;
(h) promptly following any request therefor, (i) such other information regarding the operations, business affairs and financial condition of Parent, the Borrower or any Restricted Subsidiary, or compliance with the terms of any Loan Document specified in such request, as the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in writing and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation; and
(i) during each fiscal quarter, the Borrower will participate in a conference call with the Administrative Agent and the Lenders, during which the financial condition of the Borrower and its Subsidiaries shall be discussed; provided that this obligation may be satisfied by a Parent Entity of the Borrower (including Sinclair) holding a public investor call during any such fiscal quarter.
Notwithstanding anything to the contrary herein, if Parent (i) holds assets (other than its direct or indirect interest in Borrower and its Subsidiaries) that exceeds 1.0% of the total assets of Parent and its Subsidiaries or (ii) has revenue (other than revenue from its direct or indirect interest in Borrower and its Subsidiaries) that exceeds 1.0% of the total revenue for the preceding fiscal year of Parent and its Subsidiaries, then the information related to Parent in paragraphs (a) and (b) of this Section 5.01 shall be accompanied by consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information of Parent, on the one hand, and the information relating to Borrower and its Subsidiaries on a stand-alone basis, on the other hand.
Any Parent Entity of the Borrower (including Sinclair) may satisfy the obligations of Parent in paragraphs (a) and (b) of this Section 5.01 by providing the requisite financial and other information (and related deliverables) of such Parent Entity instead of Parent; provided that to the extent such Parent Entity either (i) holds assets (other than its direct or indirect interest in Parent and its Subsidiaries) that exceeds 1.0% of the total assets of such Parent Entity and its Subsidiaries or (ii) has revenue (other than revenue from its direct or indirect interest in Parent and its Subsidiaries) that exceeds 1.0% of the total revenue for the preceding fiscal year of such Parent Entity and its Subsidiaries, then such information related to such Parent Entity shall be accompanied by consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information of such Parent Entity, on the one hand, and the information relating to Parent and its Subsidiaries on a stand-alone basis, on the other hand.
113
Documents required to be delivered pursuant to Section 5.01(a), (b), (f) or (g) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the earlier of the date (A) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s or, to the extent notified to the Administrative Agent and the Lenders, any Parent Entity’s website on the Internet or (B) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver such documents to the Administrative Agent upon its reasonable request until a written notice to cease delivering such documents is given by the Administrative Agent and (ii) the Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and upon its reasonable request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or maintain paper copies of the documents referred to above, and each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. The Borrower will be deemed to have furnished the documents required to be delivered pursuant to Section 5.01(a), (b), (f) or (g) if Parent, the Borrower or any of the Borrower’s Subsidiaries, as applicable, has publicly filed reports containing such information (or any such information of a Parent Entity of the Borrower in accordance with the immediately preceding paragraph) with the SEC.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Bookrunner will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that it will, upon the Administrative Agent’s reasonable request, identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (i) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (ii) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Bookrunner and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or their respective securities for purposes of United States federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12); (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”; and (iv) the Administrative Agent and the Bookrunner shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Other than as set forth in the immediately preceding sentence, the Borrower shall be under no obligation to mark the Borrower Materials “PUBLIC.”
SECTION 5.02 Notices of Material Events. Promptly after any Responsible Officer of Parent or the Borrower obtains actual knowledge thereof, Parent or the Borrower will furnish to the Administrative Agent (for distribution to each Lender through the Administrative Agent) written notice of the following:
(a) the occurrence of any Default; and
(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or, to the knowledge of a Financial Officer or another executive officer of Parent, the Borrower or any of its Subsidiaries, affecting the Borrower or any of its Subsidiaries or the receipt of a written notice of an Environmental Liability or the occurrence of an ERISA Event, in each case, that could reasonably be expected to result in a Material Adverse Effect; and
(c) any change in the information provided in the Beneficial Ownership Certification delivered to the Administrative Agent that would result in a change to the list of beneficial owners identified in such certification.
Each notice delivered under this Section 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 5.03 Information Regarding Collateral.
114
(a) Parent or the Borrower will furnish to the Administrative Agent promptly (and in any event within 60 days or such longer period as reasonably agreed to by the Collateral Trustee) written notice of any change (i) in any Loan Party’s legal name (as set forth in its certificate of organization or like document) or (ii) in the jurisdiction of incorporation or organization of any Loan Party or in the form of its organization.
(b) Not later than five Business Days after delivery of financial statements pursuant to Section 5.01(a), the Borrower shall deliver to the Administrative Agent a certificate executed by a Responsible Officer of the Borrower (i) setting forth the information required pursuant to Schedules I through IV of the Collateral Agreement or confirming that there has been no change in such information since the Effective Date or the date of the most recent certificate delivered pursuant to this Section, (ii) identifying any wholly-owned Subsidiary that has become, or ceased to be, a Material Subsidiary during the most recently ended fiscal quarter (unless such Subsidiary was and remains a Loan Party) and (iii) certifying that all notices required to be given prior to the date of such certificate by this Section 5.03 and Section 5.12 have been given.
SECTION 5.04 Existence; Conduct of Business. Each of Parent and the Borrower will, and will cause each Restricted Subsidiary to, do or cause to be done all things necessary to obtain, preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges, and franchises, and Intellectual Property material to the conduct of its business, in each case (other than the preservation of the existence of Parent and the Borrower) to the extent that the failure to do so could reasonably be expected to have a Material Adverse Effect, provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03 or any Disposition permitted by Section 6.05.
SECTION 5.05 Payment of Taxes, Etc. Each of Parent and the Borrower will, and will cause each Restricted Subsidiary to, pay its obligations in respect of Taxes before the same shall become delinquent or in default, unless the same are being contested in good faith by appropriate proceedings diligently conducted with adequate reserves in accordance with GAAP being maintained, except where the failure to make payment could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
SECTION 5.06 Maintenance of Properties. Each of Parent and the Borrower will, and will cause each Restricted Subsidiary to, keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted, except where the failure to do so could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 5.07 Insurance. Each of Parent and the Borrower (a) will, and will cause each Restricted Subsidiary to, maintain, with insurance companies that Parent and the Borrower believe (in the good faith judgment of the management of Parent and the Borrower) are financially sound and responsible at the time the relevant coverage is placed or renewed, insurance in at least such amounts (after giving effect to any self-insurance which Parent and the Borrower believe (in the good faith judgment of management of Parent and the Borrower) is reasonable and prudent in light of the size and nature of its business) and against at least such risks (and with such risk retentions) as Parent and the Borrower believe (in the good faith judgment of the management of Parent and the Borrower) are reasonable and prudent in light of the size and nature of its business; and (b) and will furnish to the Lenders, upon written request from the Administrative Agent, information presented in reasonable detail as to the insurance so carried. Each such policy of insurance maintained by a Loan Party shall (i) name the Collateral Trustee, on behalf of the Secured Parties, as an additional insured thereunder as its interests may appear and (ii) in the case of each casualty insurance policy, contain a loss payable clause or endorsement that names Collateral Trustee, on behalf of the Secured Parties as the loss payee thereunder.
SECTION 5.08 Books and Records; Inspection and Audit Rights. Each of Parent and the Borrower will, and will cause each Restricted Subsidiary to, maintain proper books of record and account in which entries that are full, true and correct in all material respects and are in conformity with GAAP (or applicable local standards) consistently applied shall be made of all material financial transactions and matters involving the assets and business of Parent, the Borrower or the Restricted Subsidiaries, as the case may be. Each of Parent and the Borrower will, and will cause the Restricted Subsidiaries to, permit any representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times and as often as reasonably requested; provided that, excluding any such visits and
115
inspections during the continuation of an Event of Default, only the Administrative Agent (acting jointly) on behalf of the Lenders may exercise visitation and inspection rights of the Administrative Agent and the Lenders under this Section 5.08 and the Administrative Agent shall not exercise such rights more often than one time during any calendar year absent the existence of an Event of Default, which visitation and inspection shall be at the reasonable expense of the Administrative Agent; provided, further that (a) when an Event of Default exists, the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and upon reasonable advance notice and (b) the Administrative Agent and the Lenders shall give Parent and the Borrower the opportunity to participate in any discussions with Parent’s independent public accountants.
SECTION 5.09 Compliance with Laws. Each of Parent and the Borrower will, and will cause each Restricted Subsidiary to, comply with its Organizational Documents and all Requirements of Law with respect to it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.10 Use of Proceeds and Letters of Credit. The Borrower will use the net proceeds of the Term Loans and any Revolving Loans drawn on the Effective Date (together with the net proceeds of the 8.125% First Out First Lien Senior Secured Notes and cash on hand) to prepay, exchange (including by means of a cashless roll), redeem or otherwise refinance all of the Existing Term Loans (other than Third Lien Term Loans), together with accrued interest thereon and related fee and expenses in connection therewith, to consummate the AHG Bond Repurchases, and to directly or indirectly, finance the Transactions and to fund working capital and general corporate purposes, original issue discount or upfront fees required to be paid on the Effective Date and any Transactions Costs. The Borrower and its subsidiaries will use the proceeds of the Revolving Loans and Swingline Loans drawn after the Effective Date and Letters of Credit for (i) working capital and other ordinary course uses (including debt interest payments and permitted parent overhead costs), ordinary course distributions and dividends, Permitted Investments, Junior Debt Prepayments and Restricted Payments permitted under this Agreement, provided that, in the case of the proceeds of Revolving Loans and Swingline Loans being used for Junior Debt Prepayments, such proceeds may only be used pursuant to Section 6.08(b)(v), (vi), (vii), (viii) or (ix) and (ii) replacing the commitments and extensions of credit of certain Revolving Lenders (as defined in the Existing Credit Agreement as in effect on the Effective Date) under the Existing Credit Agreement. The proceeds of Incremental Term Loans will be used for working capital and general corporate purposes (including Permitted Acquisitions and any other purpose permitted or not prohibited by this Agreement).
SECTION 5.11 Additional Subsidiaries. If any additional Restricted Subsidiary is formed or acquired after the Effective Date (including, without limitation, upon the formation of any Subsidiary that is a Delaware Divided LLC and is not otherwise an Excluded Subsidiary), Parent or the Borrower will, within 90 days after such newly formed or acquired Restricted Subsidiary is formed or acquired (unless such Restricted Subsidiary is an Excluded Subsidiary), notify the Administrative Agent and Collateral Trustee thereof, and all actions (if any) required to be taken with respect to such newly formed or acquired Restricted Subsidiary in order to satisfy the Collateral and Guarantee Requirement shall have been taken with respect to such Restricted Subsidiary and with respect to any Equity Interest in or Indebtedness of such Restricted Subsidiary owned by or on behalf of any Loan Party within 90 days after such notice (or such longer period as the Administrative Agent shall reasonably agree).
SECTION 5.12 Further Assurances.
(a) Each of Parent and the Borrower will, and will cause each Loan Party to, execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements and other documents), that may be required under any applicable law and that the Collateral Trustee or the Required Lenders may reasonably request, to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties.
(b) If, after the Effective Date, any material assets (excluding any owned or leased real property or improvements thereto or any interest therein) are acquired by the Borrower or any other Loan Party or are held by any Subsidiary on or after the time it becomes a Loan Party pursuant to Section 5.11 (other than assets constituting Collateral under a Security Document that become subject to the Lien created by such Security Document upon acquisition thereof or constituting Excluded Assets), the Borrower will (subject to the terms and conditions of the
116
last paragraph of the definition of the term “Collateral and Guarantee Requirement” and of the Security Documents) notify the Collateral Trustee thereof, and, if requested by the Collateral Trustee, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take and cause the other Loan Parties to take, such actions as shall be necessary and reasonably requested by the Collateral Trustee and consistent with the Collateral and Guarantee Requirement to grant and perfect such Liens, including actions described in paragraph (a) of this Section, all at the expense of the Loan Parties and subject to last paragraph of the definition of the term “Collateral and Guarantee Requirement.”
SECTION 5.13 Ratings. Each of Parent and the Borrower will use commercially reasonable efforts to cause (a) the Borrower to continuously have a corporate rating from at least two Rating Agencies (but not to maintain any specific rating), (b) within 30 days after the Effective Date, ratings with respect to the Term B-6 Loans and the Term B-7 Loans to be obtained from S&P and Moody’s and (c) thereafter, the Term B-6 Loans and the Term B-7 Loans to be continuously rated by at least two Rating Agencies (but not to maintain a specific rating).
SECTION 5.14 Certain Post-Closing Obligations. As promptly as practicable, and in any event within the time periods after the Effective Date specified in Schedule 5.14 or such later date as the Administrative Agent reasonably agrees to in writing, including to reasonably accommodate circumstances unforeseen on the Effective Date, Parent, the Borrower and each other applicable Loan Party shall deliver the documents or take the actions specified on Schedule 5.14, in each case except to the extent otherwise agreed by the Administrative Agent pursuant to its authority as set forth in the definition of the term “Collateral and Guarantee Requirement”.
SECTION 5.15 Designation of Subsidiaries; Limitations on Covered Assets.
(a) Parent may at any time after the Effective Date designate any Restricted Subsidiary (other than the Borrower) as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary or any Subsidiary as a Designated SBG Subsidiary; provided that, immediately before and after such designation on a Pro Forma Basis as of the end of the most recent Test Period, no Event of Default under clauses (a), (b), (h) or (i) of Section 7.01 shall have occurred and be continuing. The designation of any Subsidiary as an Unrestricted Subsidiary or the removal of any Designated SBG Subsidiary as a Subsidiary after the Effective Date shall constitute an Investment by Parent or its applicable Subsidiary therein at the date of designation in an amount equal to the Fair Market Value of Parent’s or its Subsidiary’s (as applicable) investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (i) the incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time and (ii) a return on any Investment by such Person in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the Fair Market Value at the date of such designation of such Person or its Subsidiary’s (as applicable) Investment in such Subsidiary; provided, further, that Parent shall not be entitled to designate any Person as an Unrestricted Subsidiary hereunder unless such Person is also designated as an Unrestricted Subsidiary pursuant to the terms of the 8.125% First Out First Lien Senior Secured Notes Indenture, the 4.375% Second Out First Lien Senior Secured Notes Indenture and the 9.750% Second Lien Secured Note Indenture. The Borrower shall not permit any of its Unrestricted Subsidiaries to make any dividend or other distribution declared or paid on any Capital Stock of such Unrestricted Subsidiary on a greater than pro rata basis to any holder of the Capital Stock of such Unrestricted Subsidiary (other than to the extent any of the Borrower or a Restricted Subsidiary receives a greater than pro rata share of such dividend or other distribution).
(b) Each Designated SBG Subsidiary (unless constituting an Excluded Subsidiary) shall become a “Subsidiary Loan Party” hereunder and all actions required to be taken with respect to such Designated SBG Subsidiary in order to satisfy the Collateral and Guarantee Requirement shall have been taken with respect to such Designated SBG Subsidiary. Notwithstanding the foregoing, any Designated SBG Subsidiary shall not be required to become a “Subsidiary Loan Party” hereunder or a “Grantor” under the Security Documents, so long as the following requirements are satisfied: (i) (A) such Subsidiary is not liable, directly or indirectly, with respect to any Indebtedness other than Non-Recourse Indebtedness and has not guaranteed or otherwise provided credit support at the time of such designation for any Indebtedness of the Borrower or any of its Subsidiaries (other than the Subsidiaries of such Subsidiary) and (B) such Subsidiary is directly owned by Parent or a wholly owned subsidiary thereof which is a Guarantor hereunder and the Capital Stock of such Subsidiary has been pledged in favor of the Collateral Trustee pursuant to the Collateral Agreement or (ii) at the time of acquisition of such Subsidiary by Parent, satisfaction of the Collateral and Guarantee Requirement would violate any provision of applicable law or any agreement to which such Subsidiary is a party, provided that if at any time thereafter such Subsidiary (or any of
117
its Subsidiaries) shall cease to be subject to the prohibitions referred to in this clause (ii), Parent will take such action, and will cause each of its Subsidiaries to take such action, promptly to ensure that such Subsidiary (and/or the relevant Subsidiary or Subsidiaries of such Subsidiary) become “Subsidiary Loan Parties” hereunder and promptly to satisfy the Collateral and Guarantee Requirement with respect thereto (and the Administrative Agent is hereby authorized, without further approval of the Lenders, to enter into such supplements to the Guarantee and to the Collateral Agreement or any joinder or other agreement relating thereto as shall be necessary to give effect to the foregoing).
(c) Notwithstanding anything to the contrary in this Agreement, in no event shall any Persons that are not the Borrower or any Guarantor hold Material Intellectual Property, Material Broadcast Licenses or any other assets owned (prior to the relevant event or transaction) by the Borrower or any other Guarantor that is, in the reasonable, good-faith determination of the Borrower, material to the business operations, assets, financial condition or prospects of the Borrower and the Restricted Subsidiaries, taken as a whole (any such assets, “Other Material Assets”, and collectively with Material Intellectual Property and Material Broadcast Licenses, “Covered Assets”), and in no event shall the Borrower or any of its Restricted Subsidiaries sell, transfer or otherwise dispose of any Covered Assets (in each case, whether pursuant to a sale, lease, license, transfer, Investment, Restricted Payment, dividend or otherwise or relating to the exclusive rights thereto) to any Person that is neither a Guarantor nor the Borrower; provided, that in no event shall this clause (c) prohibit the Borrower or any Guarantor from (A) selling, transferring or otherwise disposing any Covered Assets in connection with (1) a bona-fide sale for cash or Cash Equivalents to a third party that is not an Affiliate of the Borrower or (2) a bona-fide joint venture with a third party that is not an Affiliate of the Borrower in the ordinary course of business, in each case, to the extent not otherwise prohibited by this Agreement, (B) entering into non-exclusive licensing arrangements or (C) selling, transferring or otherwise disposing of accounts receivable and related accounts receivable collections, proceeds, records or other similar assets (or interests therein) sold to any Receivables Subsidiary or otherwise pledged, factored, transferred or sold in connection with any Permitted Receivables Financing that is otherwise permitted under this Agreement.
SECTION 5.16 Change in Business. Parent, the Borrower and its Restricted Subsidiaries, taken as a whole, will not fundamentally and substantively alter the character of their business, taken as a whole, from the business conducted by them on the Effective Date and other business activities which are extensions, development or expansion thereof or otherwise incidental, complementary, reasonably related or ancillary to any of the foregoing (including, without limitation, any such extension, development or expansion into any Similar Business).
SECTION 5.17 Changes in Fiscal Periods. The Borrower shall not make any change in its fiscal year; provided, however, that the Borrower may, upon written notice to the Administrative Agent, change its fiscal year to any other fiscal year reasonably acceptable to the Administrative Agent, in which case, the Borrower and the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement that are necessary to reflect such change in fiscal year.
SECTION 5.18 Plan Assets. No Loan Party or Subsidiary will be an entity deemed to hold “plan assets” within the meaning of the Plan Asset Regulations.
ARTICLE VI
NEGATIVE COVENANTS
Until the Termination Date shall have occurred, each of Parent (solely with respect to each of the Designated SBG Subsidiaries and in the case of Section 6.07) and the Borrower covenants and agrees with the Lenders that:
SECTION 6.01 Indebtedness; Certain Equity Securities.
(a) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, create, incur, assume or permit to exist any Indebtedness or to issue any shares of Disqualified Equity Interests or Preferred Stock, except:
(i) Indebtedness under the Loan Documents (including any Indebtedness incurred pursuant to Section 2.20, 2.21 or 2.24);
118
(ii) Indebtedness, Disqualified Equity Interests and Preferred Stock:
(A) in existence on, and in an amount not to exceed the amount outstanding on the Effective Date and listed on Schedule 6.01 and any Permitted Refinancing thereof
(B) that is intercompany Indebtedness outstanding on the Effective Date and any Permitted Refinancing thereof in a principal amount that does not exceed the principal amount (or accreted value, if applicable) of the intercompany Indebtedness so refinanced, and
(C) of the Loan Parties consisting of:
(1) Second Out Debt under the 4.375% Second Out First Lien Senior Secured Notes and Guarantees in respect thereof, issued on or after the Effective Date pursuant to the Existing Secured Notes Exchange as of the final settlement date thereof, and any Permitted Refinancing in respect thereof;
(2) Junior Lien Indebtedness under the 9.750% Second Lien Secured Notes and Guarantees in respect thereof, issued on or after the Effective Date pursuant to the Private Exchanges as of the final settlement date thereof, in an aggregate principal amount not to exceed $432,000,000, and any Permitted Refinancing in respect thereof;
(3) Junior Lien Indebtedness under the Third Lien Term Loans and Guarantees in respect thereof, in an aggregate principal amount not to exceed $2,726,626.22, outstanding on the Effective Date, and any Permitted Refinancing in respect thereof, provided that (notwithstanding the requirements otherwise applicable to a Permitted Refinancing) any such Permitted Refinancing that is incurred within 15 months before the applicable final maturity of such Third Lien Term Loans may constitute Second-Out Debt if (I) such Indebtedness is not, directly or indirectly, borrowed from or provided by an Affiliate of the Borrower, (II) bears interest at then-prevailing market rates for similar Indebtedness of similar issuers or borrowers (as determined in good faith by the Borrower), (III) has encumbrances and restrictions that are not materially more restrictive to the Borrower, taken as a whole, than those applicable to any Term Loans then outstanding (as determined in the good faith by the Borrower) and (D) the First Lien Leverage Ratio would be equal to or less than 4.00 to 1.0;
(4) Junior Lien Indebtedness under the Junior Lien Revolving Credit Facilities (including under the Third Lien Revolving Credit Facility) and guarantees thereof, in an aggregate principal amount, together with any outstanding letters of credit thereunder, such that Section 2.02(d) is not violated;
(5) Indebtedness under the 4.125% Senior Unsecured Notes and Guarantees thereof, in an aggregate principal amount not to exceed $6,608,000, outstanding on the Effective Date, and any Permitted Refinancing in respect thereof, provided that (notwithstanding the requirements otherwise applicable to a Permitted Refinancing) any such Permitted Refinancing may be in the form of Junior Lien Indebtedness or unsecured Indebtedness so long as (I) such Indebtedness has a stated maturity later than the stated maturity of the 4.125% Senior Unsecured Notes, (II) the structural and contractual priority of such Indebtedness cannot be superior to that of the 4.125% Senior Unsecured Notes and (III) the encumbrances and restrictions in respect of such Indebtedness cannot be, taken as a whole, materially more restrictive than those applicable to then outstanding Term Loans under this Agreement (as determined in good faith by the Borrower);
119
(6) Indebtedness under the 5.125% Senior Unsecured Notes and Guarantees thereof, in an aggregate principal amount not to exceed $274,213,000, less the amount of the 5.125% Senior Unsecured Notes repurchased or redeemed pursuant to the AHG Bond Repurchases as of the Effective Date (which amount shall be reduced by the principal amount thereof repurchased using the proceeds of any Second Out Debt), outstanding on the Effective Date, and any Permitted Refinancing in respect thereof; and
(7) Indebtedness under the 5.500% Senior Unsecured Notes and Guarantees thereof, in an aggregate principal amount of $485,344,000 outstanding on the Effective Date, and any Permitted Refinancing in respect thereof;
(iii) Guarantees or co-issuances in respect of Indebtedness of the Borrower and the Guarantors otherwise permitted or not prohibited hereunder; provided that (A) such Guarantee or co-issuance is otherwise permitted to be incurred by the Person incurring such Guarantee or co-issuance by Section 6.04, (B) no Guarantee or co-issuance by any Restricted Subsidiary of any Indebtedness shall be permitted unless such Restricted Subsidiary shall have also provided a Guarantee or co-issuance of the Loan Document Obligations pursuant to the Guarantee Agreement and (C) if the Indebtedness being Guaranteed is subordinated to the Loan Document Obligations, such Guarantee or co-issuance shall be subordinated to the Guarantee of the Loan Document Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness;
(iv) Indebtedness, Disqualified Equity Interests and Preferred Stock owing to any other Restricted Subsidiary, the Borrower or Parent to the extent permitted by Section 6.04; provided that all such Indebtedness of Borrower or its Restricted Subsidiary owing to any Restricted Subsidiary that is not a Loan Party shall be subordinated to the Loan Document Obligations (but only to the extent permitted by applicable law and not giving rise to material adverse Tax consequences) on terms (A) at least as favorable to the Lenders as those set forth in the form of intercompany note attached as Exhibit H or (B) otherwise reasonably satisfactory to the Administrative Agent;
(v) (A) Indebtedness (including Financing Lease Obligations), Disqualified Equity Interests and preferred Stock of the Borrower or any of its Restricted Subsidiaries financing the acquisition, construction, expansion, construction, development, maintenance, upgrade, installation, repair, replacement or improvement of fixed or capital assets (whether through the direct purchase of property or any Person owning such property (real or personal)); provided that such Indebtedness is incurred concurrently with or within 12 months after the applicable acquisition, construction, expansion, construction, development, maintenance, upgrade, installation, repair, replacement or improvement, (B) any Financing Lease Obligations arising out of any Sale Leaseback, (C) Subordinated Film Indebtedness of the Borrower and its Subsidiaries and (D) any Permitted Refinancing of any Indebtedness set forth in the preceding subclauses (A), (B) and (C); provided that, at the time of any such incurrence of Indebtedness described in the foregoing clauses (A) through (D) and after giving Pro Forma Effect thereto and the use of the proceeds thereof, the aggregate principal amount of Indebtedness that is outstanding in reliance on this clause (v) shall not exceed $150,000,000; provided further that such Indebtedness (x) is incurred for a bona fide business purpose, (y) is not incurred in respect of an asset-based lending facility or a securitization and (z) is not incurred in connection with or in furtherance of a Priming Financing/Liability Management Transaction;
(vi) Indebtedness in respect of Swap Agreements (other than Swap Agreement entered into for speculative purposes);
(vii) (A) Indebtedness, Disqualified Equity Interests and Preferred Stock of any Person that becomes a Subsidiary Loan Party (or of any Person not previously a Subsidiary Loan Party that is merged or consolidated with or into the Borrower or a Subsidiary Loan Party) after the Effective Date as a result of a Permitted Acquisition or any Investment permitted by or not prohibited by this Agreement, or Indebtedness, Disqualified Equity Interests or Preferred Stock of any Person that is assumed by the Borrower or any Subsidiary Loan Party in connection with an acquisition of assets by the Borrower or such Subsidiary Loan Party in a Permitted Acquisition; provided that such Indebtedness, Disqualified Equity
120
Interests or Preferred Stock is not incurred in contemplation of such Permitted Acquisition; provided further that, after giving Pro Forma Effect to the assumption of such Indebtedness, Disqualified Equity Interests or Preferred Stock and such Permitted Acquisition either (1) if such Indebtedness, Disqualified Equity Interests or Preferred Stock is Second Out Debt, the First Lien Leverage Ratio is equal to or less than (i) 3.75:1.00 or (ii) the First Lien Leverage Ratio immediately prior to the incurrence of such Indebtedness, Disqualified Equity Interests or Preferred Stock and consummation of such Permitted Acquisition or Investment for the most recently ended Test Period of such time, (2) if such Indebtedness, Disqualified Equity Interests or Preferred Stock is Junior Lien Indebtedness, the Secured Leverage Ratio is equal to or less than (i) 5.00:1.00 or (ii) the Secured Leverage Ratio immediately prior to the incurrence of such Indebtedness, Disqualified Equity Interests or Preferred Stock and consummation of such Permitted Acquisition or Investment for the most recently ended Test Period of such time, or (3) if such Indebtedness, Disqualified Equity Interests or Preferred Stock is unsecured either (a) the Total Leverage Ratio is equal to or less than (i) 7.00:1.00 for the most recent Test Period then ended or (ii) the Total Leverage Ratio immediately prior to the incurrence of such Indebtedness, Disqualified Equity Interests or Preferred Stock and consummation of such Permitted Acquisition for the most recently ended Test Period of such time or (b) the Interest Coverage Ratio is greater than or equal to either (i) 2.00:1.00 for the most recent Test Period then ended or (ii) the Interest Coverage Ratio immediately prior to the incurrence of such Indebtedness, Disqualified Equity Interests or Preferred Stock and such Permitted Acquisition or Investment for the most recently ended Test Period as of such time and (B) any Permitted Refinancing of Indebtedness, Disqualified Equity Interests and Preferred Stock incurred pursuant to the foregoing subclause (A); provided, further, that any Indebtedness incurred in reliance on this Section 6.01(a)(vii) shall be subject to the following requirements: (1) such Indebtedness may not be First Out Debt, (2) such Indebtedness shall not have a stated maturity that is earlier than the Latest Second Out Maturity Date at the time of incurrence of such Indebtedness (though such Indebtedness may have a stated maturity date that is coterminous with the Latest Second Out Maturity Date at the time of incurrence of such Indebtedness), (3) the pricing for such Indebtedness, including the interest rate margins, fees, premiums, funding discounts, maturity date and amortization which are at then-prevailing market rates for similarly situated borrowers or issuers (as determined in good faith by the Borrower), (4) such Indebtedness is not incurred or guaranteed by any Person that is not a Loan Party, (5) such Indebtedness that is secured (i) is not secured by any assets not securing the Secured Obligations and (ii) is subject to the relevant Intercreditor Agreement(s) and (6) such Indebtedness is not, directly or indirectly, borrowed from or provided by an Affiliate of the Borrower;
(viii) Indebtedness in respect of Permitted Receivables Financings; provided that Indebtedness under this Section 6.01(a)(viii) is incurred for a bona fide business purpose and not in connection with or furtherance of a Priming Financing/Liability Management Transaction;
(ix) Indebtedness representing deferred compensation or stock-based compensation to directors, to employees, consultants or independent contractors of any Parent Entity, the Borrower and its Restricted Subsidiaries incurred in the ordinary course of business or consistent with industry or past practice;
(x) Indebtedness consisting of unsecured promissory notes issued by the Borrower or any of its Restricted Subsidiaries to current or former officers, directors, employees, consultants or independent contractors or their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests in the Borrower (or any direct or indirect parent thereof) permitted by Section 6.08(a);
(xi) Indebtedness constituting indemnification obligations or obligations in respect of purchase price or other similar adjustments (including earnout or similar obligations) incurred in connection with the Transactions or any Permitted Acquisition, any other Investment or any Disposition, in each case permitted under this Agreement;
(xii) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred in connection with the Transactions or any Permitted Acquisition or other Investment permitted hereunder;
121
(xiii) Cash Management Obligations and other Indebtedness in respect of netting services, overdraft protections and similar arrangements and Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, (including Indebtedness owed on a short term basis of no longer than 30 days to banks and other financial institutions incurred in the ordinary course of business of the Borrower and its Restricted Subsidiaries with such banks or financial institutions that arises in connection with ordinary banking arrangements to manage cash balances of the Borrower and its Restricted Subsidiaries);
(xiv) Indebtedness of the Borrower and the Subsidiary Loan Parties; provided that at the time of the incurrence thereof and after giving Pro Forma Effect thereto, the aggregate principal amount of Indebtedness outstanding in reliance on this clause (xiv) shall not exceed $125,000,000; provided further, that (A) such Indebtedness is Junior Lien Indebtedness, (B) such Indebtedness shall not have a stated maturity that is earlier than the Latest Second Out Maturity Date at the time of incurrence of such Indebtedness (though such Indebtedness may have a stated maturity date that is coterminous with the Latest Second Out Maturity Date at the time of incurrence of such Indebtedness), (C) the pricing for such Indebtedness, including the interest rate margins, fees, premiums, funding discounts, maturity date and amortization which are at then-prevailing market rates for similarly situated borrowers or issuers (as determined in good faith by the Borrower), (D) the encumbrances and restrictions in respect of such Indebtedness cannot be, taken as a whole, materially more restrictive than the terms of the then outstanding Term Loans under this Agreement (as determined in good faith by the Borrower) and (E) such Indebtedness cannot be, directly or indirectly, borrowed from or provided by an Affiliate of the Borrower or any of its Restricted Subsidiaries; provided further that subclauses (A) through (D) of the immediately preceding proviso shall not apply with respect to any such Indebtedness which is incurred or issued for purposes or transactions in the ordinary course of business and so long as the outstanding aggregate principal amount of such Indebtedness does not exceed $50,000,000 at the time of such incurrence or issuance; provided further, that no such Indebtedness may be incurred under this Section 6.01(a)(xiv) in connection with or in furtherance of any Priming Financing/Liability Management Transaction;
(xv) Indebtedness consisting of (A) the financing of insurance premiums or (B) take-or-pay obligations contained in supply arrangements, in each case in the ordinary course of business;
(xvi) (A) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances or similar instruments issued or created, or related to obligations or liabilities incurred, in the ordinary course of business or consistent with industry or past practice, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other reimbursement-type obligations regarding workers compensation claims and (B) Indebtedness of the Borrower or any of its Restricted Subsidiaries as an account party in respect of letters of credit, bank guarantees or similar instruments in favor of suppliers, customers or other creditors issued in the ordinary course of business or consistent with industry or past practice; provided that the aggregate principal amount of Indebtedness outstanding in reliance on this clause (B) shall not exceed, at the time of incurrence thereof and after giving Pro Forma Effect thereto, the greater of $100,000,000 and 14.5% of Consolidated EBITDA for the most recently ended Test Period as of such time;
(xvii) obligations in respect of self-insurance and obligations in respect of stays, customs, performance, indemnity, bid, appeal, judgment, surety and other similar bonds or instruments and performance, bankers’ acceptance facilities and completion guarantees and similar obligations provided by the Borrower or any of its Restricted Subsidiaries or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business or consistent with industry or past practice;
(xviii) First Out Debt of the Loan Parties under the 8.125% First Out First Lien Senior Secured Notes in an aggregate principal amount not to exceed $1,430,000,000 (which amount shall not be reborrowed after repayment and shall be reduced by the amount of any mandatory prepayments and voluntary permanent prepayments of principal thereof), provided that a refinancing or replacement of such First Out Debt may be incurred under this Section 6.01(a)(xviii) if such refinancing or replacement First
122
Out Debt (1) has a longer Weighted Average Life to Maturity and later stated maturity than the refinanced or replaced First Out Debt, (2) does not increase the principal amount of such refinanced or replaced First Out Debt (or accreted value of any such Indebtedness issued with original issue discount), other than reasonable and customary refinancing fees, unpaid and accrued interest, and call premiums and closing costs and expenses, (3) is not, directly or indirectly, borrowed from or provided by an Affiliate of Borrower, (4) bears interest at then-prevailing market rates for similar debt of similarly situated borrowers or issuers (as determined in good faith by the Borrower) and (5) is not secured by any assets other than Collateral; it being understood that any Indebtedness incurred under this clause (xviii) shall be treated as First Out Debt in all calculations of the First Out First Lien Leverage Ratio, the First Lien Leverage Ratio and the Secured Leverage Ratio;
(xix) (A) Indebtedness, Disqualified Equity Interests or Preferred Stock of the Borrower or any of the Subsidiary Loan Parties; provided that, after giving Pro Forma Effect to the incurrence of such Indebtedness, Disqualified Equity Interests or Preferred Stock and, if applicable, such Permitted Acquisition or other Investment permitted or not prohibited hereunder, either (1) if such Indebtedness, Disqualified Equity Interests or Preferred Stock is Second Out Debt, the First Lien Leverage Ratio is equal to or less than (i) 3.75:1.00 or (ii) in the case of any such amount being applied to finance a Permitted Acquisition or other Investment permitted or not prohibited hereunder, either 3.75:1.00 or the First Lien Leverage Ratio immediately prior to the incurrence of such Indebtedness, Disqualified Equity Interests or Preferred Stock and consummation of such Permitted Acquisition or other Investment for the most recently ended Test Period of such time, (2) if such Indebtedness, Disqualified Equity Interests or Preferred Stock is Junior Lien Indebtedness, the Secured Leverage Ratio is equal to or less than (i) 5.00:1.00 or (ii) in the case of any such amount being applied to finance a Permitted Acquisition or other Investment permitted or not prohibited hereunder, either 5.00:1.00 or the Secured Leverage Ratio immediately prior to the incurrence of such Indebtedness, Disqualified Equity Interests or Preferred Stock and consummation of such Permitted Acquisition or other Investment for the most recently ended Test Period of such time, or (3) if such Indebtedness, Disqualified Equity Interests or Preferred Stock is unsecured either (a) the Total Leverage Ratio is equal to or less than (i) 7.00:1.00 for the most recent Test Period then ended or (ii) in the case of any such amount being applied to finance a Permitted Acquisition or other Investment permitted or not prohibited hereunder, either 7.00:1.00 or the Total Leverage Ratio immediately prior to the incurrence of such Indebtedness, Disqualified Equity Interests or Preferred Stock and consummation of such Permitted Acquisition or other Investment for the most recently ended Test Period of such time or (b) the Interest Coverage Ratio is to be greater than or equal to either (i) 2.00:1.00 for the most recent Test Period then ended or (ii) in the case of any such amount being applied to finance a Permitted Acquisition or other Investment permitted or not prohibited hereunder, either 2.00:1.00 for the most recent Test Period then ended or the Interest Coverage Ratio immediately prior to the incurrence of such Indebtedness, Disqualified Equity Interests or Preferred Stock and such Permitted Acquisition or other Investment for the most recently ended Test Period as of such time and (B) any Permitted Refinancing of Indebtedness, Disqualified Equity Interests or Preferred Stock incurred pursuant to the foregoing subclause (A); provided, further, that any Indebtedness incurred in reliance on this Section 6.01(a)(xix) shall be subject to the following requirements: (1) such Indebtedness may not be First Out Debt, (2) such Indebtedness shall not have a stated maturity that is earlier than the Latest Second Out Maturity Date at the time of incurrence of such Indebtedness (though such Indebtedness may have a stated maturity date that is coterminous with the Latest Second Out Maturity Date at the time of incurrence of such Indebtedness), (3) the pricing for such Indebtedness, including the interest rate margins, fees, premiums, funding discounts, maturity date and amortization which are at then-prevailing market rates for similarly situated borrowers or issuers (as determined in good faith by the Borrower), (4) such Indebtedness is not incurred or guaranteed by any Person that is not a Loan Party, (5) such Indebtedness that is secured (i) is not secured by any assets not securing the Secured Obligations and (ii) is subject to the relevant Intercreditor Agreement(s) and (6) such Indebtedness is not, directly or indirectly, borrowed from or provided by an Affiliate of the Borrower;
(xx) Indebtedness supported by a letter of credit issued pursuant to this Agreement or any other letter of credit, bank guarantee or similar instrument permitted by this Section 6.01(a), in a principal amount not to exceed the face amount of such letter of credit, bank guarantee or such other instrument;
(xxi) Permitted Unsecured Refinancing Debt and any Permitted Refinancing thereof;
123
(xxii) Permitted First Priority Refinancing Debt and Permitted Second Priority Refinancing Debt, and any Permitted Refinancing thereof;
(xxiii) (A) Indebtedness of the Borrower or any Subsidiary Loan Party issued in lieu of Incremental Term Loans consisting of (i) secured or unsecured bonds, notes or debentures (which bonds, notes or debentures, if secured, may be secured either by Liens having equal priority with the Liens on the Collateral securing the Secured Obligations (but without regard to control of remedies) or by Liens having a junior priority relative to the Liens on the Collateral securing the Secured Obligations) or (ii) secured (which must be secured by Liens having equal priority with the Liens on the Collateral securing the Secured Obligations (but without regard to control of remedies) or by Liens having a junior priority relative to the Liens on the Collateral securing the Secured Obligations) or unsecured loans; provided that (i) the aggregate outstanding principal amount of all such Indebtedness issued pursuant to this clause shall not exceed at the time of incurrence thereof (x) the Incremental Cap less (y) the amount of all Incremental Facilities and (ii) the condition set forth in the proviso in Section 2.20(a) shall have been complied with as if such Indebtedness was an Incremental Facility and (B) any Permitted Refinancing of Indebtedness incurred pursuant to the foregoing clause (A); provided, further, that any Indebtedness incurred in reliance on this Section 6.01(a)(xxiii) shall be subject to the following requirements: (1) such Indebtedness may not be First Out Debt, (2) such Indebtedness shall not have a stated maturity that is earlier than the Latest Second Out Maturity Date at the time of incurrence of such Indebtedness (though such Indebtedness may have a stated maturity date that is coterminous with the Latest Second Out Maturity Date at the time of incurrence of such Indebtedness), (3) the pricing for such Indebtedness, including the interest rate margins, fees, premiums, funding discounts, maturity date and amortization which are at then-prevailing market rates for similarly situated borrowers or issuers (as determined in good faith by the Borrower), (4) such Indebtedness is not incurred or guaranteed by any Person that is not a Loan Party, (5) such Indebtedness that is secured (i) is not secured by any assets not securing the Secured Obligations and (ii) is subject to the relevant Intercreditor Agreement(s) and (6) such Indebtedness is not, directly or indirectly, borrowed from or provided by an Affiliate of the Borrower;
(xxiv) additional Indebtedness that is Junior Lien Indebtedness or unsecured Indebtedness, Disqualified Equity Interests and Preferred Stock in an aggregate principal amount or liquidation preference, measured at the time of incurrence and after giving Pro Forma Effect thereto and the use of the proceeds thereof, not to exceed 100.0% of the aggregate amount or liquidation preference of direct or indirect equity investments in cash or Permitted Investments in the form of common Equity Interests or Qualified Equity Interests (excluding, for the avoidance of doubt, any Cure Amounts) received by the Borrower or any Parent Entity (to the extent contributed to the Borrower in the form of common Equity Interests or Qualified Equity Interests) to the extent not included within the Available Equity Amount or applied to increase any other basket hereunder; provided that such Indebtedness shall not be incurred or guaranteed by any entity that is not a Loan Party and if secured, shall not be secured by any assets not securing the Secured Obligations;
(xxv) Indebtedness, Disqualified Equity Interests or Preferred Stock of any Restricted Subsidiary that is not a Loan Party and any Permitted Refinancing thereof; provided that the aggregate principal amount of Indebtedness, Disqualified Equity Interests or Preferred Stock outstanding in reliance on this clause (xxv) shall not exceed, at the time of incurrence thereof and after giving Pro Forma Effect thereto, $25,000,000; provided further that such Indebtedness may not be incurred under this clause (xxv) in connection with or in furtherance of any Priming Financing/Liability Management Transaction;
(xxvi) (A) Indebtedness incurred to finance a Permitted Acquisition; provided that, after giving Pro Forma Effect to the incurrence of such Indebtedness and such Permitted Acquisition, the First Lien Leverage Ratio is equal to or less than the First Lien Leverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition for the most recently ended Test Period of such time; provided, further, that any Indebtedness incurred in reliance on this Section 6.01(a)(xxvi) shall (1) be Second Out Debt, Junior Lien Indebtedness or unsecured and (2) such Indebtedness shall not have a stated maturity that is earlier than the Latest Second Out Maturity Date at the time of incurrence of such Indebtedness (though such Indebtedness may have a stated maturity date that is coterminous with the Latest Second Out Maturity Date at the time of incurrence of such Indebtedness);
124
(xxvii) [reserved];
(xxviii) [reserved];
(xxix) [reserved];
(xxx) shares of Preferred Stock or Disqualified Equity Interests of a Restricted Subsidiary issued to the Borrower or a Guarantor Subsidiary; provided that if any such Restricted Subsidiary ceases to be a Restricted Subsidiary or any such Preferred Stock or Disqualified Equity Interests is not held by the Borrower or a Guarantor Subsidiary thereupon then the outstanding amount of such capital stock shall no longer be permitted by this clause (xxx);
(xxxi) [reserved];
(xxxii) [reserved]; and
(xxxiii) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (i) through (xxxii) above.
(b) For purposes of determining compliance with this Section 6.01, in the event that an item of Indebtedness, Disqualified Equity Interests or Preferred Stock meets the criteria of more than one of the categories of Indebtedness, Disqualified Equity Interests or Preferred Stock described in clauses (a)(i) through (a)(xxxiii) above or from clauses (a) and (b) of the definition of Incremental Cap, the Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness, Disqualified Equity Interests or Preferred Stock (or any portion thereof) and will only be required to include the amount and type of such Indebtedness, Disqualified Equity Interests or Preferred Stock in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a)(i), (ii) all First Out Debt and any Guarantees related thereto (and any refinancing of any of First Out Debt), other than Indebtedness in respect of the Revolving Credit Facility, shall be incurred only under Section 6.01(a)(xviii) and may not later be reclassified, and (iii) all Indebtedness under the 4.375% Second Out First Lien Senior Secured Notes and Guarantees thereof, whether incurred on, before or after the Effective Date shall be incurred only under Section 6.01(a)(ii)(C)(1) and may not later be reclassified. Subject to the foregoing, in the event that a portion of Indebtedness or other obligations could be classified as incurred under a “ratio-based” basket under this Section 6.01 or under clause (b) of the definition of Incremental Cap (giving pro forma effect to the incurrence of such portion of such Indebtedness or other obligations), the Borrower, in its sole discretion, may classify such portion of such Indebtedness (and any obligations in respect thereof) as having been incurred pursuant to such “ratio-based” basket and thereafter the remainder of the Indebtedness or other obligations as having been incurred pursuant to one or more of the other clauses of this Section 6.01 or under clause (b) of the definition of Incremental Cap and if any such test would be satisfied in any subsequent fiscal quarter following the relevant date of determination, then such reclassification shall be deemed to have automatically occurred at such time.
Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Indebtedness or Disqualified Equity Interests or Preferred Stock will not be deemed to be an incurrence of Indebtedness or Disqualified Equity Interests or Preferred Stock for purposes of this Section 6.01.
SECTION 6.02 Liens.
(a) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, except:
(i) Liens created under the Loan Documents (including any Liens to secure Indebtedness incurred pursuant to Section 2.20, 2.21 or 2.24) having the priorities specified in the Loan Documents;
(ii) Permitted Encumbrances;
125
(iii) Liens existing on the Effective Date; provided that any Lien securing Indebtedness or other obligations in excess of $10,000,000 individually shall only be permitted if set forth on Schedule 6.02, and any modifications, replacements, renewals or extensions thereof; provided that (A) such modified, replacement, renewal or extension Lien does not extend to any additional property other than (i) after-acquired property that is affixed or incorporated into the property covered by such Lien and (ii) proceeds and products thereof, and (B) the obligations secured or benefited by such modified, replacement, renewal or extension Lien are permitted by Section 6.01;
(iv) Liens securing Indebtedness permitted under subclauses (A), (B) and (D) of Section 6.01(a)(v); provided that (A) such Liens attach concurrently with or within 12 months after the acquisition, repair, replacement, construction or improvement (as applicable) of the property or assets subject to such Liens, (B) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, except for accessions to such property and the proceeds and the products thereof, and any lease of such property (including accessions thereto) and the proceeds and products thereof and (C) with respect to Financing Lease Obligations, such Liens do not at any time extend to or cover any assets (except for accessions to or proceeds of such assets) other than the assets subject to such Financing Lease Obligations; provided, further, that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender;
(v) leases (including leases of aircraft), licenses, subleases or sublicenses granted to others that do not (A) interfere in any material respect with the business of the Borrower and its Restricted Subsidiaries, taken as a whole or (B) secure any Indebtedness;
(vi) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
(vii) Liens (A) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection and (B) in favor of a banking institution arising as a matter of law encumbering deposits (including the right of setoff) and that are within the general parameters customary in the banking industry;
(viii) Liens (A) on cash advances or escrow deposits in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 6.04 to be applied against the purchase price for such Investment or otherwise in connection with any escrow arrangements with respect to any such Investment or any Disposition permitted under Section 6.05 (including any letter of intent or purchase agreement with respect to such Investment or Disposition) or (B) consisting of an agreement to dispose of any property in a Disposition permitted under Section 6.05, in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such Lien;
(ix) Liens on property of any Restricted Subsidiary that is not a Loan Party, which Liens secure Indebtedness of such Restricted Subsidiary or another Restricted Subsidiary that is not a Loan Party, in each case permitted under Section 6.01;
(x) Liens granted by a Restricted Subsidiary that is not a Loan Party in favor of any Loan Party, Liens granted by a Restricted Subsidiary that is not a Loan Party in favor of a Restricted Subsidiary that is not a Loan Party and Liens granted by a Loan Party in favor of any other Loan Party;
(xi) Liens existing on property or assets at the time of acquisition thereof by the Borrower or any of its Subsidiaries (by a merger, consolidation or amalgamation or otherwise) or existing on the property or assets or Equity Interest issued by any Person at the time such Person is or becomes a Restricted Subsidiary (including by the designation of an Unrestricted Subsidiary as a Restricted Subsidiary), in each case after the Effective Date (other than Liens on the Equity Interests of any Person that is or becomes a Restricted Subsidiary); provided that (A) such Lien was not created in contemplation of such acquisition or such Person becoming a Restricted Subsidiary, (B) such Lien does not extend to or cover any other assets or property of the Borrower or any of its other Restricted Subsidiaries, except that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender, and (C) the Indebtedness secured thereby is permitted under Section 6.01(a)(v) or (vii);
126
(xii) any interest or title of a lessor under leases (other than leases constituting Financing Lease Obligations) entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business or consistent with industry or past practice;
(xiii) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale or purchase of goods by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(xiv) Liens deemed to exist in connection with Investments in repurchase agreements permitted under clause (e) of the definition of the term “Permitted Investments”;
(xv) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business or consistent with industry or past practice and not for speculative purposes;
(xvi) Liens that are contractual rights of setoff (A) relating to the establishment of depository relations with banks not given in connection with the incurrence of Indebtedness, (B) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business or consistent with industry or past practice or (C) relating to purchase orders and other agreements entered into with customers of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business or consistent with industry or past practice;
(xvii) ground leases in respect of real property on which facilities owned or leased by the Borrower or any of its Restricted Subsidiaries are located;
(xviii) (a) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto or (b) deposits made or other security provided to secure liabilities to insurance carriers under insurance or self-insurance arrangements in the ordinary course of business and on ordinary terms or consistent with industry or past practice;
(xix) Liens granted by Loan Parties on the Collateral:
(A) that rank no higher than First Priority Liens, securing Second Out Debt incurred under Section 6.01(a)(ii)(C)(1);
(B) that rank no higher than Second Priority Liens, securing Junior Lien Indebtedness incurred under Section 6.01(a)(ii)(C)(2);
(C) that rank no higher than Third Priority Liens (or, in the case of a Permitted Refinancing into Second Out Debt as specified in the proviso to Section 6.01(a)(ii)(C)(3), First Priority Liens), securing Junior Lien Indebtedness or Second Out Debt incurred under Section 6.01(a)(ii)(C)(3);
(D) that rank no higher than Third Priority Liens, securing Junior Lien Indebtedness incurred under Section 6.01(a)(ii)(C)(4);
(E) that rank no higher than Second Priority Liens, securing Junior Lien Indebtedness incurred under Section 6.01(a)(ii)(C)(5);
(F) that rank no higher than First Priority Liens, securing Permitted First Priority Refinancing Debt;
127
(G) that rank no higher than Second Priority Liens, securing Permitted Second Priority Refinancing Debt,
(H) securing Indebtedness permitted pursuant to Section 6.01(a)(vii), having the priorities required by the applicable provisions of Section 6.01(a)(vii);
(I) securing Indebtedness permitted pursuant to Section 6.01(a)(xiv), having the priorities required by the applicable provisions of Section 6.01(a)(xiv);
(J) that rank no higher than First Priority Liens, securing First Out Debt incurred under Section 6.01(a)(xviii);
(K) securing Indebtedness permitted pursuant to Section 6.01(a)(xix), having the priorities required by the applicable provisions of Section 6.01(a)(xix);
(L) securing Indebtedness permitted under Section 6.01(a)(xiii), having the priority required by the applicable provisions under Section 6.01(a)(xxiii);
(M) securing Indebtedness permitted pursuant to Section 6.01(a)(xxiv), having the priorities required by the applicable provisions of Section 6.01(a)(xxiv); and
(N) securing Indebtedness permitted pursuant to Section 6.01(a)(xxvi), having the priorities required by the applicable provisions of Section 6.01(a)(xxvi);
(xx) other Liens securing outstanding Indebtedness in an aggregate principal amount not to exceed $25,000,000; provided that if such Liens are on Collateral, then (A) the Borrower may elect that the holders of the Indebtedness or other obligations secured thereby (or a representative or trustee on their behalf) shall have entered into with the Collateral Trustee the relevant Intercreditor Agreement(s) providing that the Liens on the Collateral securing such Indebtedness or other obligations shall rank no higher than First Priority Liens, and (B) such Indebtedness shall be Second Out Debt or Junior Lien Indebtedness;
(xxi) Liens on cash and Permitted Investments used to satisfy or discharge Indebtedness; provided such satisfaction or discharge is permitted hereunder;
(xxii) Liens on receivables and related assets incurred in connection with Permitted Receivables Financings incurred under Section 6.01(a)(viii);
(xxiii) (A) receipt of progress payments and advances from customers in the ordinary course of business and on ordinary terms or consistent with industry or past practice to the extent the same creates a Lien on the related inventory and proceeds thereof and (B) Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment, or storage of such inventory or other goods;
(xxiv) Liens on cash or Permitted Investments securing Swap Agreements in the ordinary course of business in accordance with applicable Requirements of Law;
(xxv) Liens securing Indebtedness permitted to be incurred pursuant to Sections 6.01(a)(xiii), 6.01(a)(xvi)(B) or 6.01(a)(xx);
(xxvi) Liens on equipment of the Borrower or any of its Restricted Subsidiaries granted in the ordinary course of business to the Borrower’s or such Restricted Subsidiary’s customer at which such equipment is located;
128
(xxvii) security given to a public utility or any municipality or governmental authority when required by such utility or authority in connection with the operations of such Person in the ordinary course of business;
(xxviii) Liens on Capital Stock of an Unrestricted Subsidiary that secure Indebtedness or other obligations of the Borrower, any of its Subsidiaries or such Unrestricted Subsidiary; and
(xxix) (A) Liens on Equity Interests in joint ventures; provided that any such Lien is in favor of a creditor of such joint venture and such creditor is not an Affiliate of any partner to such joint venture and (B) purchase options, call, and similar rights of, and restrictions for the benefit of, a third party with respect to Equity Interests held by the Borrower or any of its Restricted Subsidiaries in joint ventures.
(b) For purposes of determining compliance with this Section 6.02, (A) Liens need not be incurred solely by reference to one category of Liens permitted by this Section 6.02 but are permitted to be incurred in part under any combination thereof and of any other available exemption, (B) in the event that Lien (or any portion thereof) meets the criteria of one or more of the categories of Liens permitted by this Section 6.02, the Borrower may, in its sole discretion, classify or reclassify (or later divide, classify or reclassify in whole or in part in its sole discretion) such Lien (or any portion thereof) in any manner that complies with this provision, (C) in the event that a portion of Indebtedness or other obligations secured by a Lien could be classified as secured in part pursuant to Indebtedness incurred under a “ratio-based” basket under this Section 6.02 (giving pro forma effect to the incurrence of such portion of such Indebtedness or other obligations, and subject to meeting the relevant priority criteria of any applicable subclause of such Section 6.02(a)(xix)), the Borrower, in its sole discretion, may classify such portion of such Indebtedness (and any obligations in respect thereof) as having been secured pursuant to Section 6.02(a)(xix) above (and subject to meeting the relevant priority criteria of any applicable subclause of such Section 6.02(a)(xix)) and thereafter the remainder of the Indebtedness or other obligations as having been secured pursuant to one or more of the other clauses of this Section 6.02 and if any such test would be satisfied in any subsequent fiscal quarter following the relevant date of determination, then such reclassification shall be deemed to have automatically occurred at such time and (D) with respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the incurrence of such Indebtedness, such Lien shall also be permitted to secure any amount permitted under Section 6.01(a)(xxxiii) in respect of such Indebtedness. Any Liens in respect of the accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Indebtedness, in each case in respect of any Indebtedness, shall not be deemed to be an incurrence of a Lien in respect of such Indebtedness for purposes of this Section 6.02.
SECTION 6.03 Fundamental Changes; Holding Companies. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, merge into or consolidate or amalgamate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that:
(a) any Restricted Subsidiary (other than the Borrower) may merge, consolidate or amalgamate with (i) the Borrower; provided that the Borrower shall be the continuing or surviving Person or (ii) one or more other Restricted Subsidiaries of the Borrower; provided that when any Subsidiary Loan Party is merging or amalgamating with another Restricted Subsidiary either (A) the continuing or surviving Person shall be a Subsidiary Loan Party or (B) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is permitted under Section 6.04;
(b) any Restricted Subsidiary (other than the Borrower) may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary (other than the Borrower) may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment must be an Investment in a Restricted Subsidiary that is not a Loan Party permitted by Section 6.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is an Investment in a Restricted Subsidiary that is not a Loan Party permitted by Section 6.04;
129
(d) the Borrower may merge, amalgamate or consolidate with any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger, amalgamation or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (1) a Successor Borrower shall be an entity organized or existing under the laws of the United States or any political subdivision thereof, (2) a Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, amalgamation or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of, and grant of any Liens as security for, the Secured Obligations shall apply to a Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger, amalgamation or consolidation complies with this Agreement; provided, further, that (a) if such Person is not a Loan Party, no Event of Default exists after giving effect to such merger or consolidation, and (b) if the foregoing requirements are satisfied, a Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower agrees to provide any documentation and other information about such Successor Borrower as shall have been reasonably requested in writing by any Lender through the Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA Patriot Act;
(e) [reserved];
(f) any Restricted Subsidiary (other than the Borrower) may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 6.04; provided that the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 5.11 and 5.12;
(g) any License Subsidiary may be merged or consolidated with or into (i) any other License Subsidiary or (ii) a newly formed Subsidiary of the Borrower (which may be organized as a limited liability company) established for the purpose of becoming a License Subsidiary, provided that such newly formed Subsidiary (x) if it is the continuing or surviving entity, it shall have assumed all of the obligations of such Subsidiary hereunder and under the other Loan Documents and (y) shall be in compliance with Section 6.11;
(h) the Borrower and its Restricted Subsidiaries may consummate the Transactions;
(i) any Restricted Subsidiary (other than the Borrower) may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 6.05; and
(j) the Borrower and its Subsidiaries may effect the formation, dissolution, liquidation or Disposition of any Subsidiary that is a Delaware Divided LLC; provided that Borrower has complied with Section 5.11 to the extent applicable.
SECTION 6.04 Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make or hold any Investment, except:
(a) Permitted Investments at the time such Permitted Investment is made;
130
(b) loans or advances to officers, directors, managers, independent contractors, consultants and employees of the Borrower and its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation, moving, payroll advances and other analogous or similar expenses or payroll expenses, (ii) in connection with such Person’s purchase of Equity Interests in the Borrower (or any direct or indirect parent thereof) (provided that the amount of such loans and advances made in cash to such Person shall be contributed to the Borrower in cash as common equity or Qualified Equity Interests) and (iii) for purposes not described in the foregoing clauses (i) and (ii); provided that at the time of incurrence thereof and after giving Pro Forma Effect thereto, the aggregate principal amount outstanding in reliance on this clause (iii) shall not exceed the greater of (x) $25,000,000 and (y) 3.60% of Consolidated EBITDA for the most recently ended Test Period as of such time;
(c) Investments by the Borrower or any of its Restricted Subsidiaries in any of the Borrower or any of its Restricted Subsidiaries;
(d) advances, loans or extensions of trade credit (including the creation of receivables) or prepayments to suppliers or lessors or loans or advances made to distributors, and performance guarantees, in each case in the ordinary course of business or consistent with past practice by the Borrower or any of its Restricted Subsidiaries;
(e) [reserved];
(f) Investments (i) existing or contemplated on the Effective Date and set forth on Schedule 6.04(f) and any modification, replacement, renewal, reinvestment or extension thereof and (ii) Investments existing on the Effective Date by the Borrower or any of its Restricted Subsidiaries in the Borrower or any of its Restricted Subsidiaries and any modification, renewal or extension thereof; provided that the amount of the original Investment is not increased except by the terms of such Investment to the extent as set forth on Schedule 6.04(f) or as otherwise permitted by this Section 6.04;
(g) Investments in Swap Agreements permitted under Section 6.01;
(h) promissory notes and other non-cash consideration received in connection with Dispositions permitted by Section 6.05;
(i) Permitted Acquisitions;
(j) the Transactions;
(k) Investments in the ordinary course of business or consistent with industry or past practice consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers consistent with past practices;
(l) Investments (including debt obligations and Equity Interests) received in connection with the bankruptcy or reorganization of suppliers and customers, from financially troubled account debtors or in settlement of delinquent obligations of, or other disputes with, customers and suppliers or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(m) loans and advances to Parent (or any other direct or indirect parent of the Borrower) or the Borrower in lieu of, and not in excess of the amount of (after giving effect to any other loans, advances or Restricted Payments in respect thereof), Restricted Payments to the extent permitted to be made to Parent (or such parent) in accordance with Section 6.08(a);
(n) other Investments and other acquisitions; provided that at the time any such Investment or other acquisition is made, the aggregate outstanding amount of all Investments made in reliance on this clause (n), when aggregated with all other Investments outstanding under this clause (n) shall not exceed the sum of (A) the greater of $150,000,000 and 20.0% of Consolidated EBITDA for the most recently ended Test Period after giving Pro Forma Effect to the making of such Investment or other acquisition;
131
provided that if any Investment pursuant to this clause (n)(A) is made in any Person that is not a Restricted Subsidiary of the Borrower at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to Section 6.04(c) and shall cease to have been made pursuant to this clause (n)(A); plus (B) the Available Amount that is Not Otherwise Applied so long as no Event of Default under Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing or would result therefrom; plus (C) so long as no Event of Default under Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing, the Available Equity Amount that is Not Otherwise Applied as in effect immediately prior to the time of making of such Investment; provided further that Investments made pursuant to this Section 6.04(n) shall not be used for making any Restricted Payments or Junior Debt Prepayments or in connection with or in furtherance of any Priming Financing/Liability Management Transaction;
(o) advances of payroll payments to employees in the ordinary course of business;
(p) Investments and other acquisitions to the extent that payment for such Investments is made with Qualified Equity Interests (excluding Cure Amounts) of the Borrower (or any direct or indirect parent thereof); provided that (i) such amounts used pursuant to this clause (p) shall not increase the Available Equity Amount or be applied to increase any other basket hereunder and (ii) any amounts used for such an Investment or other acquisition that are not Qualified Equity Interests of the Borrower (or any direct or indirect parent thereof) shall otherwise be permitted pursuant to this Section 6.04;
(q) Investments of a Subsidiary acquired after the Effective Date or of a Person merged or consolidated with any Subsidiary in accordance with this Section and Section 6.03 after the Effective Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(r) non-cash Investments in connection with tax planning and reorganization activities; provided that after giving effect to any such activities, the security interests of the Lenders in the Collateral, taken as a whole, would not be materially impaired;
(s) Investments consisting of Liens, Indebtedness, fundamental changes, Dispositions, Restricted Payments and transactions with Affiliates permitted (other than by reference to this Section 6.04(s)) under Section 6.01, 6.02, 6.03, 6.05, 6.08 and 6.09, respectively, in each case, other than by reference to this Section 6.04(s), which Investments shall not be made in connection with or in furtherance of any Priming Financing/Liability Management Transaction;
(t) additional Investments and acquisitions; provided that on the date of such Investment, after giving effect to such Investment (A) on a Pro Forma Basis, the First Lien Leverage Ratio is less than or equal to 3.75 to 1.00 and (B) there is no continuing Event of Default under Section 7.01(a), (b), (h) or (i); provided further that Investments made pursuant to this Section 6.04(t) shall not be used for making any Restricted Payments or Junior Debt Prepayments or in connection with or in furtherance of any Priming Financing/Liability Management Transaction;
(u) contributions to a “rabbi” trust for the benefit of employees, directors, consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the case of a bankruptcy of the Borrower or any of its Restricted Subsidiaries;
(v) to the extent that they constitute Investments, purchases and acquisitions of inventory, supplies, materials or equipment or purchases, acquisitions, licenses or leases of other assets, intellectual property, or other rights, or the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons;
(w) Investments in Subsidiaries in the form of receivables and related assets required in connection with a Permitted Receivables Financing (including the contribution or lending of cash and cash equivalents to Subsidiaries to finance the purchase of such assets from the Borrower or other Restricted Subsidiaries or to otherwise fund required reserves);
132
(x) Investments made in the ordinary course of business on ordinary terms or consistent with industry or past practice in connection with obtaining, maintaining or renewing vendor contracts;
(y) Investments consisting of promissory notes issued by the Borrower or any Subsidiary Loan Party to future, present or former employees, directors, officers, managers, members, partners, independent contractors or consultants of the Borrower or any of its Subsidiaries or their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Borrower or any direct or indirect parent thereof, to the extent the applicable Restricted Payment is permitted hereunder;
(z) Investments made from casualty insurance proceeds in connection with the replacement, substitution, restoration or repair of assets on account of a casualty event;
(aa) Investments by an Unrestricted Subsidiary entered into prior to the day such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary pursuant to the definition of “Unrestricted Subsidiary”;
(bb) Investments made in connection with any Media for Equity Transaction; provided that any such Investment is made and is held at all times by the Borrower or any Restricted Subsidiary, and is not used in connection with or in furtherance of any Priming Financing/Liability Management Transaction;
(cc) Investments in Unrestricted Subsidiaries; provided that at the time any such Investment is made, the aggregate outstanding amount of all Investments made in reliance on this clause (cc), when aggregated with all other Investments outstanding under this clause (cc), shall not exceed $50,000,000; provided further that (i) if any Investment pursuant to this clause (cc) is made in any Person that is not a Restricted Subsidiary of the Borrower at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to Section 6.04(c) and shall cease to have been made pursuant to this clause (cc) and (ii) Investments shall not be made under this clause (cc) to make any Restricted Payments or Junior Debt Prepayments or in connection with or in furtherance of any Priming Financing/Liability Management Transaction;
(dd) Investments made after the Effective Date in joint ventures of the Borrower or any of its Restricted Subsidiaries existing on the Effective Date; provided that if any Investment pursuant to this clause (dd) is made in any Person that is not a Restricted Subsidiary of the Borrower at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to Section 6.04(c) and shall cease to have been made pursuant to this clause (dd);
(ee) Investments consisting of purchases and acquisitions of assets or services in the ordinary course of business or consistent with industry or past practice and any earnest money deposits in connection therewith;
(ff) intercompany current liabilities owed to Unrestricted Subsidiaries or joint ventures incurred in the ordinary course of business or consistent with industry or past practice in connection with cash management operations of the Borrower and its Subsidiaries;
(gg) any Investment in any Subsidiary or any joint venture in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business or consistent with industry or past practice; and
133
(hh) any Investment with respect to purchase options relating to the purchase of Stations by the Borrower and its Subsidiaries; provided that at the time any such Investment is made, the aggregate outstanding amount of all Investments made in reliance on this clause (hh), when aggregated with all other Investments outstanding under this clause (hh), shall not exceed the greater of $100,000,000 and 14.50% of Consolidated EBITDA for the most recently ended Test Period after giving Pro Forma Effect to the making of such Investment.
For purposes of determining compliance with this Section 6.04, in the event that a proposed Investment (or portion thereof) meets the criteria of clauses (a) through (hh) (other than clause (t)) above, the Borrower will be entitled to classify or later divide, classify or reclassify (based on circumstances existing on the date of such reclassification) such Investment (or portion thereof) between such clauses (a) through (hh) (other than clause (t)), in a manner that otherwise complies with this Section 6.04. In the event that a portion of the Investments could be classified as incurred under a “ratio-based” basket under this Section 6.04 (giving pro forma effect to the making of such Investments), the Borrower, in its sole discretion, may classify such portion of such Investment as having been incurred pursuant to such “ratio-based” basket.
SECTION 6.05 Asset Sales. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to (i) sell, transfer, lease, license or otherwise dispose of any asset, including any Equity Interest owned by it and including any disposition of property to a Delaware Divided LLC pursuant to a Delaware LLC Division or (ii) permit any of its Restricted Subsidiaries to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 6.04(c)) (each, a “Disposition”), except:
(a) Dispositions of obsolete, non-core, surplus, damaged, unnecessary, unsuitable or worn out property or equipment, inventory or other assets, whether now owned or hereafter acquired, in the ordinary course of business or consistent with industry or past practice and Dispositions of property no longer used or useful, or economically practicable to maintain, in the conduct of the business of the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse or go abandoned or be invalidated);
(b) the lapse, abandonment or invalidation of intellectual property rights that are not material to the conduct of the Borrower and its Restricted Subsidiaries, taken as a whole, or that are no longer used or useful or no longer economically practicable or commercially reasonable to maintain, in each case as reasonably determined by the Borrower;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property or (iii) such Disposition is allowable under Section 1031 of the Code, or any comparable or successor provision is for like property (and any boot thereon) and for use in a Similar Business;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be an Investment in a Restricted Subsidiary that is not a Loan Party permitted by Section 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is an Investment in a Restricted Subsidiary that is not a Loan Party permitted by Section 6.04;
(e) Dispositions permitted by Section 6.03, Investments permitted by Section 6.04, Restricted Payments permitted by Section 6.08, Liens permitted by Section 6.02, in each case, other than by reference to this Section 6.05(e);
(f) any issuance, disposition or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary (or a Restricted Subsidiary which owns an Unrestricted Subsidiary so long as such Restricted Subsidiary owns no assets other than the Equity Interests of such Unrestricted Subsidiary);
134
(g) Dispositions of Permitted Investments;
(h) Dispositions or discounts without recourse (including by way of assignment or participation) of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(i) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and that do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to any Casualty Event upon receipt of the Net Proceeds of such Casualty Event;
(k) Dispositions of property to Persons other than the Borrower or any of its Restricted Subsidiaries (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is made for Fair Market Value and (ii) except in the case of a Permitted Asset Swap, with respect to any Disposition or series of related Dispositions pursuant to this clause (k) for a purchase price in excess of $75,000,000 (provided that if the aggregate amount of all such individual Dispositions or related series of Dispositions that are $75,000,000 or less in any fiscal year exceeds $150,000,000 in the aggregate, then the foregoing $75,000,000 amount shall refer to the purchase price of all such Dispositions in such fiscal year in excess of $75,000,000), for all transactions permitted pursuant to this clause (k) since the Effective Date (on a cumulative basis), the Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (ii), (A) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of the Borrower provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Borrower or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower of the Borrower or such Restricted Subsidiary, other than liabilities that are unsecured, secured by Liens ranking junior to those securing the Secured Obligations or lower in priority as to payment from proceeds of Collateral than the Second Out Facilities or by their terms subordinated to the Loan Document Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases the Borrower or such Restricted Subsidiary from such liabilities, (B) any securities received by the Borrower, the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess (at the date of agreement for the related Disposition) of $40,000,000, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time of contractually agreeing to such Disposition and without giving effect to subsequent changes in value, shall be deemed to be cash; provided that this clause (C) shall not be used in connection with or in furtherance of a Priming Financing/Liability Management Transaction;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of the Borrower and its Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority or any other Governmental Authority or otherwise necessary or advisable to consummate any acquisition (including any Permitted Acquisition) after the Effective Date, as determined by the Borrower;
135
(n) transfers of condemned property, asset, Equity Interests or Indebtedness as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property, asset, Equity Interests or Indebtedness arising from foreclosure, condemnation, expropriation, forced dispositions, or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) the sale or discount or disposition (with or without recourse) (including by way of assignment or participation) of receivables (including, without limitation, trade and lease receivables) and related assets in connection with a Permitted Receivables Financing;
(p) the unwinding of any Swap Obligations or Cash Management Obligations;
(q) Dispositions in connection with any Media for Equity Transaction; provided that such Disposition is not made in connection with or in furtherance of any Priming Financing/Liability Management Transaction;
(r) any sale, transfer or other disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC; provided that the Borrower has complied with Section 5.11 to the extent applicable; and
(s) any disposition of property, assets, Equity Interests or Indebtedness that was acquired with Excluded Contributions if the proceeds of such disposition are used to make a Restricted Payment pursuant to Section 6.08(a)(xxv).
SECTION 6.06 Outbound Investment Rules. The Loan Parties will not, and will not permit any of their Subsidiaries to, (a) be or become a “covered foreign person”, as that term is defined in the Outbound Investment Rules, or (b) engage, 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 or any Lender to be in violation of the Outbound Investment Rules or cause the Administrative Agent or any Lender to be legally prohibited by the Outbound Investment Rules from performing under this Agreement.
SECTION 6.07 Negative Pledge; Covenants Applicable to Parent. Parent and the Borrower will not, and will not permit any Restricted Subsidiary to enter into any agreement, instrument, deed or lease that prohibits or limits (i) the ability of any Loan Party to create, incur, assume or suffer to exist any Lien upon any of their respective properties or revenues, whether now owned or hereafter acquired, for the benefit of the Secured Parties with respect to the Secured Obligations or under the Loan Documents, or (ii) the ability of any Subsidiary of any Designated SBG Subsidiary to pay dividends or other distributions to such Designated SBG Subsidiary with respect to its ownership interests or to Guarantee Indebtedness of the Borrower or any Subsidiary of the Borrower or the ability of any Designated SBG Subsidiary or any of its Subsidiaries to make loans or advances to the Borrower or any Subsidiary of the Borrower or to Guarantee Indebtedness of the Borrower or any Subsidiary of the Borrower; provided that the foregoing shall not apply to restrictions and conditions imposed by:
(a) (i) Requirements of Law, (ii) any Loan Document, (iii) the Existing Credit Agreement, the 8.125% First Out First Lien Senior Secured Notes, the 4.375% Second Out First Lien Senior Secured Notes, the Existing Senior Unsecured Notes or the 9.750% Second Lien Secured Notes, and in each case, the related documentation governing the foregoing Indebtedness, (iv) any documentation relating to any Permitted Receivables Financing, (v) any documentation governing Incremental Equivalent Debt, (vi) any documentation governing Permitted Unsecured Refinancing Debt, Permitted First Priority Refinancing Debt or Permitted Second Priority Refinancing Debt and (vii) any documentation governing any Permitted Refinancing incurred to refinance any such Indebtedness referenced in clauses (i) through (vi) above; provided that with respect to Indebtedness referenced in (A) clauses (vi) and (vii) above, such restrictions shall be no more restrictive in any material respect than the restrictions and conditions in the Loan Documents or, in the case of Junior Financing, are market terms at the time of issuance and (B) clause (vi) above, such restrictions shall not expand the scope in any material respect of any such restriction or condition contained in the Indebtedness being refinanced;
136
(b) customary restrictions and conditions existing on the Effective Date (including those entered into in connection with or in order to consummate the Transactions) and any extension, renewal, amendment, modification or replacement thereof, except to the extent any such amendment, modification or replacement expands the scope of any such restriction or condition;
(c) restrictions and conditions contained in agreements relating to the sale of a Subsidiary or any assets pending such sale; provided **** that such restrictions and conditions apply only to the Subsidiary or assets that is or are to be sold and such sale is permitted hereunder;
(d) customary provisions in leases, licenses and other contracts restricting the assignment thereof or other transfer thereof (or the assets subject thereto), including with respect to intellectual property;
(e) restrictions imposed by any agreement relating to secured Indebtedness permitted by this Agreement to the extent such restriction applies only to the property securing such Indebtedness;
(f) any restrictions or conditions set forth in any agreement in effect at any time any Person is or becomes a Restricted Subsidiary (but not any modification or amendment expanding the scope of any such restriction or condition); provided **** that such agreement was not entered into in contemplation of such Person becoming a Restricted Subsidiary and the restriction or condition set forth in such agreement does not apply to the Borrower or any of its Restricted Subsidiaries;
(g) restrictions or conditions in any Indebtedness, Disqualified Equity Interests or Preferred Stock permitted pursuant to Section 6.01 that is incurred or assumed by Restricted Subsidiaries that are not Loan Parties to the extent such restrictions or conditions are no more restrictive in any material respect than the restrictions and conditions in the Loan Documents or, in the case of Junior Financing, are market terms at the time of issuance and are imposed solely on such Restricted Subsidiary and its Subsidiaries or are not materially more disadvantageous, taken as a whole, to the Lenders than is ordinary or customary at the time and under the circumstances for financings for similarly situated borrowers or issuers or available to the Borrower and its Subsidiaries (as determined by the Borrower);
(h) restrictions on cash (or Permitted Investments) or other deposits under contracts or customary net worth provisions contained in real property leases, in each case, entered into in the ordinary course of business or consistent with industry or past practice (or other restrictions on cash or deposits constituting Permitted Encumbrances) and restrictions on cash, Permitted Investments or other deposits permitted under Section 6.01;
(i) restrictions set forth on Schedule 6.07 and any extension, renewal, amendment, modification or replacement thereof, except to the extent any such amendment, modification or replacement expands the scope of any such restriction or condition;
(j) provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted by Section 6.02 and applicable solely to such joint venture and entered into in the ordinary course of business;
(k) customary net worth provisions contained in real property leases entered into by Subsidiaries, so long as the Borrower has determined in good faith that such net worth provisions could not reasonably be expected to impair the ability of the Borrower and its Subsidiaries to meet their ongoing obligations;
(l) other indebtedness, Disqualified Equity Interests or Preferred Stock permitted to be incurred subsequent to the Effective Date pursuant to Section 6.01 if (A) in the judgment of the Borrower, such incurrence will not materially impair the Borrower’s ability to make payments under the Loan Documents when due, (B) the encumbrances and restrictions in such Indebtedness, Disqualified Equity Interests or Preferred Stock otherwise not permitted by this Agreement apply only so long as a default in
137
respect of a payment or financial maintenance covenant relating to such Indebtedness, Disqualified Equity Interests or Preferred Stock is not cured or waived or (C) the encumbrances and restrictions in such Indebtedness, Disqualified Equity Interests or Preferred Stock either are not materially more restrictive taken as a whole than those contained in the Loan Documents, the Senior Unsecured Debt as in effect on the Effective Date or are not materially more disadvantageous, taken as a whole, to the Lenders than is ordinary or customary at the time and under the circumstances for financings for similarly situated borrowers or issuers or available to the Borrower and its Subsidiaries (as determined by the Borrower);
(m) (i) any agreement, arrangement, Indebtedness or Capital Stock of any Person or its affiliates that is acquired by or merged, consolidated or amalgamated with or into any of the Borrower or any of its Restricted Subsidiaries that applies to such Person or its affiliates or any assets acquired in any such acquisition, merger, consolidation or amalgamation or acquisition of assets in existence at the time thereof, or assumed in connection therewith unless and to the extent created in contemplation thereof, which encumbrance or restriction is not applicable to the Borrower or any of its Restricted Subsidiaries or its properties or assets, other than any such Person or its affiliates or such assets, or any Unrestricted Subsidiary; and (ii) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger, amalgamation or consolidation of an Unrestricted Subsidiary into the Borrower or a Restricted Subsidiary or the transfer of all, substantially all or any of the assets of an Unrestricted Subsidiary to the Borrower or a Restricted Subsidiary, any such encumbrance or restriction existing or assumed (unless and to the extent created in contemplation thereof);
(n) contracts, including sale-leaseback agreements, for the sale or disposition of assets, including customary restrictions with respect to a Subsidiary of the Borrower pursuant to an agreement that has been entered into for the sale or disposition of Capital Stock or assets of such Subsidiary;
(o) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course or consistent with industry or past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary party thereto, the payment rights arising thereunder or the proceeds thereof; and
(p) any encumbrance or restriction with respect to any Unrestricted Subsidiary or any of its affiliates or their respective properties or assets that existed before the date that such Subsidiary became a Restricted Subsidiary if such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary unless and to the extent otherwise permitted hereunder.
Parent will not, nor will it permit any of the Designated SBG Subsidiaries to, guarantee any Indebtedness of the Borrower or any of its Subsidiaries that is permitted under Section 6.01 unless (i) each such Person whose Indebtedness is so guaranteed which was a Loan Party immediately prior to such guarantee remains a Loan Party hereunder and (ii) if such guarantee is secured, such guarantee shall have the same (or lower) priority as the Indebtedness to which it relates.
SECTION 6.08 Restricted Payments; Certain Payments of Indebtedness.
(a) The Borrower will not, nor will it permit any of its Restricted Subsidiaries, to pay or make, directly or indirectly, any Restricted Payment, except:
(i) the Borrower and each Restricted Subsidiary may make Restricted Payments to the Borrower or any Restricted Subsidiary; provided that in the case of any such Restricted Payment by a Restricted Subsidiary that is not a wholly-owned Subsidiary of the Borrower, such Restricted Payment is made to the Borrower, any Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
138
(ii) payments or distributions to satisfy dissenters’ or appraisal rights, pursuant to or in connection with a consolidation, amalgamation, merger or transfer of assets that complies with Section 6.03;
(iii) the Borrower and Parent may declare and make dividend payments or other distributions payable solely in the Equity Interests of the Borrower or Parent (as the case may be);
(iv) [reserved];
(v) (a) repurchases of Equity Interests in the Borrower (or Restricted Payments by the Borrower to allow repurchases of Equity Interest in any direct or indirect parent of the Borrower) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants or other incentive interests if such Equity Interests represent a portion of the exercise price of such stock options or warrants or other incentive interest and (b) the extent constituting Restricted Payments, the acquisition of Equity Interests held by joint venture partners pursuant to put and call or similar arrangements under any joint venture or similar agreement;
(vi) Restricted Payments to the Borrower which the Borrower may use to redeem, acquire, retire or repurchase its Equity Interests (or any options, warrants, restricted stock units or stock appreciation rights issued with respect to any of such Equity Interests) (or make Restricted Payments to allow any of the Borrower’s direct or indirect parent companies to so redeem, retire, acquire or repurchase their Equity Interests) held by current or former officers, managers, consultants, independent contractors, directors or employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of the Borrower (or any direct or indirect parent thereof), the Borrower and its Restricted Subsidiaries, upon the death, disability, retirement, resignation or termination of employment of any such Person or otherwise in accordance with any stock option or stock appreciation rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreements or equity holders’ agreement; provided that the aggregate amount of Restricted Payments permitted by this clause (vi) after the Effective Date shall not exceed the sum of (A) the amount in any fiscal year equal to the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Effective Date, (B) the amount of any cash bonuses otherwise payable to future, present or former employees, directors, officers, managers, members, partners or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower, any of its Subsidiaries or any Parent Entity that are foregone in exchange for the receipt of Equity Interests of the Borrower or any Parent Entity pursuant to any compensation arrangement, including any deferred compensation plan, (C) the amount of cash dividends that would have been permitted to be made pursuant to Section 6.08(a)(xv) as if such cash dividends were made (and the record date referred to in such Section 6.08(a)(xv)), in each case, on the date such Restricted Payments to pay for the repurchase, redemption, retirement or other acquisition of Equity Interests were made and (D) the cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of the Borrower and, to the extent contributed to the Borrower, the cash proceeds from the sale of Equity Interests of any direct or indirect Parent Entity or management investment vehicle, in each case to any future, present or former employees, directors, managers or consultants of the Borrower, any of its Subsidiaries or any direct or indirect Parent Entity or management investment vehicle that occurs after the Effective Date, to the extent the cash proceeds from the sale of such Equity Interests are not Cure Amounts and have not otherwise been applied to the payment of Restricted Payments by virtue of the Available Equity Amount or are otherwise applied to increase any other basket hereunder; provided that any unused portion of the preceding basket above for any fiscal year may be carried forward to any succeeding fiscal year at the election of the Borrower; provided further that that cancellation of Indebtedness owing to the Borrower or any of its Restricted Subsidiaries from any future, present or former employees, directors, officers, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Borrower, any of its Restricted Subsidiaries or any Parent Entity in connection with a repurchase of Equity Interests of the Borrower or any Parent Entity is not a Restricted Payment under this covenant or any other provision of this Agreement;
139
(vii) Borrower may make Restricted Payments to any direct or indirect parent of Borrower (including Parent) in cash:
(A) the proceeds of which shall be used by the Borrower to pay (or to make Restricted Payments to allow any direct or indirect parent of the Borrower to pay) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or unitary tax group for U.S. federal and/or applicable state, local or foreign income Tax purposes of which a direct or indirect parent of the Borrower is the common parent (a “Tax Group”), the portion of any U.S. federal, state, local or foreign Taxes (as applicable) of such Tax Group for such taxable period that are attributable to the income of the Borrower and/or its Subsidiaries; provided that Restricted Payments made pursuant to this clause (a)(vii)(A) shall not exceed the Tax liability that the Borrower and/or its Subsidiaries (as applicable) would have incurred were such Taxes determined as if such entity(ies) were a stand alone taxpayer or stand alone group;
(B) the proceeds of which shall be used by the Borrower to pay (or to make Restricted Payments to allow any direct or indirect parent of the Borrower to pay) (1) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting, tax reporting, management fees, service fees, rent and building costs (including amounts payable in respect of such parent entity’s lease for its corporate headquarters), systems costs, and other fees, costs and expenditures related to the foregoing that are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries by such parent entity) that are reasonable and customary and incurred in the ordinary course of business, (2) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, (3) fees and expenses (x) due and payable by any of the Borrower and its Restricted Subsidiaries and (y) otherwise permitted to be paid by the Borrower and its Restricted Subsidiaries under this Agreement and (4) payments that would otherwise be permitted to be paid directly by the Borrower or the Restricted Subsidiaries pursuant to Section 6.09(iii) or (x);
(C) the proceeds of which shall be used by the Borrower to pay (or to make Restricted Payments to allow any direct or indirect parent of the Borrower to pay) franchise and similar Taxes, and other fees and expenses, required to maintain its organizational existence;
(D) the proceeds of which shall be used by the Borrower to make Restricted Payments permitted by Section 6.08(a)(vi);
(E) any Investment permitted to be made pursuant to Section 6.04 other than Section 6.04(m); provided that (1) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (2) the Borrower shall cause (x) all property acquired (whether assets or Equity Interests but not including any loans or advances made pursuant to Section 6.04(b)) to be contributed to the Borrower or the Restricted Subsidiaries or (y) the Person formed or acquired to merge into or consolidate with the Borrower or any of its Restricted Subsidiaries to the extent such merger, amalgamation or consolidation is permitted in Section 6.03) in order to consummate such Investment, in each case in accordance with the requirements of Sections 5.11 and 5.12;
(F) the proceeds of which shall be used to pay customary salary, incentive compensation, bonus and other benefits payable to officers and employees of the Borrower or any direct or indirect parent company of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries; and
(G) the proceeds of which shall be used by the Borrower to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity offering, debt offering or other non-ordinary course transaction permitted or not prohibited by this Agreement (whether or not such offering or other transaction is successful);
140
(viii) in addition to the foregoing Restricted Payments, the Borrower and any Restricted Subsidiary may make additional Restricted Payments to Parent, the proceeds of which may be utilized by Parent to make additional Restricted Payments, in an aggregate amount not to exceed the sum of (A) an amount at the time of making any such Restricted Payment and together with any other Restricted Payment made utilizing this subclause (A) and amounts utilized under Section 6.08(b)(iv)(A), not to exceed $25,000,000, plus (B) the Available Amount that is Not Otherwise Applied and the Available Equity Amount that is Not Otherwise Applied, if in each case (x) the First Lien Leverage Ratio, after giving effect to such Restricted Payment on a Pro Forma Basis, would not exceed 3.50:1.00 and (y) for so long as no Event of Default under Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing or would result therefrom;
(ix) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that (A) such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby, and (B) the proceeds of any such new Equity Interests are not included in the Available Amount or the Available Equity Amount;
(x) payments made or expected to be made in respect of withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options, and the vesting of restricted stock and restricted stock units;
(xi) the Borrower may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition (or other similar Investment) and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(xii) [reserved];
(xiii) payments made or expected to be made by the Borrower or any of its Restricted Subsidiaries in respect of withholding or similar taxes payable upon exercise of Equity Interests or any other equity award by any future, present or former employee, director, officer, manager or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferees or any legatee or distributee thereof) of the Borrower, any of its Restricted Subsidiaries or any Parent Entity and repurchases or withholdings of Equity Interests in connection with the exercise or vesting of any stock or other equity options or, warrants or other incentive interests or the grant, vesting or delivery of equity awards if such Equity Interests represent all or a portion of the exercise price thereof or payments in lieu of the issuance of fractional Equity Interests, or withholding obligations with respect to, such options, warrants or other incentive interests or other Equity Interests or equity awards;
(xiv) additional Restricted Payments; provided that after giving effect to any such Restricted Payment (A) on a Pro Forma Basis, the First Lien Leverage Ratio is less than or equal to 3.00 to 1.00, (B) there is no continuing Event of Default under Section 7.01(a), (b), (h) or (i) and (C) such Restricted Payments made pursuant to this Section 6.08(a)(xiv) shall not be used in connection with or in furtherance of any Priming Financing/Liability Management Transaction;
(xv) payments of cash dividends to Parent in connection with the payment of cash dividends on Sinclair’s shares of common stock in the aggregate amount per fiscal quarter not to exceed $0.25 (or $0.30 if at the time that Sinclair makes such cash dividends, on a pro forma basis after giving effect to the making thereof and the incurrence of any Indebtedness the proceeds of which are used to make such cash dividends, the First Lien Leverage Ratio for the most recent Test Period then ended would be equal to or
141
less than 3.25:1.00) per share for each share of common stock of Sinclair outstanding as of the record date for dividends payable in respect of such fiscal quarter (as such amount shall be appropriately adjusted for any stock splits, stock dividends, reverse stock splits, stock consolidations and similar transactions); provided that the amount of such cash dividends that may be made pursuant to this Section 6.08(a)(xv) shall be reduced by the amount of Restricted Payments made to pay for the repurchase, redemption, retirement or other acquisition of any Equity Interests in such fiscal quarter pursuant to Section 6.08(a)(vi);
(xvi) the declaration and payment of dividends in respect of Disqualified Equity Interests of the Borrower or any of its Restricted Subsidiaries or any class or series of Preferred Stock of any Restricted Subsidiary, in each case issued in accordance with Section 6.01 to the extent such dividends are included in the calculation of Consolidated Interest Expense;
(xvii) to the extent constituting Restricted Payments, the acquisition of Equity Interests held by joint venture partners pursuant to put and call or similar arrangements under any joint venture or similar agreement;
(xviii) payments, distributions or other Restricted Payments made in connection with transactions among the Borrower and any of its Restricted Subsidiaries, on the one hand, and Parent and any of its direct or indirect Subsidiaries and/or any joint venture partners, customers and/or clients, on the other hand entered into in the ordinary course of business or consistent with industry or past practice, including, without limitation, any cash management and treasury activities and any shared services, offices or facilities including back office, accounting, books and records keeping or similar functions, and shared production or other facilities, branch offices and other shared spaces, and licensing or similar arrangements related thereto;
(xix) [reserved];
(xx) [reserved];
(xxi) [reserved];
(xxii) [reserved];
(xxiii) [reserved];
(xxiv) [reserved]; and
(xxv) Restricted Payments that are made (a) in an amount not to exceed the amount of Excluded Contributions received following the Effective Date and (b) without duplication with clause (a), in an amount not to exceed the net cash proceeds from any sale or disposition of Investments acquired after the Effective Date, to the extent the acquisition of such Investments was financed with Excluded Contributions.
For purposes of determining compliance with this Section 6.08(a), in the event that a proposed Restricted Payment (or a portion thereof) meets the criteria of clauses (i) through (xxv) (other than clause (xiv)) above, the Borrower will be entitled to classify or later divide, classify or reclassify (based on circumstances existing on the date of such reclassification) such Restricted Payment (or portion thereof) between such clauses (i) through (xxv) (other than clause (xiv)), in a manner that otherwise complies with this Section 6.08(a). In the event that a payment or other obligation could be classified as incurred under a “ratio- based” basket under this Section 6.08(a) (giving pro forma effect to the making of such portion of such payment), the Borrower, in its sole discretion, may classify such portion of such payment (and any obligations in respect thereof) as having been made pursuant to such “ratio-based” basket.
142
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make or pay, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Junior Financing, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Financing, except:
(i) payment of regularly scheduled interest and principal payments as, in the form of payment and when due in respect of any Indebtedness, other than payments in respect of any Junior Financing prohibited by the subordination provisions thereof;
(ii) prepayments, exchanges, redemptions or refinancings of Junior Financing with proceeds of other Junior Financing; provided that (A) such Junior Financing resulting from such prepayment, exchange, redemption or refinancing shall not have a stated maturity that is earlier than the Latest Second Out Maturity Date at the time of incurrence of such Junior Financing (though such Indebtedness may have a stated maturity date that is coterminous with the Latest Second Out Maturity Date at the time of incurrence of such Junior Financing), (B) such Junior Financing resulting from such prepayment, exchange, redemption or refinancing shall not have any improved structural or contractual priority as compared with the Junior Financing so prepaid, exchanged, redeemed or refinanced, (C) any refinancing of such Junior Financing shall be a Permitted Refinancing and (D) such Junior Financing resulting from such prepayment, exchange, redemption or refinancing has terms and conditions (excluding pricing, interest rate margins, rate floors, discounts, fees, premiums and prepayment or redemption provisions) that are not materially more favorable (when taken as a whole) to the lenders or investors providing such Junior Financing than the terms and conditions of this Agreement (when taken as a whole) are to the Term Lenders (except for covenants or other provisions applicable only to periods after the Latest Maturity Date at the time of such refinancing) as determined by the Borrower in good faith (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, such indebtedness shall be deemed not materially more favorable (when taken as a whole) to the lenders or investors providing such Junior Financing solely by virtue of such financial maintenance covenant and no consent shall be required by the Administrative Agent or any of the Lenders, if such financial maintenance covenant is either (i) also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Junior Financing or (ii) only applicable after the Latest Maturity Date at the time of such refinancing);
(iii) the conversion of any Junior Financing to Equity Interests (other than Disqualified Equity Interests) of the Borrower or any of its direct or indirect parent companies;
(iv) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings prior to their scheduled maturity (each, a “Junior Debt Prepayment”) in an aggregate amount not to exceed the sum of (A) so long as no Event of Default under Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing or would result therefrom, an amount at the time of making any such Junior Debt Prepayment and together with any other Junior Debt Prepayment made utilizing this subclause (A) and amounts utilized under Section 6.08(a)(viii)(A), not to exceed $25,000,000, plus (B) the Available Amount that is Not Otherwise Applied, plus (C) the Available Equity Amount that is Not Otherwise Applied, so long as, in each case, (i) no Event of Default under Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing or would result therefrom and (ii) the First Lien Leverage Ratio for the most recent Test Period then ended, after giving effect to making such Investment or other acquisition, is less than or equal to 3.75:1.00;
(v) other Junior Debt Prepayments; provided that after giving effect to such Restricted Payment (A) on a Pro Forma Basis, the First Lien Leverage Ratio is less than or equal to 3.25 to 1.00 and (B) there is no continuing Event of Default under Section 7.01(a), (b), (h) or (i); provided further that no Junior Debt Prepayments made under this Section 6.08(b)(v) may be made in connection with or in furtherance of any Priming Financing/Liability Management Transaction;
(vi) repurchases of Third Lien Term Loans to the extent that such Third Lien Term Loans are repurchased for cash at a repurchase price lower than the then prevailing trading prices of each series of Term Loans then outstanding under this Agreement, for consideration not to exceed, in the aggregate, $100,000,000;
143
(vii) repurchases of Junior Lien Indebtedness (other than the Third Lien Term Loans) and unsecured Indebtedness, in each case, at a discount to par, for consideration not to exceed, in the aggregate, $125,000,000;
(viii) Junior Debt Prepayments in an aggregate principal amount not to exceed the sum of (x) any Excluded Contributions and (y) any net cash proceeds from any Junior Financings which are received by Borrower or any Restricted Subsidiary after the Effective Date and are not included in the Available Amount or the Available Equity Amount;
(ix) prepayments of any revolving loans under the Third Lien Revolving Credit Facility to the extent that the commitments under the Third Lien Revolving Credit Facility are permanently reduced in connection with such payment, and such prepayments are funded by Revolving Loans drawn under the Revolving Credit Facility incurred within 15 months of the final maturity of the Third Lien Revolving Credit Facility; and
(x) Junior Debt Prepayments with respect to (A) the Third Lien Term Loans, to the extent such Junior Debt Prepayments constitute Permitted Refinancings thereof permitted under Section 6.01(a)(ii)(C)(3), (B) the 4.125% Senior Unsecured Notes, to the extent such Junior Debt Prepayments constitute Permitted Refinancings thereof permitted under Section 6.01(a)(ii)(C)(5) and (C) for the avoidance of doubt, the 5.125% Senior Unsecured Notes.
For purposes of determining compliance with this Section 6.08(b), in the event that any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Junior Financing, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Financing (or a portion thereof) meets the criteria of clauses (i) through (iv) and (vi) through (x) above, the Borrower will be entitled to divide, classify or later reclassify (based on circumstances existing on the date of such reclassification) such payment (or portion thereof) between such clauses (i) through (iv) and (vi) through (x), in a manner that otherwise complies with this Section 6.08(b).
(c) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, amend or modify any documentation governing any Junior Financing, in each case if the effect of such amendment or modification (when taken as a whole) is materially adverse to the Lenders.
Notwithstanding anything herein to the contrary, the foregoing provisions of this Section 6.08 will not prohibit the payment of any Restricted Payment or the consummation of any irrevocable redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of such irrevocable notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement.
SECTION 6.09 Transactions with Affiliates. The Borrower will not, nor will it permit any of its Restricted 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 respect thereto with, any of its Affiliates, except:
(i) (A) transactions with Parent, the Borrower or any of its Restricted Subsidiaries and (B) transactions involving aggregate payments in respect of such transaction or consideration of less than the greater of $27,800,000 and 4.00% of Consolidated EBITDA for the most recently ended Test Period prior to such transaction;
(ii) on terms substantially as favorable to the Borrower or such Restricted Subsidiary as would be obtainable by such Person at the time in a comparable arm’s-length transaction with a Person other than an Affiliate or, if in the good faith judgment of the Borrower, no comparable transaction is available with which to compare such transaction, such transaction is otherwise fair to the Borrower or such Restricted Subsidiary from a financial point of view and when such transaction is taken in its entirety;
144
provided that for any transaction involving consideration in excess of $100,000,000, the Borrower shall deliver an officer’s certificate to the Administrative Agent (x) certifying that such transaction meets the requirements of this subclause (ii) and (y) attaching a resolution signed by a majority of the disinterested members of the board (or equivalent governing body) of the Borrower approving such transaction;
(iii) the Transactions and the payment of fees and expenses related to the Transactions, including Transaction Costs;
(iv) issuances of Equity Interests of the Borrower to the extent otherwise permitted by this Agreement;
(v) employment and severance arrangements (including salary or guaranteed payments and bonuses) between Parent Entity, Parent, the Borrower and its Restricted Subsidiaries and their respective officers and employees in the ordinary course of business or otherwise in connection with the Transactions;
(vi) payments by Parent Entity, Parent, the Borrower and its Restricted Subsidiaries pursuant to tax sharing agreements among Parent Entity, Parent, the Borrower and the Restricted Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries, to the extent payments are permitted by Section 6.08;
(vii) the payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, directors, officers and employees of Parent Entity, Parent, the Borrower and the Restricted Subsidiaries in the ordinary course of business to the extent attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries;
(viii) transactions pursuant to permitted agreements in existence or contemplated on the Effective Date and set forth on Schedule 6.09 or any amendment thereto (so long as the totality of all such amendments, modifications, waivers, consents or replacements is not materially more disadvantageous in the judgment of the Board of Directors of the Borrower or the senior management of the Borrower to the Lenders when taken as a whole as compared to the totality of such agreements or arrangements as in effect on the Effective Date);
(ix) Restricted Payments and Junior Financing payments permitted under Section 6.08 and Investments permitted by Section 6.04;
(x) customary payments by the Borrower and any of the Restricted Subsidiaries made for any financial advisory, consulting, financing, underwriting or placement services or in respect of other investment banking activities (including in connection with acquisitions, divestitures or financings), which payments are approved by the majority of the members of the Board of Directors or a majority of the disinterested members of the Board of Directors of such Person in good faith;
(xi) the issuance or transfer of Equity Interests (other than Disqualified Equity Interests) of the Borrower to any Permitted Holder or to any former, current or future director, manager, officer, employee or consultant (or any Affiliate of any of the foregoing) of Parent Entity, Parent, the Borrower or any of the Subsidiaries;
(xii) transactions related to or in connection with any Permitted Receivables Financing;
(xiii) payment or satisfaction by Parent Entity, Parent, the Borrower and its Subsidiaries pursuant to, or the entry into, any tax sharing agreement or arrangement among Parent Entity, Parent, the Borrower and its Subsidiaries, to the extent such payments are permitted under Section 6.08(a)(vii);
(xiv) payment or satisfaction of reasonable out of pocket costs and expenses relating to registration rights and indemnities provided to equity holders of Parent Entity, Parent or the Borrower pursuant to any equity holders, registration rights or similar agreements;
145
(xv) transactions with a Person which would constitute an affiliate transaction solely because a director of such other Person is also a director of Parent Entity, Parent or the Borrower if such director abstains from voting as a director of Parent Entity, Parent or the Borrower, as the case may be, on any matter including such other Person;
(xvi) intercompany transactions undertaken in good faith for the purpose of improving the consolidated tax efficiency of the Borrower and its Restricted Subsidiaries and not for the purpose of circumventing any covenant set forth in this Agreement; and
(xvii) pledges of Equity Interests of Unrestricted Subsidiaries.
SECTION 6.10 Financial Covenant. Except with the written consent of the Required Revolving Lenders, the Borrower will not permit the First Out First Lien Leverage Ratio as of the last day of a Test Period (commencing with the Test Period ending on or about June 30, 2025) to exceed 3.50 to 1.00 (provided that the provisions of this Section 6.10 shall not be applicable to any such Test Period if on the last day of such Test Period the aggregate principal amount of Revolving Loans and/or Swingline Loans and/or Letters of Credit (whether cash collateralized or not) that are issued and/or outstanding) is equal to or less than 35% of the Revolving Credit Facility.
SECTION 6.11 License Subsidiaries.
(a) Whenever the Borrower or any of its Subsidiaries acquires any Broadcast License after the Effective Date, the Borrower shall cause such acquisition to take place as follows in accordance with all applicable laws and regulations, including pursuant to approvals from the FCC: (i) each Broadcast License so acquired shall be transferred to and held by a wholly-owned Subsidiary of the Borrower that is a License Subsidiary (provided that any License Subsidiary shall be permitted to hold one or more Broadcast Licenses); (ii) the related operating assets shall be transferred to and held by an operating company that is a Subsidiary of the Borrower (an “Operating Subsidiary”); and (iii) the Borrower shall deliver or cause to be delivered (if not theretofore delivered) to the Administrative Agent, to the extent required under the Collateral Agreement and the Collateral and Guarantee Requirement pursuant to and subject to the terms thereof, a pledge of^^all Capital Stock of such License Subsidiary and such Operating Subsidiary (and, if reasonably requested by the Administrative Agent, furnish to the Administrative Agent evidence that the foregoing transactions have been so effected).
(b) Notwithstanding anything herein to the contrary, the Borrower shall not permit any License Subsidiary to: (i) create, incur, assume or have outstanding any Indebtedness except for obligations under the Loan Documents, the Guarantees of such License Subsidiary in respect of Indebtedness that is unsecured, secured on a junior basis to the Secured Obligations and subject to the First/Second/Third Lien Intercreditor Agreement or subordinated to the Loan Document Obligations, in each case to the extent permitted or not prohibited under Section 6.01 and the contractual agreements with one or more Operating Subsidiaries entered into in the ordinary course of business solely with respect to the management of the relevant Station’s operations; (ii) own any right, franchise or other asset, except for Broadcast Licenses transferred to it by the Borrower of which it is a wholly-owned Subsidiary, Broadcast Licenses acquired in the ordinary course of business and rights under any such agreements with one or more Operating Subsidiaries; (iii) enter into any transaction of merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution); (iv) create, incur or permit to exist any Lien (other than the Lien created by the Security Documents and the Liens permitted under Section 6.02) on or in respect of, or sell any of its rights, franchises or other assets; (v) engage in any business other than holding Broadcast Licenses, such agreements with Operating Subsidiaries and incidental activities thereto (including, for clarity, channel sharing, hosting and other spectrum usage agreements); or (vi) make or hold any Investment; provided that nothing in this Section 6.11 shall prohibit a License Subsidiary from entering into a channel sharing, hosting or spectrum usage agreement or otherwise entering into agreements to lease, use, share or combine its spectrum for data distribution or other ancillary or supplementary services (including arrangements to provide Next Gen 3.0 technology) of the Borrower and its Restricted Subsidiaries (including, for the avoidance of doubt, the Borrower and/or the Subsidiary Loan Parties making available spectrum bandwidth, directly or indirectly in connection with the EdgeBeam Wireless, LLC venture described in Schedule 6.04(f).
146
(c) Notwithstanding anything in this Section to the contrary, the Borrower and the Subsidiary Loan Parties shall not be obligated to effect any transaction contrary to law or the rules, regulations or policies of the FCC, and shall be permitted to unwind the transactions contemplated by this Section to the extent necessary to comply with a ruling of the FCC; provided that the Borrower shall and shall cause each of the Subsidiary Loan Parties to use its best efforts to carry out the provisions of this Section consistent with all laws and all rules, regulations and policies of the FCC, including pursuing any necessary approval or consents of the FCC.
(d) The Borrower will cause all Broadcast Licenses for Owned Stations at all times to be held in the name of the respective License Subsidiary for the Owned Station being operated under authority of such Broadcast Licenses.
SECTION 6.12 Covenant Suspension. Notwithstanding anything in this Agreement to the contrary, during any period of time when (x) the Borrower (or its successor) satisfies the Ratings Condition and is rated by two Rating Agencies, or from any two or three Rating Agencies in the event the Borrower is rated by three Rating Agencies and (y) no Default has occurred and is continuing (such event, a “Covenant Suspension Event”), Parent (solely in the case of Section 6.07), the Borrower and its Restricted Subsidiaries will not be required to comply with the terms of Section 6.01, the Permitted Receivables Financing Cap, Section 6.04, Section 6.06, Section 6.07, Section 6.08, Section 6.09 and Section 6.11 (the covenants in such Sections, the “Suspension Covenants”); provided that (x) for purposes of compliance with Section 6.02, if Section 6.02 references any portion of Section 6.01, such limitation or restriction included in Section 6.01 will continue to apply under Section 6.02 as if Section 6.01 was in effect and any failure to comply with such limitations or restrictions shall be a default under Section 7.01(d) and (y) the 75% cash consideration requirement set forth in Section 6.05(k) shall be calculated on an aggregate basis with respect to all Dispositions made under such covenant from and after the Effective Date and until the Reversion Date. In the event that Parent, the Borrower and its Restricted Subsidiaries are not required to comply with the Suspension Covenants for any period of time as a result of the foregoing, and on any subsequent date (the “Reversion Date”) the Ratings Condition is not satisfied, then Parent (solely with respect to Section 6.07), the Borrower and its Restricted Subsidiaries will thereafter again be required to comply with the Suspension Covenants with respect to any future events or transactions. Notwithstanding that the Suspension Covenants may be reinstated, no Default, Event of Default or breach of any kind shall be deemed to exist under any Loan Document with respect to the Suspension Covenants and none of Parent (solely with respect to Section 6.07), the Borrower and its Restricted Subsidiaries shall bear any liability for any actions taken or events occurring during the Suspension Period, or any actions taken at any time pursuant to any contractual obligation arising prior to the Reversion Date, as a result of a failure to comply with the Suspension Covenants during the Suspension Period (or upon termination of the Suspension Period or after that time based solely on events that occurred during the Suspension Period).
It is understood and agreed that (a) with respect to Restricted Payments or payments of Junior Financing made on or after the Reversion Date, the amount of Restricted Payments and Junior Financing made will be calculated as though the covenant in Section 6.08(a) or Section 6.08(b) had been in effect prior to, but not during the Suspension Period, (b) all Indebtedness incurred or issued during the Suspension Period will be classified to have been incurred or issued pursuant to Section 6.01(a)(ii), (c) all Investments completed during the Suspension Period will be classified to have been incurred or issued pursuant to Section 6.04(f), (d) any transaction prohibited pursuant to Section 6.07 entered into after the Reversion Date pursuant to an agreement entered into during any Suspension Period shall be deemed to be permitted pursuant to clause (a)(i) of Section 6.07 and (e) any transaction with an Affiliate entered into after the Reversion Date pursuant to an agreement entered into during any Suspension Period shall be deemed to be permitted pursuant to clause (viii) of Section 6.09. No subsidiary may be designated as an Unrestricted Subsidiary during the continuance of a Covenant Suspension Event, unless such designation would have complied with Section 6.04 of this Agreement as if such Section 6.04 would have been in effect for the purposes of designating Unrestricted Subsidiaries from the Effective Date to the date of such designation.
Priming Financing/Liability Management Transactions. The Borrower shall not, and shall not permit any of its Subsidiaries to, enter into any Priming Financing/Liability Management Transaction or make any Investment, sale, transfer or disposition of assets or Restricted Payment in connection with or in furtherance of a Priming Financing/Liability Management Transaction. Notwithstanding anything to the contrary herein, the foregoing limitation shall not apply to: (i) Indebtedness incurred pursuant to Sections 6.01(a)(ii) (with respect to the consummation of the Exchange Transactions, the Existing Secured Notes Exchange, the Private Exchange and the transactions described in the proviso to subclause (C)(3) thereof and the proviso to subclause (C)(5) thereof), and
147
pursuant to clause (a) of the definition of “Incremental Cap”, (ii) payments in respect of Junior Financing permitted under Sections 6.08(b)(vi), (vii), (viii), (ix) and (x) (the foregoing transactions referred to in the foregoing clauses (i) and (ii), collectively, “Permitted LM Transactions”) and (iii) the financings and refinancings described in clauses (2) and (3) of the definition of “Priming Financing/Liability Management Transaction”.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01 Events of Default. If any of the following events (any such event, an “Event of Default”) shall occur:
(a) any Loan Party shall fail to pay any principal of any Loan when and as the same shall become due and payable and in the currency required hereunder, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any Loan Party shall fail to pay any interest on any Loan, or any reimbursement obligation in respect of any LC Disbursement or any fee or any other amount (other than an amount referred to in paragraph (a) of this Section) payable under any Loan Document, when and as the same shall become due and payable and in the currency required hereunder, and such failure shall continue unremedied for a period of five Business Days;
(c) any representation or warranty made or deemed made by or on behalf of Parent, the Borrower or any of its Restricted Subsidiaries in or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect when made or deemed made, and such incorrect representation or warranty (if curable, including by a restatement of any relevant financial statements) shall remain incorrect for a period of 30 days after notice thereof from the Administrative Agent to the Borrower;
(d) Parent, the Borrower or any of its Restricted Subsidiaries shall fail to observe or perform any covenant, condition or agreement applicable to such Person contained in Sections 5.02(a), 5.04 (with respect to the existence of the Borrower) or in Article VI (other than Section 6.12); provided that (i) any Event of Default under Section 6.10 is subject to cure as provided in Section 7.02 and an Event of Default with respect to such Section shall not occur until the expiration of the 10th Business Day subsequent to the date on which the financial statements with respect to the applicable fiscal quarter (or the fiscal year ended on the last day of such fiscal quarter) are required to be delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable; provided, further, that in the event the Borrower and its Restricted Subsidiaries fail to comply with Section 6.10, the Lenders shall not be required to make any credit extension in respect of a Borrowing or issue, amend to increase the face amount of or extend any Letter of Credit unless and until the Borrower has received the Cure Amount required to cause the Borrower to be in compliance with Section 6.10 and (ii) a default under Section 6.10 shall not constitute an Event of Default with respect to the Term Loans unless and until the Required Revolving Lenders shall have terminated their Revolving Commitments and declared all amounts under the Revolving Loans to be due and payable, respectively (such period commencing with a default under Section 6.10 and ending on the date on which the Required Lenders with respect to the Revolving Credit Facility terminate and accelerate the Revolving Loans, the “Standstill Period”);
(e) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in any Loan Document (other than those specified in paragraph (a), (b) or (d) of this Section), and such failure shall continue unremedied for a period of 30 consecutive days (or, in the case of a default under Sections 5.01, 5.02, or 5.03, 90 consecutive days) after notice thereof from the Administrative Agent to the Borrower;
148
(f) the Borrower or any of its Restricted Subsidiaries shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable (after giving effect to any applicable grace period);
(g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with all applicable grace periods having expired) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity, provided that this paragraph (g) shall not apply to (i) secured Indebtedness that becomes due as a result of the sale, transfer or other disposition (including as a result of a casualty or condemnation event) of the property or assets securing such Indebtedness, (ii) termination events or similar events occurring under any Swap Agreement that constitutes Material Indebtedness (it being understood that paragraph (f) of this Section will apply to any failure to make any payment required as a result of any such termination or similar event) or (iii) any breach or default that is (I) remedied by the Borrower or the applicable Restricted Subsidiary or (II) waived (including in the form of amendment) by the required holders of the applicable item of Indebtedness, in either case, prior to the acceleration of Loans and Commitments pursuant to this Article VII;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, court protection, reorganization or other relief in respect of Parent, the Borrower or any Significant Subsidiary or its debts, or of a material part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, examiner, sequestrator, conservator or similar official for Parent, the Borrower or any Significant Subsidiary or for a material part of its assets, and, in any such case, such proceeding or petition shall continue undismissed or unstayed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) Parent, the Borrower, or any Significant Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, court protection, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in paragraph (h) of this Section, (iii) apply for or consent to the appointment of a receiver, trustee, examiner, custodian, sequestrator, conservator or similar official for Parent, the Borrower or any Significant Subsidiary or for a material part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding or (v) make a general assignment for the benefit of creditors;
(j) one or more enforceable judgments for the payment of money in an aggregate amount in excess of $150,000,000 (net of (x) amounts covered by insurance policies issued by reputable insurance companies as determined by the Borrower and (y) amounts covered by valid third party indemnification obligations from a third party that is solvent and has been notified of the claim under such indemnification obligation and has not disputed that it is liable for such claim) shall be rendered against Parent, the Borrower, any of the Restricted Subsidiaries or any combination thereof and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed, or any judgment creditor shall legally attach or levy upon assets of such Loan Party that are material to the businesses and operations of Parent, the Borrower and its Restricted Subsidiaries, taken as a whole, to enforce any such judgment;
(k) (i) an ERISA Event occurs that has resulted or could reasonably be expected to result in liability of any Loan Party under Title IV of ERISA in an aggregate amount that could reasonably be expected to result in a Material Adverse Effect, or (ii) any Loan Party or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its Withdrawal Liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount that could reasonably be expected to result in a Material Adverse Effect;
149
(l) to the extent unremedied for a period of 10 Business Days (in respect of a default under clause (x) only), any Lien purported to be created under any Security Document (x) shall cease to be, or (y) shall be asserted by any Loan Party not to be, a valid and perfected Lien on any material portion of the Collateral, except (i) as a result of the sale or other disposition of the applicable Collateral to a Person that is not a Loan Party in a transaction permitted or not prohibited under the Loan Documents, (ii) as a result of the Collateral Trustee’s failure to (A) maintain possession of any stock certificates, promissory notes or other instruments delivered to it under the Security Documents or (B) file Uniform Commercial Code continuation statements or (iii) as a result of acts or omissions of the Collateral Trustee;
(m) any material provision of any Loan Document or any Guarantee of the Loan Document Obligations shall for any reason be asserted by any Loan Party not to be a legal, valid and binding obligation of any Loan Party thereto other than as expressly permitted hereunder or thereunder;
(n) any Guarantees of the Loan Document Obligations by Parent, the Borrower or Subsidiary Loan Party pursuant to the Guarantee Agreement shall cease to be in full force and effect (in each case, other than in accordance with the terms of the Loan Documents); or
(o) a Change in Control shall occur;
then, and in every such event (other than an event with respect to Parent or the Borrower described in paragraph (h) or (i) of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders (or, (x) if an Event of Default resulting from a breach of the Financial Performance Covenant occurs and is continuing and prior to the expiration of the Standstill Period, (A) at the request of the Required Revolving Lenders (in such case only with respect to the Revolving Commitments, Revolving Loans, Swingline Commitments, and any Letters of Credit) only (a “Revolving Acceleration”) and (B) after a Revolving Acceleration, at the request of the Required Term Loan Lenders and (y) to consent to or approve any priming or pari passu “debtor-in-possession” financing that is not offered to all Lenders of First Out Debt on equal and ratable terms (including fees and rights to roll-up), with the consent of the Required Revolving Lenders), shall, by notice to the Borrower, any of the following actions, at the same or different times: (i) terminate the applicable Commitments, and thereupon the Commitments shall terminate immediately, (ii) declare the applicable Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, (iii) require the deposit of cash collateral in respect of LC Exposure as provided in Section 2.05(j), in each case, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; and in case of any event with respect to Parent or the Borrower described in paragraph (h) or (i) of this Article, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower and (iv) exercise (or, with respect to the Security Documents, direct the Collateral Trustee to exercise) on behalf of itself and the Lenders all rights and remedies available to it under the Loan Documents.
SECTION 7.02 Right to Cure. Notwithstanding anything to the contrary contained in Section 7.01, in the event that the Borrower and its Restricted Subsidiaries fail to comply with the requirements of the Financial Performance Covenant as of the last day of any fiscal quarter of the Borrower, at any time after the beginning of such fiscal quarter until the expiration of the 10^th^ Business Day following the date on which the financial statements with respect to such fiscal quarter (or the fiscal year ended on the last day of such fiscal quarter) are required to be delivered pursuant to Section 5.01(a) or Section 5.01(b), the Borrower or any Parent Entity thereof shall have the right to issue common Equity Interests or other Equity Interests (provided such other Equity Interests are reasonably satisfactory to the Administrative Agent) for cash or otherwise receive cash contributions to the capital of the Borrower as cash common Equity Interests or other Equity Interests (provided such other Equity Interests are reasonably satisfactory to the Administrative Agent) (collectively, the “Cure Right”), and upon the receipt by the Borrower of the Net Proceeds of such issuance that are not otherwise applied (the “Cure Amount”) pursuant to the exercise by the Borrower of such Cure Right such Financial Performance Covenant shall be recalculated giving effect to the following pro forma adjustment:
150
(a) Consolidated EBITDA shall be increased with respect to such applicable fiscal quarter and any four fiscal quarter period that contains such fiscal quarter, solely for the purpose of measuring the Financial Performance Covenant and not for any other purpose under this Agreement, by an amount equal to the Cure Amount;
(b) if, after giving effect to the foregoing pro forma adjustment (without giving effect to any portion of the Cure Amount on the balance sheet of the Borrower and its Restricted Subsidiaries with respect to such fiscal quarter only but with giving pro forma effect to any portion of the Cure Amount applied to any repayment of any Indebtedness), the Borrower and its Restricted Subsidiaries shall then be in compliance with the requirements of the Financial Performance Covenants, the Borrower and its Restricted Subsidiaries shall be deemed to have satisfied the requirements of the Financial Performance Covenant as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of the Financial Performance Covenant that had occurred shall be deemed cured for the purposes of this Agreement; and
notwithstanding anything herein to the contrary, (i) in each four consecutive fiscal quarter period of the Borrower there shall be at least two fiscal quarters in which the Cure Right is not exercised, (ii) during the term of this Agreement, the Cure Right shall not be exercised more than five times and (iii) the Cure Amount shall be no greater than the amount required for purposes of complying with the Financial Performance Covenant and any amounts in excess thereof shall not be deemed to be a Cure Amount. Notwithstanding any other provision in this Agreement to the contrary, the Cure Amount received pursuant to any exercise of the Cure Right shall be disregarded for purposes of determining the Available Amount, the Available Equity Amount, any financial ratio-based conditions or tests, pricing or any available basket under Article VI of this Agreement.
SECTION 7.03 Application of Proceeds. Notwithstanding anything herein to the contrary, after the exercise of remedies provided for in Section 7.01 (or after the Loans have automatically become immediately due and payable as set forth in Section 7.01), any amounts received on account of the Secured Obligations shall be applied as set forth in the Collateral Trust Agreement. Subject to the Collateral Trust Agreement and the First/Second/Third Lien Intercreditor Agreement, after the exercise of remedies provided for in Section 7.01, any amounts received on account of the Secured Obligations shall be applied by the Collateral Trustee in accordance with the Collateral Trust Agreement and/or the similar provisions in the other Security Documents. Notwithstanding the foregoing, Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received from such Guarantor or its assets, but appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the allocation to Secured Obligations otherwise set forth in the Collateral Trust Agreement and/or the similar provisions in the other Security Documents.
ARTICLE VIII
THE ADMINISTRATIVE AGENT AND COLLATERAL TRUSTEE
SECTION 8.01 Authorization and Action. Each Lender and each Issuing Bank hereby irrevocably appoints JPMorgan Chase Bank, N.A. and its successors and assigns to serve as the administrative agent under the Loan Documents and U.S. Bank Trust Company, National Association and its successors and assigns to serve as its Collateral Trustee under the Loan Documents and each Lender and each Issuing Bank authorizes each such Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to such Agent under such agreements and to exercise such powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than within the United States, each Lender and each Issuing Bank hereby grants to such Agent any required powers of attorney to execute and enforce any Security Document governed by the laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. Without limiting the foregoing, each Lender and each Issuing Bank hereby authorizes such Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which such Agent is a party, and to exercise all rights, powers and remedies that such Agent may have under such Loan Documents.
151
(a) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), neither the Administrative Agent nor the Collateral Trustee, as applicable, shall be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender and each Issuing Bank; provided, however, that neither the Administrative Agent nor the Collateral Trustee, as applicable, shall be required to take any action that (i) such Agent in good faith believes exposes it to liability unless such Agent receives an indemnification and is exculpated in a manner satisfactory to it from the Lenders and the Issuing Banks with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that such Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the Loan Documents, such Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require such Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(b) In performing its functions and duties hereunder and under the other Loan Documents, each of the Administrative Agent and Collateral Trustee 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 mechanical and administrative in nature. Without limiting the generality of the foregoing:
(i) such 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 or the Collateral Trustee 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 such Agent based on an alleged breach of fiduciary duty by such Agent in connection with this Agreement and/or the transactions contemplated hereby;
(ii) where the Collateral Trustee 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 the United States, or is required or deemed to hold any Collateral “on trust” pursuant to the foregoing, the obligations and liabilities of the Collateral Trustee 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;
(c) The Administrative Agent and Collateral Trustee may perform any of their respective duties and exercise their respective rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent or the Collateral Trustee, as applicable. Such Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of such Agent and any such sub-agent, and shall apply to their respective activities pursuant to this Agreement. Such Agent shall not be responsible for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Agent acted with gross negligence or willful misconduct in the selection of such sub-agent.
152
(d) No Lead Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder.
(e) In case of the pendency of any proceeding with respect to any Loan Party under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or any reimbursement obligation 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) 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, LC Disbursements and all other Loan Document 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 and the Administrative Agent (including any claim under Sections 2.12, 2.13, 2.15, 2.17 and 9.03) 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 any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender, each Issuing Bank and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, the Issuing Banks or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.03). 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 or Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Loan Document Obligations or the rights of any Lender or Issuing Bank or to authorize the Administrative Agent to vote in respect of the claim of any Lender or Issuing Bank in any such proceeding.
(f) The provisions of this Article are solely for the benefit of the Administrative Agent, the Collateral Trustee, the Lenders and the Issuing Banks, and, except solely to the extent of the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Article, none of the Borrower or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Loan Document Obligations provided under the Loan Documents, to have agreed to the provisions of this Article.
SECTION 8.02 Administrative Agent’s Reliance, Indemnification, Etc. Neither the Administrative Agent nor any of its Related Parties shall be (i) liable for any action taken or omitted to be taken by such party, the Administrative Agent or any of its Related Parties under or in connection with this Agreement or the other Loan Documents (x) with the consent of 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 to be necessary, under the circumstances as provided in the Loan Documents) or (y) in the absence of its own gross negligence or willful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and non-appealable judgment) or (ii) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any Loan Party or any officer thereof contained in this Agreement or any other Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of any Loan Party to perform its obligations hereunder or thereunder.
153
(a) The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by the Borrower, a Lender or an Issuing Bank, and 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 any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items (which on their face purport to be such items) expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent, (vi) the creation, perfection or priority of Liens on the Collateral or (vii) compliance by Affiliated Lenders with the terms hereof relating to Affiliated Lenders. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any claim, liability, loss, cost or expense suffered by the Borrower, any Subsidiary, any Lender or any Issuing Bank as a result of, any determination of the Revolving Exposure, any of the component amounts thereof or any portion thereof attributable to each Lender or Issuing Bank.
(b) Without limiting the foregoing, the Administrative Agent (i) may treat the payee of any promissory note as its holder until such promissory note has been assigned in accordance with Section 9.04, (ii) may rely on the Register to the extent set forth in Section 9.04(b), (iii) may consult with legal counsel (including counsel to the Borrower), independent public accountants and other experts selected by it, and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts, (iv) makes no warranty or representation to any Lender or Issuing Bank and shall not be responsible to any Lender or Issuing Bank for any statements, warranties or representations made by or on behalf of any Loan Party in connection with this Agreement or any other Loan Document, (v) in determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, may presume that such condition is satisfactory to such Lender or Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or Issuing Bank sufficiently in advance of the making of such Loan or the issuance of such Letter of Credit and (vi) shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement or any other Loan Document by acting upon, any notice, consent, certificate or other instrument or writing (which writing may be a fax, any electronic message, Internet or intranet website posting or other distribution) or any statement made to it orally or by telephone and believed by it to be genuine and signed or sent or otherwise authenticated by the proper party or parties (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the maker thereof).
SECTION 8.03 Posting of Communications. The Borrower agrees that the Administrative Agent may, but shall not be obligated to, make any Communications available to the Lenders and the Issuing Banks by posting the Communications on IntraLinks^™^, DebtDomain, SyndTrak, ClearPar or any other electronic platform chosen by the Administrative Agent to be its electronic transmission system (the “Approved Electronic Platform”).
(a) Although the Approved Electronic Platform 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 Effective Date, a user ID/password authorization system) and the Approved Electronic Platform is secured through a per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, 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 any Lender that are added to the Approved Electronic Platform, 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 the Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution.
154
(b) THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE APPLICABLE PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE APPROVED ELECTRONIC PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED ELECTRONIC PLATFORM AND THE 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 APPLICABLE PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, ANY LEAD 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 ANY LOAN PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR THE APPROVED ELECTRONIC PLATFORM.
“Communications” means, collectively, any 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 Administrative Agent, any Lender or any Issuing Bank by means of electronic communications pursuant to this Section, including through an Approved Electronic Platform.
(c) Each Lender and each Issuing Bank agrees that notice to it (as provided in the next sentence) specifying that Communications have been posted to the Approved Electronic Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender and Issuing Bank agrees (i) to notify the Administrative Agent in writing (which could be in the form of electronic communication) from time to time of such Lender’s or Issuing Bank’s (as applicable) email address to which the foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such email address.
(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 Communications on the Approved Electronic Platform in accordance with the Administrative Agent’s generally applicable document retention procedures and policies.
(e) Nothing herein shall prejudice the right of the Administrative Agent, any Lender or any Issuing Bank to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.
SECTION 8.04 The Administrative Agent Individually. With respect to its Commitment, Loans (including Swingline Loans), Letter of Credit Commitments and Letters of Credit, the Person serving as the Administrative Agent shall have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein for any other Lender or Issuing Bank, as the case may be. The terms “Issuing Banks”, “Lenders”, “Required Lenders” and any similar terms shall, unless the context clearly otherwise indicates, include the Administrative Agent in its individual capacity as a Lender, Issuing Bank or as one of the Required Lenders, as applicable. The Person serving as the Administrative Agent 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 banking, trust or other business with, the Borrower, any Subsidiary or any Affiliate of any of the foregoing as if such Person was not acting as the Administrative Agent and without any duty to account therefor to the Lenders or the Issuing Banks.
SECTION 8.05 Successor Administrative Agent. The Administrative Agent may resign at any time by giving 30 days’ prior written notice thereof to the Lenders, the Issuing Banks and the Borrower, whether or not a successor Administrative Agent has been appointed. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent’s giving of notice of resignation, then the retiring Administrative Agent may, on behalf of the
155
Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in New York, New York or an Affiliate of any such bank. In either case, such appointment shall be subject to the prior written approval of the Borrower and the Required Lenders (which approval shall, in each case, not be unreasonably withheld, conditioned or delayed, and the approval of the Borrower shall not be required while an Event of Default has occurred and is continuing). Upon the acceptance of any appointment as Administrative Agent by a successor Administrative Agent, such successor Administrative Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the retiring Administrative Agent. Upon the acceptance of appointment as Administrative Agent by a successor Administrative Agent, the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement and the other Loan Documents. Prior to any Administrative Agent’s resignation hereunder as Administrative Agent, such Administrative Agent shall take such action as may be reasonably necessary to assign to the successor Administrative Agent its rights as Administrative Agent under the Loan Documents.
(a) Notwithstanding paragraph (a) of this Section 8.05, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (i) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents; provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Security Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties, and continue to be entitled to the rights set forth in such Security Document and Loan Document, and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this Section (it being understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action under any Security Document, including any action required to maintain the perfection of any such security interest), and (ii) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent; provided that (A) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article and Section 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring 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 Administrative Agent was acting as Administrative Agent and in respect of the matters referred to in the proviso under clause (i) above.
(b) With respect to the Term B-6 Facility and Term B-7 Facility, upon the request of the Administrative Agent, the Administrative Agent and the Borrower will mutually coordinate to appoint a mutually agreeable separate representative or administrative agent for the Term B-6 Facility and Term B-7 Facility (such separate representative or administrative agent, the “TLB Agent”). If no such TLB Agent shall have been so appointed, and shall have accepted such appointment, within 30 days after the Administrative Agent’s giving of written notice of such request, then the Administrative Agent may, with the consent of the Borrower, appoint a TLB Agent, which shall be a bank with an office in New York, New York or an Affiliate of any such bank. Upon the acceptance of any appointment as TLB Agent, such TLB Agent shall succeed to, and become vested with, all the transferred rights, powers, privileges and duties of the Administrative Agent with respect to the Term B-6 Facility and Term B-7 Facility, and the Administrative Agent shall be discharged from such duties and obligations under this Agreement and the other Loan Documents. The Administrative Agent and the TLB Agent shall take such action as may be reasonably necessary to assign to the TLB Agent its applicable rights as Administrative Agent under the Loan Documents. In the event no TLB Agent shall have been so appointed and shall have accepted such appointment within 30 days after the Administrative Agent’s giving of written notice of such request, the Administrative Agent may give notice of the effectiveness of its resignation as TLB Agent to the Lenders and the Borrower, whereupon, on the date of effectiveness of such resignation as TLB Agent stated in such notice, (i) the Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan
156
Documents with respect to the Term B-6 Facility and Term B-7 Facility; provided that (A) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent with respect to the Term B-6 Facility and Term B-7 Facility shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or made to the Administrative Agent with respect to the Term B-6 Facility and Term B-7 Facility shall directly be given or made to each Term B-6 Lender or Term B-7 Lender, as applicable. Following the effectiveness of the Administrative Agent’s resignation as TLB Agent, the provisions of this Article and Section 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such 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 Administrative Agent was acting as TLB Agent in respect of the matters referred to in the proviso under clause (i) above. Without the consent of any other Lenders, the Administrative Agent and the Borrower may effect such amendments to this Agreement and the other Loan Documents as may be necessary, appropriate or advisable, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 8.05(c). Notwithstanding anything to the contrary, this Section 8.05(c) shall supersede any provision in Section 9.02 to the contrary.
SECTION 8.06 Acknowledgments of Lenders and Issuing Banks.
(a) Each Lender represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and that it has, independently and without reliance upon the Administrative Agent, any Lead Arranger or any other Lender, 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, and to make, acquire or hold Loans hereunder. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, any Lead Arranger or any other Lender, 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, by delivering its signature page to this Agreement on the Effective Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender 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 or the Lenders on the Effective Date.
(c) On and after the Effective Date:
(i) Each Lender hereby agrees that (x) if the Administrative Agent notifies such Lender that the Administrative Agent has determined in its sole discretion that any funds received by such Lender from the Administrative Agent or any of its Affiliates were erroneously transmitted (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) to such Lender (whether or not known to such Lender), and demands the return of such Payment (or a portion thereof), such Lender shall promptly, but in any event no later than one Business Day thereafter, 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 in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender 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 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 under this Section 8.06(c) shall be conclusive, absent manifest error.
157
(ii) Each Lender 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 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 shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in any event no later than one Business Day thereafter, 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 in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender 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 that has received such Payment (or portion thereof), the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Loan Document Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Payment is, and solely with respect to the amount of such Payment that is, comprised of funds of the Borrower, any other Loan Party or their respective Subsidiaries (including, for the avoidance of doubt, the proceeds of any financing or contribution incurred or obtained by the Borrower, any Loan Party or their respective Subsidiaries).
(iv) Each applicable party’s obligations under this Section 8.06(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, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations.
The Lenders 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 Loan Parties or their Affiliates may provide information, including updates to previously provided information to JPMorgan Chase Bank, N.A. and its Affiliates acting in different capacities, including as Lender, lead bank, arranger or potential securities investor, independent of any such entities’ role as administrative agent hereunder. The Lenders acknowledge that neither JPMorgan Chase Bank, N.A. nor any of 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 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 with any credit or other information concerning the Loans, the Lenders, 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, any such information may (but shall not be required to) be shared by the Administrative Agent with one or more Lenders, or any formal or informal committee or ad hoc group of such Lenders, including at the direction of a Loan Party.
For purposes of this Section 8.06, the term “Lender” shall include any Issuing Bank and the Swingline Lenders.
158
SECTION 8.07 Collateral Matters.
Except with respect to the exercise of setoff rights in accordance with Section 9.08 or with respect to a Secured Party’s right to file a proof of claim in an insolvency proceeding in each case in accordance with the Collateral Trust Agreement, no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Secured Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent or the Collateral Trustee on behalf of the Secured Parties in accordance with the terms thereof.
(a) In furtherance of the foregoing and not in limitation thereof, no arrangements in respect of Cash Management Services the obligations under which constitute Secured Cash Management Obligations and no Swap Agreement the obligations under which constitute Secured Swap Obligations, will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or release of or voting with respect to any Collateral or of the obligations of any Loan Party under any Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such arrangement in respect of Cash Management Services or Swap Agreement, as applicable, shall be deemed to have appointed the Administrative Agent to serve as administrative agent under the Loan Documents, appointed the Collateral Trustee to serve as collateral trustee under the Loan Documents and agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph.
(b) The Secured Parties irrevocably authorize the Collateral Trustee, at its option and in its discretion, to subordinate any Lien on any property granted to or held by the Collateral Trustee under any Loan Document to the holder of any Lien on such property, to the extent such subordination is explicitly permitted by Section 6.02(a), and the Administrative Agent shall be permitted and authorized to give instruction to the Collateral Trustee with respect to the foregoing. Neither the Administrative Agent nor the Collateral Trustee shall 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 Collateral Trustee’s Lien thereon or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent or Collateral Trustee, as applicable, be responsible or liable to the Lenders or any other Secured Party for any failure to monitor or maintain any portion of the Collateral.
(c) Notwithstanding anything to the contrary in this Agreement, the exercise of rights and remedies with respect to the Collateral is subject to the terms of the Collateral Trust Agreement and to the extent of any express conflict between the terms of the Collateral Trust Agreement and any other Loan Document, the terms of the Collateral Trust Agreement shall govern. For purposes of the Collateral Trust Agreement and the Collateral Agreement, so long as any First Out Facility remains outstanding, the “Controlling Secured Parties” shall mean the Required First Out Lenders.
SECTION 8.08 Credit Bidding.
(a) Subject to the terms of the Intercreditor Agreements, the Secured Parties hereby irrevocably authorize the Collateral Trustee to credit bid in accordance with the terms of the Collateral Trust Agreement (including by accepting some or all of the Collateral in satisfaction of some or all of the Secured Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Loan Party is subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Collateral Trustee (whether by judicial action or otherwise) in accordance with any applicable law and the Loan Documents. In connection with any such credit bid and purchase, the applicable Secured Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid by the Collateral Trustee pursuant to the Collateral Trust Agreement and among the applicable Secured Obligations on a ratable basis (with Secured Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase). In connection with any such bid, (i) the Administrative Agent and the Collateral Trustee shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles, (ii) each of the Secured Parties’ ratable interests in the Secured Obligations which were credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (iii) the
159
Administrative Agent and the Collateral Trustee shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent or the Collateral Trustee with respect to such acquisition vehicle or vehicles, including any disposition of the assets or equity interests thereof, shall be governed, directly or indirectly, by, and the governing documents shall provide for, control by the vote of the Controlling Secured Parties or non-Controlling Secured Parties, as applicable under the Collateral Trust Agreement or their permitted assignees under the terms of this Agreement or the governing documents of the applicable acquisition vehicle or vehicles, as the case may be, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in Section 9.02 of this Agreement), (iv) the Administrative Agent and the Collateral Trustee on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably on account of the relevant Secured Obligations which were credit bid, interests, whether as equity, partnership interests, limited partnership interests or membership interests, in any such acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the need for any Secured Party or acquisition vehicle to take any further action, and (v) to the extent that Secured Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Secured Obligations assigned to the acquisition vehicle exceeds the amount of Secured Obligations credit bid by the acquisition vehicle or otherwise), such Secured Obligations shall automatically be reassigned to the applicable Secured Parties pro rata with their original interest in such Secured Obligations and the equity interests and/or debt instruments issued by any acquisition vehicle on account of such Secured Obligations shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the applicable Secured Obligations of each Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall execute such documents and provide such information regarding the Secured Party (and/or any designee of the Secured Party which will receive interests in or debt instruments issued by such acquisition vehicle) as the Administrative Agent or the Collateral Trustee may reasonably request in connection with the formation of any acquisition vehicle, the formulation or submission of any credit bid or the consummation of the transactions contemplated by such credit bid.
SECTION 8.09 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 the Plan Asset Regulations 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, and all conditions for exemptive relief thereunder 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,
(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
160
(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 sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), 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).
(c) The Administrative Agent and each Lead Arranger hereby informs the Lenders that each such Person is not undertaking to provide investment advice or to give advice in a fiduciary capacity in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments, this Agreement and any other Loan Documents, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral trustee fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Notices. Except in the case of notices and other communications expressly permitted to be given by telephone, all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by fax, e-mail or other electronic transmission, as follows:
(a) If to Parent, to Sinclair Broadcast Group, LLC, 10706 Beaver Dam Road, Hunt Valley, Maryland 21030, Attention: Lucy Rutishauser, Email: [*****], Justin Bray, Email: [*****], and David Gibber, [*****];
(b) If to the Borrower, to Sinclair Television Group, Inc., 10706 Beaver Dam Road, Hunt Valley, Maryland 21030, Attention: Lucy Rutishauser, Email: [*****], Justin Bray, Email: [*****], and David Gibber, [*****];
(c) If to the Administrative Agent, to JPMorgan Chase Bank, N.A., at the address or addresses separately provided;
161
(d) If to the Collateral Trustee, to:
U.S. Bank Trust Company, National Association
Corporate Trust Services, 18th Floor
1021 East Cary Street, Suite 1850
Richmond, Virginia 23219
Attention: Melody Scott
Email: [*****]
(e) If to any Issuing Bank, to it at its address (or fax number or email address) most recently specified by it in a notice delivered to the Administrative Agent, Parent and the Borrower (or, in the absence of any such notice, to the address (or fax number or email address) set forth in the Administrative Questionnaire of the Lender that is serving as such Issuing Bank or is an Affiliate thereof);
(f) If to any Swingline Lenders, to it at its address (or fax number or email address) most recently specified by it in a notice delivered to the Administrative Agent, Parent and the Borrower (or, in the absence of any such notice, to the address (or fax number or email address) set forth in the Administrative Questionnaire of the Lender that is serving as such Swingline Lender or is an Affiliate thereof); and
(g) If to any other Lender, to it at its address (or fax number or email address) set forth in its Administrative Questionnaire.
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by fax or other electronic transmission shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient).
Parent and the Borrower may change their address, email or fax number for notices and other communications hereunder by notice to the Administrative Agent, the Administrative Agent may change its address, email or fax number for notices and other communications hereunder by notice to Parent and the Borrower and the Lenders may change their address, email or fax number for notices and other communications hereunder by notice to the Administrative Agent. Notices and other communications to the Lenders and the Issuing Banks hereunder may also be delivered or furnished by electronic transmission (including email and Internet or intranet websites) pursuant to procedures reasonably approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or Issuing Bank pursuant to Article II if such Lender or Issuing Bank, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic transmission.
SECTION 9.02 Waivers; Amendments.
(a) [Reserved].
(b) No failure or delay by the Administrative Agent, the Collateral Trustee, any Issuing Bank or any Lender in exercising any right or power under any Loan Document 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 a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Collateral Trustee, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (c) of this Section, 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, amendment, renewal or extension of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, the Collateral Trustee, or any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time. No notice or demand on the Borrower or Parent in any case shall entitle the Borrower or Parent to any other or further notice or demand in similar or other circumstances.
162
(c) Except as expressly provided herein, neither any Loan Document nor any provision thereof may be waived, amended or modified except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Parent, the Borrower, the Administrative Agent (to the extent that such waiver, amendment or modification does not affect the rights, duties, privileges or obligations of the Administrative Agent under this Agreement, the Administrative Agent shall execute such waiver, amendment or other modification to the extent approved by the Required Lenders) and the Required Lenders or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, in each case with the consent of the Required Lenders, provided that no such agreement shall
(i) increase the Commitment of any Lender without the written consent of such Lender (it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute an extension or increase of any Commitment of any Lender),
(ii) reduce the principal amount of any Loan or LC Disbursement (it being understood that a waiver of any Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute a reduction or forgiveness in principal) or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly and adversely affected thereby (it being understood that any change to the definition of “First Lien Leverage Ratio” or in the component definitions thereof shall not constitute a reduction of interest or fees); provided that only the consent of the Required Lenders shall be necessary to waive any obligation of the Borrower to pay default interest pursuant to Section 2.13(c),
(iii) postpone the maturity of any Loan or implement a grace period with respect to scheduled payments of principal and/or interest at maturity (it being understood that a waiver of any Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute an extension of any maturity date), or the date of any scheduled amortization payment of the principal amount of any Loan under Section 2.10 or the applicable Refinancing Amendment or Loan Modification Agreement, or the reimbursement date with respect to any LC Disbursement, or any date for the payment of any interest or fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly and adversely affected thereby,
(iv) change any of the provisions of this Section 9.02(c) without the written consent of each Lender directly and adversely affected thereby, provided that any such change which is in favor of a Class of Lenders holding Loans maturing after the maturity of other Classes of Lenders (and only takes effect after the maturity of such other Classes of Loans or Commitments) will require the written consent of the Required Lenders with respect to each Class directly and adversely affected thereby,
(v) lower the percentage set forth in the definition of “Required Lenders” or any other provision of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder, without the written consent of each Lender (or each Lender of such Class, as the case may be),
(vi) release all or substantially all the value of the Guarantees under the Guarantee Agreement (except as permitted or provided for in the Loan Documents) without the written consent of each Lender (other than a Defaulting Lender),
(vii) release all or substantially all the Collateral from the Liens of the Security Documents, without the written consent of each Lender (other than a Defaulting Lender) (except as permitted or provided for in the Loan Documents),
(viii) change any provision of Section 2.18(c) or Section 3.3 of the Collateral Trust Agreement, in each case in any manner that would alter the pro rata sharing of payments or other amounts required thereby, without the written consent of each Lender directly and adversely affected thereby,
163
(ix) (A) subordinate (or have the effect of subordinating) in right of payment any Loans or any Loan Document Obligations in respect thereof to any Indebtedness without the written consent of each Lender affected thereby, (B) except with respect to (x) any subordination of the Liens granted to secure the Loan Document Obligations by operation of law, or (y) subject to the terms of the Intercreditor Agreements, in accordance with a financing to one or more Loan Parties pursuant to Section 364 of the Bankruptcy Code or any similar bankruptcy or insolvency law, subordinate (or have the effect of subordinating) in lien priority any Loans or any Loan Document Obligations in respect thereof to any Indebtedness, without the consent of each Lender affected thereby, (C) amend Section 2.18(c) or Section 3.3 of the Collateral Trust Agreement in a manner that lowers the relative payment priority of the First Out Obligations and/or the Second Out Obligations, (D) amend Sections 5.15(a) or (c), (E) amend Section 6.13 or the definition of “Priming Financing/Liability Management Transaction” or (F) amend the last paragraph of Section 9.14, in each case of clauses (C), (D), (E) or (F), without the written consent of affected Lenders having Revolving Exposures, Term Loans and unused Commitments (exclusive of Swingline Commitments) representing more than 90.0% of the aggregate Revolving Exposures, outstanding Term Loans and unused Commitments (exclusive of Swingline Commitments) of all affected Lenders, taken as a whole, at such time (provided that (a) the Revolving Exposures, Term Loans and unused Commitments of the Borrower or any Affiliate thereof (other than an Affiliated Debt Fund) and (b) whenever there are one or more Defaulting Lenders, the total outstanding Term Loans and Revolving Exposures of, and the unused Revolving Commitments of, each Defaulting Lender, shall, in each case of clauses (a) and (b), be excluded for purposes of making such determination of Required Lenders), unless, for purposes of each of the foregoing clauses (A) through (F) of this subclause (ix), (x) all affected Lenders are provided an opportunity to participate pro rata in the relevant senior Indebtedness with the same treatment of their principal as the other lenders of such senior Indebtedness and (y) the Required Revolving Lenders shall have consented thereto,
(x) (A) amend Section 2.09 or Section 2.11 in a manner affecting any mandatory or required repayment of the Revolving Credit Facility, (B) permit the incurrence of any Other First Out First Lien Debt, other than Indebtedness constituting First Out Debt permitted under Section 6.01 as in effect on the Effective Date, (C) amend Section 2.18(c) or Section 3.3 of the Collateral Trust Agreement in a manner that lowers the relative payment priority of the First Out Obligations or the Second Out Obligations or otherwise adversely affects the rights of the Revolving Lenders in respect of the Second Out Obligations, (D) amend Section 5.15(a) or (c), (E) amend Section 2.02(d), Section 6.13 or the definition of “Priming Financing/Liability Management Transaction”, (F) amend the last paragraph of Section 9.14, (G) waive any Default or Event of Default or misrepresentation for the purpose of permitting a Borrowing of Revolving Loans or the issuance, amendment, renewal or extension of any Letter of Credit, (H) amend Section 6.01(a)(viii) or any other provision to permit receivables financing, (I) amend Section 6.04(cc) or any other provision with the effect of permitting additional Investments in Unrestricted Subsidiaries or (J) subject to the terms of the Intercreditor Agreements, amend any provision with respect to the exercise of rights and remedies, or otherwise consent to permit a priming or pari passu “DIP” that has not been offered to all Lenders holding First Out Debt on equal and ratable terms (including fees and rights to roll-up), in each case without the consent of Required Revolving Lenders (with respect to the foregoing clauses (x)(A) through (J)) and, with respect to the foregoing clauses (x)(B), (C), (D), (E) and (F), the Required Term Loan Lenders; or
(xi) change the currency in which any Loan or payment due with respect thereto is denominated or to make any such Loan or payment payable “in kind” or via an accrual without payment in cash, without the written consent of each Lender directly affected thereby;
provided, that for the purposes of this Section 9.02, any additional Indebtedness incurred under this Agreement in connection with or in furtherance of a Priming Financing/Liability Management Transaction or for the primary purpose of influencing the provision of, or in connection with, obtaining any modification, amendment, release or waiver under this Agreement, will not be included for purposes of determining whether the Required Lenders or any other required percentage of Lenders have given consent or approval under the Loan Documents; provided further that modifications to Section 2.18(c) in connection with (x) any buy back of Term Loans by any Purchasing Borrower Party (including the Borrower or any of its Restricted Subsidiaries) pursuant to Section 9.04, (y) any Incremental Facility
164
Amendment or (z) any Refinancing Amendment, in each case, shall only require approval (to the extent any such approval is otherwise required by such provisions) of the Required Lenders provided, further, that (A) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Collateral Trustee, any Issuing Bank or any Swingline Lender without the prior written consent of the Administrative Agent, Collateral Trustee, Issuing Bank or Swingline Lender, as the case may be, including, without limitation, any amendment of this Section, (B) any provision of this Agreement or any other Loan Document may be amended by an agreement in writing entered into by Parent, the Borrower and the Administrative Agent to cure any ambiguity, omission, mistake, error, defect or inconsistency and (C) any waiver, amendment 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 solely by Parent, the Borrower, the Administrative Agent and the requisite percentage in interest of the affected Class of Lenders stating that would be required to consent thereto under this Section if such Class of Lenders were the only Class of Lenders hereunder at the time. Notwithstanding the foregoing, (a) this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Parent and the Borrower (i) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders on substantially the same basis as the Lenders prior to such inclusion; (b) this Agreement and other Loan Documents may be amended or supplemented by an agreement or agreements in writing entered into by the Administrative Agent and Parent, the Borrower or any Loan Party as to which such agreement or agreements is to apply, without the need to obtain the consent of any Lender, to include “parallel debt” or similar provisions, and any authorizations or granting of powers by the Lenders and the other Secured Parties in favor of the Collateral Trustee, in each case required to create in favor of the Collateral Trustee any security interest contemplated to be created under this Agreement, or to perfect any such security interest, where the Administrative Agent shall have been advised by its counsel that such provisions are necessary or advisable under local law for such purpose (with Parent and the Borrower hereby agreeing to, and to cause their subsidiaries to, enter into any such agreement or agreements upon reasonable request of the Administrative Agent promptly upon such request); and (c) upon notice thereof by the Borrower to the Administrative Agent with respect to the inclusion of any previously absent financial maintenance covenant, this Agreement shall be amended by an agreement in writing entered into by the Borrower and the Administrative Agent without the need to obtain the consent of any Lender to include such covenant on the date of the incurrence of the applicable Indebtedness to the extent required by the terms of such definition or section.
(d) In connection with any proposed amendment, modification, waiver or termination (a “Proposed Change”) requiring the consent of all Lenders or all directly and adversely affected Lenders, if the consent of the Required Lenders to such Proposed Change is obtained, but the consent to such Proposed Change of other Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained as described in paragraph (c) of this Section being referred to as a “Non-Consenting Lender”), then, the Borrower may, at its sole expense and effort, upon notice to such Non-Consenting Lender and the Administrative Agent, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which Eligible Assignee may be another Lender, if a Lender accepts such assignment), provided that (a) such Non-Consenting Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other amounts (including any amounts under Section 2.11(a)(i)), payable to it hereunder from the Eligible Assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and (b) unless waived, such Eligible Assignee shall have paid to the Administrative Agent the processing and recordation fee specified in Section 9.04(b).
(e) Notwithstanding anything in this Agreement or the other Loan Documents to the contrary, Revolving Commitments, Revolving Exposure and Term Loans of any Lender that is at the time a Defaulting Lender shall not have any voting or approval rights under the Loan Documents and shall be excluded in determining whether all Lenders (or all Lenders of a Class), all affected Lenders (or all affected Lenders of a Class) or the
165
Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to this Section 9.02); provided that (i) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (ii) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender.^^
(f) Notwithstanding anything in this Agreement or the other Loan Documents to the contrary, each Affiliated Lender (other than an Affiliated Debt Fund) hereby agrees that, if a proceeding under the United States Bankruptcy Code or any other Federal, state or foreign bankruptcy, insolvency, receivership or similar law shall be commenced by or against the Borrower or any other Loan Party at a time when such Lender is an Affiliated Lender, such Affiliated Lender irrevocably authorizes and empowers the Administrative Agent to vote on behalf of such Affiliated Lender with respect to the Loans held by such Affiliated Lender in any manner in the Administrative Agent’s sole discretion, unless the Administrative Agent instructs such Affiliated Lender to vote, in which case such Affiliated Lender shall vote with respect to the Loans held by it as the Administrative Agent directs; provided that such Affiliated Lender shall be entitled to vote in accordance with its sole discretion (and not in accordance with the direction of the Administrative Agent) in connection with any plan of reorganization to the extent any such plan of reorganization proposes to treat any Secured Obligations held by such Affiliated Lender in a manner that is less favorable in any material respect to such Affiliated Lender than the proposed treatment of similar Secured Obligations held by Lenders that are not Affiliates of the Borrower.
(g) Without any further consent of the Lenders, the Administrative Agent and the Collateral Trustee shall be authorized to negotiate, execute and deliver on behalf of the Secured Parties any Intercreditor Agreement in a form substantially consistent with Exhibit E or Exhibit F hereto.
(h) Notwithstanding the foregoing, only the Required Revolving Lenders shall have the ability to waive, amend, supplement or modify Section 8.07(d) and the covenant set forth in (x) Section 6.10, Article VII (solely as it relates to Section 6.10) or any component definition of the covenant set forth in Section 6.10 (solely as it relates to Section 6.10), (y) Section 6.12 only to the extent such amendment, supplement or modification does not directly or indirectly affect Lenders (in their capacity as such) holding Loans other than Revolving Commitments and Revolving Loans or (z) Section 4.02 to the extent such amendment, supplement or modification relates to the borrowing of Revolving Loans, Swingline Loans or Letters of Credit.
Notwithstanding anything herein to the contrary, any waiver, amendment, or modification of any provision of the Collateral Trust Agreement or the other Intercreditor Agreement shall only require the consent of the Borrower, to the extent set forth in the Collateral Trust Agreement or any such Intercreditor Agreement.
SECTION 9.03 Expenses; Indemnity; Damage Waiver.
(a) The Borrower shall pay, if the Effective Date occurs, (i) all reasonable and documented or invoiced out of pocket expenses incurred by the Administrative Agent, the Collateral Trustee and their Affiliates (without duplication), including the reasonable fees, charges and disbursements of Simpson Thacher & Bartlett LLP, as primary counsel to the Administrative Agent, Milbank LLP, as primary counsel to certain of the Term Lenders, and Ballard Spahr LLP, as primary counsel to the Collateral Trustee and, to the extent reasonably determined by the Administrative Agent to be necessary, one regulatory counsel and such other counsel otherwise retained with the Borrower’s consent, in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Loan Documents or any amendments, modifications or waivers of the provisions thereof and (ii) all reasonable and documented or invoiced out-of-pocket expenses incurred by the Administrative Agent and the Collateral Trustee, each Issuing Bank or any Lender, including the fees, charges and disbursements of counsel for the Administrative Agent and the Collateral Trustee, the Issuing Banks and the Lenders, in connection with the enforcement or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made or 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; provided that such counsel shall be limited to one lead counsel for the Administrative Agent, one lead counsel for the Collateral Trustee, one lead counsel for the Term Lenders, one regulatory counsel and one local counsel in each applicable jurisdiction and, in the case of a conflict of interest, one additional counsel per affected party.
166
(b) The Borrower shall indemnify each Agent, each Issuing Bank, each Lender 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 and reasonable and documented or invoiced out-of-pocket fees and expenses of one counsel and one local counsel in each applicable jurisdiction (and, in the case of a conflict of interest, where the Indemnitee affected by such conflict notifies the Borrower of the existence of such conflict and thereafter retains its own counsel, one additional counsel) for all Indemnitees (which may include a single special counsel acting in multiple jurisdictions), incurred by or asserted against any Indemnitee by any third party or by Parent, the Borrower or any Subsidiary arising out of, in connection with, or as a result of (i) the execution or delivery of any Loan Document or any other agreement or instrument contemplated thereby, the performance by the parties to the Loan Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated thereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by the 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) to the extent in any way arising from or relating to any of the foregoing, any actual or alleged presence or Release of Hazardous Materials on, at or from any property currently or formerly owned or operated by Parent, the Borrower or any of its Restricted Subsidiaries, or any other Environmental Liability, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by Parent, the Borrower or any Subsidiary 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 (i) are determined by a court of competent jurisdiction by final, non-appealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of, or a material breach of the Loan Documents by, such Indemnitee or its Related Parties or (ii) any dispute between and among indemnified persons that does not involve an act or omission by Parent, the Borrower or any of its Restricted Subsidiaries except that each Agent, the Lead Arranger, the Bookrunner and the Issuing Banks shall be indemnified in their capacities as such to the extent that none of the exceptions set forth in clause (i) applies to such Person at such time.
(c) To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent, the Collateral Trustee, any Swingline Lender or any Issuing Bank under paragraph (a) or (b) of this Section, and without limiting the Borrower’s obligation to do so, each Lender severally agrees to pay to the Administrative Agent, Collateral Trustee, Swingline Lender or Issuing Bank, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent, Collateral Trustee, Swingline Lender or Issuing Bank, in its capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its share of the aggregate Revolving Exposure, outstanding Loans and unused Commitments at the time. The obligations of the Lenders under this paragraph (c) are subject to the last sentence of Section 2.02 (which shall apply mutatis mutandis to the Lenders’ obligations under this paragraph (c)).
(d) To the full extent permitted by applicable law, none of Parent or the Borrower shall assert, and each hereby waives, any claim against any Indemnitee (i) for any damages arising from the use by others of information or other materials obtained through telecommunications, electronic or other information transmission systems (including the Internet), provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such damages are determined by a court of competent jurisdiction by final, non-appealable judgment to have resulted from the gross negligence or willful misconduct of, or a breach of the Loan Documents by, such Indemnitee or its Related Parties, or (ii) on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, any Loan Document or any agreement or instrument contemplated thereby, the Transactions, any Loan or any Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later than 10 Business Days after written demand therefor; provided, however, that any Indemnitee shall promptly refund an indemnification payment received hereunder to the extent that there is a final judicial determination that such Indemnitee was not entitled to indemnification with respect to such payment pursuant to this Section 9.03.
167
SECTION 9.04 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 (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) a Loan Party may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void), (ii) no assignment shall be made to any Defaulting Lender or any of its Subsidiaries, or any Persons who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (ii) and (iii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. 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 (including any Affiliate of the Issuing Bank that issued any Letter of Credit), Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraphs (b)(ii) and (g) below, any Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent of (A) the Borrower (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld, delayed or conditioned), provided that no consent of the Borrower shall be required for an assignment (1) by a Term Lender to any Lender or an Affiliate of any Lender, (2) by a Term Lender to an Approved Fund,^^(3) by a Revolving Lender to a Revolving Lender or an Affiliate or an Approved Fund of a Revolving Lender (provided that, unless an Event of Default has occurred and is continuing, such Affiliate or Approved Fund is a commercial bank regularly engaged in the provision of revolving credit facilities; provided, further, that no Revolving Lender shall be retroactively disqualified or prohibited from being a Revolving Lender if any such Event of Default is no longer continuing), or (4) if an Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is continuing, by a Term Lender or a Revolving Lender and provided, further, that the Borrower shall have the right to withhold its consent to any assignment if, in order for such assignment to comply with applicable law, the Borrower would be required to obtain the consent of, or make any filing or registration with, any Governmental Authority, (B) the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned), and (C) solely in the case of Revolving Loans and Revolving Commitments, each Issuing Bank and Swingline Lender (such consent not to be unreasonably withheld, delayed or conditioned), provided that no consent of any Issuing Bank or Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or Term Commitment. Notwithstanding anything in this Section 9.04 to the contrary, if any Person (other than the Administrative Agent) whose consent is required by this paragraph with respect to any assignment has not given the Administrative Agent written notice of its objection to such assignment within 10 Business Days after written notice to such Person, such Person shall be deemed in each case to have consented to such assignment.
(i) Assignments shall be subject to the following additional conditions: (A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the trade date specified in the Assignment and Assumption with respect to such assignment or, if no trade date is so specified, as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than, in the case of a Revolving Loan or Revolving Commitment, $1,000,000 or, in the case of a Term Loan, $1,000,000, unless the Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Borrower shall be required if an Event of Default under, Section 7.01(a), (b), (h) or (i) has occurred and is continuing; provided, further, that concurrent assignments to or from Affiliates and groups of funds will be aggregated and treated as a single assignment for purposes of determining whether such minimum amount has been met, (B) 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, provided that this subclause (B) shall not be construed to prohibit assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans, (C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption (which shall include a representation by the assignee that it meets all the requirements to be an Eligible Assignee), together (unless waived by the Administrative Agent in its sole discretion) with a processing and
168
recordation fee of $3,500, provided that assignments made pursuant to Section 2.19(b) or Section 9.02(c) shall not require the signature of the assigning Lender to become effective and (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent any tax forms required by Section 2.17(e) and an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower, the Loan Parties and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws.
Assignments of all or any portion of the Revolving Commitment of a Lender that is also an Issuing Bank may be made; provided that the assignee (or any Lender with a Revolving Commitment who agrees to act in such capacity) shall be or become an Issuing Bank and assume a ratable portion of such assignor’s Letter of Credit Commitment and its rights and obligations in its capacity as Issuing Bank.
(ii) Subject to acceptance and recording thereof pursuant to paragraph (b)(v) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the 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 Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption 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 (and subject to the obligations and limitations of) Sections 2.15, 2.16, 2.17 and 9.03 and to any fees payable hereunder that have accrued for such Lender’s account but have not yet been paid). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 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 (c)(i) of this Section.
(iii) The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it, each Affiliated Lender Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal and interest amounts of the Loans and LC Disbursements 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 Parent, 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 notice to the contrary. In addition, the Administrative Agent shall maintain on the Register information regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender. The Register shall be available for inspection by the Borrower at any reasonable time and from time to time upon reasonable prior notice. Notwithstanding the foregoing, in no event shall the Administrative Agent be obligated to ascertain, monitor or inquire as to whether any Lender is an Affiliated Lender, nor shall the Administrative Agent be obligated to monitor the aggregate amount of the Loans or Incremental Term Loans held by Affiliated Lenders.
(iv) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire and any tax forms required by Section 2.17(e) (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph (b).
(v) The words “execution,” “signed,” “signature” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act or any other similar state laws based on the Uniform Electronic Transactions Act.
169
(c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell participations to one or more banks or other Persons (other than to a Person that is not an Eligible Assignee) (a “Participant”), provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) Parent, the Borrower, the Administrative Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. 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 the Loan Documents and to approve any amendment, modification or waiver of any provision of the Loan Documents, 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 described in the first proviso to Section 9.02(c) that directly and adversely affects such Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of (and subject to the obligations and limitations of) Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender, provided that such Participant agrees to be subject to Section 2.18(b) as though it were a Lender.
(i) A Participant shall not be entitled to receive any greater payment under Section 2.15 or Section 2.17 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior consent (not to be unreasonably withheld or delayed).
(ii) 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”), provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary in connection with a Tax audit or other proceeding to establish that such Commitment, Loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive (absent manifest error), and each Person whose name is recorded in the Participant Register pursuant to the terms hereof shall be treated as a Participant for all purposes of this Agreement, notwithstanding notice to the contrary.
(d) Any Lender may, without the consent of the Borrower or the Administrative Agent, 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 any pledge or assignment to secure obligations to a Federal Reserve Bank or other central bank, and this Section shall not apply to any such pledge or assignment of a security interest, provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(e) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPV”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPV to make any Loan and (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPV shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this
170
Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, such party will not institute against, or join any other person in instituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 9.04, any SPV may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by the Borrower and Administrative Agent) providing liquidity or credit support to or for the account of such SPV to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPV.
(f) Any Lender may, at any time, assign all or a portion of its rights and obligations under this Agreement to the Affiliated Lenders, subject to the following limitations:
(1) Affiliated Lenders will not receive information provided solely to Lenders by the Administrative Agent or any Lender and will not be permitted to attend or participate in meetings attended solely by the Lenders and the Administrative Agent, other than the right to receive notices of Borrowings, notices of prepayments and other administrative notices in respect of its Loans or Commitments required to be delivered to Lenders pursuant to Article II; provided, however, that the foregoing provisions of this clause will not apply to the Affiliated Debt Funds;
(2) for purposes of any amendment, waiver or modification of any Loan Document (including such modifications pursuant to Section 9.02), or, subject to Section 9.02(e), any plan of reorganization pursuant to the U.S. Bankruptcy Code, that in either case does not require the consent of each Lender or each affected Lender or does not adversely affect such Affiliated Lender in any material respect as compared to other Lenders, Affiliated Lenders will be deemed to have voted in the same proportion as the Lenders that are not Affiliated Lenders voting on such matter; and each Affiliated Lender hereby acknowledges, agrees and consents that if, for any reason, its vote to accept or reject any plan pursuant to the U.S. Bankruptcy Code is not deemed to have been so voted, then such vote will be (x) deemed not to be in good faith and (y) “designated” pursuant to Section 1126(e) of the U.S. Bankruptcy Code such that the vote is not counted in determining whether the applicable class has accepted or rejected such plan in accordance with Section 1126(c) of the U.S. Bankruptcy Code; provided that Affiliated Debt Funds will not be subject to such voting limitations and will be entitled to vote as any other Lender;
(3) the aggregate principal amount of Loans purchased by assignment pursuant to this Section 9.04 and held at any one time by Affiliated Lenders (other than Affiliated Debt Funds) may not exceed 30% of the outstanding principal amount of all Loans plus the outstanding principal amount of all term loans made pursuant to any Incremental Term Loan calculated at the time such Loans are purchased (such percentage, the “Affiliated Lender Cap”); provided that to the extent any assignment to an Affiliated Lender would result in the aggregate principal amount of all Loans held by Affiliated Lenders exceeding the Affiliated Lender Cap, the assignment of such excess amount will be void ab initio;
(4) Affiliated Lenders may not purchase Revolving Loans; and
(5) the assigning Lender and the Affiliated Lender purchasing such Lender’s Loans shall execute and deliver to the Administrative Agent an assignment agreement substantially in the form of Exhibit B hereto (an “Affiliated Lender Assignment and Assumption”); provided that each Affiliated Lender agrees to notify the Administrative Agent and the Borrower promptly (and in any event within 10 Business Days) if it acquires any Person who is also a Lender, and each Lender agrees to notify the Administrative Agent and the Borrower promptly (and in any event within 10 Business Days) if it becomes an Affiliated Lender.
Notwithstanding anything in Section 9.02 or the definition of “Required Lenders” to the contrary, for purposes of determining whether the Required Lenders have (i) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan
171
any separate letter agreements with respect to fees payable to the Administrative Agent and the Collateral Trustee or the syndication of the Loans and Commitments constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic means shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07 Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.08 Right of Setoff. If an Event of Default under Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing, each Lender and each Issuing Bank is hereby authorized at any time and from time to time, to the full extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender or such Issuing Bank to or for the credit or the account of the Borrower against any of and all the obligations of the Borrower then due and owing under this Agreement held by such Lender or Issuing Bank, irrespective of whether or not such Lender or Issuing Bank shall have made any demand under this Agreement and although such obligations are owed to a branch or office of such Lender or Issuing Bank different from the branch or office holding such deposit or obligated on such Indebtedness. The applicable Lender and applicable Issuing Bank shall notify the Borrower and the Administrative Agent of such setoff and application, provided that any failure to give or any delay in giving such notice shall not affect the validity of any such setoff and application under this Section. The rights of each Lender and each Issuing Bank under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender or such Issuing Bank may have. Notwithstanding the foregoing, no amount set off from any Guarantor shall be applied to any Excluded Swap Obligation of such Guarantor.
SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by the law of the State of New York.
(b) Each of parties hereto 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 sitting in New York County, Borough of Manhattan (and, if such court lacks jurisdiction, the Supreme Court of the State of New York sitting in New York County, Borough of Manhattan) and any appellate court from any thereof, in any action or proceeding arising out of or relating to any Loan Document, 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 or, to the extent permitted by law, in 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 any Loan Document shall affect any right that any Agent or any Lender may otherwise have to bring any action or proceeding relating to any Loan Document against Parent, the Borrower or their respective properties in the courts of any jurisdiction.
(c) Each of parties hereto hereby irrevocably and unconditionally waives, to the full extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to any Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
173
(d) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing in any Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULL 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 OR RELATING TO ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED 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 BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11 Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 9.12 Confidentiality.
(a) Each of the Administrative Agent, the Collateral Trustee, the Issuing Banks and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to their and their Affiliates’ directors, officers, employees, trustees and agents, including accountants, legal counsel and other agents and advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential and any failure of such Persons to comply with this Section 9.12 shall constitute a breach of this Section 9.12 by the Administrative Agent, the Collateral Trustee, the relevant Issuing Bank, or the relevant Lender, as applicable), (b) (x) to the extent requested by any regulatory authority, required by applicable law or by any subpoena or similar legal process or (y) necessary in connection with the exercise of remedies; provided that, (i) in each case, unless specifically prohibited by applicable law or court order, each Lender and the Administrative Agent shall notify the Borrower of any request by any governmental agency or representative thereof (other than any such request in connection with an examination of the financial condition of such Lender by such governmental agency or other routine examinations of such Lender by such governmental agency) for disclosure of any such non-public information prior to disclosure of such information and (ii) in the case of clause (y) only, each Lender and the Administrative Agent shall use its reasonable best efforts to ensure that such Information is kept confidential in connection with the exercise of such remedies, and provided, further, that in no event shall any Lender or the Administrative Agent be obligated or required to return any materials furnished by Parent, the Borrower or any of their Subsidiaries, (c) to any other party to this Agreement, (d) subject to an agreement containing confidentiality undertakings substantially similar to those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any Swap Agreement relating to any Loan Party or their Subsidiaries and its obligations under the Loan Documents, (e) with the consent of the Borrower, in the case of Information provided by Parent, the Borrower or any other Subsidiary, (f) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent, the Collateral Trustee, any Issuing Bank or any Lender on a non-confidential basis from a source other than Parent or the Borrower or (g) to any ratings agency or the CUSIP Service Bureau on a confidential basis. In addition, each of the Administrative Agent, the Collateral Trustee and the Lenders may disclose the existence of this Agreement and publicly available information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to the Agents and the Lenders in connection with the administration and management of this Agreement, the other Loan Documents, the Commitments and the Borrowings hereunder. For the purposes of this Section, “Information” means all information received from Sinclair, Parent or the Borrower relating to Parent, the Borrower, any Subsidiary or their business, other than any such information that is available to the Administrative Agent, the Collateral Trustee, any Issuing Bank or any Lender on a non-confidential basis prior to disclosure by Sinclair, Parent or the Borrower. Notwithstanding the foregoing, (i) any Lender may provide the list of Disqualified Lenders to any potential assignee or participant on a confidential basis in connection with a bona
174
fide sale for the purpose of verifying whether such Person is a Disqualified Lender and (ii) the Administrative Agent is authorized to share the Disqualified Lender list (and related updates thereto on a confidential basis) with all Lenders (and the Borrower hereby acknowledges that such Disqualified Lender list is suitable for distribution to both Public Lenders and non-Public Lenders). Any Person required to maintain the confidentiality of Information as provided in this Section 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 to its own confidential information.
(b) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12(a) FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING SINCLAIR, PARENT, THE BORROWER, THE LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
(c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT, WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT SINCLAIR, PARENT, THE BORROWER, THE LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
(d) Notwithstanding anything in this Agreement to the contrary, this Agreement shall impose no limitation of any kind on any person communicating directly with the Staff of the SEC about a possible securities law violation or exercising any similar whistleblower rights such person may have under applicable law.
SECTION 9.13 USA Patriot Act. Each Lender and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies each Loan Party that pursuant to the requirements of Title III of the USA Patriot Act, 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 each Loan Party in accordance with the Title III of the USA Patriot Act.
SECTION 9.14 Release of Liens and Guarantees. A Subsidiary Loan Party shall automatically be released from its obligations under the Loan Documents, and all security interests created by the Security Documents in Collateral owned by (and, in the case of clause (1) and, upon the request of the Borrower, clause (2) below, the Equity Interests of) such Subsidiary Loan Party shall be automatically released, (1) upon the consummation of any transaction permitted by this Agreement as a result of which such Subsidiary Loan Party ceases to be a Restricted Subsidiary (including pursuant to a merger with a Subsidiary that is not a Loan Party or a designation as an Unrestricted Subsidiary in accordance with this Agreement), (2) upon the request of the Borrower, in connection with a transaction permitted under this Agreement, as a result of which such Subsidiary Loan party ceases to be wholly-owned by the Borrower or a Subsidiary Loan Party. Upon (i) any sale or other transfer by any Loan Party (other than to Parent, the Borrower or any other Loan Party) of any Collateral in a transaction permitted under this Agreement, or (ii) the effectiveness of any written consent to the release of the security interest created under any Security Document in any Collateral or the release of any Loan Party from its Guarantee under the Guarantee Agreement, in each case, pursuant to Section 9.02, and otherwise consistent with the terms of this Agreement, the security interests in such Collateral created by the Security Documents or such guarantee shall be automatically released. Upon the occurrence of the Termination Date, all obligations under the Loan Documents
175
and all security interests created by the Security Documents shall be automatically released. In connection with any termination or release pursuant to this Section, the Administrative Agent shall execute and deliver to any Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this Section shall be without recourse to or warranty by the Administrative Agent. The Lenders irrevocably authorize the Administrative Agent to release or subordinate any Lien on any property granted to or held by the Administrative Agent or the Collateral Trustee under any Loan Document to the holder of any Lien on such property that is permitted by Section 6.02(a)(iv), (viii) or (xxii) to the extent required by the terms of the obligations secured by such Liens pursuant to documents reasonably acceptable to the Administrative Agent. If at any time Parent ceases to guarantee each of (i) the Existing Senior Unsecured Notes, the Existing First Lien Senior Secured Notes and the 9.750% Second Lien Secured Notes and (ii) any other material Indebtedness of the Borrower (other than the Loan Document Obligations) (the foregoing clauses (i) through (ii), the “Applicable Borrower Indebtedness”), upon request by the Borrower, (x) Parent’s Guarantee of the Loan Document Obligations, and the security interest granted in respect thereof, shall be released (the date on which such release occurs, the “Guarantee Release Date”), (y) Section 6.07 shall not apply to Parent and (z) Article VII shall not apply to Parent; provided that, if at any time after the Guarantee Release Date Parent shall guarantee any Applicable Borrower Indebtedness, the obligations of Parent under the Guarantee Agreement and under Section 6.07 shall be automatically reinstated. Parent shall take all actions reasonably necessary in order to provide the same Guarantee and security interest as would be required had the Guarantee Release Date never occurred.
Notwithstanding the foregoing, (i) no Loan Party will be released from its obligations under the Loan Documents in connection with or in furtherance of a Priming Financing/Liability Management Transaction, (ii) if any Subsidiary Loan Party ceases to be wholly-owned by the Borrower or a Subsidiary Loan Party, such Subsidiary Loan Party shall not be released from its obligations under the Loan Documents unless the transaction or transactions that caused such Subsidiary Loan Party to cease to be wholly-owned by the Borrower or a Subsidiary Loan Party is in connection with a bona fide joint venture in the ordinary course of business with a Person that is a third party that is not an Affiliate of the Loan Parties, and which is otherwise permitted under this Agreement and (iii) no Subsidiary Loan Party will be released from its obligations under the Loan Documents upon such Subsidiary Loan Party otherwise becoming an Excluded Subsidiary for the purpose of releasing the relevant Guarantee. After giving pro forma effect to the applicable release, the Borrower is deemed to have made a new Investment in such Person on the date of such release (as if such Person were not a Subsidiary Loan Party) in an amount equal to the portion of the fair market value (as determined in good faith by the Borrower) of the Borrower’s retained ownership interest in such Person and such Investment must be otherwise permitted hereunder (and if such Investment would not be permitted hereunder, the release shall not be effective).
SECTION 9.15 No Fiduciary Relationship. Each of Parent and the Borrower, on behalf of itself and its Subsidiaries, agrees that in connection with all aspects of the transactions contemplated hereby and any communications in connection therewith, Parent, the Borrower, the other Subsidiaries and their Affiliates, on the one hand, and the Agents, the Lenders and their respective Affiliates, on the other hand, will have a business relationship that does not create, by implication or otherwise, any fiduciary duty on the part of the Agents, the Lenders or their respective Affiliates, and no such duty will be deemed to have arisen in connection with any such transactions or communications.
SECTION 9.16 Collateral Trust Agreement. Notwithstanding anything to the contrary contained in this Agreement, so long as the Collateral Trust Agreement remains outstanding, the rights granted to the Secured Parties hereunder and under the other Loan Documents, the lien and security interest granted to the Collateral Trustee pursuant to this Agreement or any other Loan Document and the exercise of any right or remedy by the Administrative Agent and/or the Collateral Trustee hereunder or under any other Loan Document shall be subject to the terms and conditions of the Collateral Trust Agreement. In the event of any conflict between the terms of this Agreement, any other Loan Document and the Collateral Trust Agreement, the terms of the Collateral Trust Agreement shall govern and control with respect to any right or remedy, and no right, power or remedy granted to the Administrative Agent and/or the Collateral Trustee hereunder or under any other Loan Document shall be exercised by the Administrative Agent, and/or the Collateral Trustee and no direction shall be given by the Administrative Agent and/or the Collateral Trustee, in contravention of the Collateral Trust Agreement. In addition to the benefits afforded it under this Agreement, in acting under this Agreement, the Collateral Trustee shall be entitled to all of the rights, privileges, immunities and indemnities granted to it under the Collateral Trust Agreement, as if such rights, privileges, immunities and indemnities were set forth herein.
176
SECTION 9.17 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 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 entity, 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
(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 9.18 Acknowledgment Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Swap 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):
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 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.
[Signature Pages Follow]
177
| SINCLAIR TELEVISION GROUP, INC.,<br><br><br>as Borrower | |
|---|---|
| By: | /s/ Christopher S. Ripley |
| Name: | Christopher S. Ripley |
| Title: | Chief Executive Officer/President |
| SINCLAIR BROADCAST GROUP, LLC,<br><br><br>as Parent | |
| By: | /s/ Christopher S. Ripley |
| Name: | Christopher S. Ripley |
| Title: | Chief Executive Officer/President |
| GUARANTORS: | |
| --- | --- |
| BIRMINGHAM (WABM-TV) LICENSEE, INC. | |
| FISHER MILLS, INC.<br><br><br>FISHER PROPERTIES, INC.<br> <br>HARRISBURG TELEVISION, INC.<br><br><br>NEW YORK TELEVISION, INC.<br> <br>PERPETUAL CORPORATION<br><br><br>RALEIGH (WRDC-TV) LICENSEE, INC.<br><br><br>SINCLAIR ACQUISITION IX, INC.<br> <br>SINCLAIR ACQUISITION VII, INC.<br><br><br>SINCLAIR ACQUISITION VIII, INC.<br> <br>SINCLAIR MEDIA III, INC.<br><br><br>SINCLAIR MEDIA VI, INC.<br> <br>SINCLAIR TELEVISION MEDIA, INC.<br><br><br>SINCLAIR TELEVISION OF BAKERSFIELD, INC.<br> <br>SINCLAIR TELEVISION OF<br>SEATTLE, INC.<br> <br>SINCLAIR TELEVISION OF WASHINGTON, INC.<br> <br>WGME,<br>INC.<br> <br>WSMH, INC.<br> <br>WSYX LICENSEE, INC.<br><br><br>WVTV LICENSEE, INC.<br> <br><br><br><br>KAME, LLC<br> <br>KENV, LLC<br><br><br>KRNV, LLC<br> <br>KRXI, LLC<br><br><br>KVCW, LLC<br> <br>KVMY, LLC | |
| By: | Chesapeake Media I, LLC, Sole Member |
| By: | Sinclair Television Group, Inc., Sole Member of Chesapeake Media I, LLC |
| WCWF LICENSEE, LLC | |
| WJAR LICENSEE, LLC | |
| WLUK LICENSEE, LLC | |
| By: | Harrisburg Television, Inc., Sole Member |
| SINCLAIR TELEVISION OF ILLINOIS, LLC | |
| WICD LICENSEE, LLC | |
| WICS LICENSEE, LLC | |
| By: | Illinois Television, LLC, Sole Member |
| By: | Sinclair Communications LLC, Sole Member of Illinois Television, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| KATV LICENSEE, LLC | |
| By: | KATV, LLC, Sole Member |
| By: | Sinclair Television Stations, LLC, Sole Member of KATV, LLC |
| By: | Perpetual Corporation, Sole Member of Sinclair Television Stations, LLC |
| KDSM LICENSEE, LLC | |
| By: | KDSM, LLC, Sole Member |
| By: | Sinclair Television Group, Inc., Sole Member of KDSM, LLC |
| --- | --- |
| KOKH LICENSEE, LLC | |
| By: | KOKH, LLC, Sole Member |
| By: | Sinclair Communications, LLC, Sole Member of KOKH, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| KTUL LICENSEE, LLC | |
| By: | KTUL, LLC, Sole Member |
| By: | Sinclair Television Stations, LLC, Sole |
| Member of KTUL, LLC | |
| By: | Perpetual Corporation, Sole Member of Sinclair Television Stations, LLC |
| WCGV LICENSEE, LLC | |
| By: | Milwaukee Television, LLC, Sole Member |
| By: | Sinclair Communications, LLC Sole Member of Milwaukee Television, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| WSMH LICENSEE, LLC | |
| By: | WSMH, Inc., Sole Member |
| SINCLAIR TELEVISION STATIONS, LLC | |
| By: | Perpetual Corporation, Sole Member |
| MJ PODCAST, LLC | |
| UMR PODCAST, LLC | |
| By: | Sinclair Audio, LLC |
| By: | Sinclair Television Group, Inc. |
| WKEF LICENSEE L.P. | |
| By: | Sinclair Communications, LLC, General Partner |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| CHESAPEAKE TELEVISION LICENSEE, LLC<br><br><br>HARRISBURG LICENSEE, LLC<br> <br>ILLINOIS TELEVISION, LLC<br><br><br>KABB LICENSEE, LLC<br> <br>KDNL LICENSEE, LLC<br><br><br>KEYE LICENSEE, LLC<br> <br>KFDM LICENSEE, LLC<br><br><br>KFOX LICENSEE, LLC<br> <br>KFXA LICENSEE, LLC<br><br><br>KGAN LICENSEE, LLC<br> <br>KGBT LICENSEE, LLC<br><br><br>KHGI LICENSEE, LLC<br> <br>KHQA LICENSEE, LLC<br><br><br>KJZZ LICENSEE, LLC<br> <br>KOCB LICENSEE, LLC<br><br><br>KOKH, LLC<br> <br>KPTH LICENSEE, LLC<br><br><br>KRCG LICENSEE, LLC | |
| KRXI LICENSEE, LLC | |
| --- | |
| KSAS LICENSEE, LLC | |
| KTVL LICENSEE, LLC | |
| KTVO LICENSEE, LLC | |
| KUPN LICENSEE, LLC | |
| KUQI LICENSEE, LLC | |
| KUTV LICENSEE, LLC | |
| KVII LICENSEE, LLC | |
| MILWAUKEE TELEVISION, LLC | |
| SAN ANTONIO TELEVISION, LLC | |
| SINCLAIR PROPERTIES, LLC | |
| SINCLAIR TELEVISION OF EL PASO, LLC | |
| WACH LICENSEE, LLC | |
| WCWB LICENSEE, LLC | |
| WCWN LICENSEE, LLC | |
| WDKY LICENSEE, LLC | |
| WEAR LICENSEE, LLC | |
| WFGX LICENSEE, LLC | |
| WFXL LICENSEE, LLC | |
| WGFL LICENSEE, LLC | |
| WGXA LICENSEE, LLC | |
| WHOI LICENSEE, LLC | |
| WKRC LICENSEE, LLC | |
| WLFL LICENSEE, LLC | |
| WLOS LICENSEE, LLC | |
| WMSN LICENSEE, LLC | |
| WNAB LICENSEE, LLC | |
| WNWO LICENSEE, LLC | |
| WOAI LICENSEE, LLC | |
| WOLF LICENSEE, LLC | |
| WPBN LICENSEE, LLC | |
| WPDE LICENSEE, LLC | |
| WPEC LICENSEE, LLC | |
| WPGH LICENSEE, LLC | |
| WQMY LICENSEE, LLC | |
| WRDC, LLC | |
| WRGB LICENSEE, LLC | |
| WRGT LICENSEE, LLC | |
| WRLH LICENSEE, LLC | |
| WSBT LICENSEE, LLC | |
| WSTQ LICENSEE, LLC | |
| WSTR ACQUISITION, LLC | |
| WTGS LICENSEE, LLC | |
| WTOV LICENSEE, LLC | |
| WTTO LICENSEE, LLC | |
| WTVC LICENSEE, LLC | |
| WTVX LICENSEE, LLC | |
| WTVZ LICENSEE, LLC | |
| WTWC LICENSEE, LLC | |
| WUCW, LLC | |
| WUHF LICENSEE, LLC | |
| WUPN LICENSEE, LLC | |
| WUTV LICENSEE, LLC | |
| WUXP LICENSEE, LLC | |
| WWHO LICENSEE, LLC | |
| WWMT LICENSEE, LLC | |
| WXLV LICENSEE, LLC | |
| --- | --- |
| WZTV LICENSEE, LLC | |
| By: | Sinclair Communications, LLC, Sole Member |
| By: | Sinclair Television Group, Inc., Sole Member |
| of Sinclair Communications, LLC | |
| SINCLAIR DIGITAL NEWS, LLC | |
| WEST COAST DIGITAL, LLC | |
| By: | Sinclair Digital Group, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Digital Group, LLC |
| WCHS LICENSEE, LLC | |
| WVAH LICENSEE, LLC | |
| By: | Sinclair Media III, Inc., Sole Member |
| SINCLAIR MEDIA LICENSEE, LLC | |
| --- | |
| SINCLAIR TELEVISION OF ABILENE, LLC | |
| SINCLAIR TELEVISION OF BRISTOL, LLC | |
| SINCLAIR TELEVISION OF CALIFORNIA, LLC | |
| SINCLAIR TELEVISION OF MONTANA, LLC | |
| SINCLAIR TELEVISION OF NEW BERN, LLC | |
| WCTI LICENSEE, LLC |
| By: | Sinclair Media VI, Inc., Sole Member |
|---|---|
| KBSI LICENSEE L.P. | |
| WMMP LICENSEE L.P. | |
| By: | Sinclair Properties, LLC, General Partner |
| By: | Sinclair Communications, LLC, Sole Member of Sinclair Properties, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| WDKA LICENSEE, LLC | |
| By: | Sinclair Properties, LLC, Sole Member |
| By: | Sinclair Communications, LLC, Sole Member of Sinclair Properties, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| ACTION TV, LLC | |
| --- | |
| CHESAPEAKE MEDIA I, LLC | |
| COMETTV, LLC | |
| DRIVE SALES, LLC | |
| FULL MEASURE, LLC | |
| HUMMINGBIRD, LLC | |
| HUNT VALLEY TRACKS, LLC | |
| KDSM, LLC | |
| NEST TV, LLC | |
| SINCLAIR AUDIO, LLC | |
| SINCLAIR COMMUNICATIONS, LLC | |
| SINCLAIR DIGITAL GROUP, LLC | |
| SINCLAIR GAMING SERVICES, LLC | |
| SINCLAIR NETWORKS GROUP, LLC | |
| SINCLAIR PROGRAMMING COMPANY, LLC | |
| SINCLAIR TELEVISION OF FRESNO, LLC | |
| SINCLAIR TELEVISION OF OMAHA, LLC | |
| --- | --- |
| TBD TV, LLC | |
| THE NATIONAL DESK, LLC | |
| By: | Sinclair Television Group, Inc., Sole<br>Member |
| SINCLAIR BAKERSFIELD LICENSEE, LLC | |
| --- | |
| SINCLAIR BOISE LICENSEE, LLC | |
| SINCLAIR BROADCASTING OF SEATTLE, LLC | |
| SINCLAIR EUGENE LICENSEE, LLC | |
| SINCLAIR LEWISTON LICENSEE, LLC | |
| SINCLAIR MEDIA OF BOISE, LLC | |
| SINCLAIR MEDIA OF WASHINGTON, LLC | |
| SINCLAIR PORTLAND LICENSEE, LLC | |
| SINCLAIR SEATTLE LICENSEE, LLC | |
| SINCLAIR TELEVISION OF OREGON, LLC | |
| SINCLAIR MEDIA OF SEATTLE, LLC | |
| SINCLAIR TELEVISION OF PORTLAND, LLC | |
| SINCLAIR YAKIMA LICENSEE,<br>LLC |
| By: | Sinclair Television Media, Inc., Sole Member |
|---|---|
| SINCLAIR-CALIFORNIA LICENSEE, LLC | |
| By: | Sinclair Television of California, LLC, Sole Member |
| By: | Sinclair Media VI, Inc., Sole Member of Sinclair Television of California, LLC |
| KDBC LICENSEE, LLC | |
| By: | Sinclair Television of El Paso, LLC, Sole Member |
| By: | Sinclair Communications, LLC, Sole Member of |
| Sinclair Television of El Paso, LLC | |
| By: | Sinclair Television Group, Inc., Sole Member of |
| Sinclair Communications, LLC | |
| KFRE LICENSEE, LLC | |
| KMPH LICENSEE, LLC | |
| WJAC LICENSEE, LLC | |
| By: | Sinclair Television of Fresno, LLC, Sole Member |
| By: | Sinclair Television Group, Inc., Sole Member of |
| Sinclair Television of Fresno, LLC | |
| KPTM LICENSEE, LLC | |
| By: | Sinclair Television of Omaha, LLC, Sole Member |
| By: | Sinclair Television Group, Inc., Sole Member of |
| Sinclair Television of Omaha, LLC | |
| SINCLAIR KENNEWICK LICENSEE, LLC | |
| SINCLAIR LA GRANDE LICENSEE, LLC | |
| By: | Sinclair Television of Washington, Inc., Sole Member |
| ACC LICENSEE, LLC | |
| KATV, LLC | |
| KTUL, LLC | |
| WBMA LICENSEE, LLC | |
| WSET LICENSEE, LLC | |
| By: | Sinclair Television Stations, LLC, Sole |
| Member | |
| By: | Perpetual Corporation, Sole Member of Sinclair Television Stations, LLC |
| WGME LICENSEE, LLC | |
| --- | --- |
| By: | WGME, Inc., Sole Member |
| KLGT LICENSEE, LLC | |
| By: | WUCW, LLC, Sole Member |
| By: | Sinclair Communications, LLC, Sole Member of WUCW, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| By: | /s/ Christopher S. Ripley |
| --- | --- |
| Christopher S. Ripley as President and | |
| Chief Executive Officer | |
| JPMORGAN CHASE BANK, N.A., as Administrative Agent, Swingline Lender, a Revolving Lender, a Term B-6 Lender and a Term B-7 Lender | |
| --- | --- |
| By: | /s/ Inderjeet Aneja |
| Name: Inderjeet Aneja | |
| Title: Inderjeet Aneja | |
| DEUTSCHE BANK AG NEW YORK BRANCH, as a Revolving Lender | |
| --- | --- |
| By: | /s/ Philip Tancorra |
| Name: Philip Tancorra | |
| Title: Director | |
| By: | /s/ Suzan Onal |
| Name: Suzan Onal | |
| Title: Director | |
| ROYAL BANK OF CANADA, as a Revolving Lender | |
| --- | --- |
| By: | /s/ Alfonse Simone |
| Name: Alfonse Simone | |
| Title: Authorized Signatory | |
| BANK OF AMERICA, N.A., as a Revolving Lender | |
| --- | --- |
| By: | /s/ Jonathan Tristan |
| Name: | Jonathan Tristan |
| Title: | Director |
| TRUIST BANK, as a Revolving Lender | |
| --- | --- |
| By: | /s/ Juan De Jesus-Caballero |
| Name: | Juan De Jesus-Caballero |
| Title: | Senior Vice President |
| If a second signature is necessary: | |
| --- | --- |
| By: | |
| Name: | |
| Title: | |
| WELLS FARGO BANK, N.A., as a Revolving Lender | |
| --- | --- |
| By: | /s/ Tracy L. Moosbrugger |
| Name: | Tracy L. Moosbrugger |
| Title: | Managing Director |
| If a second signature is necessary: | |
| --- | --- |
| By: | |
| Name: | |
| Title: | |
| CITIBANK, N.A., as a Revolving Lender | |
| --- | --- |
| By: | /s/ Elizabeth Minnella Gonzalez |
| Name: | Elizabeth Minella Gonzalez |
| Title: | Vice President & Managing Director |
| CITIZENS BANK, N.A., as a Revolving Lender | |
| --- | --- |
| By: | /s/ David W. Stack |
| Name: | David W. Stack |
| Title: | Senior Vice President |
| If a second signature is necessary: | |
| By: | |
| Name: | |
| Title: | |
| FIFTH THIRD BANK, NATIONAL ASSOCIATION, as a Revolving Lender | |
| --- | --- |
| By: | /s/ Frank Perez |
| Name: | Frank Perez |
| Title: | Vice President |
| GOLDMAN SACHS BANK USA, as a Revolving Lender | |
| --- | --- |
| By: | /s/ Dana Siconolfi |
| Name: | Dana Siconolfi |
| Title: | Authorized Signatory |
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, not in its individual capacity, but solely as Collateral Trustee | |
| --- | --- |
| By: | /s/ Melody M. Scott |
| Name: | Melody M. Scott |
| Title: | Assistant Vice President |
[Schedules and Exhibits Intentionally Omitted. To be provided to the
Securities and Exchange Commission or its
staff upon request.]
EX-10.2
Exhibit No. 10.2
Execution Version
Certain portions of this exhibit
(indicated by “[*****]”) have been
omitted pursuant to
Item 601(b)(10) of Regulation S-K
SEVENTH AMENDMENT TO SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
This SEVENTH AMENDMENT dated as of February 12, 2025 (this “Seventh Amendment”) to the Seventh Amended and Restated Credit Agreement referred to below among Sinclair Television Group, Inc., a Maryland corporation (the “Borrower”), Sinclair Broadcast Group, LLC, a Maryland limited liability company (f/k/a Sinclair Broadcast Group, Inc.) (“Parent”), the guarantors party thereto, the lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent under the Existing Credit Agreement (in such capacities, the “Existing Agent”), CSC Delaware Trust Company, as successor Administrative Agent and Collateral Agent to the Existing Agent pursuant to this Seventh Amendment (in such capacities, the “Successor Agent”), JPMorgan Chase Bank, N.A. (as successor to Chase Lincoln First Commercial Corporation), as Swingline Lender, and the Lenders under the Existing Credit Agreement immediately prior to the Seventh Amendment Effective Date (as defined below) party hereto, which constitute the Required Credit Lenders (as defined below). Capitalized terms used but not otherwise defined in this Seventh Amendment have the same meanings as specified in the Amended Credit Agreement (as defined below).
RECITALS
WHEREAS, Parent, the Borrower, the Guarantors from time to time parties thereto, JPMorgan Chase Bank, N.A. (as successor to Chase Lincoln First Commercial Corporation), as Swingline Lender, each of the Issuing Banks and Lenders from time to time party thereto and the Agents, have entered into that certain Seventh Amended and Restated Credit Agreement dated as of August 23, 2019 (as amended, supplemented or otherwise modified from time to time prior to the Seventh Amendment Effective Date, the “Existing Credit Agreement”; the Existing Credit Agreement as amended by this Seventh Amendment, the “Amended Credit Agreement”);
WHEREAS, pursuant to and in accordance with Section 2.21 and Section 9.02 of the Existing Credit Agreement, the Borrower has requested that the Existing Credit Agreement be amended so as to, among other things, (1) provide for $711,373,373.78 of term loans thereunder (the “Term B-3A Loans”), which term loans (x) shall constitute Credit Agreement Refinancing Indebtedness and (y) shall refinance all outstanding Term B-3 Loans outstanding under the Existing Credit Agreement that are held by the Term B-3 Lenders party hereto as of the Seventh Amendment Effective Date (any such Term B-3 Lenders party hereto, the “Consenting Term B-3 Lenders”, and any such refinanced Term B-3 Loans outstanding under the Existing Credit Agreement being referred to herein as the “Refinanced Term B-3 Loans”) and (2) provide for $731,250,000 of term loans thereunder (the “Term B-4A Loans” and, together with the Term B-3A Loans, the “Term B-3A/B-4A Loans”), which term loans (x) shall constitute Credit Agreement Refinancing Indebtedness and (y) shall refinance all outstanding Term B-4 Loans outstanding under the Existing Credit Agreement that are held by the Term B-4 Lenders party hereto as of the Seventh Amendment Effective Date (any such Term B-4 Lenders party hereto, the “Consenting Term B-4 Lenders” and, together with the Consenting Term B-3 Lenders, the “Consenting Term Lenders”, and any such refinanced Term B-4 Loans outstanding under the Existing Credit Agreement being referred to herein as the “Refinanced Term B-4 Loans” and, together with the Refinanced Term B-3 Loans, the “Refinanced Term B-3/B-4 Loans”), with such Term B-3A/B-4A Loans to be effected in whole or in part through an
exchange or cashless roll, and which term loans, except as modified to (i) extend the maturity date of the Refinanced Term B-3 Loans being exchanged or otherwise refinanced into Term B-3A Loans to a maturity date of July 1, 2028 and (ii) extend the maturity date of the Term B-4 Loans being exchanged or otherwise refinanced into Term B-4A Loans to a maturity date of July 21, 2029, and in each case after giving effect to the amendments specified in Section 1 of this Seventh Amendment, will otherwise have the same terms as the Term B-3 Loans (in the case of the Term B-3A Loans) and the Term B-4 Loans (in the case of the Term B-4A Loans) under the Existing Credit Agreement, respectively;
WHEREAS, the Borrower has hereby notified the Administrative Agent that it is requesting the establishment of Credit Agreement Refinancing Indebtedness pursuant to Section 2.21 of the Existing Credit Agreement pursuant to this Seventh Amendment (which shall constitute a Refinancing Amendment) with respect to the Term B-3A/B-4A Loans;
WHEREAS, each Consenting Term Lender will execute and deliver a consent to this Seventh Amendment substantially in the form of the “Lender Consent” attached hereto as Annex I (a “Lender Consent”) and will be deemed, on the terms and subject to the conditions set forth herein and in the Credit Agreement, (i) to have agreed to the terms of the consent set forth in Section 3 below and the other terms of this Seventh Amendment, including the Amended Credit Agreement, (ii) if applicable, to have agreed to exchange (as further described in the Lender Consent) an aggregate principal amount of its Refinanced Term B-3 Loans for Term B-3A Loans (which shall be Term B-3A Loans under the Amended Credit Agreement) and its Refinanced Term B-4 Loans for Term B-4A Loans (which shall be Term B-4A Loans under the Amended Credit Agreement) in a principal amount equal to the amount of such Consenting Term Lender’s Refinanced Term B-3 Loans and Refinanced Term B-4 Loans which are so exchanged, as applicable, and (iii) if applicable, upon the Seventh Amendment Effective Date, after giving effect to the amendments specified in Section 1 hereof, to have exchanged (as further described in the Lender Consent) such amount of its applicable Refinanced Term B-3/B-4 Loans for applicable Term B-3A/B-4A Loans (which shall be Term B-3A Loans and Term B-4A Loans under the Amended Credit Agreement, as applicable) (together, the “Term B-3A/B-4A Loan Exchange”);
WHEREAS, pursuant to and in accordance with Section 2.21 of the Existing Credit Agreement, the Borrower has requested that the Existing Credit Agreement be amended so as to, among other things, provide for 2022A Revolving Commitments and Revolving Loans (if any) in an aggregate amount of $575,000,000, which shall constitute Credit Agreement Refinancing Indebtedness and shall refinance and replace the outstanding Revolving Commitments of the 2022 Revolving Lenders party hereto (the “Consenting Revolving Lenders”; and, together with the Consenting Term Lenders and any other Lenders party hereto, the “Consenting Lenders”) outstanding under the Existing Credit Agreement as of the Seventh Amendment Effective Date (together, the “2022A Revolving Commitments Exchange”), which 2022A Revolving Commitments, except as modified to extend the maturity date of the 2022 Revolving Commitments being refinanced or replaced into 2022A Revolving Commitments to a maturity date of July 21, 2027 and after giving effect to the amendments specified in Section 1 hereof would otherwise have the same terms as the 2022 Revolving Commitments and related 2022 Revolving Loans;
WHEREAS, the Borrower has hereby notified the Administrative Agent that it is requesting the establishment of Credit Agreement Refinancing Indebtedness pursuant to Section 2.21 of the Existing Credit Agreement pursuant to this Seventh Amendment (which shall constitute a Refinancing Amendment) with respect to the 2022 Revolving Commitments;
WHEREAS, in accordance with Section 9.02(b) of the Existing Credit Agreement, the Borrower has requested that the Lenders (as defined in the Existing Credit Agreement) party hereto (which collectively constitute the Required Lenders and the Required Revolving Lenders under and as defined in the Existing Credit Agreement, the “Required Credit Lenders”) agree to make certain amendments to the Existing Credit Agreement as set forth herein;
2
WHEREAS, substantially concurrently with the effectiveness of this Seventh Amendment, the Borrower will enter into a new Credit Agreement, dated as of even date herewith, among the Borrower, Parent, the Guarantors party thereto, the lenders party thereto, JPMorgan Chase Bank, N.A., as administrative agent, U.S. Bank Trust Company, National Association, as collateral trustee, JPMorgan Chase Bank, N.A. as swingline lender and each of the issuing banks from time to time party thereto (the “First Lien Credit Agreement);
WHEREAS, after giving effect to the Term B-3A/B-4A Loan Exchange (and the satisfaction or waiver of the conditions thereto in this Seventh Amendment), and pursuant to the First Lien Credit Agreement and Section 2.21 of the Amended Credit Agreement, the Borrower has requested that the Consenting Term Lenders (1) provide for $711,373,373.78 of term loans under the First Lien Credit Agreement (the “Term B-6 Loans”), which term loans (x) shall constitute Credit Agreement Refinancing Indebtedness under the Amended Credit Agreement and (y) shall refinance all outstanding Term B-3A Loans outstanding under the Amended Credit Agreement that are held by the Consenting Term Lenders and (2) provide for $731,250,000 of term loans under the First Lien Credit Agreement (the “Term B-7 Loans”), which term loans (x) shall constitute Credit Agreement Refinancing Indebtedness under the Amended Credit Agreement and (y) shall refinance all outstanding Term B-4A Loans outstanding under the Amended Credit Agreement that are held by the Consenting Term Lenders, with such Term B-6 Loans and Term B-7 Loans to be effected in whole or in part through an exchange or cashless roll (the “Term B-6 Loan Exchange” and the “Term B-7 Loan Exchange”, respectively), and the Term B-6 Loans and the Term B-7 Loans will, in each case, have the terms set forth in and be governed by the First Lien Credit Agreement;
WHEREAS, the Borrower has hereby notified the Administrative Agent that it is requesting the establishment of Credit Agreement Refinancing Indebtedness pursuant to Section 2.21 of the Amended Credit Agreement pursuant to this Seventh Amendment with respect to the Term B-6 Loans and the Term B-7 Loans;
WHEREAS, after giving effect to the 2022A Revolving Commitments Exchange (and the satisfaction of the conditions thereto in this Seventh Amendment), and pursuant to the First Lien Credit Agreement and Section 2.21 of the Amended Credit Agreement, the Borrower has requested that the Consenting Revolving Lenders provide revolving commitments under the First Lien Credit Agreement in the aggregate amount of $575,000,000 (the “First Lien Revolving Commitments”), which shall constitute Credit Agreement Refinancing Indebtedness and shall refinance and replace all outstanding 2022A Revolving Commitments and 2022A Revolving Loans (if any) of the Consenting Revolving Lenders under the Amended Credit Agreement as of the Seventh Amendment Effective Date (together, the “First Lien Revolving Commitments Exchange”);
WHEREAS, the Borrower has hereby notified the Administrative Agent that it is requesting the establishment of Credit Agreement Refinancing Indebtedness pursuant to Section 2.21 of the Amended Credit Agreement pursuant to this Seventh Amendment with respect to the First Lien Revolving Commitments;
WHEREAS, each of the Lenders party hereto are willing, on the terms and subject to the conditions set forth below, to consent to the amendments to the Existing Credit Agreement set forth herein and to the transactions contemplated under this Seventh Amendment (including the effectuation of any necessary documentation contemplated by the consent set forth in Section 3 hereof);
3
NOW, THEREFORE, in consideration of the covenants and agreements contained herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments to Existing Credit Agreement. Effective as of, and subject to the occurrence of, the Seventh Amendment Effective Date:
(a) The Existing Credit Agreement is hereby amended to delete the stricken text (indicated textually in substantially the same manner as the following example: ~~stricken text~~) and to add the double-underlined text (indicated textually in substantially the same manner as the following example: double-underlined text) as set forth in the Amended Credit Agreement attached as Exhibit A hereto;
(b) Schedules 2.01(a), 2.01(b) and 2.01(c) to the Existing Credit Agreement are hereby amended by including the schedules specified in Exhibit B attached hereto; and
(c) Upon the occurrence of the First Lien Exchange Effective Date (as defined below), the First Lien Intercreditor Agreement is hereby terminated.
SECTION 2. Exchange and Making of Term Loans.
(a) Exchange of Term B-3 Loans. On the terms and subject to the occurrence of the Seventh Amendment Effective Date pursuant to Section 5(a) hereof, each Consenting Term Lender agrees that an aggregate principal amount of its Term B-3 Loans equal to the amount of such Consenting Term Lender’s Term B-3 Loans as of the Seventh Amendment Effective Date will be exchanged for Term B-3A Loans, as further described in such Consenting Term Lender’s Lender Consent, as of the Seventh Amendment Effective Date.
(b) Exchange of Term B-4 Loans. On the terms and subject to the occurrence of the Seventh Amendment Effective Date pursuant to Section 5(a) hereof, each Consenting Term Lender agrees that an aggregate principal amount of its Term B-4 Loans equal to the amount of such Consenting Term Lender’s Term B-4 Loans as of the Seventh Amendment Effective Date will be exchanged for Term B-4A Loans, as further described in such Consenting Term Lender’s Lender Consent, as of the Seventh Amendment Effective Date.
(c) Exchange of Term B-3A Loans. On the terms and subject to the occurrence of the First Lien Exchange Effective Date pursuant to Section 5(b) hereof, each Consenting Term Lender agrees that an aggregate principal amount of its Term B-3A Loans equal to the amount of such Consenting Term Lender’s Term B-3A Loans will be exchanged for Term B-6 Loans, as further described in the First Lien Credit Agreement, as of the First Lien Exchange Effective Date.
(d) Exchange of Term B-4A Loans. On the terms and subject to the occurrence of the First Lien Exchange Effective Date pursuant to Section 5(b) hereof, each Consenting Term Lender agrees that an aggregate principal amount of its Term B-4A Loans equal to the amount of such Consenting Term Lender’s Term B-4A Loans will be exchanged for Term B-7 Loans, as further described in the First Lien Credit Agreement, as of the First Lien Exchange Effective Date.
(e) Other Provisions Regarding Term Loans. The exchange of Refinanced Term B-3 Loans with Term B-3A Loans and the exchange of Refinanced Term B-4 Loans with Term B-4A Loans each constitutes a simultaneous (I) borrowing of Term B-3A Loans and Term B-4A Loans pursuant to Section 2.02 of the Existing Credit Agreement, as applicable, and (II) voluntary prepayment of all of the Refinanced Term B-3/B-4 Loans by the Borrower pursuant to Section 2.21 of the Existing Credit Agreement. The
4
exchange of Term B-3A Loans for Term B-6 Loans and the exchange of Term B-4A Loans for Term B-7 Loans, as applicable, each constitutes a voluntary prepayment of all of the Term B-3A Loans and Term B-4A Loans, respectively, by the Borrower pursuant to Section 2.11(a) of the Amended Credit Agreement (and not subject to the notice requirements of Section 2.11(e) of the Amended Credit Agreement). The refinancing undertakings of the Consenting Term Lenders are several and no Term Lender will be responsible for any other Term Lender’s failure to make or acquire by refinancing any Term Loans. Each of the parties hereto acknowledges and agrees that the terms of this Seventh Amendment do not constitute a novation but, rather, an amendment of the terms of pre-existing Indebtedness, as evidenced by this Seventh Amendment.
SECTION 3. Consents. Each of the Parent, the Borrower, the other Loan Parties and the Consenting Lenders, on behalf of itself and each of its Related Parties, hereby acknowledges and agrees that, notwithstanding anything to the contrary set forth in any Loan Document, (a) the borrowing and/or incurrence of the Term B-6 Loans, the Term B-7 Loans and the First Lien Revolving Commitments under the First Lien Credit Agreement (and the grant of Liens securing the obligations thereunder), (b) the issuance of the 8.125% First Out First Lien Senior Secured Notes (as defined in the Amended Credit Agreement) (and the grant of Liens securing the obligations under the 8.125% First Out First Lien Senior Secured Notes), (c) the issuance of the 4.375% Second Out First Lien Senior Secured Notes (and the grant of Liens securing the obligations under the 4.375% Second Out First Lien Senior Secured Notes), (d) the issuance of the 9.750% Second Lien Secured Notes (and the grant of Liens securing the obligations under the 9.750% Second Lien Secured Notes), (e) the AHG Bond Repurchases (as defined in the Amended Credit Agreement) and (f) each of the other transactions contemplated by or entered into in connection with the foregoing, the terms and provisions of all documentation, instruments or other agreements related to the foregoing, and the other transactions contemplated by or occurring pursuant to (and the terms and provisions of all documentation, instruments or other agreements related to) the Amended Credit Agreement (including the Term B-3A/B-4A Loan Exchange, the 2022A Revolving Commitments Exchange, the Term B-6 Loan Exchange, the Term B-7 Loan Exchange, the First Lien Revolving Commitments Exchange and the Loan Documents under and as defined in the Amended Credit Agreement (and any action or intermediate or related step necessary to effectuate the Amended Credit Agreement and such other transactions), including the termination of the First Lien Intercreditor Agreement and the entry by the Successor Agent into the First/Second/Third Lien Intercreditor Agreement (as defined in the Amended Credit Agreement) (and the subordination of the Liens securing the obligations under the Amended Credit Agreement provided for therein or effected thereby), whether consummated prior to, on or after the Seventh Amendment Effective Date, shall be and are permitted under the provisions of the Amended Credit Agreement and each other Loan Document under and as defined in the Amended Credit Agreement, and hereby agrees and consents to, and authorizes the entry by the Successor Agent (as applicable) into each of the documents, instruments or agreements contemplated thereby or necessary under the Existing Credit Agreement and the Loan Documents to effectuate each of the foregoing, including as expressly provided in Section 14 below.
SECTION 4. Agency Resignation, Waiver, Consent and Appointment.
(a) As of the Seventh Amendment Effective Date, (i) the Existing Agent hereby resigns as Administrative Agent and Collateral Agent as provided under Section 8.05 (Successor Administrative Agent) of the Amended Credit Agreement and shall have no further obligations under the Loan Documents in such capacities (other than the obligations set forth in this Section 4); (ii) the Borrower and the Required Lenders hereby waive any notice requirement and any other requirement, inconsistency or conflict contained in or with the provisions in Section 8.05 (Successor Administrative Agent) in respect of such resignation or appointment; (iii) the Borrower and the Required Lenders hereby consent and agree to the appointment of CSC Delaware Trust Company to act as the Successor Agent; (iv) CSC Delaware Trust Company hereby accepts its appointment to act as the successor Administrative Agent and successor
5
Collateral Agent under the Amended Credit Agreement; (v) the Successor Agent shall bear no responsibility for (a) any event, fact or circumstance that occurred prior to the Seventh Amendment Effective Date, including any actions taken or omitted to be taken by the Existing Agent before or after the Seventh Amendment Effective Date or while the Existing Agent served as Administrative Agent and Collateral Agent under the Amended Credit Agreement and the other Loan Documents or (b) any cost, loss or liability incurred by any Lender as a consequence of the Successor Agent not having been provided with Loan Documents that are in the possession of the Existing Agent in its capacity as the Collateral Agent under the Loan Documents; (vi) the Existing Agent shall bear no responsibility for any actions taken or omitted to be taken by the Successor Agent before or after the Seventh Amendment Effective Date; and (vii) each of the Loan Parties authorizes the Successor Agent, at the Borrower’s expense, to file any Uniform Commercial Code assignments or amendments with respect to the Uniform Commercial Code Financing Statements, mortgages, and other filings in respect of the Collateral, including filings with the United States Patent and Trademark Office and United States Copyright Office, as the Successor Agent reasonably deems necessary or desirable and each party hereto agrees to execute any documentation and to take such other actions as may reasonably be necessary or appropriate to evidence the Successor Agent’s succession as the Administrative Agent and the Collateral Agent under the Amended Credit Agreement and the other Loan Documents; provided that the Existing Agent shall bear no responsibility for any actions taken or omitted to be taken by the Successor Agent, and the Successor Agent shall bear no responsibility for any actions taken or omitted to be taken by Existing Agent, in each case under this clause (vii). Notwithstanding anything to the contrary contained herein, neither the Successor Agent nor the Existing Agent shall have any duty to file any financing or continuation statements or record any documents or instruments in any public office for purposes of creating, perfecting or maintaining any Lien or security interest created under the Loan Documents or for otherwise perfecting or maintaining the perfection of any Lien or security interest in the Collateral, other than (1) solely in the case of the Successor Agent, those provided in the Loan Documents and (2) solely in the case of the Existing Agent, the obligations of the Existing Agent under Section 4(e) of this Seventh Amendment relating to the transfer of rights and privileges of the Existing Agent under the Loan Documents to the Successor Agent.
(b) The parties hereto hereby confirm that, as of the Seventh Amendment Effective Date, the Successor Agent succeeds to the rights and obligations of the Existing Agent, in its capacities as Administrative Agent and Collateral Agent, under the Amended Credit Agreement and the other Loan Documents and becomes vested with all of the rights, powers, privileges and assumes all of the obligations, responsibilities and duties of the Existing Agent, in its capacities as Administrative Agent and Collateral Agent, under each of the Loan Documents, and, except as set forth in this Section 4, the Existing Agent relinquishes all rights and powers (other than with respect to the Protective Provisions (as defined below)) and is discharged from all of its duties and obligations as the Administrative Agent and Collateral Agent under the Amended Credit Agreement and the other Loan Documents, in each case, as of the Seventh Amendment Effective Date. The Successor Agent hereby acknowledges that (i) neither the Existing Agent nor any of its affiliates has made or shall be deemed to have made any representation or warranty to the Successor Agent and (ii) the Successor Agent has, independently and without reliance upon the Existing Agent or any of its affiliates, made its own decision to enter into this Agreement and the transactions contemplated hereby. Each of the parties hereto expressly agrees and acknowledges that the Successor Agent is not assuming any liability in the capacity as Administrative Agent or Collateral Agent for any claims against the Administrative Agent or Collateral Agent under or related to the Loan Documents that may have arisen or accrued prior to the Seventh Amendment Effective Date.
(c) The parties hereto hereby confirm that, as of the Seventh Amendment Effective Date, all of the provisions of the Amended Credit Agreement, including, without limitation, Section 2.15 (Increased Costs), Section 2.16 (Break Payments), Section 2.17 (Taxes), Article VIII (The Administrative Agent and Collateral Trustee), Section 9.02(c) and Section 9.03 (Expenses; Indemnity; Damage Waiver) of the Amended Credit Agreement (in each case, as such provisions were in effect immediately prior to
6
the Seventh Amendment Effective Date, collectively, the “Protective Provisions”) to the extent they pertain to the Existing Agent, continue in effect for the benefit of the Existing Agent and each Related Party of the Existing Agent in respect of any actions taken or omitted to be taken by the Existing Agent or any of its Related Parties while the Existing Agent was acting as Administrative Agent or Collateral Agent and inure to the benefit of the Existing Agent. In addition, the parties hereto hereby confirm that (i) the Protective Provisions apply in all respects to this Agreement for the benefit of the Existing Agent, the Successor Agent and each of their respective Related Parties in respect of any actions taken or omitted to be taken, or any determinations made, by any of them in connection with this Agreement or the transactions contemplated hereby from and after the Seventh Amendment Effective Date and (ii) the Protective Provisions shall apply to any cost, loss, or liability incurred by the Successor Agent and each of its Related Parties as a consequence of the actions or omissions of the Existing Agent or by any party not delivering, transferring, or providing the Successor Agent with all documents, instruments, and agreements to perform its obligations as the Successor Agent under the Loan Documents.
(d) The Existing Agent hereby assigns to the Successor Agent each of the Liens and security interests granted to the Existing Agent under the Existing Credit Agreement, for the ratable benefit of the Lenders and any other secured parties on whose behalf it may be acting under any security documents included within the Loan Documents (collectively, the “Secured Parties”), under the Amended Credit Agreement and the other Loan Documents, and the Successor Agent hereby assumes all such Liens, for its benefit and for the benefit of the other Secured Parties.
(e) Subject to the terms of the First/Second/Third Lien Intercreditor Agreement, the Existing Agent covenants and agrees that it will (a) at the Borrower’s expense (including without limitation any fees and expenses of the Existing Agent’s outside legal counsel), execute all documents, agreements or instruments as may be reasonably requested by the Successor Agent to transfer the rights and privileges of the Existing Agent under the Loan Documents to the Successor Agent, and (b) at the Borrower’s expense (including without limitation any fees and expenses of the Existing Agent’s outside legal counsel), promptly make, or cause to be made all filings and take all other actions reasonably requested by the Successor Agent or the Lenders through the Successor Agent that (i) are necessary or reasonably desirable to maintain the validity, perfection and priority of the Liens on the Collateral in favor of the Successor Agent and (ii) cannot be achieved without the Existing Agent making such filings or taking such actions, as applicable. The Borrower hereby consents to all actions taken by the Existing Agent and the Successor Agent pursuant to the immediately preceding sentence.
(f) It is the intention and understanding of the Existing Agent and the Successor Agent that any exchange of information under this Section 4 that is otherwise protected against disclosure by privilege, doctrine or rule of confidentiality (such information, “Privileged Information”) (i) will not waive any applicable privilege, doctrine or rule of protection from disclosure, (ii) will not diminish the confidentiality of the Privileged Information and (iii) will not be asserted as a waiver of any such privilege, doctrine or rule by the Existing Agent or the Successor Agent.
(g) On and after the Seventh Amendment Effective Date, all possessory Collateral held by the Existing Agent or any other party pursuant to the First/Second/Third Lien Intercreditor Agreement (or any other Intercreditor Agreement) for the benefit of the Secured Parties shall be deemed to be held by the Existing Agent as sub-agent and bailee for the Successor Agent for the benefit of the Secured Parties until such time as such possessory Collateral has been delivered to the Successor Agent. Notwithstanding anything herein to the contrary or the effectiveness of the terms hereof, each Loan Party agrees that all of such Liens granted by any Loan Party, shall in all respects be continuing and in effect and are hereby ratified and reaffirmed by each Loan Party. Without limiting the generality of the foregoing, (i) any reference to the Existing Agent on any publicly filed document, to the extent such filing relates to the liens and security interests in the Collateral assigned hereby and until such filing is modified to reflect the
7
interests of the Successor Agent, shall, with respect to such Liens and security interests, constitute a reference to the Existing Agent as collateral representative of the Successor Agent, (ii) any reference to the Existing Agent as an insured or additional insured and/or loss payee under any insurance required to be maintained pursuant to the Loan Documents shall, until the Successor Agent is substituted as an insured or additional insured and/or loss payee thereunder, constitute a reference to the Existing Agent as sub-agent of the Successor Agent; and (iii) any reference to the Existing Agent in any guarantee, pledge agreement, security agreement, mortgage, intellectual property security agreement or other Security Document shall, until the Successor Agent is substituted thereunder (whether pursuant to this Agreement, by operation of law or, if required, by subsequent amendment, assignment, filing or other instrument), constitute a reference to the Existing Agent as sub-agent of the Successor Agent (provided, that in each case of clauses (i), (ii) and (iii), the parties hereto agree that the Existing Agent’s role as such collateral representative shall impose no duties, obligations, or liabilities on the Existing Agent, including, without limitation, any duty to take any type of direction regarding any action to be taken against such Collateral, whether such direction comes from the Successor Agent, the Lenders, or otherwise, and the Existing Agent shall have the full benefit of the Protective Provisions while serving in such capacity). Subject to the terms of the First/Second/Third Lien Intercreditor Agreement, the Successor Agent agrees to take possession of any possessory Collateral delivered to the Successor Agent following the Seventh Amendment Effective Date upon tender thereof by the Existing Agent.
(h) The Borrower and the other Loan Parties agree (a) to promptly deliver, or shall cause to be delivered, (i) insurance certificates and endorsements to the Successor Agent, naming the Successor Agent as loss payee or additional insured, as appropriate, in respect of all insurance policies required to be maintained pursuant to the Loan Documents; and (ii) the most recent quarterly reporting package delivered by the Borrower to the Existing Agent under Section 5.01 (Financial Statements and Other Information) of the Amended Credit Agreement; and (b) take such other actions as may be reasonably necessary to evidence the Existing Agent’s resignation, the Successor Agent’s appointment, and the assignment of the Liens and security interests hereunder. At the Borrower’s expense (including without limitation any fees and expenses of the Existing Agent’s outside legal counsel), the Existing Agent agrees to take such actions as may be reasonably necessary to evidence the Existing Agent’s resignation, the Successor Agent’s appointment, and the assignment of the Liens and security interests hereunder.
(i) The Borrower and each other Loan Party hereby unconditionally and irrevocably waives all claims, suits, debts, liens, losses, causes of action, demands, rights, damages or costs, or expenses of any kind, character or nature whatsoever, known or unknown, fixed or contingent, which any of them may have or claim to have against JPMorgan Chase Bank, N.A. (whether in its capacity as an agent, lender, hedging counterparty or otherwise) or its agents, employees, officers, affiliates, directors, representatives, attorneys, successors or assigns (collectively, the “Released Parties”) to the extent arising out of or in connection with the Loan Documents (collectively, the “Claims”), other than those resulting from the gross negligence or willful misconduct of a Released Party (as determined by a court of competent jurisdiction in a final and non-appealable decision). The Borrower and each other Loan Party further agrees forever to refrain from commencing, instituting or prosecuting any lawsuit, action or other proceeding against any Released Parties with respect to any and all of the foregoing described waived, released, acquitted and discharged Claims or from exercising any right or recoupment of setoff that it may have under a master netting agreement or otherwise against any Released Party with respect to Obligations under the Loan Documents. Each of the Released Parties shall be a third-party beneficiary of this Section 4.
(j) It is acknowledged and agreed by each of the parties hereto that the Existing Agent (i) shall not be required to take any action or exercise any right, power or privilege (including, without limitation, the exercise of any rights or remedies under the Loan Documents) under the Loan Documents unless expressly requested in writing by the Successor Agent or otherwise required by the Loan
8
Documents and any document, instrument or agreement to be furnished or executed by, or other action to be taken by, the Existing Agent shall be reasonably satisfactory to it, (ii) 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 believed by it to be genuine and to have been signed or sent by the proper person, (iii) may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon and (iv) 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.
(k) It is acknowledged and agreed by each of the parties hereto that the Successor Agent, in succeeding to the position of Administrative Agent and Collateral Agent under the Amended Credit Agreement and the other Loan Documents, (i) has undertaken no analysis of the Loan Documents or the Collateral, (ii) has made no determination as to (x) the validity, enforceability, effectiveness or priority of any Liens granted or purported to be granted pursuant to the Loan Documents or (y) the accuracy or sufficiency of the documents, filings, recordings and other actions taken to create, perfect or maintain the existence, perfection or priority of the Liens granted or purported to be granted pursuant to the Loan Documents, (iii) 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 believed by it to be genuine and to have been signed or sent by the proper person, (iv) may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon and (v) may consult with legal counsel (who may be counsel for the Borrower or the Required Lenders), 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 5. Conditions to Effectiveness and Exchanges.
(a) The effectiveness of this Seventh Amendment (including the amendments contained in Section 1) is subject to the satisfaction (or waiver) of the following conditions (the first date of satisfaction of such conditions being referred to herein as the “Seventh Amendment Effective Date”):
(i) This Seventh Amendment and each Lender Consent shall have been duly executed by the Borrower, Parent, the Subsidiary Loan Parties, the Existing Agent, the Successor Agent and the Required Credit Lenders (which may include a copy transmitted by facsimile or other electronic method), and delivered to the Existing Agent, the Successor Agent and the Required Credit Lenders;
(ii) The Successor Agent shall have received (i) each Organizational Document of Parent and the Borrower certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of Parent and the Borrower executing this Seventh Amendment, (iii) resolutions of the Board of Directors and/or similar governing bodies of Parent and the Borrower approving and authorizing the execution, delivery and performance of this Amendment, certified as of the Seventh Amendment Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of Parent’s and the Borrower’s jurisdiction of incorporation, organization or formation; and
9
(iii) All fees and expenses required to be paid in connection with this Seventh Amendment shall have been paid in full in cash or will be paid in full in cash on the Seventh Amendment Effective Date, including all reasonable and documented out-of-pocket expenses incurred by the Existing Agent and the Successor Agent (including reasonable fees and expenses of legal counsel required to be paid), in connection with the execution and delivery of this Seventh Amendment.
(b) The consummation of the Term B-6 Loan Exchange, the Term B-7 Loan Exchange the First Lien Revolving Commitments Exchange (together, the “First Lien Exchanges”) and the termination of the First Lien Intercreditor Agreement is subject to the satisfaction (or waiver) of the following conditions (the first date of satisfaction (or waiver) of such conditions being referred to herein as the “First Lien Exchange Effective Date”):
(i) The Seventh Amendment Effective Date shall have occurred prior to the First Lien Exchanges;
(ii) In the case of the Term B-6 Loan Exchange and the Term B-7 Loan Exchange, the Term B-3A Loan Exchange and the Term B-4A Loan Exchange shall have been consummated prior to the First Lien Exchanges;
(iii) In the case of the First Lien Revolving Commitments Exchange, the 2022A Revolving Commitments Exchange shall have been consummated;
(iv) The First Lien Credit Agreement shall have been executed or shall be executed substantially concurrently with the First Lien Exchanges;
(v) The 8.125% First Out First Lien Senior Secured Notes shall have been issued or shall be issued substantially concurrently with the First Lien Exchanges;
(vi) The 4.375% Second Out First Lien Senior Secured Notes shall have been issued or shall be issued substantially concurrently with the First Lien Exchanges; and
(vii) The 9.750% Second Lien Secured Notes shall have been issued or shall be issued substantially concurrently with the First Lien Exchanges.
SECTION 6. Effect of Amendment; Related Transactions. Immediately following the transactions contemplated under this Seventh Amendment (including the effectuation of any necessary documentation contemplated by the consent set forth in Section 3 hereof) on the First Lien Exchange Effective Date: (i) the First Lien Credit Agreement shall be effective, (ii) the First Lien Revolving Commitments shall have been made available under the First Lien Credit Agreement, (iii) the Term B-3A Exchange, the Term B-4A Exchange, the Term B-6 Exchange and the Term B-7 Exchange each shall have been consummated and (iv) any outstanding Revolving Loans under the Existing Credit Agreement under and in respect of the 2022 Revolving Commitments immediately prior to the Seventh Amendment Effective Date, and the 2022A Revolving Commitments immediately prior to the First Lien Exchange Effective Date shall no longer be outstanding under the Amended Credit Agreement, the 2022 Revolving Commitments shall be reduced to $37,500,000, the 2022A Revolving Commitments shall be reduced to $0, the Swingline Sublimit shall be reduced to $0, the Letter of Credit Commitments shall be reduced to $0, each Letter of Credit shall be deemed to be issued under the First Lien Credit Agreement and shall not be issued under the Amended Credit Agreement and each of the 2022 Revolving Lenders shall have no obligation under the Amended Credit Agreement, including any obligation to make any Loan, issue, amend, renew or extend any Letter of Credit or otherwise extend any credit under the Amended Credit Agreement.
10
SECTION 7. Representations and Warranties. To induce the other parties hereto to enter into this Seventh Amendment, each Loan Party represents and warrants to each of the Lenders party hereto, the Existing Agent and the Successor Agent that:
(a) (i) This Seventh Amendment has been duly authorized, executed and delivered by each of Parent and the Borrower, and this Seventh Amendment and the Amended Credit Agreement constitute, a legal, valid and binding obligation of Parent, the Borrower or such Loan Party, as the case may be, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law and (ii) on the Seventh Amendment Effective Date, immediately after giving effect to this Seventh Amendment and the other transactions contemplated hereby, no Event of Default exists.
(b) This Seventh Amendment and the transactions contemplated hereby (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect and except filings necessary to perfect Liens created under the Loan Documents, (b) will not violate (i) the Organizational Documents of Parent, the Borrower or any other Loan Party, or (ii) any Requirements of Law applicable to Parent, the Borrower or any Restricted Subsidiary, and (c) will not violate or result in a default under any indenture or other agreement or instrument binding upon Parent, the Borrower or any other Restricted Subsidiary or their respective assets, or give rise to a right thereunder to require any payment, repurchase or redemption to be made by Parent, the Borrower or any Restricted Subsidiary, or give rise to a right of, or result in, termination, cancellation or acceleration of any obligation thereunder, except (in the case of each of clauses (a), (b)(ii) and (c)) to the extent that the failure to obtain or make such consent, approval, registration, filing or action, or such violation, default or right as the case may be, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
SECTION 8. Effects on Loan Documents.
(a) Except as specifically amended herein or contemplated hereby, all Loan Documents shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.
(b) Except as specifically amended herein or contemplated hereby, the execution, delivery and effectiveness of this Seventh Amendment shall not operate as a waiver of any right, power or remedy of any Lender, the Existing Agent or the Successor Agent under any of the Loan Documents or be construed as a substitution or novation of the Secured Obligations, which shall remain in full force and effect, except to any extent modified hereby, nor in any way limit, impair or otherwise affect the rights and remedies of the Lenders, the Existing Agent or the Successor Agent under the Loan Documents.
(c) (i) Each Loan Party acknowledges and agrees that, on and after the Seventh Amendment Effective Date, this Seventh Amendment shall constitute a Loan Document for all purposes under the Amended Credit Agreement and (ii) each of the Loan Parties hereby (A) agrees that all Secured Obligations shall be guaranteed pursuant to the Guarantee Agreement in accordance with the terms and provisions thereof and shall be secured pursuant to the Security Documents in accordance with the terms and provisions thereof, and that, notwithstanding the effectiveness of this Seventh Amendment, on and after the Seventh Amendment Effective Date, the Guarantee Agreement and the Liens created pursuant to the Security Documents for the benefit of the Secured Parties continue to be in full force and effect on a continuous basis and (B) affirms, acknowledges and confirms all of its obligations and liabilities under the Existing Credit Agreement and each other Loan Document to which it is a party, in each case, after giving effect to this Seventh Amendment (including the termination of the First Lien Intercreditor Agreement), all as provided in such Loan Documents, and acknowledges and agrees that such obligations and liabilities continue in full force and effect on a continuous basis in respect of, and to secure, the Secured Obligations, in each case, after giving effect to this Seventh Amendment.
11
(d) On and after the Seventh Amendment Effective Date, each reference in the Amended Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Existing Credit Agreement as amended by this Seventh Amendment, and this Seventh Amendment and the Existing Credit Agreement as amended by this Seventh Amendment shall be read together and construed as a single instrument.
(e) Nothing herein shall be deemed to entitle any Loan Party to a further consent to, or a further waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Amended Credit Agreement or any other Loan Document in similar or different circumstances.
SECTION 9. Expense Reimbursement and Indemnification.
(a) The Borrower hereby confirms that the expense reimbursement and indemnification provisions set forth in Section 9.03 of the Amended Credit Agreement shall apply to this Seventh Amendment and the transactions contemplated hereby irrespective of whether the Seventh Amendment Effective Date occurs.
(b) The Lenders party hereto hereby confirm that the indemnification provisions set forth in Section 8.02 of the Amended Credit Agreement shall apply to this Seventh Amendment and the transactions contemplated hereby irrespective of whether the Seventh Amendment Effective Date occurs.
SECTION 10. Amendments; Severability.
(a) This Seventh Amendment may not be amended nor may any provision hereof be waived or otherwise modified except in accordance with the provisions of Section 9.02 of the Amended Credit Agreement; provided that Section 4 and any defined terms used in Section 4 (to the extent applicable to Section 4) shall not be amended or modified without the prior written consent of the Existing Agent.
(b) To the extent permitted by applicable Requirements of Law, any provision of this Seventh Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 11. Governing Law; Waiver of Jury Trial; Jurisdiction. THIS SEVENTH AMENDMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS SEVENTH AMENDMENT, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. The provisions of Sections 9.09 and 9.10 of the Amended Credit Agreement are incorporated herein by reference, mutatis mutandis.
SECTION 12. Headings. Section headings in this Seventh Amendment are for convenience of reference only, are not part of this Seventh Amendment and shall not affect the construction of, or be taken into consideration in interpreting, this Seventh Amendment.
12
SECTION 13. Reaffirmation. Each Loan Party, as debtor, grantor, pledgor, guarantor, assignor, or in other similar capacities in which such Loan Party has granted liens or security interests in its properties and/or acts as a guarantor, surety or an accommodation party, as the case may be, under any of the Loan Documents to which it is a party hereby (a) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, and undertakings arising under or pursuant to each of such Loan Documents and (b) acknowledges and agrees that, subsequent to the execution and delivery of, and after taking into account and giving effect to, the Amended Credit Agreement, each of such Loan Documents remains in full force and effect as hereby ratified, amended and confirmed. To the extent such Loan Party previously granted liens on, or security interests in, any of its properties pursuant to any such Loan Documents as security for the Secured Obligations arising under, pursuant to or as defined in the Existing Credit Agreement, each such Loan Party hereby ratifies and reaffirms such grant of security and confirms and agrees that, subsequent to the execution and delivery of, and after taking into account and giving effect to, the Amended Credit Agreement, such liens and security interests hereafter secure all of the Secured Obligations arising under, pursuant to or as defined in the Amended Credit Agreement.
SECTION 14. Instruction to the Successor Agent.
(a) Each of the Lenders party hereto hereby consent, request and instruct the Successor Agent to (x) execute and deliver this Seventh Amendment, the First/Second/Third Lien Intercreditor Agreement, and any other Seventh Amendment Loan Documents (as defined below) or other agreements, documents or other instruments related thereto, (y) accept and approve all Seventh Amendment Loan Documents and to not require any other documents, opinions or other items in connection therewith and/or (z) take any and all actions as the Successor Agent, in its sole discretion, may determine to be necessary, advisable or desirable in carrying out, effectuating or otherwise in furtherance of the transactions related to or in connection with this Seventh Amendment and the other Seventh Amendment Loan Documents; provided that all actions or inactions of the Successor Agent shall be at the Direction of the Required Lenders.
(b) The Consenting Lenders hereby ratify all of the Seventh Amendment Loan Documents and confirm the Seventh Amendment Loan Documents and each other documentary condition precedent is as satisfactory to them in all respects.
SECTION 15. Release. Effective as of the Seventh Amendment Effective Date, each Releasing Party shall conclusively, absolutely, unconditionally, irrevocably and forever release, waive and discharge, to the fullest extent permitted by Law, each Released Party from any and all Claims and Causes of Action, whether known or unknown, contingent or fixed, direct or indirect, and of whatever nature of description, and whether in law or in equity, under contract, tort, statute or otherwise, that such Person(s) would have been legally entitled to assert (whether individually or collectively or directly or derivatively), based in whole or in part on any act, omission, transaction, event or other occurrence taking place up to and including the Seventh Amendment Effective Date, in connection with or related to any matter, cause or thing whatsoever arising out of or relating to: (a) the incurrence of indebtedness by the Borrower with respect to the Existing Credit Agreement and the other Loan Documents; (b) solely with respect to any Claims and Causes of Action against Consenting Lenders, the purchase and ownership of indebtedness of the Borrower; (c) the June 1, 2023 share exchange whereby Parent became a wholly-owned subsidiary of Sinclair, Inc., a Maryland corporation (“Sinclair”), and the related June 2, 2023 transfer of certain assets (including The Tennis Channel) by Sinclair Holdings, Inc., the intermediate holding company between Sinclair and Parent (and thus an indirect parent of the Borrower) to Sinclair Ventures, LLC, a new indirect wholly-owned subsidiary of Sinclair, as more fully described in Sinclair’s filings with the U.S. Securities and Exchange Commission; (d) any amendment, forbearance, or waiver in respect of any of the Existing Credit Agreement or other Loan Documents or any of the Borrower’s other funded indebtedness or debt securities that is consummated to effectuate the transactions contemplated hereby (the “Transactions”); (e) the Transactions; (f) the formulation, preparation, dissemination, negotiation or execution of this Seventh
13
Amendment or any related agreement(s) or documents; (g) the implementation of the Transactions (including, without limitation, the issuance of any debt securities or the distribution of any other property in relation thereto); or (h) any other related act or omission, transaction, agreement, event or other occurrence taking place on or before the Seventh Amendment Effective Date, solely with respect to the Transactions. Each Releasing Party represents and warrants that it has no knowledge of any Claims or Causes of Action by any Releasing Party against any Released Party or of any facts or acts or omissions of any Released Party which on the date hereof would be the basis of any Claims or Causes of Action by any Releasing Party against any Released Party which would not be released hereby. Notwithstanding anything to the contrary herein, the Released Parties shall not be released from any obligations arising under this Seventh Amendment or the other Loan Documents. Nothing in this Seventh Amendment shall constitute a release of any Claims or Causes of Action (a) against any party who fails to execute and deliver any document required to be executed and delivered by such party to effectuate this Seventh Amendment or any other Loan Documents or the Transactions and (b) arising from or relating to any action or inaction that is determined by a final nonappealable order of a court of competent jurisdiction to constitute actual fraud, willful misconduct, gross negligence, or a criminal act. For purposes of the foregoing, “Releasing Party” shall mean (x) each of the Lenders party hereto, the Borrower, the Borrower’s Affiliates party hereto and (y) each of such Person’s current and former directors, managers, officers, principals, members, partners, limited partners, general partners, managed accounts or funds, fund advisors, investment advisors, collateral advisors, investment managers, investment vehicles, investors, employees, equity holders (regardless of whether such interests are held directly or indirectly), predecessors, successors, assigns, subsidiaries, agents, advisory board members, financial advisors, attorneys, accountants, independent contractors, investment bankers, consultants, industry advisors, operational advisors, representatives and other professionals (the foregoing Persons described in clause (y), “Representatives”); “Released Party” shall mean the (i) Parent, (ii) the Borrower, (iii) each of the Lenders party hereto, (iv) with respect to each of the foregoing Persons in clauses (i) through (iii), each of such Person’s current and former Affiliates and (v) with respect to each of the foregoing Persons in clauses (i) through (iv), each of such Person’s Representatives; “Claims” shall mean any and all claims against the Borrower and the other Released Parties; and “Causes of Action” shall mean any and all claims, interests, damages, remedies, causes of action, demands, rights, actions, suits, obligations, liabilities, accounts, defenses, offsets, powers, privileges, licenses, liens, indemnities, guaranties, or franchises of any kind or character whatsoever, whether known or unknown, foreseen or unforeseen, arising before or on the Seventh Amendment Effective Date, contingent or non-contingent, liquidated or unliquidated, secured or unsecured, assertable, directly or derivatively, matured or unmatured, suspected or unsuspected, in contract, tort, law, equity, or otherwise.
SECTION 16. Notice of Prepayment. This Agreement shall constitute a notice of prepayment of the Term B-2 Loans pursuant to Section 2.11(a) of the Amended Credit Agreement, subject to the occurrence of the First Lien Exchange Effective Date and the Borrower’s receipt of the net proceeds from the issuance and sale of the 8.125% First Out First Lien Senior Secured Notes, and such prepayment shall not be subject to the notice requirements of Section 2.11(e) of the Amended Credit Agreement.
SECTION 17. Counterparts; Electronic Execution. This Seventh Amendment and each other Loan Document executed on the Seventh Amendment Effective Date (the “Seventh Amendment Loan Documents”) may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page to this Seventh Amendment by facsimile or by email as a “.pdf” or “.tiff” attachment shall be effective as delivery of a manually executed counterpart of this Seventh Amendment. The words “execution,” “signed,” “signature,” and words of like import in this Seventh Amendment shall be deemed to include electronic signatures or electronic records, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
[Remainder of page intentionally left blank.]
14
IN WITNESS WHEREOF, the parties hereto have caused this Seventh Amendment to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.
| SINCLAIR BROADCAST GROUP, LLC, as Parent | |
|---|---|
| By: | /s/ Christopher S. Ripley |
| Name: | Christopher S. Ripley |
| Title: | President and Chief Executive Officer |
| SINCLAIR TELEVISION GROUP, INC., as Borrower | |
| By: | /s/ Christopher S. Ripley |
| Name: | Christopher S. Ripley |
| Title: | President and Chief Executive Officer |
[SIGNATURE PAGE TO SEVENTH AMENDMENT]
| SUBSIDIARY LOAN PARTIES: | |
|---|---|
| BIRMINGHAM (WABM-TV) LICENSEE, INC. | |
| FISHER MILLS, INC. | |
| FISHER PROPERTIES, INC. | |
| HARRISBURG TELEVISION, INC. | |
| NEW YORK TELEVISION, INC. | |
| PERPETUAL CORPORATION | |
| RALEIGH (WRDC-TV) LICENSEE, INC. | |
| SINCLAIR ACQUISITION IX, INC. | |
| SINCLAIR ACQUISITION VII, INC. | |
| SINCLAIR ACQUISITION VIII, INC. | |
| SINCLAIR MEDIA III, INC. | |
| SINCLAIR MEDIA VI, INC. | |
| SINCLAIR TELEVISION MEDIA, INC. | |
| SINCLAIR TELEVISION OF BAKERSFIELD, INC. | |
| SINCLAIR TELEVISION OF SEATTLE, INC. | |
| SINCLAIR TELEVISION OF WASHINGTON, INC. | |
| WGME, INC. | |
| WSMH, INC. | |
| WSYX LICENSEE, INC. | |
| WVTV LICENSEE, INC. | |
| KAME, LLC | |
| KENV, LLC | |
| KRNV, LLC | |
| KRXI, LLC | |
| KVCW, LLC | |
| KVMY, LLC | |
| By: | Chesapeake Media I, LLC, Sole Member |
| By: | Sinclair Television Group, Inc., Sole Member of Chesapeake Media I, LLC |
| WCWF LICENSEE, LLC | |
| WJAR LICENSEE, LLC | |
| WLUK LICENSEE, LLC | |
| By: | Harrisburg Television, Inc., Sole Member |
| SINCLAIR TELEVISION OF ILLINOIS, LLC | |
| WICD LICENSEE, LLC | |
| WICS LICENSEE, LLC | |
| By: | Illinois Television, LLC, Sole Member |
| By: | Sinclair Communications LLC, Sole Member of Illinois Television, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
[SIGNATURE PAGE TO SEVENTH AMENDMENT]
| KATV LICENSEE, LLC | |
|---|---|
| By: | KATV, LLC, Sole Member |
| By: | Sinclair Television Stations, LLC, Sole Member of KATV, LLC |
| By: | Perpetual Corporation, Sole Member of Sinclair Television Stations, LLC |
| KDSM LICENSEE, LLC | |
| By: | KDSM, LLC, Sole Member |
| By: | Sinclair Television Group, Inc., Sole Member of KDSM, LLC |
| KOKH LICENSEE, LLC | |
| By: | KOKH, LLC, Sole Member |
| By: | Sinclair Communications, LLC, Sole Member of KOKH, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| KTUL LICENSEE, LLC | |
| By: | KTUL, LLC, Sole Member |
| By: | Sinclair Television Stations, LLC, Sole Member of KTUL, LLC |
| By: | Perpetual Corporation, Sole Member of Sinclair Television Stations, LLC |
| WCGV LICENSEE, LLC | |
| By: | Milwaukee Television, LLC, Sole Member |
| By: | Sinclair Communications, LLC Sole Member of Milwaukee Television, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| WSMH LICENSEE, LLC | |
| By: | WSMH, Inc., Sole Member |
| SINCLAIR TELEVISION STATIONS, LLC | |
| By: | Perpetual Corporation, Sole Member |
| MJ PODCAST, LLC | |
| UMR PODCAST, LLC | |
| By: | Sinclair Audio, LLC |
| By: | Sinclair Television Group, Inc. |
[SIGNATURE PAGE TO SEVENTH AMENDMENT]
| WKEF LICENSEE L.P. | |
|---|---|
| By: | Sinclair Communications, LLC, General Partner |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| CHESAPEAKE TELEVISION LICENSEE, LLC | |
| HARRISBURG LICENSEE, LLC | |
| ILLINOIS TELEVISION, LLC | |
| KABB LICENSEE, LLC | |
| KDNL LICENSEE, LLC | |
| KEYE LICENSEE, LLC | |
| KFDM LICENSEE, LLC | |
| KFOX LICENSEE, LLC | |
| KFXA LICENSEE, LLC | |
| KGAN LICENSEE, LLC | |
| KGBT LICENSEE, LLC | |
| KHGI LICENSEE, LLC | |
| KHQA LICENSEE, LLC | |
| KJZZ LICENSEE, LLC | |
| KOCB LICENSEE, LLC | |
| KOKH, LLC | |
| KPTH LICENSEE, LLC | |
| KRCG LICENSEE, LLC | |
| KRXI LICENSEE, LLC | |
| KSAS LICENSEE, LLC | |
| KTVL LICENSEE, LLC | |
| KTVO LICENSEE, LLC | |
| KUPN LICENSEE, LLC | |
| KUQI LICENSEE, LLC | |
| KUTV LICENSEE, LLC | |
| KVII LICENSEE, LLC | |
| MILWAUKEE TELEVISION, LLC | |
| SAN ANTONIO TELEVISION, LLC | |
| SINCLAIR PROPERTIES, LLC | |
| SINCLAIR TELEVISION OF EL PASO, LLC | |
| WACH LICENSEE, LLC | |
| WCWB LICENSEE, LLC | |
| WCWN LICENSEE, LLC | |
| WDKY LICENSEE, LLC | |
| WEAR LICENSEE, LLC | |
| WFGX LICENSEE, LLC | |
| WFXL LICENSEE, LLC | |
| WGFL LICENSEE, LLC | |
| WGXA LICENSEE, LLC | |
| WHOI LICENSEE, LLC | |
| WKRC LICENSEE, LLC | |
| WLFL LICENSEE, LLC |
[SIGNATURE PAGE TO SEVENTH AMENDMENT]
| WLOS LICENSEE, LLC | |
|---|---|
| WMSN LICENSEE, LLC | |
| WNAB LICENSEE, LLC | |
| WNWO LICENSEE, LLC | |
| WOAI LICENSEE, LLC | |
| WOLF LICENSEE, LLC | |
| WPBN LICENSEE, LLC | |
| WPDE LICENSEE, LLC | |
| WPEC LICENSEE, LLC | |
| WPGH LICENSEE, LLC | |
| WQMY LICENSEE, LLC | |
| WRDC, LLC | |
| WRGB LICENSEE, LLC<br> <br>WRGT LICENSEE,<br>LLC<br> <br>WRLH LICENSEE, LLC | |
| WSBT LICENSEE, LLC | |
| WSTQ LICENSEE, LLC | |
| WSTR ACQUISITION, LLC | |
| WTGS LICENSEE, LLC | |
| WTOV LICENSEE, LLC | |
| WTTO LICENSEE, LLC | |
| WTVC LICENSEE, LLC | |
| WTVX LICENSEE, LLC | |
| WTVZ LICENSEE, LLC | |
| WTWC LICENSEE, LLC | |
| WUCW, LLC | |
| WUHF LICENSEE, LLC | |
| WUPN LICENSEE, LLC | |
| WUTV LICENSEE, LLC | |
| WUXP LICENSEE, LLC | |
| WWHO LICENSEE, LLC | |
| WWMT LICENSEE, LLC | |
| WXLV LICENSEE, LLC | |
| WZTV LICENSEE, LLC | |
| By: | Sinclair Communications, LLC, Sole Member |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| SINCLAIR DIGITAL NEWS, LLC | |
| WEST COAST DIGITAL, LLC | |
| By: | Sinclair Digital Group, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Digital Group, LLC |
[SIGNATURE PAGE TO SEVENTH AMENDMENT]
| WCHS LICENSEE, LLC | |
|---|---|
| WVAH LICENSEE, LLC | |
| By: | Sinclair Media III, Inc., Sole Member |
| SINCLAIR MEDIA LICENSEE, LLC | |
| SINCLAIR TELEVISION OF ABILENE, LLC | |
| SINCLAIR TELEVISION OF BRISTOL, LLC | |
| SINCLAIR TELEVISION OF CALIFORNIA, LLC | |
| SINCLAIR TELEVISION OF MONTANA, LLC | |
| SINCLAIR TELEVISION OF NEW BERN, LLC | |
| WCTI LICENSEE, LLC | |
| By: | Sinclair Media VI, Inc., Sole Member |
| KBSI LICENSEE L.P. | |
| WMMP LICENSEE L.P. | |
| By: | Sinclair Properties, LLC, General Partner |
| By: | Sinclair Communications, LLC, Sole Member of Sinclair Properties, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| WDKA LICENSEE, LLC | |
| By: | Sinclair Properties, LLC, Sole Member |
| By: | Sinclair Communications, LLC, Sole Member of Sinclair Properties, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| ACTION TV, LLC | |
| CHESAPEAKE MEDIA I, LLC | |
| COMETTV, LLC | |
| DRIVE SALES, LLC | |
| FULL MEASURE, LLC | |
| HUMMINGBIRD, LLC | |
| HUNT VALLEY TRACKS, LLC | |
| KDSM, LLC | |
| NEST TV, LLC | |
| SINCLAIR AUDIO, LLC | |
| SINCLAIR COMMUNICATIONS, LLC | |
| SINCLAIR DIGITAL GROUP, LLC | |
| SINCLAIR GAMING SERVICES, LLC | |
| SINCLAIR NETWORKS GROUP, LLC | |
| SINCLAIR PROGRAMMING COMPANY, LLC | |
| SINCLAIR TELEVISION OF FRESNO, LLC | |
| SINCLAIR TELEVISION OF OMAHA, LLC | |
| TBD TV, LLC | |
| THE NATIONAL DESK, LLC | |
| By: | Sinclair Television Group, Inc., Sole Member |
[SIGNATURE PAGE TO SEVENTH AMENDMENT]
| SINCLAIR BAKERSFIELD LICENSEE, LLC | |
|---|---|
| SINCLAIR BOISE LICENSEE, LLC | |
| SINCLAIR BROADCASTING OF SEATTLE, LLC | |
| SINCLAIR EUGENE LICENSEE, LLC | |
| SINCLAIR LEWISTON LICENSEE, LLC | |
| SINCLAIR MEDIA OF BOISE, LLC | |
| SINCLAIR MEDIA OF WASHINGTON, LLC | |
| SINCLAIR PORTLAND LICENSEE, LLC | |
| SINCLAIR SEATTLE LICENSEE, LLC | |
| SINCLAIR TELEVISION OF OREGON, LLC | |
| SINCLAIR MEDIA OF SEATTLE, LLC | |
| SINCLAIR TELEVISION OF PORTLAND, LLC | |
| SINCLAIR YAKIMA LICENSEE, LLC | |
| By: | Sinclair Television Media, Inc., Sole Member |
| SINCLAIR-CALIFORNIA LICENSEE, LLC | |
| By: | Sinclair Television of California, LLC, Sole Member |
| By: | Sinclair Media VI, Inc., Sole Member of Sinclair Television of California, LLC |
| KDBC LICENSEE, LLC | |
| By: | Sinclair Television of El Paso, LLC, Sole Member |
| By: | Sinclair Communications, LLC, Sole Member of Sinclair Television of El Paso, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| KFRE LICENSEE, LLC | |
| KMPH LICENSEE, LLC | |
| WJAC LICENSEE, LLC | |
| By: | Sinclair Television of Fresno, LLC, Sole Member |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Television of Fresno, LLC |
| KPTM LICENSEE, LLC | |
| By: | Sinclair Television of Omaha, LLC, Sole Member |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Television of Omaha, LLC |
| SINCLAIR KENNEWICK LICENSEE, LLC | |
| SINCLAIR LA GRANDE LICENSEE, LLC | |
| By: | Sinclair Television of Washington, Inc., Sole Member |
[SIGNATURE PAGE TO SEVENTH AMENDMENT]
| ACC LICENSEE, LLC | |
|---|---|
| KATV, LLC | |
| KTUL, LLC | |
| WBMA LICENSEE, LLC | |
| WSET LICENSEE, LLC | |
| By: | Sinclair Television Stations, LLC, Sole Member |
| By: | Perpetual Corporation, Sole Member of Sinclair Television Stations, LLC |
| WGME LICENSEE, LLC | |
| By: | WGME, Inc., Sole Member |
| KLGT LICENSEE, LLC | |
| By: | WUCW, LLC, Sole Member |
| By: | Sinclair Communications, LLC, Sole Member of WUCW, LLC |
| By: | Sinclair Television Group, Inc., Sole Member of Sinclair Communications, LLC |
| By: | /s/ Christopher S. Ripley |
| Christopher S. Ripley, in his capacity as President and Chief Executive Officer |
[SIGNATURE PAGE TO SEVENTH AMENDMENT]
| JPMORGAN CHASE BANK, N.A., as a Term B-3 Lender, Term B-3A Lender, Term B-4 and Term B-4A Lender^1^ | |
|---|---|
| By: | /s/ Inderjeet Aneja |
| Name: Inderjeet Aneja | |
| Title: Executive Director | |
| 1 | Consenting on behalf of the term lenders who consented to the Seventh Amendment and chose to participate by<br>assignment |
| --- | --- |
| JPMorgan Chase Bank, N.A., as Existing Agent | |
| --- | --- |
| By: | /s/ Inderjeet Aneja |
| Name: Inderjeet Aneja | |
| Title: Executive Director | |
| CSC Delaware Trust Company, as Successor Agent | |
| By: | /s/ Sean Foronjy |
| Name: Sean Foronjy | |
| Title: Vice President |
ANNEX I
LENDER CONSENT TO SEVENTH AMENDMENT
LENDER CONSENT (this “Lender Consent”) to the Seventh Amendment (the “Seventh Amendment”) to the Seventh Amended and Restated Credit Agreement, among, Parent (as defined below), the Borrower (as defined below), the Lenders referred to therein (whether pursuant to the execution and delivery of a Lender Consent or counterparts to the Seventh Amendment, as applicable) and the Administrative Agent (as defined below), to the Seventh Amended and Restated Credit Agreement dated as of August 23, 2019 (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”) by and among Sinclair Broadcast Group, LLC, a Maryland limited liability company (“Parent”), Sinclair Television Group, Inc., a Maryland corporation (the “Borrower”), the guarantors party thereto, the lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent (the “Agents”), JPMorgan Chase Bank, N.A. (as successor to Chase Lincoln First Commercial Corporation), as Swingline Lender and each of the Issuing Banks and Lenders from time to time party thereto. All capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Existing Credit Agreement or the Seventh Amendment, as applicable.
The undersigned Lender hereby irrevocably and unconditionally approves of and consents to the Seventh Amendment and consents to the exchange (on a cashless basis or by assignment, as elected below) of (1) upon the Seventh Amendment Effective Date, 100% of the outstanding principal amount of the Term B-3 Loans and/or Term B-4 Loans held by such Lender (or such lesser amounts as may be notified to such Lender by the Administrative Agent prior to the Seventh Amendment Effective Date) for an equal outstanding principal amount of Term B-3A Loans and Term B-4A Loans, respectively, (2) upon the First Lien Exchange Effective Date, 100% of the outstanding principal amount of the Term B-3A Loans and/or Term B-4A Loans held by such Lender (or such lesser amounts as may be notified to such Lender by the Administrative Agent prior to the First Lien Exchange Effective Date) for an equal outstanding principal amount of Term B-6 Loans and Term B-7 Loans, respectively, (3) upon the Seventh Amendment Effective Date, 100% of the principal amount of the Revolving Loans and/or Revolving Commitments held by such Lender (or such lesser amount as may be notified to such Lender by the Administrative Agent prior to the Seventh Amendment Effective Date) for an equal principal amount of 2022A Revolving Loans and/or 2022A Revolving Commitments, as applicable, and (4) upon the First Lien Exchange Effective Date, 100% of the principal amount of the 2022A Revolving Commitments held by such Lender (or such lesser amount as may be notified to such Lender by the Administrative Agent prior to the First Lien Exchange Effective Date) for an equal principal amount of First Lien Revolving Commitments.
IN WITNESS WHEREOF, the undersigned has caused this Lender Consent to be executed and delivered by a duly authorized officer as of the date first written above.
| JPMORGAN CHASE BANK, N.A. (including as successor to Chase Lincoln First Commercial Corporation), as a Revolving Lender and 2022A Revolving Lender | |
|---|---|
| By: | /s/ Inderjeet Aneja |
| Name: | Inderjeet Aneja |
| Title: | Authorized Signatory |
LENDER CONSENT TO SEVENTH AMENDMENT
LENDER CONSENT (this “Lender Consent”) to the Seventh Amendment (the “Seventh Amendment”) to the Seventh Amended and Restated Credit Agreement, among Sinclair Broadcast Group, LLC, a Maryland limited liability company (“Parent”), Sinclair Television Group, Inc., a Maryland corporation (the “Borrower”), the guarantors party thereto, the Lenders party thereto (whether pursuant to the execution and delivery of a Lender Consent or counterparts to the Seventh Amendment, as applicable) and JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent (the “Agents”), amending the Seventh Amended and Restated Credit Agreement dated as of August 23, 2019 (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”) by and among Parent, the Borrower, the guarantors party thereto, the Agents, JPMorgan Chase Bank, N.A. (as successor to Chase Lincoln First Commercial Corporation), as Swingline Lender and each of the Issuing Banks and Lenders from time to time party thereto. All capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Existing Credit Agreement or the Seventh Amendment, as applicable.
The undersigned Lender hereby irrevocably and unconditionally approves of and consents to the Seventh Amendment and consents to the exchange (on a cashless basis) of (1) upon the Seventh Amendment Effective Date, 100% of the outstanding principal amount of the Revolving Commitments and Revolving Loans held by such Lender (or such lesser amounts as may be notified to such Lender by the Administrative Agent prior to the Seventh Amendment Effective Date) for an equal outstanding principal amount of 2022A Revolving Commitments and 2022A Revolving Loans, respectively, and (2) upon the First Lien Exchange Effective Date, 100% of the principal amount of the 2022A Revolving Commitments and 2022A Revolving Loans held by such Lender (or such lesser amount as may be notified to such Lender by the Administrative Agent prior to the First Lien Exchange Effective Date) for an equal principal amount of First Lien Revolving Commitments.
IN WITNESS WHEREOF, the undersigned has caused this Lender Consent to be executed and delivered by a duly authorized officer as of the date first written above.
| DEUTSCHE BANK AG NEW YORK BRANCH | |
|---|---|
| as a Revolving Lender and 2022A Revolving Lender | |
| By: | /s/ Philip Tancorra |
| Name: | Philip Tancorra |
| Title: | Director |
| By: | /s/ Suzan Onal |
| Name: | Suzan Onal |
| Title: | Director |
LENDER CONSENT TO SEVENTH AMENDMENT
LENDER CONSENT (this “Lender Consent”) to the Seventh Amendment (the “Seventh Amendment”) to the Seventh Amended and Restated Credit Agreement, among Sinclair Broadcast Group, LLC, a Maryland limited liability company (“Parent”), Sinclair Television Group, Inc., a Maryland corporation (the “Borrower”), the guarantors party thereto, the Lenders party thereto (whether pursuant to the execution and delivery of a Lender Consent or counterparts to the Seventh Amendment, as applicable) and JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent (the “Agents”), amending the Seventh Amended and Restated Credit Agreement dated as of August 23, 2019 (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”) by and among Parent, the Borrower, the guarantors party thereto, the Agents, JPMorgan Chase Bank, N.A. (as successor to Chase Lincoln First Commercial Corporation), as Swingline Lender and each of the Issuing Banks and Lenders from time to time party thereto. All capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Existing Credit Agreement or the Seventh Amendment, as applicable.
The undersigned Lender hereby irrevocably and unconditionally approves of and consents to the Seventh Amendment and consents to the exchange (on a cashless basis) of (1) upon the Seventh Amendment Effective Date, 100% of the outstanding principal amount of the Revolving Commitments and Revolving Loans held by such Lender (or such lesser amounts as may be notified to such Lender by the Administrative Agent prior to the Seventh Amendment Effective Date) for an equal outstanding principal amount of 2022A Revolving Commitments and 2022A Revolving Loans, respectively, and (2) upon the First Lien Exchange Effective Date, 100% of the principal amount of the 2022A Revolving Commitments and 2022A Revolving Loans held by such Lender (or such lesser amount as may be notified to such Lender by the Administrative Agent prior to the First Lien Exchange Effective Date) for an equal principal amount of First Lien Revolving Commitments.
IN WITNESS WHEREOF, the undersigned has caused this Lender Consent to be executed and delivered by a duly authorized officer as of the date first written above.
| ROYAL BANK OF CANADA | |
|---|---|
| as a Revolving Lender and 2022A<br><br><br>Revolving Lender | |
| By: | /s/ Alfonse Simone |
| Name: | Alfonse Simone |
| Title: | Authorized Signatory |
LENDER CONSENT TO SEVENTH AMENDMENT
LENDER CONSENT (this “Lender Consent”) to the Seventh Amendment (the “Seventh Amendment”) to the Seventh Amended and Restated Credit Agreement, among Sinclair Broadcast Group, LLC, a Maryland limited liability company (“Parent”), Sinclair Television Group, Inc., a Maryland corporation (the “Borrower”), the guarantors party thereto, the Lenders party thereto (whether pursuant to the execution and delivery of a Lender Consent or counterparts to the Seventh Amendment, as applicable) and JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent (the “Agents”), amending the Seventh Amended and Restated Credit Agreement dated as of August 23, 2019 (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”) by and among Parent, the Borrower, the guarantors party thereto, the Agents, JPMorgan Chase Bank, N.A. (as successor to Chase Lincoln First Commercial Corporation), as Swingline Lender and each of the Issuing Banks and Lenders from time to time party thereto. All capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Existing Credit Agreement or the Seventh Amendment, as applicable.
The undersigned Lender hereby irrevocably and unconditionally approves of and consents to the Seventh Amendment and consents to the exchange (on a cashless basis) of (1) upon the Seventh Amendment Effective Date, 100% of the outstanding principal amount of the Revolving Commitments and Revolving Loans held by such Lender (or such lesser amounts as may be notified to such Lender by the Administrative Agent prior to the Seventh Amendment Effective Date) for an equal outstanding principal amount of 2022A Revolving Commitments and 2022A Revolving Loans, respectively, and (2) upon the First Lien Exchange Effective Date, 100% of the principal amount of the 2022A Revolving Commitments and 2022A Revolving Loans held by such Lender (or such lesser amount as may be notified to such Lender by the Administrative Agent prior to the First Lien Exchange Effective Date) for an equal principal amount of First Lien Revolving Commitments.
IN WITNESS WHEREOF, the undersigned has caused this Lender Consent to be executed and delivered by a duly authorized officer as of the date first written above.
| TRUIST BANK, as a Revolving Lender and 2022A Revolving Lender (type name of the Legal entity above) | |
|---|---|
| By: | /s/ Ryan K. Michael |
| Name: | Ryan K. Michael |
| Title: | Senior Vice President |
LENDER CONSENT TO SEVENTH AMENDMENT
LENDER CONSENT (this “Lender Consent”) to the Seventh Amendment (the “Seventh Amendment”) to the Seventh Amended and Restated Credit Agreement, among Sinclair Broadcast Group, LLC, a Maryland limited liability company (“Parent”), Sinclair Television Group, Inc., a Maryland corporation (the “Borrower”), the guarantors party thereto, the Lenders party thereto (whether pursuant to the execution and delivery of a Lender Consent or counterparts to the Seventh Amendment, as applicable) and JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent (the “Agents”), amending the Seventh Amended and Restated Credit Agreement dated as of August 23, 2019 (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”) by and among Parent, the Borrower, the guarantors party thereto, the Agents, JPMorgan Chase Bank, N.A. (as successor to Chase Lincoln First Commercial Corporation), as Swingline Lender and each of the Issuing Banks and Lenders from time to time party thereto. All capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Existing Credit Agreement or the Seventh Amendment, as applicable.
The undersigned Lender hereby irrevocably and unconditionally approves of and consents to the Seventh Amendment and consents to the exchange (on a cashless basis) of (1) upon the Seventh Amendment Effective Date, 100% of the outstanding principal amount of the Revolving Commitments and Revolving Loans held by such Lender (or such lesser amounts as may be notified to such Lender by the Administrative Agent prior to the Seventh Amendment Effective Date) for an equal outstanding principal amount of 2022A Revolving Commitments and 2022A Revolving Loans, respectively, and (2) upon the First Lien Exchange Effective Date, 100% of the principal amount of the 2022A Revolving Commitments and 2022A Revolving Loans held by such Lender (or such lesser amount as may be notified to such Lender by the Administrative Agent prior to the First Lien Exchange Effective Date) for an equal principal amount of First Lien Revolving Commitments.
IN WITNESS WHEREOF, the undersigned has caused this Lender Consent to be executed and delivered by a duly authorized officer as of the date first written above.
| WELLS FARGO BANK, N.A.<br> <br><br><br><br>as a Revolving Lender and 2022A Revolving Lender (type name of the legal entity above) | |
|---|---|
| By: | /s/ Tracy L. Moosbrugger |
| Name: | Tracy L. Moosbrugger |
| Title: | Vice President |
| If a second signature is necessary: | |
| By: | |
| Name: |
LENDER CONSENT TO SEVENTH AMENDMENT
LENDER CONSENT (this “Lender Consent”) to the Seventh Amendment (the “Seventh Amendment”) to the Seventh Amended and Restated Credit Agreement, among Sinclair Broadcast Group, LLC, a Maryland limited liability company (“Parent”), Sinclair Television Group, Inc., a Maryland corporation (the “Borrower”), the guarantors party thereto, the Lenders party thereto (whether pursuant to the execution and delivery of a Lender Consent or counterparts to the Seventh Amendment, as applicable) and JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent (the “Agents”), amending the Seventh Amended and Restated Credit Agreement dated as of August 23, 2019 (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”) by and among Parent, the Borrower, the guarantors party thereto, the Agents, JPMorgan Chase Bank, N.A. (as successor to Chase Lincoln First Commercial Corporation), as Swingline Lender and each of the Issuing Banks and Lenders from time to time party thereto. All capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Existing Credit Agreement or the Seventh Amendment, as applicable.
The undersigned Lender hereby irrevocably and unconditionally approves of and consents to the Seventh Amendment and consents to the exchange (on a cashless basis) of (1) upon the Seventh Amendment Effective Date, 100% of the outstanding principal amount of the Revolving Commitments and Revolving Loans held by such Lender (or such lesser amounts as may be notified to such Lender by the Administrative Agent prior to the Seventh Amendment Effective Date) for an equal outstanding principal amount of 2022A Revolving Commitments and 2022A Revolving Loans, respectively, and (2) upon the First Lien Exchange Effective Date, 100% of the principal amount of the 2022A Revolving Commitments and 2022A Revolving Loans held by such Lender (or such lesser amount as may be notified to such Lender by the Administrative Agent prior to the First Lien Exchange Effective Date) for an equal principal amount of First Lien Revolving Commitments.
IN WITNESS WHEREOF, the undersigned has caused this Lender Consent to be executed and delivered by a duly authorized officer as of the date first written above.
| CITIBANK, N.A., as a Revolving Lender and 2022A Revolving Lender | |
|---|---|
| By: | /s/ Eizabeth Minnella Gonzalez |
| Name: | Elizabeth Minnella Gonzalez |
| Title: | Vice President & Managing Director |
LENDER CONSENT TO SEVENTH AMENDMENT
LENDER CONSENT (this “Lender Consent”) to the Seventh Amendment (the “Seventh Amendment”) to the Seventh Amended and Restated Credit Agreement, among Sinclair Broadcast Group, LLC, a Maryland limited liability company (“Parent”), Sinclair Television Group, Inc., a Maryland corporation (the “Borrower”), the guarantors party thereto, the Lenders party thereto (whether pursuant to the execution and delivery of a Lender Consent or counterparts to the Seventh Amendment, as applicable) and JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent (the “Agents”), amending the Seventh Amended and Restated Credit Agreement dated as of August 23, 2019 (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”) by and among Parent, the Borrower, the guarantors party thereto, the Agents, JPMorgan Chase Bank, N.A. (as successor to Chase Lincoln First Commercial Corporation), as Swingline Lender and each of the Issuing Banks and Lenders from time to time party thereto. All capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Existing Credit Agreement or the Seventh Amendment, as applicable.
The undersigned Lender hereby irrevocably and unconditionally approves of and consents to the Seventh Amendment and consents to the exchange (on a cashless basis) of (1) upon the Seventh Amendment Effective Date, 100% of the outstanding principal amount of the Revolving Commitments and Revolving Loans held by such Lender (or such lesser amounts as may be notified to such Lender by the Administrative Agent prior to the Seventh Amendment Effective Date) for an equal outstanding principal amount of 2022A Revolving Commitments and 2022A Revolving Loans, respectively, and (2) upon the First Lien Exchange Effective Date, 100% of the principal amount of the 2022A Revolving Commitments and 2022A Revolving Loans held by such Lender (or such lesser amount as may be notified to such Lender by the Administrative Agent prior to the First Lien Exchange Effective Date) for an equal principal amount of First Lien Revolving Commitments.
IN WITNESS WHEREOF, the undersigned has caused this Lender Consent to be executed and delivered by a duly authorized officer as of the date first written above.
| CITIZENS BANK, N.A., as a Revolving<br><br><br>Lender and 2022A Revolving Lender | |
|---|---|
| By: | /s/ David W. Stack |
| Name: | David W. Stack |
| Title: | Vice President |
| If a second signature is necessary: | |
| By: | |
| Name: | |
| Title: |
LENDER CONSENT TO SEVENTH AMENDMENT
LENDER CONSENT (this “Lender Consent”) to the Seventh Amendment (the “Seventh Amendment”) to the Seventh Amended and Restated Credit Agreement, among Sinclair Broadcast Group, LLC, a Maryland limited liability company (“Parent”), Sinclair Television Group, Inc., a Maryland corporation (the “Borrower”), the guarantors party thereto, the Lenders party thereto (whether pursuant to the execution and delivery of a Lender Consent or counterparts to the Seventh Amendment, as applicable) and JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent (the “Agents”), amending the Seventh Amended and Restated Credit Agreement dated as of August 23, 2019 (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”) by and among Parent, the Borrower, the guarantors party thereto, the Agents, JPMorgan Chase Bank, N.A. (as successor to Chase Lincoln First Commercial Corporation), as Swingline Lender and each of the Issuing Banks and Lenders from time to time party thereto. All capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Existing Credit Agreement or the Seventh Amendment, as applicable.
The undersigned Lender hereby irrevocably and unconditionally approves of and consents to the Seventh Amendment and consents to the exchange (on a cashless basis) of (1) upon the Seventh Amendment Effective Date, 100% of the outstanding principal amount of the Revolving Commitments and Revolving Loans held by such Lender (or such lesser amounts as may be notified to such Lender by the Administrative Agent prior to the Seventh Amendment Effective Date) for an equal outstanding principal amount of 2022A Revolving Commitments and 2022A Revolving Loans, respectively, and (2) upon the First Lien Exchange Effective Date, 100% of the principal amount of the 2022A Revolving Commitments and 2022A Revolving Loans held by such Lender (or such lesser amount as may be notified to such Lender by the Administrative Agent prior to the First Lien Exchange Effective Date) for an equal principal amount of First Lien Revolving Commitments.
IN WITNESS WHEREOF, the undersigned has caused this Lender Consent to be executed and delivered by a duly authorized officer as of the date first written above.
| FIFTH THIRD BANK, NATIONAL<br> <br><br><br><br>ASSOCIATION; as a Revolving Lender and 2022A Revolving Lender | |
|---|---|
| By: | /s/ Frank Perez |
| Name: | Frank Perez |
| Title: | Vice President |
LENDER CONSENT TO SEVENTH AMENDMENT
LENDER CONSENT (this “Lender Consent”) to the Seventh Amendment (the “Seventh Amendment”) to the Seventh Amended and Restated Credit Agreement, among Sinclair Broadcast Group, LLC, a Maryland limited liability company (“Parent”), Sinclair Television Group, Inc., a Maryland corporation (the “Borrower”), the guarantors party thereto, the Lenders party thereto (whether pursuant to the execution and delivery of a Lender Consent or counterparts to the Seventh Amendment, as applicable) and JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent (the “Agents”), amending the Seventh Amended and Restated Credit Agreement dated as of August 23, 2019 (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”) by and among Parent, the Borrower, the guarantors party thereto, the Agents, JPMorgan Chase Bank,
N.A. (as successor to Chase Lincoln First Commercial Corporation), as Swingline Lender and each of the Issuing Banks and Lenders from time to time party thereto. All capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Existing Credit Agreement or the Seventh Amendment, as applicable.
The undersigned Lender hereby irrevocably and unconditionally approves of and consents to the Seventh Amendment and consents to the exchange (on a cashless basis) of (1) upon the Seventh Amendment Effective Date, 100% of the outstanding principal amount of the Revolving Commitments and Revolving Loans held by such Lender (or such lesser amounts as may be notified to such Lender by the Administrative Agent prior to the Seventh Amendment Effective Date) for an equal outstanding principal amount of 2022A Revolving Commitments and 2022A Revolving Loans, respectively, and (2) upon the First Lien Exchange Effective Date, 100% of the principal amount of the 2022A Revolving Commitments and 2022A Revolving Loans held by such Lender (or such lesser amount as may be notified to such Lender by the Administrative Agent prior to the First Lien Exchange Effective Date) for an equal principal amount of First Lien Revolving Commitments.
IN WITNESS WHEREOF, the undersigned has caused this Lender Consent to be executed and delivered by a duly authorized officer as of the date first written above.
| GOLDMAN SACHS BANK USA, as Revolving Lender and 2022A Revolving Lender | |
|---|---|
| By: | /s/ Dana Siconolfi |
| Name: | Dana Siconolfi |
| Title: | Authorized Signatory |
EXHIBIT A
AMENDED CREDIT AGREEMENT
[Attached]
Exhibit A
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
August 23, 2019,
among
SINCLAIR BROADCAST GROUP, INC.,
as Parent
SINCLAIR TELEVISION GROUP, INC.,
as the Borrower,
The Issuing Banks and Lenders Party Hereto,
~~JPMORGAN CHASE BANK,N.A.,~~CSC DELAWARE TRUST COMPANY,
as Administrative Agent and as Collateral Agent,
JPMORGAN CHASE BANK, N.A., ~~D~~~~EUTSCHE BANK SECURITIES INC., RBC CAPITAL MARKETS^1^,~~
~~BOFA SECURITIES, INC., TRUIST SECURITIES,INC., WELLS FARGO SECURITIES, LLC, CITIBANK,~~
~~N.A., CITIZENS BANK, N.A., CREDIT SUISSE LOAN FUNDING LLC, FIFTH THIRD BANK, NATIONAL~~
~~ASSOCIATION, GOLDMAN SACHS BANK USA AND MIZUHO BANK,LTD.~~
as Lead Arranger and Bookrunner with respect to the 2022A Revolving Credit Facility, the Term B-3A Facility and
the Term B-4A Facility
~~as Lead Arrangers and Joint Bookrunners~~
| ~~^1^~~ | ~~RBC Capital Markets is a brand name for the capital marketsactivities of Royal Bank of Canada and its affiliates.~~ |
|---|
TABLE OF CONTENTS
| Page | |||
|---|---|---|---|
| ARTICLE I | |||
| DEFINITIONS | |||
| SECTION 1.01 | Defined Terms | 1 | |
| SECTION 1.02 | Classification of Loans and Borrowings | ~~65~~69 | |
| SECTION 1.03 | Terms Generally | ~~65~~69 | |
| SECTION 1.04 | Accounting Terms; GAAP | ~~65~~70 | |
| SECTION 1.05 | Effectuation of Transactions | ~~66~~70 | |
| SECTION 1.06 | ~~Limited Condition Transactions~~[Reserved]. | ~~66~~71 | |
| SECTION 1.07 | Divisions | ~~67~~71 | |
| SECTION 1.08 | Interest Rates; Benchmark Notification | ~~67~~71 | |
| ARTICLE II | |||
| THE CREDITS | |||
| SECTION 2.01 | Commitments | ~~68~~72 | |
| SECTION 2.02 | Loans and Borrowings | ~~68~~72 | |
| SECTION 2.03 | Requests for Borrowings | ~~68~~73 | |
| SECTION 2.04 | Swingline Loans | ~~69~~74 | |
| SECTION 2.05 | Letters of Credit | ~~71~~75 | |
| SECTION 2.06 | Funding of Borrowings | ~~76~~80 | |
| SECTION 2.07 | Interest Elections | ~~76~~81 | |
| SECTION 2.08 | Termination and Reduction of Commitments | ~~77~~82 | |
| SECTION 2.09 | Repayment of Loans; Evidence of Debt | ~~78~~82 | |
| SECTION 2.10 | Amortization of Term Loans | ~~78~~83 | |
| SECTION 2.11 | Prepayment of Loans | ~~79~~84 | |
| SECTION 2.12 | Fees | ~~86~~91 | |
| SECTION 2.13 | Interest | ~~87~~92 | |
| SECTION 2.14 | Alternate Rate of Interest | ~~88~~93 | |
| SECTION 2.15 | Increased Costs | ~~90~~94 | |
| SECTION 2.16 | Break Funding Payments | ~~91~~95 | |
| SECTION 2.17 | Taxes | ~~91~~96 | |
| SECTION 2.18 | Payments Generally; Pro Rata Treatment; Sharing of Setoffs | ~~94~~99 | |
| SECTION 2.19 | Mitigation Obligations; Replacement of Lenders | ~~95~~100 | |
| SECTION 2.20 | ~~Incremental Credit Extension~~[Reserved]. | ~~96~~101 | |
| SECTION 2.21 | Refinancing Amendments. | ~~98~~103 | |
| SECTION 2.22 | Defaulting Lenders | ~~99~~104 | |
| SECTION 2.23 | Illegality | ~~100~~105 | |
| SECTION 2.24 | Loan Modification Offers | ~~100~~106 | |
| ARTICLE III | |||
| NO REPRESENTATIONS AND WARRANTIES | |||
| ~~SECTION 3.01~~ | ~~Organization; Powers~~ | ~~107~~ | |
| ~~SECTION 3.02~~ | ~~Authorization; Enforceability~~ | ~~107~~ | |
| ~~SECTION 3.03~~ | ~~Governmental Approvals; No Conflicts~~ | ~~107~~ | |
| ~~SECTION 3.04~~ | ~~Financial Condition; No Material Adverse Effect~~ | ~~107~~ | |
| ~~SECTION 3.05~~ | ~~Properties~~ | ~~108~~ |
-i-
| ~~SECTION 3.06~~ | ~~Litigation and Environmental Matters~~ | ~~108~~ |
|---|---|---|
| ~~SECTION 3.07~~ | ~~Compliance with Laws and Agreements~~ | ~~108~~ |
| ~~SECTION 3.08~~ | ~~Investment Company Status~~ | ~~108~~ |
| ~~SECTION 3.09~~ | ~~Taxes~~ | ~~108~~ |
| ~~SECTION 3.10~~ | ~~ERISA~~ | ~~108~~ |
| ~~SECTION 3.11~~ | ~~Disclosure~~ | ~~109~~ |
| ~~SECTION 3.12~~ | ~~Subsidiaries~~ | ~~109~~ |
| ~~SECTION 3.13~~ | ~~Intellectual Property; Licenses, Etc.~~ | ~~109~~ |
| ~~SECTION 3.14~~ | ~~Solvency~~ | ~~109~~ |
| ~~SECTION 3.15~~ | ~~Senior Indebtedness~~ | ~~109~~ |
| ~~SECTION 3.16~~ | ~~Federal Reserve Regulations~~ | ~~109~~ |
| ~~SECTION 3.17~~ | ~~Use of Proceeds~~ | ~~109~~ |
| ~~SECTION 3.18~~ | ~~PATRIOT Act, OFAC and FCPA~~ | ~~109~~ |
| ~~SECTION 3.19~~ | ~~Broadcast Licenses~~ | ~~110~~ |
| ~~SECTION 3.20~~ | ~~Plan Assets~~ | ~~110~~ |
| ARTICLE IV | ||
| CONDITIONS | ||
| SECTION 4.01 | Effective Date | ~~105~~110 |
| SECTION 4.02 | Each Credit Event | ~~106~~112 |
| ARTICLE V | ||
| AFFIRMATIVE COVENANTS | ||
| SECTION 5.01 | Financial Statements and Other Information | ~~107~~112 |
| ~~SECTION 5.02~~ | ~~Notices of Material Events~~ | ~~115~~ |
| ~~SECTION 5.03~~ | ~~Information Regarding Collateral~~ | ~~116~~ |
| ~~SECTION 5.04~~ | ~~Existence; Conduct of Business~~ | ~~116~~ |
| ~~SECTION 5.05~~ | ~~Payment of Taxes, Etc.~~ | ~~116~~ |
| ~~SECTION 5.06~~ | ~~Maintenance of Properties~~ | ~~116~~ |
| ~~SECTION 5.07~~ | ~~Insurance~~ | ~~116~~ |
| ~~SECTION 5.08~~ | ~~Books and Records; Inspection and Audit Rights~~ | ~~116~~ |
| ~~SECTION 5.09~~ | ~~Compliance with Laws~~ | ~~117~~ |
| ~~SECTION 5.10~~ | ~~Use of Proceeds and Letters of Credit~~ | ~~117~~ |
| ~~SECTION 5.11~~ | ~~Additional Subsidiaries~~ | ~~117~~ |
| SECTION <br>~~5.12~~5.02 | Further Assurances. | ~~112~~117 |
| ~~SECTION 5.13~~ | ~~Ratings~~ | ~~118~~ |
| ~~SECTION 5.14~~ | ~~Certain Post-Closing Obligations~~ | ~~118~~ |
| SECTION <br>~~5.15~~5.03 | Designation of Subsidiaries | ~~112~~118 |
| ~~SECTION 5.16~~ | ~~Change in Business~~ | ~~119~~ |
| ~~SECTION 5.17~~ | ~~Changes in Fiscal Periods~~ | ~~119~~ |
| ~~SECTION 5.18~~ | ~~Plan Assets~~ | ~~119~~ |
| ARTICLE VI | ||
| NO NEGATIVE COVENANTS | ||
| ~~SECTION 6.01~~ | ~~Indebtedness; Certain Equity Securities~~ | ~~119~~ |
| ~~SECTION 6.02~~ | ~~Liens~~ | ~~125~~ |
| ~~SECTION 6.03~~ | ~~Fundamental Changes; Holding Companies~~ | ~~128~~ |
| ~~SECTION 6.04~~ | ~~Investments, Loans, Advances, Guarantees and Acquisitions~~ | ~~129~~ |
| ~~SECTION 6.05~~ | ~~Asset Sales~~ | ~~132~~ |
| ~~SECTION 6.06~~ | ~~[Reserved]~~ | ~~135~~ |
-ii-
| ~~SECTION 6.07~~ | ~~Negative Pledge; Covenants Applicable to Parent~~ | ~~135~~ |
|---|---|---|
| ~~SECTION 6.08~~ | ~~Restricted Payments; Certain Payments of Indebtedness~~ | ~~137~~ |
| ~~SECTION 6.09~~ | ~~Transactions with Affiliates~~ | ~~143~~ |
| ~~SECTION 6.10~~ | ~~Financial Covenant~~ | ~~144~~ |
| ~~SECTION 6.11~~ | ~~License Subsidiaries~~ | ~~144~~ |
| ~~SECTION 6.12~~ | ~~Covenant Suspension~~ | ~~145~~ |
| ARTICLE VII | ||
| EVENTS OF DEFAULT | ||
| SECTION 7.01 | Events of Default | ~~140~~146 |
| ~~SECTION 7.02~~ | ~~Right to Cure~~ | ~~149~~ |
| SECTION <br>~~7.03~~7.02 | Application of Proceeds | ~~143~~149 |
| ARTICLE VIII | ||
| THE ADMINISTRATIVE AGENT AND COLLATERAL AGENT | ||
| SECTION 8.01 | Authorization and Action | ~~144~~149 |
| SECTION 8.02 | Administrative Agent’s Reliance, Indemnification, Etc | ~~146~~152 |
| SECTION 8.03 | Posting of Communications | ~~147~~153 |
| SECTION 8.04 | The Administrative Agent Individually | ~~148~~154 |
| SECTION 8.05 | Successor Administrative Agent | ~~148~~154 |
| SECTION 8.06 | Acknowledgments of Lenders and Issuing Banks | ~~149~~155 |
| SECTION 8.07 | Collateral Matters | ~~150~~156 |
| SECTION 8.08 | Credit Bidding | ~~150~~157 |
| SECTION 8.09 | Certain ERISA Matters | ~~151~~158 |
| ARTICLE IX | ||
| MISCELLANEOUS | ||
| SECTION 9.01 | Notices | ~~152~~160 |
| SECTION 9.02 | Waivers; Amendments | ~~153~~161 |
| SECTION 9.03 | Expenses; Indemnity; Damage Waiver | ~~156~~164 |
| SECTION 9.04 | Successors and Assigns | ~~157~~166 |
| SECTION 9.05 | Survival | ~~162~~170 |
| SECTION 9.06 | Counterparts; Integration; Effectiveness | ~~162~~171 |
| SECTION 9.07 | Severability | ~~162~~171 |
| SECTION 9.08 | Right of Setoff | ~~162~~171 |
| SECTION 9.09 | Governing Law; Jurisdiction; Consent to Service of Process | ~~163~~172 |
| SECTION 9.10 | WAIVER OF JURY TRIAL | ~~163~~172 |
| SECTION 9.11 | Headings | ~~163~~172 |
| SECTION 9.12 | Confidentiality | ~~163~~172 |
| SECTION 9.13 | USA Patriot Act | ~~165~~173 |
| SECTION 9.14 | Release of Liens and Guarantees | ~~165~~174 |
| SECTION 9.15 | No Fiduciary Relationship | ~~165~~174 |
| SECTION 9.16 | Effect of Amendment and Restatement; No Novation; Reaffirmation | ~~165~~174 |
| SECTION 9.17 | Acknowledgement and Consent to Bail-In of EEA Financial Institutions | ~~166~~175 |
| SECTION 9.18 | Acknowledgment Regarding Any Supported QFCs | ~~166~~175 |
-iii-
SCHEDULES:
| Schedule 1.01(a) | — | Excluded Subsidiaries |
|---|---|---|
| Schedule 1.01(b) | — | Existing Swap Counterparties |
| Schedule 1.01(c) | — | Contract Stations |
| Schedule 1.01(d) | — | Non-Television Entity Notes |
| Schedule 1.01(e) | — | Owned Stations |
| Schedule 2.01(a) | — | Term Commitments |
| Schedule 2.01(b) | — | Revolving Commitments |
| Schedule 2.01(c) | — | Letter of Credit Commitments |
| Schedule 2.05(a) | — | Existing Letters of Credit |
| Schedule 3.12 | — | Subsidiaries |
| Schedule 3.19 | — | Broadcast Licenses |
| Schedule 5.14 | — | Certain Post-Closing Obligations |
| Schedule 6.01 | — | Existing Indebtedness |
| Schedule 6.02 | — | Existing Liens |
| Schedule 6.04(f) | — | Existing Investments |
| Schedule 6.07 | — | Existing Restrictions |
| Schedule 6.09 | — | Existing Affiliate Transactions |
| EXHIBITS: | ||
| Exhibit A | — | Form of Assignment and Assumption |
| Exhibit B | — | Form of Affiliated Lender Assignment and Assumption |
| Exhibit C | — | Form of Guarantee Agreement |
| Exhibit D | — | Form of Collateral Agreement |
| Exhibit E | — | ~~Form of First Lien Intercreditor Agreement~~[Reserved] |
| Exhibit F | — | ~~Form of Second Lien Intercreditor Agreement~~[Reserved] |
| Exhibit G | — | Form of Closing Certificate |
| Exhibit H | — | Form of Intercompany Note |
| Exhibit I | — | ~~Form of Specified Discount Prepayment Notice~~[Reserved] |
| Exhibit J | — | ~~Form of Specified Discount Prepayment Response~~[Reserved] |
| Exhibit K | — | ~~Form of Discount Range Prepayment Notice~~[Reserved] |
| Exhibit L | — | ~~Form of Discount Range Prepayment Offer~~[Reserved] |
| Exhibit M | — | ~~Form of Solicited Discounted Prepayment Notice~~[Reserved] |
| Exhibit N | — | ~~Form of Solicited Discounted Prepayment Offer~~[Reserved] |
| Exhibit O | — | ~~Form of Acceptance and Prepayment Notice~~[Reserved] |
| Exhibit P-1 | — | Form of U.S. Tax Compliance Certificate (For Non-U.S. Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes) |
| Exhibit P-2 | — | Form of U.S. Tax Compliance Certificate (For Non-U.S. Lenders That Are Partnerships For U.S. Federal Income Tax Purposes) |
| Exhibit P-3 | — | Form of U.S. Tax Compliance Certificate (For Non-U.S. Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes) |
| Exhibit P-4 | — | Form of U.S. Tax Compliance Certificate (For Non-U.S. Participants That Are Partnerships For U.S. Federal Income Tax Purposes) |
-iv-
CREDIT AGREEMENT dated as of August 23, 2019 (this “Agreement”), among SINCLAIR TELEVISION GROUP, INC., a Maryland corporation (the “Borrower”), SINCLAIR BROADCAST GROUP, INC., a Maryland corporation (“Parent”), the GUARANTORS party hereto, the LENDERS party hereto, CSC Delaware Trust Company as successor to JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent, ~~Chase Lincoln First Commercial Corporation, as~~each Swingline Lender from time to time party hereto and each of the Issuing Banks and Lenders from time to time party hereto.
WHEREAS, the Borrower has requested (a) the Existing Credit Agreement be amended and restated as set forth herein, (b) the Term B-2a Lenders to provide Term B-2a Loans on the Effective Date in the aggregate principal amount of $700,000,000, (c) the Revolving Lenders to extend the maturity and increase the amount of Revolving Loans to the Borrower, at any time during the Revolving Availability Period, subject to the Revolving Commitment, which on the Effective Date shall be in an aggregate principal amount of $650,000,000 and which shall be available (i) on the Effective Date to fund working capital, original issue discount or upfront fees required to be paid on the Effective Date and any Transactions Costs and (ii) at any time thereafter for working capital and general corporate purposes, (d) the Issuing Banks to issue Letters of Credit at any time during the Revolving Availability Period, in an aggregate face amount at any time outstanding not in excess of $50,000,000, and (e) the Swingline Lender to extend credit in the form of Swingline Loans at any time during the Revolving Availability Period, in an aggregate principal amount at any time outstanding not in excess of $50,000,000; and
WHEREAS, (a) each Lender party hereto has agreed to amend and restate the Existing Credit Agreement as set forth herein, (b) each financial institution party hereto or identified on an Assignment and Assumption hereto as a Term B-2a Lender has agreed severally, on the terms and conditions set forth herein, to provide a portion of the Term B-2a Loans and to become, if not already, a Lender for all purposes under the Credit Agreement, (c) each financial institution identified on a signature page hereto as a Revolving Lender has agreed to provide Revolving Commitments as set forth herein, (d) the Issuing Banks have agreed to issue Letters of Credit as set forth herein, and (e) the Swingline Lender has agreed to extend Swingline Loans as set forth herein.
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
“2022 Revolving Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make 2022 Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum possible aggregate amount of such Lender’s Revolving Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Lender pursuant to an Assignment and Assumption or (ii) a Refinancing Amendment or a Loan Modification Agreement. The initial amount of each Lender’s 2022 Revolving Commitment is set forth on Schedule 2.01(b), or in the Assignment and Assumption, ~~Incremental Facility Amendment,~~ Loan Modification Agreement or Refinancing Amendment pursuant to which such Lender shall have assumed its 2022 Revolving Commitment, as the case may be. The initial amount of the Lenders’ 2022 Revolving Commitments as of the Fourth Amendment Effective Date is $612,500,000. The amount of the Lenders’ 2022 Revolving Commitments as of the Seventh Amendment Effective Date is $37,500,000.
“2022 Revolving Lender” means a Lender with a 2022 Revolving Commitment or, if the 2022 Revolving Commitments have terminated or expired, a Lender with Revolving Exposure.
“2022 Revolving Loan” means a Loan made pursuant to clause (b) of ~~Section 2.01~~Section 2.01 in respect of the 2022 Revolving Commitments.
-1-
“2022 Revolving Maturity Date” means April 21, 2027 (or, with respect to any 2022 Revolving Lender that has extended its 2022 Revolving Commitment pursuant to a Permitted Amendment, the extended maturity date, set forth in any such Loan Modification Agreement); provided that, in the event that Term B-2 Loans in an aggregate principal amount of $350,000,000 or greater are outstanding on the date (the “Test Date”) that is 91 days prior to the Term B-2 Loan Maturity Date, as such maturity date in respect of Term B-2 Loans may be extended in connection with any amendment, refinancing or replacement of the Term B-2 Loans, the 2022 Revolving Maturity Date shall be the Test Date.
“2022A Revolving Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make 2022A Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum possible aggregate amount of such Lender’s Revolving Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Lender pursuant to an Assignment and Assumption or (ii) a Refinancing Amendment or a Loan Modification Agreement. The initial amount of each Lender’s 2022A Revolving Commitment is set forth on Schedule 2.01(b), or in the Assignment and Assumption, Loan Modification Agreement or Refinancing Amendment pursuant to which such Lender shall have assumed its 2022A Revolving Commitment, as the case may be. The initial amount of the Lenders’ 2022A Revolving Commitments as of the Seventh Amendment Effective Date is $575,000,000; provided that, upon the First Lien Exchange Effective Date (as defined in the Seventh Amendment), the aggregate amount of 2022A Revolving Commitments shall be $0.
“2022A Revolving Credit Facility” means the 2022A Revolving Commitments and the provisions herein related to the 2022A Revolving Loans, Swingline Loans and Letters of Credit.
“2022A Revolving Lender” means a Lender with a 2022A Revolving Commitment or, if the 2022A Revolving Commitments have terminated or expired, a Lender with a 2022A Revolving Loan or Revolving Exposure.
“2022A Revolving Loan” means a Loan made pursuant to clause (b) of Section 2.01 in respect of the 2022A Revolving Commitments.
“2022A Revolving Maturity Date” means July 21, 2027 (or, with respect to any 2022A Revolving Lender that has extended its 2022A Revolving Commitment pursuant to a Permitted Amendment, the extended maturity date, set forth in any such Loan Modification Agreement).
“3L Security Documents” has the meaning assigned to such term in in Section 9.19.
“8.125% First Out First Lien Senior Secured Note Indenture” means the Indenture dated as of the Seventh Amendment Effective Date among Sinclair Television Group, Inc., the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and collateral trustee, relating to the 8.125% First Out First Lien Senior Secured Notes, as amended or supplemented from time to time.
“8.125% First Out First Lien Senior Secured Notes” means each series of 8.125% First Out First Lien Senior Secured Notes due 2033 evidenced or provided by the 8.125% First Out First Lien Senior Secured Note Indenture (including the Guarantees of such Indebtedness provided by any Guarantor thereunder) in an aggregate principal amount of $1,430,000,000 outstanding as of the Seventh Amendment Effective Date.
“4.375% Second Out First Lien Senior Secured Note Indenture” means the Indenture dated as of the Seventh Amendment Effective Date among Sinclair Television Group, Inc., the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and collateral trustee, relating to the 4.375% Second Out First Lien Senior Secured Notes, as amended or supplemented from time to time.
“4.375% Second Out First Lien Senior Secured Notes” means each series of 4.375% Second Out First Lien Senior Secured Notes due 2032 evidenced or provided by the 4.375% Second Out First Lien Senior Secured Note Indenture (including the Guarantees of such Indebtedness provided by any Guarantor thereunder).
-2-
“5.125% Senior Unsecured Notes” means each series of 5.125% Senior Unsecured Notes due 2027 evidenced or provided by the 5.125% Senior Unsecured Note Indenture (including the Guarantees of such Indebtedness provided by any Guarantor thereunder) in an aggregate principal amount of $400,000,000 outstanding as of the Effective Date.
“5.125% Senior Unsecured Note Indenture” means the Indenture dated as of August 30, 2016 among Sinclair Television Group, Inc., the guarantors party thereto and U.S. Bank National Association, as trustee, relating to the 5.125% Senior Unsecured Notes, as amended or supplemented from time to time.
“5.625% Senior Unsecured Notes” means each series of 5.625% Senior Unsecured Notes due 2024 evidenced or provided by the 5.625% Senior Unsecured Note Indenture (including the Guarantees of such Indebtedness provided by any Guarantor thereunder) in an aggregate principal amount of $550,000,000 outstanding as of the Effective Date.
“5.625% Senior Unsecured Note Indenture” means the Indenture dated as of July 23, 2014 among Sinclair Television Group, Inc., the guarantors party thereto and U.S. Bank National Association, as trustee, relating to the 5.625% Senior Unsecured Notes, as amended or supplemented from time to time.
“5.875% Senior Unsecured Notes” means each series of 5.875% Senior Unsecured Notes due 2026 evidenced or provided by the 5.875% Senior Unsecured Note Indenture (including the Guarantees of such Indebtedness provided by any Guarantor thereunder) in an aggregate principal amount of $350,000,000 outstanding as of the Effective Date.
“5.875% Senior Unsecured Note Indenture” means the Indenture dated as of March 23, 2016 among Sinclair Television Group, Inc., the guarantors party thereto and U.S. Bank National Association, as trustee, relating to the 5.875% Senior Unsecured Notes, as amended or supplemented from time to time.
“6.125% Senior Unsecured Notes” means each series of 6.125% Senior Unsecured Notes due 2022 evidenced or provided by the 6.125% Senior Unsecured Note Indenture (including the Guarantees of such Indebtedness provided by any Guarantor thereunder) in an aggregate principal amount of $500,000,000 outstanding as of the Effective Date.
“6.125% Senior Unsecured Note Indenture” means the Indenture dated as of October 12, 2012 among Sinclair Television Group, Inc., the guarantors party thereto and U.S. Bank National Association, as trustee, relating to the 6.125% Senior Unsecured Notes, as amended or supplemented from time to time.
“9.750% Second Lien Secured Note Indenture” means the Indenture dated as of the Seventh Amendment Effective Date among Sinclair Television Group, Inc., the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and notes collateral agent, relating to the 9.750% Second Lien Secured Notes, as amended or supplemented from time to time.
“9.750% Second Lien Secured Notes” means each series of 9.750% Second Lien Secured Notes due 2033 evidenced or provided by the 9.750% Second Lien Secured Note Indenture (including the Guarantees of such Indebtedness provided by any Guarantor thereunder).
“ABR,” when used in reference to any Loan or Borrowing, refers to whether such Loan is, or the Loans comprising such Borrowing are, bearing interest at a rate determined by reference to the Alternate Base Rate.
~~“Acceptable Discount” has the meaning assigned to such term in Section2.11(a)(ii)(D).~~
~~“Acceptable Prepayment Amount” has the meaning assigned to such term in Section 2.11(a)(ii)(D).~~
~~“Acceptance and Prepayment Notice” means an irrevocable written notice from a TermLender accepting a Solicited Discounted Prepayment Offer to make a Discounted Term Loan Prepayment at the Acceptable Discount specified therein pursuant to Section 2.11(a)(ii)(D) substantially in the form of Exhibit O.~~
-3-
~~“Acceptance Date” has the meaning specified in Section 2.11(a)(ii)(D).~~
“Accepting Lenders” has the meaning specified in ~~Section 2.24(a)~~Section 2.24(a).
“Accounting Change” has the meaning specified in ~~Section 1.04(d)~~Section 1.04(d).
“Acquired EBITDA” means, with respect to any Pro Forma Entity for any period, the amount for such period of Consolidated EBITDA of such Pro Forma Entity (determined as if references to the Borrower and its Restricted Subsidiaries in the definition of the term “Consolidated EBITDA” were references to such Pro Forma Entity and its Subsidiaries that will become Restricted Subsidiaries), all as determined on a consolidated basis for such Pro Forma Entity.
“Acquired Entity or Business” has the meaning given such term in the definition of “Consolidated EBITDA.”
“Acquisition” means the acquisition of all of the issued and outstanding limited liability company interests of, or other ownership interests in, the Company pursuant to the Acquisition Agreement.
“Acquisition Agreement” means the Equity Purchase Agreement dated as of May 3, 2019 among The Walt Disney Company, as the seller, Fox Cable Networks, LLC, as the selling subsidiary, and RSN, as the buyer (together with all exhibits, schedules and other attachments thereto), as may be amended, modified and supplemented from time to time prior to the Effective Date.
“Acquisition Documents” means the Acquisition Agreement, all other agreements entered into between Parent or its Affiliates, RSN or its Affiliates, and/or the Company or its Affiliates in connection with the Acquisition and all schedules, exhibits and annexes to each of the foregoing and all side letters, instruments and agreements affecting the terms of the foregoing or entered into in connection therewith.
“Ad Hoc Group” means that certain ad hoc group of holders of the Borrower’s preexisting Indebtedness, represented by Milbank LLP and party to that certain Transaction Support Agreement, dated as of January 12, 2025, among the Borrower, the Parent and the guarantors party thereto.
~~“Acquisition Transaction” means any Investment by the Borrower or any of its RestrictedSubsidiaries in a Person that is engaged in a Similar Business if as a result of such Investment, (a) such Person becomes a Restricted Subsidiary or (b) such Person, in one transaction or a series of related transactions, is merged,consolidated, or amalgamated with or into, or transfers or conveys all or substantially all of its assets (or all or substantially all the assets constituting a business unit, division, product line or line of business) to, or is liquidated into,the Borrower or a Restricted Subsidiary, and, in each case, any Investment held by such Person (including, for the avoidance of doubt, any TV/Radio Acquisition).~~
~~“Additional Lender” means any Additional Revolving Lender or any Additional Term Lender,as applicable.~~
~~“Additional Revolving Lender” means, at any time, any bank or other financial institution that agrees to provide any portion of any (a) Incremental Revolving Commitment Increase orAdditional/Replacement Revolving Commitments pursuant to an Incremental Facility Amendment in accordance with Section 2.20 or (b) Credit Agreement Refinancing Indebtedness pursuant to a Refinancing Amendment in accordance withSection 2.21; provided that each Additional RevolvingLender shall be subject to the approval of the Administrative Agent, each Issuing Bank and the Swingline Lender (in each case, such approval in each case not to be unreasonably withheld or delayed) and the Borrower.~~
~~“Additional Term Lender” means, at any time, any bank or other financial institution(including any such bank or financial institution that is a Lender at such time) that agrees to provide any portion of any (a) Incremental Term Loan pursuant to an Incremental Facility Amendment in accordance with Section 2.20 or(b) Credit Agreement Refinancing Indebtedness pursuant to a Refinancing Amendment in accordance with Section 2.21;~~ ~~provided that eachAdditional Term Lender (other than any Person that is a Lender, an Affiliate of a Lender or an Approved Fund of a Lender at such time) shall be subject to the approval of the Administrative Agent (such approval not to be unreasonably withheld ordelayed) and the Borrower.~~
-4-
~~“Additional/Replacement Revolving Commitment” has the meaning assigned to such term inSection 2.20(a).~~
“Adjusted Daily Simple SOFR Rate” means, with respect to any Borrowing, an interest rate per annum equal to (a) the Daily Simple SOFR Rate, plus (b) 0.10%; provided that if the Adjusted Daily Simple SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjusted Term SOFR Rate” means, with respect to any Term Benchmark Borrowing of (a) Revolving Loans for (i) an Interest Period of one month, an interest rate per annum equal to (x) the Term SOFR Rate for such Interest Period, plus (y) 0.10%; (ii) an Interest Period of three months, an interest rate per annum equal to (x) the Term SOFR Rate for such Interest Period, plus (y) 0.15%; and (iii) an Interest Period of six months, an interest rate per annum equal to (x) the Term SOFR Rate for such Interest Period, plus (y) 0.25%; (b) Term B-2 Loans and Term B-3 Loans for (i) an Interest Period of one month, an interest rate per annum equal to (x) the Term SOFR Rate for such Interest Period, plus (y) 0.11448%; (ii) an Interest Period of three months, an interest rate per annum equal to (x) the Term SOFR Rate for such Interest Period, plus (y) 0.26161%; (iii) an Interest Period of six months, an interest rate per annum equal to (x) the Term SOFR Rate for such Interest Period, plus (y) 0.42826%; and (c) Term B-4 Loans for (i) an Interest Period of one month, an interest rate per annum equal to (x) the Term SOFR Rate for such Interest Period, plus (y) 0.10%; (ii) an Interest Period of three months, an interest rate per annum equal to (x) the Term SOFR Rate for such Interest Period, plus (y) 0.15%; and (iii) an Interest Period of six months, an interest rate per annum equal to (x) the Term SOFR Rate for such Interest Period, plus (y) 0.25%; provided that in the case of each of the foregoing clauses (a), (b) and (c), if the Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Administrative Agent” has the meaning assigned to such term in the preamble hereto.
“Administrative Questionnaire” means an administrative questionnaire in a form supplied by the Administrative Agent or any other form approved by the Administrative Agent.
“Affected Class” has the meaning specified in ~~Section 2.24(a)~~Section 2.24(a).
“Affiliate” means, with respect to a specified Person, another Person that directly or indirectly Controls or is Controlled by or is under common Control with the Person specified. Notwithstanding the foregoing, no individual shall be deemed to be an Affiliate solely by reason of his or her being a director, officer or employee of the Borrower or any of its Subsidiaries.
“Affiliated Debt Fund” means an Affiliated Lender that is a bona fide debt fund primarily engaged in, or that advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds or similar extensions of credit or securities in the ordinary course of business and the investment decisions of which are not controlled by a private equity business of any beneficial owner of any of the Investors.
“Affiliated Lender” means, at any time, any Lender that is an Affiliate of the Borrower (other than Parent or any of its Subsidiaries) at such time.
“Affiliated Lender Assignment and Assumption” has the meaning assigned to such term in ~~Section 9.04(f)(5)~~Section 9.04(f)(5).
~~“Affiliated Lender Cap” has the meaning assigned to such term in Section9.04(f)(3).~~
“Agent” means the Administrative Agent, the Collateral Agent, each Lead Arranger, each ~~Joint~~ Bookrunner and any successors and assigns in such capacity, and “Agents” means two or more of them.
-5-
“Agreement” has the meaning provided in the preamble hereto.
“AHG Bond Repurchases” means the repurchase or redemption for cash of up to approximately $59.3 million aggregate principal amount of the Existing Secured Notes held by certain Ad Hoc Group members at 84% of the principal amount thereof and up to approximately $104.6 million aggregate principal amount of the 5.125% Senior Unsecured Notes held by certain Ad Hoc Group members at 97% of the principal amount thereof, each together with any accrued and unpaid interest, in each case immediately prior to the Effective Date.
“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus 0.50% 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 (but without regard to the Floor) on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1.00%; provided that, for the purpose of this clause (i), the Adjusted Term SOFR Rate for any day shall be based on the Term SOFR Reference Rate at approximately 6:00 a.m., New York 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); provided, further, that (x) in the case of Term B-3 Loans, Term B-4 Loans or Revolving Loans, if the Alternate Base Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement and (y) in the case of Term B-2 Loans, if the Alternate Base Rate shall be less than 1.00%, such rate shall be deemed to be 1.00% for purposes of this Agreement. Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate, as applicable, 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.
“Applicable Borrower Indebtedness” has the meaning assigned to such term in Section 9.14.
~~“~~~~Applicable Discount~~~~” has the meaning assigned to such term inSection 2.11(a)(ii)(C).~~
“Applicable Fronting Exposure” means, with respect to any Person that is an Issuing Bank or a Swingline Lender at any time, the sum of (a) the aggregate amount of all Letters of Credit issued by such Person in its capacity as an Issuing Bank (if applicable) that remains available for drawing at such time, (b) the aggregate amount of all LC Disbursements made by such Person in its capacity as an Issuing Bank (if applicable) that have not yet been reimbursed by or on behalf of the Borrower at such time and (c) the aggregate principal amount of all Swingline Loans made by such Person in its capacity as a Swingline Lender (if applicable) outstanding at such time.
“Applicable Parties” has the meaning assigned to such term in ~~Section 8.03(c)~~Section 8.03(c).
“Applicable Percentage” means, at any time with respect to any Revolving Lender, the percentage of the aggregate Revolving Commitments represented by such Lender’s Revolving Commitment at such time (or, if all the Revolving Commitments have terminated or expired, such Lender’s share of the total Revolving Exposure at that time); provided that, at any time any Revolving Lender shall be a Defaulting Lender, “Applicable Percentage” shall mean the percentage of the total Revolving Commitments (disregarding any such Defaulting Lender’s Revolving Commitment) represented by such Lender’s Revolving Commitment. If all the Revolving Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Revolving Commitments most recently in effect, giving effect to any assignments pursuant to this Agreement and to any Lender’s status as a Defaulting Lender at the time of determination.
“Applicable Period” has the meaning assigned to such term in the definition of the term “Applicable Rate”.
“Applicable Rate” means, (a) with respect to any Term B-2 Loan, (i) 1.50% per annum in the case of an ABR Loan or (ii) 2.50% in the case of a Term Benchmark Loan, (b) with respect to any Term B-3 Loan, (i) 2.00% per annum in the case of an ABR Loan or (ii) 3.00% per annum in the case of a Term Benchmark Loan, (c) with respect to any Term B-4 Loan, (i) 2.75% per annum in the case of an ABR Loan or (ii) 3.75% per annum in the case of a Term Benchmark Loan, and (d) with respect to any Revolving Loan, (i) 1.00% per annum in the case of an ABR Loan or (ii) 2.00% per annum in the case of a Term Benchmark Loan.
-6-
“Applicable Revolving Commitment Fee Rate” means with respect to the unused Revolving Commitments:
(i) until delivery of financial statements pursuant to Section 5.01(b) for the fiscal quarter ending September 30, 2019, a percentage per annum equal to 0.50%; and
(ii) at any time upon or after the delivery of the financial statements pursuant to Section 5.01(b) for the fiscal quarter ending September 30, 2019, (A) if the First Lien Leverage Ratio as set forth in the most recent certificate of a Financial Officer received by the Administrative Agent pursuant to ~~Section 5.01(d)~~Section 5.01(d) is greater than 3.00 to 1.00, a percentage per annum equal to 0.50%, (B) if the First Lien Leverage Ratio as set forth in the most recent certificate of a Financial Officer received by the Administrative Agent pursuant to ~~Section 5.01(d)~~Section 5.01(d) is less than or equal to 3.00 to 1.00 and greater than 2.75 to 1.00, a percentage per annum equal to 0.375% and (C) if the First Lien Leverage Ratio as set forth in the most recent certificate of a Financial Officer received by the Administrative Agent pursuant to ~~Section 5.01(d)~~Section 5.01(d) is less than or equal to 2.75 to 1.00, a percentage per annum equal to 0.25%.
Any increase or decrease in the Applicable Revolving Commitment Fee Rate resulting from a change in the First Lien Leverage Ratio shall become effective as of the first Business Day immediately following the date a certificate of a Financial Officer is delivered pursuant to ~~Section 5.01(d)~~Section 5.01(d); provided that at the option of the Administrative Agent (acting at the Direction of the Required Lenders) or the Required Lenders, the highest Applicable Revolving Commitment Fee Rate (i.e, 0.50%) shall apply as of the first Business Day after the date on which a certificate of a Financial Officer pursuant to ~~Section 5.01(d)~~Section 5.01(d) was required to have been delivered but was not delivered, and shall continue to so apply to and including the date on which such certificate is so delivered (and thereafter the Applicable Revolving Commitment Fee Rate otherwise determined in accordance with this definition shall apply).
Upon the request of the Administrative Agent (acting at the Direction of the Required Lenders) or the Required Lenders on and after receipt of a notice that an Event of Default has occurred, the highest Applicable Revolving Commitment Fee Rate (i.e., 0.50%) shall apply as of the date of such Event of Default (as reasonably determined by the Borrower) and shall continue to so apply to but excluding the date on which such Event of Default shall cease to be continuing (and thereafter, in each case, the pricing level otherwise determined in accordance with this definition shall apply).
In the event that any financial statements under ~~Section 5.01~~Section 5.01 or a Compliance Certificate is shown to be inaccurate at any time and such inaccuracy, if corrected, would have led to a higher Applicable Rate for any Applicable Period than the Applicable Rate applied for such Applicable Period, then (i) the Borrower shall promptly (and in no event later than five Business Days thereafter) deliver to the Administrative Agent a correct Compliance Certificate for such Applicable Period, (ii) the Applicable Rate shall be determined by reference to the corrected Compliance Certificate, and (iii) the Borrower shall pay to the Administrative Agent promptly upon written demand (and in no event later than five Business Days after written demand) any additional interest owing as a result of such increased Applicable Rate for such Applicable Period, which payment shall be promptly applied by the Administrative Agent in accordance with the terms hereof. Notwithstanding anything to the contrary in this Agreement, any additional interest hereunder shall not be due and payable until written demand is made for such payment pursuant to this paragraph and accordingly, any nonpayment of such interest as a result of any such inaccuracy shall not constitute a Default (whether retroactively or otherwise), and no such amounts shall be deemed overdue (and no amounts shall accrue interest at the rate set forth in ~~Section 2.13(c)~~Section 2.13(c)), at any time prior to the date that is five Business Days following such written demand.
~~“Approved Bank” has the meaning assigned to such term in the definition of the term“Permitted Investments.”~~
“Approved Electronic Platform” has the meaning assigned to it in ~~Section 8.03(a)~~Section 8.03(a).
~~“Approved Foreign Bank” has the meaning assigned to such term in the definition of theterm “Permitted Investments.”~~
-7-
“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any Person whose consent is required by ~~Section 9.04~~Section 9.04), or as otherwise required to be entered into under the terms of this Agreement, substantially in the form of Exhibit A or any other form reasonably approved by the Administrative Agent.
~~“Auction Agent” means (a) the Administrative Agent or (b) any other financialinstitution or advisor employed by the Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Discounted Term Loan Prepayment pursuant to Section 2.11(a)(ii); provided that the Borrowershall not designate the Administrative Agent as the Auction Agent without the written consent of the Administrative Agent (it being understood that the Administrative Agent shall not be under any obligation to agree to act as the AuctionAgent).~~
~~“Available Amount,” means, on any date of determination, a cumulative amount equal to (without duplication):~~
~~(a) the cumulative “AvailableAmount” (as defined in the Existing Credit Agreement) available to the Borrower under the Existing Credit Agreement immediately prior to the Effective Date as determined by the Borrower (this clause (a), the “Starter Basket”), plus~~
~~(b) Cumulative EBITDA less 1.4 timesCumulative Consolidated Interest Expense, plus~~
~~(c) returns, profits, distributions andsimilar amounts received in cash or Permitted Investments and the Fair Market Value of any in-kind amounts received by the Borrower and its Restricted Subsidiaries on Investments made using the Available Amount (not to exceed the amount of suchInvestments), plus~~
~~(d) Investments of the Borrower or any of itsRestricted Subsidiaries in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary or that has been merged or consolidated with or into the Borrower or any of its Restricted Subsidiaries (up to the lesser of (i) theFair Market Value of the Investments of the Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time of such re-designation or merger or consolidation and (ii) the Fair Market Value of the original Investment by theBorrower and its Restricted Subsidiaries in such Unrestricted Subsidiary), plus~~
~~(e) the Net Proceeds of a sale or otherDisposition of any Unrestricted Subsidiary (including the issuance or sale of Equity Interests of an Unrestricted Subsidiary) received by the Borrower or any of its Restricted Subsidiaries,plus~~
~~(f) to the extent not included inConsolidated Net Income, dividends or other distributions or returns on capital received by the Borrower or any of its Restricted Subsidiaries from an Unrestricted Subsidiary,plus~~
~~(g) the aggregate amount of any RetainedProceeds since the Effective Date.~~
~~“Available Equity Amount” means a cumulative amount equal to (without duplication):~~
~~(a) the Net Proceeds of new public or privateissuances of Qualified Equity Interests in Parent or any other Parent Entity of the Borrower which are contributed to the Borrower, plus~~
~~(b) capital contributions received by theBorrower or any the Restricted Subsidiaries after the Effective Date in cash or Permitted Investments (other than (x) in respect of any Disqualified Equity Interest and (y) any Designated Parent Contribution) and the Fair Market Value ofany in-kind contributions, plus~~
-8-
~~(c) the net cash proceeds or PermittedInvestments received by the Borrower or any the Restricted Subsidiaries from Indebtedness and Disqualified Equity Interest issuances issued after the Effective Date and which have been exchanged or converted into Qualified Equity Interests, plus~~
~~(d) returns, profits, distributions andsimilar amounts received in cash or Permitted Investments and the Fair Market Value of any in-kind amounts received by the Borrower and the Restricted Subsidiaries on Investments made using the Available Equity Amount (not to exceed the amount ofsuch Investments);~~
~~providedthat the Available Equity Amount shall not include any Cure Amount, any amounts used to incur Indebtedness pursuant to Section 6.01(a)(xxiv), any amounts used to make Investments pursuant to Section 6.04(p), any amounts used to makeRestricted Payments pursuant to Section 6.08(a)(vi)(D) or Excluded Contributions.~~
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency of making payments of interest calculated pursuant to this Agreement 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 clause (e) of ~~Section 2.14~~Section 2.14.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable ~~EEA~~ Resolution Authority in respect of any liability of an ~~EEA~~Affected Financial Institution.
“Bail-In Legislation” means~~,~~ (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule~~.~~ and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Basel III” means, collectively, those certain agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A Global Regulatory Framework for More Resilient Banks and Banking Systems,” “Basel III: International Framework for Liquidity Risk Measurement, Standards and Monitoring,” and “Guidance for National Authorities Operating the Countercyclical Capital Buffer,” each as published by the Basel Committee on Banking Supervision in December 2010 (as revised from time to time), and as implemented by a Lender’s primary banking regulatory authority.
“Benchmark” means, initially, with respect to any Term Benchmark Loan, the Adjusted Term SOFR Rate; provided that if a Benchmark Transition Event, and the related Benchmark Replacement Date have occurred with respect to the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) of ~~Section 2.14~~Section 2.14.
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent, in each case, for the applicable Benchmark Replacement Date:
(1) the Adjusted Daily Simple SOFR Rate; or
(2) the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent (acting at the Direction of the Required Lenders) and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor 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 the then-current Benchmark for syndicated credit facilities denominated in dollars at such time in the United States and (b) the related Benchmark Replacement Adjustment;
-9-
If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, 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 (acting at the Direction of the Required Lenders) and the Borrower for the applicable Corresponding Tenor giving due consideration to (i) 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 on the applicable Benchmark Replacement Date and/or (ii) 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 syndicated credit facilities denominated in dollars.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement and/or any Term Benchmark Loan, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate”, the definition of “Business Day”, the definition of “U.S. Government Securities Business Day”, the definition of “Interest Period”, timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark and to permit the 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 such Benchmark exists, in such other manner of administration as the Administrative Agent decides in consultation with the Borrower is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event”, the later of (a) the date of the public statement or publication of information referenced therein and (b) 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
(2) in the case of clause (3) 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 no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) 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, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) 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).
-10-
“Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
(1) 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);
(2) 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 Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, 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), in each case, which states that the administrator of such Benchmark (or such component) 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); or
(3) 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 no longer, or as of a specified future date will no longer 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 Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with ~~Section 2.14(b)~~Section 2.14(b) and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with ~~Section 2.14(b)~~Section 2.14(b).
“Beneficial Ownership Certification” means a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code, or (c) any Person whose assets include (for purposes of the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Board of Directors” means, with respect to any Person, (a) in the case of any corporation, the board of directors of such Person or any committee thereof duly authorized to act on behalf of such board, (b) in the case of any limited liability company, the board of managers, board of directors, manager or managing member of such Person or the functional equivalent of the foregoing, (c) in the case of any partnership, the board of directors, board of managers, manager or managing member of a general partner of such Person or the functional equivalent of the foregoing and (d) in any other case, the functional equivalent of the foregoing. In addition, the term “director” means a director or functional equivalent thereof with respect to the relevant Board of Directors.
-11-
“Board of Governors” means the Board of Governors of the Federal Reserve System of the United States of America.
“Bookrunners” means (a) the Joint Bookrunners and (b) with respect to the 2022A Revolving Credit Facility, the Term B-3A Facility and the Term B-4A Facility, JPMorgan Chase Bank, N.A.
“Borrower” has the meaning provided in the preamble hereto.
~~“Borrower Materials” has the meaning specified in Section 5.01.~~
~~“Borrower Offer of Specified Discount Prepayment” means the offer by the Borrower tomake a voluntary prepayment of Term Loans at a specified discount to par pursuant to Section 2.11(a)(ii)(B).~~
~~“Borrower Solicitation of Discount Range Prepayment Offers” means the solicitation bythe Borrower of offers for, and the corresponding acceptance by a Term Lender of, a voluntary prepayment of Term Loans at a specified range at a discount to par pursuant to Section 2.11(a)(ii)(C).~~
~~“Borrower Solicitation of Discounted Prepayment Offers” means the solicitation by theBorrower of offers for, and the subsequent acceptance, if any, by a Term Lender of, a voluntary prepayment of Term Loans at a discount to par pursuant to Section 2.11(a)(ii)(D).~~
“Borrowing” means (a) Loans of the same Class and Type, made, converted or continued on the same date in the same currency and, in the case of Term Benchmark Loans, as to which a single Interest Period is in effect, or (b) a Swingline Loan.
“Borrowing Minimum” means (a) in the case of a Revolving Loan Borrowing, $1,000,000 and (b) in the case of a Swingline Loan, $100,000.
“Borrowing Multiple” means (a) in the case of a Revolving Loan Borrowing, $100,000 and (b) in the case of a Swingline Loan, $100,000.
“Borrowing Request” means a request by the Borrower for a Borrowing in accordance with ~~Section 2.03~~Section 2.03.
“Broadcast Licenses” means (a) the licenses, permits, authorizations or certificates to construct, own or operate the Stations granted by the FCC, and all extensions, additions and renewals thereto or thereof, and (b) the licenses, permits, authorizations or certificates which are necessary to construct, own or operate the Stations granted by administrative law courts or any state, county, city, town, village or other local Governmental Authority, and all extensions, additions and renewals thereto or thereof.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that when used in connection with a Term Benchmark Loan the term “Business Day” shall also exclude any day that is not a U.S. Government Securities Business Day.
~~“Capital Expenditures” means, for any period, (a) the aggregate of, withoutduplication, all expenditures (whether paid in cash or accrued as liabilities) by the Borrower and its Restricted Subsidiaries during such period~~ ~~that,in conformity with GAAP, are or are required to be included as additions during such period to property, plant or equipment reflected in the consolidated balance sheet of Borrower and its Restricted Subsidiaries and (b) all Capitalized SoftwareExpenditures.~~
-12-
“Capital Stock” means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
“Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by a Person and its Restricted Subsidiaries during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of a Person and its Restricted Subsidiaries.
“Cash Collateralize” means to pledge and deposit with or deliver to the Collateral Agent, for the benefit of one or more of the Issuing Banks or Revolving Lenders, as collateral for LC Exposure or obligations of the Revolving Lenders to fund participations in respect of LC Exposure, cash or deposit account balances under the sole dominion and control of the Collateral Agent or, if the Collateral Agent and the applicable Issuing Bank shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to the Collateral Agent and each applicable Issuing Bank. “Cash Collateral” and “Cash Collateralization” shall have meanings correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
~~“Cash Equivalents” has the meaning assigned to such term in the definition of“Permitted Investments”.~~
~~“Cash Management Obligations” means obligations of Parent, the Borrower or any of its Restricted Subsidiaries in respect of (a) any overdraft and related liabilities arising from treasury,depository, cash pooling arrangements and cash management or treasury services or any automated clearing house transfers of funds, (b) other obligations in respect of netting services, employee credit or purchase card programs and similararrangements and (c) other services related, ancillary or complementary to the foregoing (including Cash Management Services).~~
“Cash Management Services” has the meaning assigned to such term in the definition of the term “Secured Cash Management Obligations”.
~~“Casualty Event” means any event that gives rise to the receipt by the Borrower or anyof its Restricted Subsidiaries of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or realproperty.~~
“Change in Control” means (a) the failure by the Permitted Holders to beneficially own directly or indirectly Voting Equity Interests in Parent or the Borrower representing at least a majority of the aggregate votes entitled to vote for the election of directors of Parent or the Borrower, as applicable, having a majority of the aggregate votes on the Board of Directors of Parent or the Borrower, unless any Permitted Holder or Permitted Holders have the right (pursuant to contract, proxy or otherwise), to designate, nominate or appoint, directly or indirectly, directors of Parent or the Borrower, as applicable, having a majority of the aggregate votes on the Board of Directors or other governing body of Parent or the Borrower, as applicable, or (b) the occurrence and continuance of a “Change of Control” (or similar term), as defined in the documentation governing the Existing Senior Unsecured Notes ~~(and any PermittedRefinancing thereof that constitutes Material Indebtedness)~~.
-13-
For purposes of this definition, including other defined terms used herein in connection with this definition, (i) “beneficial ownership” shall be as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act as in effect on the Effective Date and (ii) the phrase Person or group is within the meaning of Section 13(d) or 14(d) of the Exchange Act, but excluding any employee benefit plan of such Person or group or its subsidiaries and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan. Any person shall be deemed to beneficially own directly or indirectly Voting Equity Interests in (1) any corporation, association or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total voting power of shares of Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof; and (2) any partnership, joint venture, limited liability company or similar entity of which (a) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise, and (b) such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
Notwithstanding anything to the contrary in this definition or any provision of Section 13d-3 of the Exchange Act, (A) if any group includes one or more Permitted Holders, the issued and outstanding Equity Interests of Parent, directly or indirectly owned by the Permitted Holders that are part of such group shall not be treated as being beneficially owned by such group or any other member of such group, (B) a Person or group shall not be deemed to beneficially own Equity Interests to be acquired by such Person or group pursuant to a stock or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the Equity Interests in connection with the transactions contemplated by such agreement and (C) a Person or group will not be deemed to beneficially own the Equity Interests of another Person as a result of its ownership of Equity Interests or other securities of such other Person’s parent (or related contractual rights) unless it owns more than 50% of the total voting power of the Equity Interests entitled to vote for the election of directors of such Person’s parent having a majority of the aggregate votes on the Board of Directors of such Person’s parent.
“Change in Law” means (a) the adoption of any rule, regulation, treaty or other law after the date of this Agreement, (b) any change in any rule, regulation, treaty or other law or in the administration, interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that, notwithstanding anything herein to the contrary, (i) any requests, rules, guidelines or directives under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or issued in connection therewith and (ii) any requests, rules, guidelines or directives promulgated by the Bank of 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 shall be deemed to be a “Change in Law,” to the extent enacted, adopted, promulgated or issued after the date of this Agreement, but only to the extent such rules, regulations, or published interpretations or directives are applied to the Borrower and its Subsidiaries by the Administrative Agent (acting at the Direction of the Required Lenders) or any Lender in substantially the same manner as applied to other similarly situated borrowers under comparable syndicated credit facilities, including, without limitation, for purposes of ~~Section 2.15~~Section 2.15.
“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a successor administrator).
“Channel Sharing Agreement” means an agreement governing the shared use of a television channel or other similar contractual arrangement that constitutes a channel sharing agreement within the meaning of 47 C.F.R. § 73.3700(a)(5).
“Class” when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans, ~~IncrementalRevolving Loans,~~ Other Revolving Loans, Term B-2 Loans, Term B-3 Loans, Term B-3A Loans, Term B-4 Loans, ~~Incremental~~ Term B-4A Loans, Other Term Loans or Swingline Loans, (b) any Commitment, refers to whether such Commitment is a Revolving Commitment, Other Revolving Commitment, Term B-2 Commitment, Term B-3 Commitment, Term B-3A Commitment, Term B-4 Commitment, Term B-4A Commitment or Other Term Commitment and (c) any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments. Other Term
-14-
Commitments, Other Term Loans, and Other Revolving Commitments (and the Other Revolving Loans made pursuant thereto) ~~and Incremental Term Loans~~that have different terms and conditions shall be construed to be in different Classes. For purposes of Sections 2.02, 2.03, 2.07, 2.08, 2.11 and 2.18(c), prior to the Initial Revolving Maturity Date, the Initial Revolving Commitments and the 2022 Revolving Commitments shall be deemed to be the same Class, and the Initial Revolving Loans and the 2022 Revolving Loans shall be deemed to be the same Class. The 2022A Revolving Commitments shall be a different Class from the Initial Revolving Commitments and the 2022 Revolving Commitments, and the 2022A Revolving Loans shall be a different Class from the Initial Revolving Loans and the 2022 Revolving Loans.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Collateral” means any and all assets and property, whether tangible or intangible, on which Liens are purported to be granted pursuant to the Security Documents as security for the Secured Obligations.
“Collateral Agent” has the meaning assigned in the Collateral Agreement.
“Collateral Agreement” means the Fifth Amended and Restated Security Agreement among Parent, the Borrower, each other Loan Party and the Collateral Agent, substantially in the form of Exhibit D.
“Collateral and Guarantee Requirement” means, at any time, the requirement that:
(a) the Administrative Agent shall have received from (i) the Borrower and each Guarantor (other than an Excluded Subsidiary) (1) either (x) a counterpart of the Guarantee Agreement duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes a Loan Party after the Effective Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Guarantee Agreement, in the form specified therein, duly executed and delivered on behalf of such Person and (2) either (x) a counterpart of the Collateral Agreement duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes a Loan Party after the Effective Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Collateral Agreement, in the form specified therein, duly executed and delivered on behalf of such Person, in each case under this clause (a) together with, in the case of any such Loan Documents executed and delivered after the Effective Date, documents of the type referred to in ~~Section 4.01(c)~~Section 4.01(c), and, to the extent reasonably requested by the Collateral Agent~~,~~ (acting at the Direction of the Required Lenders) opinions of the type referred to in ~~Section 4.01(b)~~Section 4.01(b);
(b) all outstanding Equity Interests of the Borrower and its Restricted Subsidiaries (other than any Equity Interests constituting Excluded Assets or Equity Interests of Immaterial Subsidiaries) owned by or on behalf of any Loan Party shall have been pledged pursuant to the Collateral Agreement (and the Collateral Agent shall have received certificates or other instruments representing all such Equity Interests (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank);
(c) if any Indebtedness for borrowed money of the Borrower or any Subsidiary in a principal amount of $10,000,000 or more is owing by such obligor to any Loan Party, such Indebtedness shall be evidenced by a promissory note, such promissory note shall have been pledged pursuant to the Collateral Agreement and the Collateral Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank;
(d) all certificates, agreements, documents and instruments, including Uniform Commercial Code financing statements, required by the Security Documents, Requirements of Law and reasonably requested by the Collateral Agent )acting at the Direction of the Required Lenders) to be filed, delivered, registered or recorded to create the Liens intended to be created by the Security Documents and perfect such Liens to the extent required by, and with the priority required by, the Security Documents and the other provisions of the term “Collateral and Guarantee Requirement,” shall have been filed, registered or recorded or delivered to the Collateral Agent for filing, registration or recording.
-15-
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, (1) (a) the foregoing provisions of this definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Loan Parties, or the provision of Guarantees by any Subsidiary, if, and for so long as and to the extent that the Administrative Agent (acting at the Direction of the Required Lenders) and the Borrower reasonably agree in writing that the cost of creating or perfecting such pledges or security interests in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such Guarantees (taking into account any material adverse Tax consequences to Parent, the Borrower and its Subsidiaries (including the imposition of withholding or other material Taxes)), shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (b) Liens required to be granted from time to time pursuant to the term “Collateral and Guarantee Requirement” shall be subject to exceptions and limitations set forth in the Security Documents as in effect on the Effective Date, (c) in no event shall control agreements or other control or similar arrangements be required with respect to deposit accounts, securities accounts, commodities accounts or other assets specifically requiring perfection by control agreements, (d) no perfection actions shall be required with respect to Vehicles and other assets subject to certificates of title, (e) no perfection actions shall be required with respect to commercial tort claims with a value less than $10,000,000 and no perfection actions shall be required with respect to promissory notes evidencing debt for borrowed money in a principal amount of less than $10,000,000, (f) no actions in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction shall be required to be taken to create any security interests in assets located or titled outside of the United States (including any Equity Interests of Foreign Subsidiaries and any foreign Intellectual Property) or to perfect or make enforceable any security interests in any such assets (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction), (g) no actions shall be required to perfect a security interest in letter of credit rights (other than the filing of UCC financing statements), (h) in no event shall the Collateral include any Excluded Assets and (i) no actions shall be required to perfect a security interest in owned or leased real property and (2) in any event, no provision of this definition or anything in this Agreement or any other Loan Document shall be given force or effect to the extent it (a) requires any Person that is not a Guarantor and/or pledgor of assets on the Seventh Amendment Effective Date to become a Guarantor and/or pledgor of assets at any time after the Seventh Amendment Effective Date, (b) requires the granting after the Seventh Amendment Effective Date of any liens or security interests on assets (it being understood and agreed that this clause (2)(b) shall not impair any grant of a security interest prior to the Seventh Amendment Effective Date on any after-acquired property or assets), (c) requires the taking of any steps to perfect any security interest that is not perfected on and as of the Seventh Amendment Effective Date or improve the priority of any security interest after the Seventh Amendment Effective Date (including without limitation the delivering of any possessory Collateral or the entering into of any control agreements) or (d) requires the taking of any action pursuant to any further assurances clause (or provisions of similar import). The Collateral Agent (acting at the Direction of the Required Lenders) may grant extensions of time or waivers for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary (including extensions beyond the Effective Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Effective Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Security Documents.
~~“College Sports Transaction” means the contribution and/or disposition, directly or indirectly, by Parent of assets (including any Capital Stock) related to the high school and college sports assets,businesses and/or divisions owned by Parent and its Subsidiaries on the Effective Date to RSN, Fox College Sports, Inc. and/or any other Affiliate of RSN and/or to any third party.~~
“Commercial Letter of Credit” means any Letter of Credit issued for the purpose of providing the primary payment mechanism in connection with the purchase of any materials, goods or services by the Borrower or its Subsidiaries in the ordinary course of business.
“Commitment” means (a) with respect to any Lender, its Revolving Commitment, Other Revolving Commitment of any Class, Term Commitment, and Other Term Commitment of any Class or any combination thereof (as the context requires) and (b) with respect to any Swingline Lender, its Swingline Commitment.
-16-
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Communications” has the meaning assigned to it in ~~Section 8.03(c)~~Section 8.03(c).
“Company” means Fox Sports Net, LLC, a Delaware limited liability company.
“Compliance Certificate” means a certificate of a Financial Officer required to be delivered pursuant to ~~Section 5.01(d)~~Section 5.01(d).
“Consolidated EBITDA” means, for any period, with respect to any Person, the Consolidated Net Income of such Person for such period, plus:
(a) without duplication and to the extent already deducted (and not added back) in arriving at such Consolidated Net Income for such period, the sum of the following amounts for such period:
(i) total interest expense of such Person and, to the extent not reflected in such total interest expense, any losses on hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, net of interest income and gains on such hedging obligations or such derivative instruments, and bank and letter of credit fees and costs of surety bonds in connection with financing activities, plus items excluded from the definition of “Consolidated Interest Expense” pursuant to clauses (n) through (z) thereof,
(ii) provision for taxes based on income, profits, revenue or capital, including federal, foreign and state income, franchise, excise, value added and similar taxes based on income, profits, revenue or capital and foreign withholding taxes of such Person paid or accrued during such period (including in respect of repatriated funds), including any penalties and interest relating to such taxes or arising from any tax examinations and (without duplication) any payments actually made to a Parent Entity ~~pursuant to Section 6.08(a)(vii)~~ in respect of such taxes,
(iii) the total amount of depreciation and amortization expense (including amortization of deferred financing fees or costs, internal labor costs, debt issuance costs, commissions, fees and expenses, capitalized expenditures (including Capitalized Software Expenditures), customer acquisition costs and incentive payments, content (including film) amortization, conversion costs and contract acquisition costs) of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP,
(iv) any other non-cash charges, expenses or losses, including any write offs, write downs, expenses, losses or items (each, a “non-cash charge”), except that if any non-cash charge represents an accrual or reserve for potential cash items in any future period (A) such Person may elect not to add back such non-cash charge in such period and (B) to the extent such Person elects to add back such non-cash charge (other than amortization of a prepaid cash item that was paid in a prior period) in such period, the cash payment in respect thereof in any future period shall be subtracted from Consolidated EBITDA,
(v) (i) the amount of any non-controlling interest or minority interest expense consisting of income attributable to non-controlling or minority equity interests of third parties (other than the Borrower or any of its Subsidiaries) in any non-wholly-owned Subsidiary deducted (and not added back) in such period to Consolidated Net Income and (ii) the amount of dividends or distributions or other payments to the Borrower or any of its Restricted Subsidiaries that are actually paid in cash or ~~CashEquivalents~~cash equivalents (or if not paid in cash or ~~CashEquivalents~~cash equivalents, but later converted into cash or ~~CashEquivalents~~cash equivalents, upon such conversion) by any Person during such period, in the case of each of clauses (i) and (ii), without duplication of cash distributions in respect thereof which are included in Consolidated Net Income for such period,
-17-
(vi) the amount of fees, expenses and indemnities paid to directors, including of the Borrower or any Parent Entity thereof,
(vii) losses or discounts on sales or dispositions of receivables and related assets in connection with any Permitted Receivables Financing,
(viii) cash receipts (or any netting arrangements resulting in reduced cash expenditures) not included in the calculation of Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to paragraph (c) below for any previous period and not added back,
(ix) any costs or expenses incurred by such Person or any Restricted Subsidiary pursuant to any management equity plan or stock option plan or phantom equity plan or any other management or employee benefit plan or agreement, any severance agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are non-cash or otherwise funded with cash proceeds contributed to the capital of such Person or Net Proceeds of an issuance of Equity Interests of such Person (other than Disqualified Equity Interests),
(x) any net pension or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at the date of initial application of FASB Accounting Standards Codification 715, and any other items of a similar nature, plus
(xi) any other adjustments, exclusions and add-backs reflected in the Information Memorandum;
plus
(b) without duplication, the amount reasonably projected by such Person of “run rate” cost savings, expenses, operating expense reductions, synergies and contractual retransmission revenue (including from increased pricing, if any, determined on an aggregate basis across all existing customer contracts) and charges (including restructuring and integration charges) to be realized by such Person as a result of actions (including actions taken or initiated before, on or after the Effective Date) that have been taken or initiated or are expected to be taken or initiated in connection with, pursuant to or as contemplated by the Transactions, any Specified Event or any joint venture or other arrangement of such Person or any of its Restricted Subsidiaries (even if not accounted for on the financial statements of any such joint venture or such Person) (a) occurring on or prior to the date that is 24 full months after the date of final consummation of the Transactions and (b) occurring on or prior to the date that is 24 full months after the date of final consummation of any other investment, disposition of assets, property, Capital Stock or Indebtedness, incurrence, prepayment or repayment of Indebtedness, Restricted Payment, Subsidiary designation, restructuring, cost saving initiative or other initiative (including any Acquisition Transactions) (each such investment, disposition, incurrence, prepayment, repayment, Restricted Payment, and Subsidiary designation, a “Specified Event”). Such cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) 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 from such actions if such cost savings are reasonably identifiable and factually supportable. No cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) shall be added pursuant to this clause (2) to the extent duplicative of any cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) that are included in clause (1) above (it being understood and agreed that “run rate” shall mean the full recurring cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) that
-18-
is associated with any action taken) and the share of any such cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges) with respect to a joint venture that are to be allocated to such Person shall not exceed the total amount thereof proportionate to such Person’s economic interest in such joint venture for the relevant Test Period;
plus
(c) any Designated Parent Contribution;
less
(d) without duplication and to the extent included in arriving at such Consolidated Net Income, the sum of the following amounts for such period:
(i) non-cash gains (excluding any non-cash gain to the extent it represents the reversal of an accrual or reserve for a potential cash item that reduced Consolidated Net Income or Consolidated EBITDA in any prior period),
(ii) the amount of any non-controlling interest consisting of loss attributable to non-controlling interests of third parties in any non-wholly-owned subsidiary added (and not deducted in such period from Consolidated Net Income),
(iii) Film Cash Payments made during such period (and not deducted in such period from Consolidated Net Income),
in each case, as determined on a consolidated basis for such Person and its Restricted Subsidiaries in accordance with GAAP; provided that,
(I) there shall be included in determining Consolidated EBITDA for any period, without duplication, the Acquired EBITDA of any Person, property, business or asset acquired by the Borrower or any of its Restricted Subsidiaries during such period (other than any Unrestricted Subsidiary) whether such acquisition occurred before or after the Effective Date to the extent not subsequently sold, transferred or otherwise disposed of (but not including the Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired) (each such Person, property, business or asset acquired, including pursuant to the Transactions or pursuant to a transaction consummated prior to the Effective Date, and not subsequently so disposed of, an “Acquired Entity or Business”), and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during such period (each, a “Converted Restricted Subsidiary”), in each case based on the Acquired EBITDA of such Pro Forma Entity for such period (including the portion thereof occurring prior to such acquisition or conversion) determined on a historical Pro Forma Basis, and
(II) there shall be (A) excluded in determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business or asset (other than any Unrestricted Subsidiary) sold, transferred or otherwise disposed of, closed or classified as discontinued operations by the Borrower or any of its Restricted Subsidiaries during such period (but if such operations are classified as discontinued due to the fact that they are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually disposed of) (each such Person, property, business or asset so sold, transferred or otherwise disposed of, closed or classified, a “Sold Entity or Business”), and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during such period (each, a “Converted Unrestricted Subsidiary”), in each case based on the Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer, disposition, closure, classification or conversion) determined on a historical Pro Forma Basis and (B) included in determining Consolidated EBITDA for any period in which a Sold Entity or Business is disposed, an adjustment equal to the Pro Forma Disposal Adjustment with respect to such Sold Entity or Business (including the portion thereof occurring prior to such disposal) as specified in the Pro Forma Disposal Adjustment certificate delivered to the Administrative Agent (for further delivery to the Lenders).
-19-
In addition, to the extent not already included in the Consolidated EBITDA of such Person and its Restricted Subsidiaries in any period, notwithstanding anything to the contrary in the foregoing, Consolidated EBITDA shall include additional adjustments evidenced by or contained in a due diligence or quality of earnings report prepared with respect to any Investment permitted under this Agreement that has been consummated ~~(or, solely for purposes of determining the permissibility ofany Investment that constitutes a Limited Condition Transaction, a definitive agreement or other binding obligation with respect to which has been entered into)~~ and made available to the Administrative Agent by a nationally recognized accounting firm.
“Consolidated First Lien Debt” means, as of any date of determination, (a) the amount of Consolidated Total Debt (including in respect of the Loans hereunder) that is secured by all of the Collateral on an equal or super priority basis (but without regard to the control of remedies) with Liens securing the Secured Obligations minus (b) cash and ~~Permitted~~ Investments permitted under this Agreement of such Person or any Restricted Subsidiary.
“Consolidated Interest Expense” means, with respect to any Person for any period, the sum, without duplication, of:
(1) consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (c) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark-to-market valuation of Swap Obligations or other derivative instruments pursuant to GAAP), (d) the interest component of Financing Lease Obligations, and (e) net payments, if any made (less net payments, if any, received), pursuant to interest rate Swap Obligations with respect to Indebtedness, and excluding (n) any interest expense attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto and with respect to the Transactions or any Specified Event, (o) annual agency or similar fees paid to the Administrative Agent, Collateral Agent and other agents under this Agreement or other credit facilities, (p) any additional interest with respect to failure to comply with any registration rights agreement owing with respect to any securities, (q) costs associated with obtaining Swap Obligations, (r) any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting in connection with the Transactions or any acquisition, (s) penalties and interest relating to taxes, (t) any “additional interest” or “liquidated damages” with respect to other securities for failure to timely comply with registration rights obligations, (u) amortization or expensing of deferred financing fees, amendment and consent fees, debt issuance costs, commissions, fees, expenses and discounted liabilities, (v) any expensing of bridge, commitment and other financing fees and any other fees related to the Transactions or any acquisitions after the Effective Date, (w) commissions, discounts, yield and other fees and charges (including any interest expense) related to any Permitted Receivables Financing, (x) any accretion of accrued interest on discounted liabilities and any prepayment, make-whole or breakage premium, cost or penalty, (y) interest expense attributable to a Parent Entity resulting from push-down accounting, and (z) any lease, rental or other expense in connection with a Non-Financing Lease Obligation); plus
(2) consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less
(3) interest income of such Person and its Restricted Subsidiaries for such period.
For purposes of this definition, interest on a Financing Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Financing Lease Obligation in accordance with GAAP (or, if not implicit, as otherwise determined in accordance with GAAP).
-20-
“Consolidated Net Income” means, with respect to any Person for any period, the net income (loss) of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, excluding (and excluding the effect of), without duplication:
(a) extraordinary, exceptional, one-time, infrequent, non-recurring, non-operating or unusual gains or losses (less all fees and expenses relating thereto) and expenses (including any unusual or non-recurring operating expenses directly attributable to the implementation of cost savings, expenses, operating expense reductions, synergies and charges (including restructuring and integration charges), initiatives and any accruals or reserves in respect of any extraordinary, non-recurring or unusual items), severance, relocation costs, contract termination costs, system establishment charges, integration and facilities’ opening costs and other business optimization expenses (including related to new product introductions and other strategic or cost saving initiatives), restructuring charges, accruals or reserves (including restructuring and integration costs related to acquisitions after the Effective Date and adjustments to existing reserves), whether or not classified as restructuring expense on the consolidated financial statements, recruiting and signing costs, retention or completion bonuses, other executive recruiting and retention costs, transition costs, charges or expenses attributable to legal or regulatory claims, suits, actions, disputes, hearings and other matters, asset divestitures, costs or cost inefficiencies related to labor, facility, property or broadcasting transmission slowdowns, shutdowns or disruptions (as applicable), costs related to closure/consolidation of facilities and curtailments or modifications to pension and post-retirement employee benefit plans (including any settlement of pension liabilities and charges resulting from changes in estimates, valuations and judgments thereof),
(b) the cumulative effect of a change in accounting principles and changes as a result of adoption or modification of accounting policies during such period to the extent included in Consolidated Net Income,
(c) Transaction Costs (including any charges associated with the rollover, acceleration or payout of Equity Interests held by management of the Company or any of its Subsidiaries or Parent Entities in connection with the Transactions),
(d) the net income for such period of any Person that is an Unrestricted Subsidiary and any Person that is not a Subsidiary or that is accounted for by the equity method of accounting, except that Consolidated Net Income shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash or ~~Permitted~~ Investments (or, if not paid in cash or ~~Permitted~~ Investments, but later converted into cash or ~~Permitted~~ Investments, upon such conversion) by such Person to the Borrower or a Restricted Subsidiary thereof during such period,
(e) any fees and expenses (including any transaction or retention bonus or similar payment) incurred during such period, or any amortization thereof for such period, in connection with any Specified Event acquisition, Investment, asset disposition, issuance or repayment of debt, issuance of equity securities, refinancing transaction or amendment or other modification of, or the rating if by the Rating Agencies, any debt instrument (in each case, including any such transaction consummated prior to the Effective Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction, in each case whether or not successful or abandoned (including, for the avoidance of doubt, the effects of expensing all transaction-related expenses in accordance with FASB Accounting Standards Codification 805 and gains or losses associated with FASB Accounting Standards Codification 460),
(f) any income (loss) for such period attributable to the early extinguishment of Indebtedness, hedging agreements or other derivative instruments (including deferred financing costs written off and premiums paid),
(g) accruals and reserves that are established or adjusted as a result of the Transactions in accordance with GAAP (including any adjustment of estimated payouts on existing earn-outs) or changes as a result of the adoption or modification of accounting policies during such period,
-21-
(h) all Non-Cash Compensation Expenses,
(i) any income (loss) attributable to deferred compensation plans or trusts,
(j) any income (loss) from investments recorded using the equity method of accounting (but including any cash dividends or distributions actually received by the Borrower or any of its Restricted Subsidiaries in respect of such investment),
(k) any gain (loss) on asset sales, disposals or abandonments (other than asset sales, disposals or abandonments in the ordinary course of business) or income (loss) from discontinued operations (but if such operations are classified as discontinued due to the fact that they are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually disposed of),
(l) any non-cash gain (loss) attributable to the mark to market movement in the valuation of hedging obligations or other derivative instruments pursuant to FASB Accounting Standards Codification 815-Derivatives and Hedging or mark to market movement of other financial instruments pursuant to FASB Accounting Standards Codification 825-Financial Instruments in such Test Period; provided that any cash payments or receipts relating to transactions realized in a given period shall be taken into account in such period,
(n) any non-cash gain (loss) related to currency remeasurements of Indebtedness, net loss or gain resulting from hedging agreements for currency exchange risk and revaluations of intercompany balances and other balance sheet items,
(o) any non-cash expenses, accruals or reserves related to adjustments to historical tax exposures (provided, in each case, that the cash payment in respect thereof in such future period shall be subtracted from Consolidated Net Income for the period in which such cash payment was made),
(p) any impairment charge or asset write-off or write-down (including related to intangible assets (including goodwill), long-lived assets, and investments in debt and equity securities),
~~(q) solely for the purpose of calculating the Available Amount, the net income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded tothe extent the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its net income is not at the date of determination wholly permitted without any prior Governmental Approval (which has not been obtained)or, directly or indirectly, is otherwise restricted by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or itsstockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived or released (or the Borrower reasonably believes such restriction could be waived or released and is using commerciallyreasonable efforts to pursue such waiver or release); provided that Consolidated NetIncome of the Borrower will be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash) or Permitted Investments to the Borrower or a Restricted Subsidiary thereof inrespect of such period, to the extent not already included therein,~~
(q) [reserved],
(r) any deferred tax expense associated with tax deductions or net operating losses arising as a result of the Transactions, or the release of any valuation allowance related to such item,
(s) costs associated with, or in anticipation of, or preparation for, compliance with the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and other costs and expenses attributable to the Borrower or any Parent Entity thereof being a public company, and
-22-
(t) any expenses, charges or losses to the extent covered by insurance or indemnity and actually reimbursed, or, so long as such Person has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the extent that such amount is in fact reimbursed within 365 days of the date of the insurable or indemnifiable event (net of any amount so added back in any prior period to the extent not so reimbursed within the applicable 365 day period).
There shall be excluded from Consolidated Net Income for any period the effects from applying acquisition method accounting, including applying acquisition method accounting to inventory, property and equipment, loans and leases, software and other intangible assets and deferred revenue (including deferred costs related thereto and deferred rent) required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to such Person and its Restricted Subsidiaries), as a result of the Transactions, any Specified Event, acquisition or Investment consummated prior to the Effective Date and any other Specified Event or acquisition (by merger, consolidation, amalgamation or otherwise) or other Investment or the amortization or write-off of any amounts thereof.
In addition, to the extent not already included in Consolidated Net Income, Consolidated Net Income shall include (i) the amount of proceeds received or due from business interruption insurance or reimbursement of expenses and charges that are covered by indemnification and other reimbursement provisions in connection with any Specified Event, acquisition or other Investment or any disposition of any asset permitted hereunder (net of any amount so added back in any prior period to the extent not so reimbursed within a two-year period) and (ii) the amount of any cash tax benefits related to the tax amortization of intangible assets in such period.
~~“Consolidated Secured Debt” means, as of any date of determination,(a) the amount of Consolidated Total Debt (including in respect of the Loans hereunder) that is secured by the Collateral minus (b) cash and Permitted Investments of such Person or any Restricted Subsidiary.~~
~~“Consolidated Total Assets” means, as at any date of determination, the amount thatwould be set forth opposite the caption “total assets” (or any like caption) on the most recent consolidated balance sheet of the Borrower and its Restricted Subsidiaries in accordance with GAAP.~~
“Consolidated Total Debt” means, as of any date of determination, with respect to any Person and its Restricted Subsidiaries, an amount equal to (a) the sum of (1) the aggregate amount of all outstanding Indebtedness of such Person and its Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money, unreimbursed drawings under letters of credit, obligations in respect of Financing Lease Obligations, debt obligations evidenced by promissory notes and similar instruments, but excluding (A) all undrawn amounts under revolving credit facilities, (B) Swap Obligations, (C) performance bonds or any similar instruments, (D) the effects of any discounting of Indebtedness resulting from the application of acquisition method accounting in connection with the Transactions or any Specified Event, acquisition (by merger, consolidation, amalgamation, dividend, distribution or otherwise), or other Investment, and (E) all obligations relating to Permitted Receivables Financings and (2) the aggregate amount of all outstanding Disqualified Equity Interest of Person and all Preferred Stock of its Restricted Subsidiaries on a consolidated basis, with the amount of such Disqualified Equity Interest and Preferred Stock equal to the greater of their respective voluntary or involuntary liquidation preferences and maximum fixed repurchase prices, in each case determined on a consolidated basis in accordance with GAAP; less (b) cash and ~~Permitted~~ Investments of such Person and its Restricted Subsidiaries. For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Equity Interest or Preferred Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Equity Interest or Preferred Stock as if such Disqualified Equity Interest or Preferred Stock were purchased on any date on which Consolidated Total Debt shall be required to be determined pursuant to this Agreement, and if such price is based upon, or measured by, the fair market value of such Disqualified Equity Interest or Preferred Stock, such fair market value shall be determined in good faith by the Board of Directors or senior management of such Person.
“Contract Station” means (a) each television or radio station identified as such in Schedule 1.01(c), (b) each television or radio station that is the subject of an Acquisition Transaction consummated by the Borrower or any Subsidiary on or after the date hereof and (c) any television or radio station with which the Borrower or any Subsidiary has entered into any Program Services Agreement, Outsourcing Agreement or other similar agreement on or after the date hereof, in each case until such time, if any, as the Borrower or any Subsidiary acquires the Broadcast License of such television or radio station and such station becomes an Owned Station.
-23-
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies, or the dismissal or appointment of the management, of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Converted Restricted Subsidiary” has the meaning given such term in the definition of “Consolidated EBITDA.”
“Converted Unrestricted Subsidiary” has the meaning assigned to such term in the definition of the term “Consolidated EBITDA.”
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
~~“Covenant Suspension Event” has the meaning specified in Section 6.12.~~
“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).
“Covered Party” has the meaning assigned to such term in ~~Section 9.18~~Section 9.18.
“Credit Agreement Refinancing Indebtedness” means Indebtedness issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) by a Loan Party in exchange for, or to extend, renew, replace or refinance, in whole or part, any Class of existing Term Loans or Revolving Loans (or unused Revolving Commitments) (“Refinanced Debt”); provided that such exchanging, extending, renewing, replacing or refinancing Indebtedness, at the time of such issuance, incurrence or obtainment, (a) is in an original aggregate principal amount not greater than the aggregate principal amount of the Refinanced Debt (plus any premium, accrued interest and fees and expenses incurred in connection with such exchange, extension, renewal, replacement or refinancing), (b) does not mature earlier than or, except in the case of Revolving Commitments, have a Weighted Average Life to Maturity shorter than the Refinanced Debt, (c) shall not be guaranteed by any entity that is not a Loan Party~~,~~ and (d) in the case of any secured Indebtedness (i) is not secured by any assets not securing the Secured Obligations and (ii) is subject to the relevant Intercreditor Agreements ~~and (e) has terms andconditions (excluding pricing, interest rate margins, rate floors, discounts, fees, premiums and prepayment or redemption provisions) that are not materially more favorable (when taken as a whole) to the lenders or investors providing suchIndebtedness than the terms and conditions of this Agreement (when taken as a whole) are to the Lenders (except for covenants or other provisions applicable only to periods after the Latest Maturity Date at the time of such refinancing) asdetermined by the Borrower in good faith (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, such indebtedness shall be deemed not materially more favorable (when takenas a whole) to the lenders or investors providing such Indebtedness solely by virtue of such financial maintenance covenant and no consent shall be required by the Administrative Agent or any of the Lenders, if such financial maintenance covenant iseither (i) also added for the benefit of any corresponding~~ ~~Loans remaining outstanding after the issuance or incurrence of such Indebtedness or(ii) only applicable after the Latest Maturity Date at the time of such refinancing)~~~~.~~.
~~“Cumulative Consolidated Interest Expense” means, as of any date of determination,Consolidated Interest Expense from the Effective Date to the end of the Borrower’s most recently ended full fiscal quarter prior to such date, taken as a single accounting period.~~
-24-
~~“Cumulative EBITDA” means, as of any date of determination, Consolidated EBITDA from theEffective Date to the end of the Borrower’s most recently ended full fiscal quarter prior to such date, taken as a single accounting period.~~
~~“Cure Amount” has the meaning specified in Section 7.02.~~
~~“Cure Right” has the meaning specified in Section 7.02.~~
“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day, a “SOFR Determination Date”) that is five U.S. Government Securities Business Days prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower.
“Default” means any event or condition that constitutes an Event of Default or that upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender” means any Lender that has (a) failed to fund any portion of its Loans or participations in Letters of Credit or Swingline Loans within one Business Day of the date on which such funding is required hereunder, (b) notified the Borrower, the Administrative Agent, any Issuing Bank, any Swingline Lender or any Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement or provided any written notification to any Person to the effect that it does not intend to comply with its funding obligations under this Agreement or generally under other agreements in which it commits to extend credit, (c) failed, within three Business Days after request by the Administrative Agent (whether acting on its own behalf or at the reasonable request of the Borrower (it being understood that the Administrative Agent shall comply with any such reasonable request)) or by any Issuing Bank or any Swingline Lender, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans, (d) otherwise failed to pay over to the Administrative Agent, any Issuing Bank or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute or subsequently cured, or (e) after the Effective Date (i) become or is insolvent or has a parent company that has become or is insolvent, (ii) become the subject of a bankruptcy or insolvency proceeding or any action or proceeding of the type described in ~~Section 7.01(h) or(i)~~Section 7.01(h) or (i), or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be deemed to be a Defaulting Lender solely by virtue of the ownership or acquisition of any capital stock in such Lender or its direct or indirect parent 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.
“Defaulting Lender Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to any Issuing Bank, such Defaulting Lender’s Applicable Percentage of the outstanding Letter of Credit obligations other than Letter of Credit obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or cash collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s Applicable Percentage of Swingline Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or cash collateralized in accordance with the terms hereof.
-25-
~~“Delaware Divided LLC” means any Delaware LLC which has been formed upon theconsummation of a Delaware LLC Division.~~
~~“Delaware LLC” means any limited liability company organized or formed under the laws of the State of Delaware.~~
~~“Delaware LLC Division” means the statutory division of any Delaware LLC into two ormore Delaware LLCs pursuant to Section 18- 217 of the Delaware Limited Liability Company Act.~~
~~“Designated Non-Cash Consideration” means the Fair Market Value of non-cashconsideration received by the Borrower or a Subsidiary in connection with a Disposition pursuant to Section 6.05(k) that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower,setting forth the basis of such valuation, less the amount of cash or Permitted Investments received in connection with a subsequent sale of or collection on or other disposition of such Designated Non-CashConsideration. A particular item of Designated Non-Cash Consideration will no longer be considered to be outstanding when and to the extent it has been paid, redeemed, sold or otherwise disposed of or returnedin exchange for consideration in the form of cash or Permitted Investments in compliance with Section 6.05.~~
“Designated Parent Contribution” means any cash equity contribution made by Parent to the Borrower and designated by the Borrower as a “Designated Parent Contribution”.
“Designated SBG Subsidiary” means ~~(a) KDSM, LLC and KDSM Licensee, LLC and (b)~~each ~~other~~ Subsidiary of Parent that is designated as a “Designated SBG Subsidiary” prior to the Effective Date pursuant to Section 6.10(a) of the Existing Credit Agreement ~~or after the Effective Date pursuant to Section 5.15(a), in eachcase~~, so long as such Subsidiary remains a Designated SBG Subsidiary hereunder (and, as of the Seventh Amendment Effective Date, there are no Designated SBG Subsidiaries).
“Direction of the Required Lenders” means a written direction or instruction from Lenders constituting the Required Lenders which may be in the form of an email or other form of written communication from legal counsel to such Lenders, which shall be conclusively presumed to have been authorized by a written direction or instruction from the Required Lenders and shall be conclusively presumed to represent the written direction or instruction from the Required Lenders (and the Administrative Agent and/or the Collateral Agent shall be entitled to rely on such presumption). For the avoidance of doubt, with respect to each reference herein to (i) documents, agreements or other matters being “satisfactory”, “acceptable”, “reasonably satisfactory” or “reasonably acceptable” (or any expression of similar import) to the Required Lenders such determination may be communicated by a Direction of the Required Lenders as contemplated above and/or (ii) any matter requiring the consent or approval of, or a determination by, the Required Lenders may be communicated by a Direction of the Required Lenders as contemplated above. The Administrative Agent and/or the Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any written direction or instruction from the Required Lenders that is purported to be a Direction of the Required Lenders, and the Administrative Agent and/or the Collateral Agent shall not have any responsibility to independently determine whether such direction has in fact been authorized by Required Lenders.
~~“director” has the meaning assigned to such term in the definition of “Board of Directors.”~~
~~“Discount Prepayment Accepting Lender” has the meaning assigned to such term in Section 2.11(a)(ii)(B).~~
~~“Discount Range” has the meaning assigned to such term in Section2.11(a)(ii)(C).~~
~~“Discount Range Prepayment Amount” has the meaning assigned to such term in Section 2.11(a)(ii)(C).~~
-26-
~~“Discount Range Prepayment Notice” means a written notice of a Borrower Solicitation ofDiscount Range Prepayment Offers made pursuant to Section 2.11(a)(ii)(C) substantially in the form of Exhibit K.~~
~~“Discount Range Prepayment Offer” means the irrevocable written offer by a Term Lender,substantially in the form of Exhibit L, submitted in response to an invitation to submit offers following the Auction Agent’s receipt of a Discount Range Prepayment Notice.~~
~~“Discount Range Prepayment Response Date” has the meaning assigned to such term inSection 2.11(a)(ii)(C).~~
~~“Discount Range Proration” has the meaning assigned to such term in Section 2.11(a)(ii)(C).~~
~~“Discounted Prepayment Determination Date” has the meaning assigned to such term inSection 2.11(a)(ii)(D).~~
~~“Discounted Prepayment Effective Date” means, in the case of a Borrower Offer of Specified Discount Prepayment or Borrower Solicitation of Discount Range Prepayment Offer, five Business Days following the receiptby each relevant Term Lender of notice from the Auction Agent in accordance with Section 2.11(a)(ii)(B), Section 2.11(a)(ii)(C) or Section 2.11(a)(ii)(D), as applicable, unless a shorter period is agreed to between the Borrower andthe Auction Agent.~~
“~~Discounted Term Loan Prepayment~~director” has the meaning assigned to such term in ~~Section 2.11(a)(ii)(A).~~the definition of “Board of Directors.”
“Disposed EBITDA” means, with respect to any Sold Entity or Business or Converted Unrestricted Subsidiary for any period, the amount for such period of Consolidated EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary (determined as if references to the Borrower and its Restricted Subsidiaries in the definition of the term “Consolidated EBITDA” (and in the component financial definitions used therein) were references to such Sold Entity or Business and its subsidiaries or to such Converted Unrestricted Subsidiary and its subsidiaries), all as determined on a consolidated basis for such Sold Entity or Business or Converted Unrestricted Subsidiary.
~~“Disposition” has the meaning assigned to such term in Section 6.05.~~
~~“Disposition Percentage” means, (x) with respect to a Prepayment Event pursuant toclause (a) of such definition, the prepayment required by Section 2.11(c), if the First Lien Leverage Ratio for the Test Period then last ended is (a) greater than 2.40 to 1.00, 100%, (b) greater than 1.90 to 1.00 but less thanor equal to 2.40 to 1.00, 50% and (c) equal to or less than 1.90 to 1.00, 0% and (y) with respect to a Prepayment Event pursuant to clause (b) of such definition, the prepayment required by Section 2.11(c) shall be 100%.~~
“Disqualified Equity Interest” means, with respect to any Person, any Equity Interest in such Person that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable, either mandatorily or at the option of the holder thereof), or upon the happening of any event or condition:
(a) matures or is mandatorily redeemable (other than solely for Equity Interests in such Person or in any Parent Entity that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests), whether pursuant to a sinking fund obligation or otherwise;
(b) is convertible or exchangeable, either mandatorily or at the option of the holder thereof, for Indebtedness or Equity Interests (other than solely for Equity Interests in such Person or in any Parent Entity that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests); or
(c) is redeemable (other than solely for Equity Interests in such Person or in any Parent Entity that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests) or is required to be repurchased by such Person or any of its Affiliates, in whole or in part, at the option of the holder thereof;
-27-
in each case, on or prior to the date 91 days after the Latest Maturity Date; provided, however, that (i) an Equity Interest in any Person that would not constitute a Disqualified Equity Interest but for terms thereof giving holders thereof the right to require such Person to redeem or purchase such Equity Interest upon the occurrence of an “asset sale,” “condemnation event,” a “change of control” or similar event shall not constitute a Disqualified Equity Interest if any such requirement becomes operative only after repayment in full of all the Loans and all other Loan Document Obligations that are accrued and payable and the termination of the Commitments and (ii) if an Equity Interest in any Person is issued pursuant to any plan for the benefit of employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries or by any such plan to such employees, such Equity Interest shall not constitute a Disqualified Equity Interest solely because it may be required to be repurchased by the Borrower (or any direct or indirect parent company thereof) or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations of such Person or as a result of such employee’s termination, death, or disability.
“Disqualified Lenders” means, unless otherwise consented to by the Borrower in writing (including by email), (a) those banks, financial institutions and other institutional lenders identified in writing by a Permitted Holder or the Borrower to the Joint Bookrunners in writing prior to May 3, 2019, (b) those Persons who are competitors of the Loan Parties and each of their respective Subsidiaries identified by a Permitted Holder or the Borrower to the Administrative Agent from time to time in writing (including by email) prior to July 9, 2019 and (c) in the case of each Persons identified pursuant to clauses (a) and (b) above, any of their Affiliates that are either (i) identified in writing (including by email) by the Borrower from time to time or (ii) reasonably identifiable as Affiliates on the basis of such Affiliate’s name (other than, in the case of this clause (c), Affiliates that are bona fide debt funds). The Disqualified Lender list and any updates thereto shall be sent by the Borrower to the Administrative Agent by email ~~to JPMDQ_Contact@jpmorgan.com~~ in order to be deemed received and/or effective; provided, that no updates to the Disqualified Lender list) shall be deemed to retroactively disqualify any parties that have previously acquired an assignment or participation in respect of the Loans from continuing to hold or vote such previously acquired assignments and participations on the terms set forth herein for Lenders that are not Disqualified Lenders; provided, further, that any such updates to the Disqualified Lender list shall not take effect until three Business Days after the updated list of Disqualified Lenders is made available to the Lenders. For the avoidance of doubt, the Borrower shall have the right to remove Disqualified Lenders from the Disqualified Lender list (including by email to the email address provided above).
“dollars” or “$” refers to lawful money of the United States of America.
“Domestic Subsidiary” means any Subsidiary that is not a Foreign Subsidiary.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent;
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means August 23, 2019.
“Effective Date Dividend” means the dividend payment declared and made by Borrower to Parent on the Effective Date to fund a portion of the consideration (including Transaction Costs) in connection with the consummation of the Acquisition and the related Transactions.
-28-
“Effective Yield” means, as to any Indebtedness, the effective yield on such Indebtedness in the reasonable determination of the Administrative Agent in consultation with the Borrower and consistent with generally accepted financial practices, taking into account the applicable interest rate margins, any interest rate floors (the effect of which floors shall be determined in a manner set forth in the proviso below) or similar devices and all fees, including upfront or similar fees or original issue discount (amortized over the shorter of (a) the remaining Weighted Average Life to Maturity of such Indebtedness and (b) the four years following the date of incurrence thereof) payable generally to Lenders or other institutions providing such Indebtedness, but excluding any arrangement, structuring, ticking or other similar fees payable in connection therewith that are not generally shared with the relevant Lenders and, if applicable, consent fees for an amendment paid generally to consenting Lenders; provided that with respect to any Indebtedness that includes a rate “floor,” (i) to the extent that the Term SOFR Rate or Alternate Base Rate (without giving effect to any floors in such definitions), as applicable, on the date that the Effective Yield is being calculated is less than such floor, the amount of such difference shall be deemed added to the interest rate margin for such Indebtedness for the purpose of calculating the Effective Yield and (ii) to the extent that the Term SOFR Rate or Alternate Base Rate (without giving effect to any floors in such definitions), as applicable, on the date that the Effective Yield is being calculated is greater than such floor, then the floor shall be disregarded in calculating the Effective Yield.
“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and (d) any other Person (including, subject to the requirements of ~~Section 9.04(f), (g)~~Section 9.04(f), (g) and ~~(h)~~(h), as applicable, Parent, the Borrower or any of their Affiliates), other than, in each case, (i) a natural person, (ii) a Defaulting Lender or (iii) a Disqualified Lender.
~~“EMU Legislation” means the legislative measures of the European Council for theintroduction of, changeover to or operation of a single or unified European currency.~~
“Environmental Laws” means applicable common law and all applicable treaties, rules, regulations, codes, ordinances, judgments, orders, decrees and other applicable Requirements of Law, and all applicable injunctions or binding agreements issued, promulgated or entered into by or with any Governmental Authority, in each instance relating to the protection of the environment, including with respect to the preservation or reclamation of natural resources or the Release or threatened Release of any Hazardous Material, or to the extent relating to exposure to Hazardous Materials, the protection of human health or safety.
“Environmental Liability” means any liability, obligation, loss, claim, action, order or cost, contingent or otherwise (including any liability for damages, costs of medical monitoring, costs of environmental remediation or restoration, administrative oversight costs, consultants’ fees, fines, penalties and indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) any actual or alleged violation of any Environmental Law or permit, license or approval issued thereunder, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Financing” means the contributions of cash and/or other assets by Parent, directly or indirectly, to RSN, in a minimum aggregate amount equal to 25% of the sum of (1) the aggregate gross amount of the (x) RSN Term Loans borrowed on the Effective Date, (y) the RSN Notes issued on or prior to the Effective Date and (2) the equity capitalization of Diamond Sports Intermediate Holdings LLC, a Delaware limited liability company, and its subsidiaries on the Effective Date after giving effect to the Transactions; provided, that no less than 80% of the Equity Financing made on or prior to the Effective Date in connection with the Transactions shall be in the form of cash equity.
“Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with any Loan Party, is treated as a single employer under Section 414(b) or 414(c) of the Code or Section 4001(14) of ERISA or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
-29-
~~“ERISA Event” means (a) any “reportable event,” as defined inSection 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); (b) any failure by any Plan to satisfy the minimum funding standards (within the meaningof Section 412 or Section 430 of the Code or Section 302 of ERISA) applicable to such Plan, whether or not waived; (c) the filing pursuant to Section 412 of the Code or Section 302 of ERISA of an application for awaiver of the minimum funding standard with respect to any Plan; (d) a determination that any Plan is in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); (e) the incurrenceby a Loan Party or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (f) the receipt by a Loan Party or any ERISA Affiliate from the PBGC or a plan administrator of any noticerelating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (g) the incurrence by a Loan Party or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal fromany Plan (including any liability under Section 4062(e) of ERISA) or Multiemployer Plan; or (h) the receipt by a Loan Party or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from a Loan Party or any ERISAAffiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is insolvent, within the meaning of Title IV of ERISA, or in endangered or critical status, within the meaning ofSection 305 of ERISA.~~
“Erroneous Payment” has the meaning specified in Section 8.10(a).
“Erroneous Payment Deficiency Assignment” has the meaning specified in Section 8.10(d).
“Erroneous Payment Impacted Class” has the meaning specified in Section 8.10(d).
“Erroneous Payment Return Deficiency” has the meaning specified in Section 8.10(d).
“Erroneous Payment Subrogation Rights” has the meaning specified in Section 8.10(d).
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
~~“euro” means the single currency of the European Union as constituted by the Treaty onEuropean Union and as referred to in the EMU Legislation.~~
“Event of Default” has the meaning assigned to such term in ~~Section 7.01~~Section 7.01.
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended from time to time.
“Excluded Assets” means (a) all fee-owned real property (including real property existing on the Effective Date and on the date of acquisition for after acquired real property), (b) all leasehold interests in real property, (c) any governmental licenses or state or local franchises, charters or authorizations, to the extent a security interest in any such license, franchise, charter or authorization would be prohibited or restricted thereby (including any legally effective prohibition or restriction, but excluding any prohibition or restriction that is ineffective under the Uniform Commercial Code of any applicable jurisdiction), (d) any asset if, to the extent that and for so long as the grant of a Lien thereon to secure the Secured Obligations is prohibited by any Requirements of Law, including, without limitation, to the extent the Collateral Agent may not validly possess a security interest in any applicable FCC licenses pursuant to the Communications Act of 1934, as amended, and the rules, regulations, published orders and published and promulgated policy statements of the FCC, all as may be amended from time to time (other than to the extent that any such prohibition would be rendered ineffective pursuant to any other applicable Requirements of Law) or would require consent or approval of any Governmental Authority, (e) margin stock and, to the extent prohibited by, or creating an enforceable right of termination in favor of any other party thereto under (other than any Loan Party) the terms of any applicable Organizational Documents, joint venture agreement, shareholders’ agreement, or similar arrangement, Equity Interests in any Person other than wholly-owned Restricted Subsidiaries, (f) assets to the extent a security interest in such assets would result in material adverse tax consequences to Parent,
-30-
the Borrower or one of its subsidiaries as reasonably determined by the Borrower in consultation with the Collateral Agent~~,~~ (acting at the Direction of the Required Lenders), (g) any intent-to-use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, (h) any lease, license or other agreement or any property subject thereto (including pursuant to a purchase money security interest or similar arrangement) to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or purchase money arrangement or create a breach, default or right of termination in favor of any other party thereto (other than any Loan Party) after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code of any applicable jurisdiction or other similar applicable law, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code of any applicable jurisdiction or other similar applicable law notwithstanding such prohibition, (i) voting Equity Interests in excess of 65% of the voting Equity Interests of (i) any Foreign Subsidiary or (ii) any FSHCO, (j) receivables and related assets (or interests therein) (i) sold to any Receivables Subsidiary or (ii) otherwise pledged, factored, transferred or sold in connection with any Permitted Receivables Financing, (k) commercial tort claims with a value of less than $10,000,000 and letter-of-credit rights with a value of less than $10,000,000 (except to the extent a security interest therein can be perfected by a UCC filing), (l) Vehicles and other assets subject to certificates of title, (m) any aircraft, airframes, aircraft engines or helicopters, or any equipment or other assets constituting a part thereof, (n) any and all assets and personal property owned or held by any Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary), (o) any Equity Interests in Unrestricted Subsidiaries and (p) any proceeds from any issuance of Indebtedness ~~permitted to be incurred under Section 6.01~~ that are paid into an escrow account to be released upon satisfaction of certain conditions or the occurrence of certain events~~, including cash or Permitted Investments set aside at the time of the incurrence ofsuch Indebtedness, to the extent such cash or Permitted Investments prefund the payment of interest or premium or discount on such indebtedness (or any costs related to the issuance of such indebtedness) and are held in such escrow account orsimilar arrangement to be applied for suchpurpose~~~~.~~.
~~“Excluded Contribution” means net cash proceeds, the fair market value of marketablesecurities or the fair market value of Qualified Proceeds received by the Borrower from:~~
~~(1) contributions to its common equity capital,~~
~~(2) dividends, distributions, fees and other payments fromany Unrestricted Subsidiaries or joint ventures or Investments in entities that are not Restricted Subsidiaries, and~~
~~(3) the sale (other than to a Subsidiary of the Borrower orto any management equity plan or stock option plan or any other management or employee benefit plan or agreement of the Borrower) of Capital Stock (other than Disqualified Equity Interest and Preferred Stock) of the Borrower,~~
~~in each case designated asExcluded Contributions pursuant to an Officer’s Certificate executed by the principal financial officer of the Borrower (within 30 days of the date such capital contributions are made, the date such dividends distributions, fees or otherpayments are received or the date such Equity Interests are sold, as the case may be, which are (or were) excluded from the calculation of Available Equity Amount; provided that any such dividends, distributions, fees or other payments so designatedpursuant to clause (2) of this definition shall be excluded from the definition of “Consolidated Net Income” for all purposes under this Agreement.~~
“Excluded Subsidiary” means (a) any Subsidiary that is not a wholly-owned subsidiary of the Borrower, (b) each Subsidiary listed on Schedule 1.01(a), (c) each Unrestricted Subsidiary, (d) each Immaterial Subsidiary, (e) any Subsidiary that is prohibited by (i) applicable Requirements of Law or (ii) any contractual obligation existing on the Effective Date or on the date any such Subsidiary is acquired (so long in respect of any such contractual prohibition such prohibition is not incurred in contemplation of such acquisition), in each case from guaranteeing the Secured Obligations or which would require governmental (including regulatory) consent, approval, license or authorization to provide a Guarantee (unless such consent, approval, license or authorization has been obtained), or for which the provision of a Guarantee would result in a material adverse tax consequence (including as a result of the operation of Section 956 of the Code or any similar law or regulation in any applicable jurisdiction) to Parent, the Borrower or one of its subsidiaries (as reasonably determined by the Borrower in consultation with the Collateral Agent (acting at the Direction of the Required Lenders)), (f) any Foreign Subsidiary, (g) any direct or indirect Domestic Subsidiary of a direct or indirect Foreign Subsidiary of the Borrower that is a “controlled foreign corporation” within the meaning of Section 957 of the Code, (h) any FSHCO, (i) any other Subsidiary excused from becoming a Loan Party pursuant to clause (a) of the last paragraph of the definition of the term “Collateral and Guarantee Requirement,” (j) each Receivables Subsidiary and (k) any not-for-profit Subsidiaries, captive insurance companies or other special purpose subsidiaries designated by the Borrower from time to time.
-31-
“Excluded Swap Obligation” means, with respect to any Guarantor, (a) 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, as applicable, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the U.S. 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 contract participant” as defined in the Commodity Exchange Act (determined after giving effect to any applicable keep well, support, or other agreement for the benefit of such Guarantor and any and all Guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the time the Guarantee of such Guarantor, or a grant by such Guarantor of a security interest, becomes effective with respect to such Swap Obligation or (b) any other Swap Obligation designated as an “Excluded Swap Obligation” of such Guarantor as specified in any agreement between the relevant Loan Parties and counterparty applicable to such Swap Obligations. 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 excluded in accordance with the first sentence of this definition.
“Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, (a) Taxes imposed on (or measured by) its net income or profits(however denominated), branch profits Taxes, and franchise Taxes, in each case imposed by (i) a jurisdiction as a result of such recipient being organized or having its principal office located in or, in the case of any Lender, having its applicable lending office located in or (ii) any jurisdiction as a result of any other present or former connection between such recipient and the jurisdiction imposing such Tax (other than a connection arising solely from such recipient having executed, delivered, or become a party to, performed its obligations or received payments under, received or perfected a security interest under, sold or assigned of an interest in, engaged in any other transaction pursuant to, or enforced, any Loan Documents), (b) any withholding Tax that is attributable to a Lender’s failure to comply with ~~Section 2.17(e)~~Section 2.17(e), (c) except in the case of an assignee pursuant to a request by the Borrower under ~~Section 2.19~~Section 2.19, any U.S. federal withholding Taxes imposed due to a Requirement of Law in effect at the time a Lender becomes a party hereto (or designates a new lending office), except to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the time of designation of a new lending office (or assignment), to receive additional amounts with respect to such withholding Tax under ~~Section 2.17(a)~~Section 2.17(a) and ~~(d)~~(d) any U.S. federal withholding Tax imposed pursuant to FATCA.
“Existing Credit Agreement” means the Sixth Amended and Restated Credit Agreement dated as of July 31, 2014 (as further amended by Incremental Loan Amendment No. 1, dated as of April 30, 2015, Incremental Loan Amendment No. 2, dated as of August 13, 2019, and the First Amendment to the Sixth Amended and Restated Credit Agreement and First Amendment to the Fourth Amended and Restated Security Agreement, dated as of April 30, 2015 and the Second Amendment, dated as of July 19, 2016, and the Third Amendment, dated as of January 3, 2017, and as in effect immediately prior to the Effective Date) by and among the Borrowers, the Guarantors, the Administrative Agent and the Lenders from time to time party thereto.
“Existing Letters of Credit” has the meaning assigned to such term in Section 2.05(a).
“Existing Senior Unsecured Notes” means, collectively, the 5.125% Senior Unsecured Notes, the 5.625% Senior Unsecured Notes, the 5.875% Senior Unsecured Notes and the 6.125% Senior Unsecured Notes.
“Fair Market Value” means with respect to any asset or group of assets on any date of determination, the value of the consideration obtainable in a sale of such asset at such date of determination assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and arranged in an orderly manner over a reasonable period of time having regard to the nature and characteristics of such asset. Except as otherwise expressly set forth herein, such value shall be determined in good faith by the Borrower.
-32-
“Fair Value” means the amount at which the assets (both tangible and intangible), in their entirety, of the Borrower and its Subsidiaries taken as a whole would change hands between a willing buyer and a willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, with neither being under any compulsion to act.
“FATCA” means Sections 1471 through 1474 of the Code as in effect on the Effective Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future Treasury regulations or official administrative interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code and any intergovernmental agreements (and related legislation or official guidance) entered into in connection with the implementation of such current Sections of the Code (or any such amended or successor version described above).
“FCC” means the Federal Communications Commission or any Governmental Authority substituted therefor.
~~“FCPA” has the meaning assigned to such term in Section 3.18(b).~~
“Federal Funds Effective Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the preceding Business Day as so published on the next succeeding Business Day.
“Fee Letters” mean, collectively, (i) that certain Amended and Restated Arranger Fee Letter, dated as of May 20, 2019 between the Borrower, the Joint Bookrunners and the commitment parties party thereto, as the same may be amended, supplemented or otherwise modified from time to time; and (ii) that certain ~~Amended and Restated Agency~~ Fee Letter, dated ~~as of May 20, 2019~~on or about the Seventh Amendment Effective Date, by and between ~~the Borrower and the~~CSC Delaware Trust Company as successor Administrative Agent and successor Collateral Agent and the Borrower, as the same may be amended, supplemented or otherwise modified from time to time.
~~“Fifth Restatement Effective Date” means April 9, 2013.~~
“Film Cash Payments” means, for any period, the sum (determined on a consolidated basis and without duplication) of all payments by the Borrower and its Restricted Subsidiaries made during such period in respect of Film Obligations, which were previously reflected in the consolidated balance sheet with the Borrower and its Restricted Subsidiaries as a liability; provided that amounts applied to the prepayment of Film Obligations owing under any contract evidencing a Film Obligation under which the amount owed by the Borrower or any of its Restricted Subsidiaries exceeds the remaining value of such contract to the Borrower or such Subsidiary, as reasonably determined by the Borrower, shall not be deemed to be Film Cash Payments.
“Film Obligations” means obligations in respect of the purchase, use, license or acquisition of programs, programming materials, films, and similar assets used in connection with the business and operations of the Borrower and its Subsidiaries.
“FIN 46” means Interpretation No. 46, “Consolidation of Variable Interest Entities”, issued by FASB, as amended from time to time.
“Financial Officer” means the chief financial officer, principal accounting officer, treasurer or controller of the Borrower.
~~“Financial Performance Covenant” means the covenant set forth in Section6.10.~~
-33-
“Financing Lease Obligation” means, at the time any determination thereof is to be made, an obligation that is required to be accounted for as a financing or capital lease (and, for the avoidance of doubt, not a straight-line or operating lease) on both the balance sheet and income statement for financial reporting purposes in accordance with GAAP. At the time any determination thereof is to be made, the amount of the liability in respect of a financing or capital lease would be the amount required to be reflected as a liability on such balance sheet (excluding the footnotes thereto) in accordance with GAAP.
“First Lien ~~Intercreditor~~Credit Agreement” means ~~a First Lien Intercreditor Agreement, substantially in the form of Exhibit E,entered into among the Collateral Agent, the Loan Parties and one or more Senior Representatives for holders of Indebtedness secured by Liens on the Collateral that rank pari with the Liens securing the Secured Obligations, with such modificationsthereto as the Administrative Agent and the Borrower may reasonably agree.~~the Credit Agreement, dated as of February 12, 2025, among the Borrower, Parent, the Guarantors party thereto, the lenders party thereto, JPMorgan Chase Bank, N.A., as administrative agent, JPMorgan Chase Bank, N.A., as swingline lender and each of the issuing banks and lenders from time to time party thereto, and U.S. Bank Trust Company, National Association, as collateral trustee for the secured parties thereunder.
“First Lien Leverage Ratio” means, on any date, the ratio of (a) Consolidated First Lien Debt as of such date to (b) Consolidated EBITDA for the Test Period as of such date. Unless otherwise specified or the context requires otherwise, all references to “First Lien Leverage Ratio” herein shall refer to the First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period.
~~“Fitch” means Fitch Inc., a subsidiary of Fimalac, S.A. and any successor to its rating agency business.~~
“First/Second/Third Lien Intercreditor Agreement” means the First/Second/Third Lien Intercreditor Agreement, dated as of the Seventh Amendment Effective Date, among the Loan Parties, the Collateral Agent, U.S. Bank Trust Company, National Association, as collateral trustee for the secured parties under the 8.125% First Out First Lien Senior Secured Note Indenture, U.S. Bank Trust Company, National Association, as collateral trustee for the secured parties under the 4.375% Second Out First Lien Senior Secured Note Indenture, U.S. Bank Trust Company, National Association, as collateral trustee for the secured parties under the 9.750% Second Lien Secured Note Indenture and U.S. Bank Trust Company, National Association, as collateral trustee for the secured parties under the First Lien Credit Agreement.
“Floor” means the benchmark rate floor, if any, provided in this Agreement with respect to the Adjusted Term SOFR Rate or Adjusted Daily Simple SOFR Rate, as applicable. For the avoidance of doubt, the Floor for each of the Term B-2 Loans, Term B-3 Loans, Term B-4 Loans and Revolving Loans for each of the Adjusted Term SOFR Rate and Adjusted Daily Simple SOFR Rate shall be 0.00%.
“Fourth Amendment Effective Date” means the date on which the conditions set forth in Article IV of the Fourth Amendment to Credit Agreement were satisfied or waived in accordance with the Fourth Amendment to Credit Agreement, which date was April 21, 2022.
“Fourth Amendment to Credit Agreement” means the Fourth Amendment to the Seventh Amended and Restated Credit Agreement, dated as of April 21, 2022, among the Borrower, Parent, the other Guarantors party thereto, the lenders and issuing banks party thereto, the Administrative Agent and the Collateral Agent.
~~“Foreign Prepayment Event” has the meaning assigned to such term in Section2.11(f).~~
“Foreign Subsidiary” means any Subsidiary that is organized under the laws of a jurisdiction other than the United States of America, any State thereof or the District of Columbia.
“FSHCO” means any direct or indirect Domestic Subsidiary of the Borrower (other than the Borrower) that has no material assets other than Equity Interests in one or more direct or indirect Foreign Subsidiaries that are “controlled foreign corporations” within the meaning of Section 957 of the Code.
“Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
-34-
“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time; provided that all terms of an accounting or financial nature used in this Agreement shall be construed, and all computations of amounts and ratios referred to in this Agreement shall be made without giving effect to any election under FASB Accounting Standards Codification Topic 825—Financial Instruments, or any successor thereto (including pursuant to the FASB Accounting Standards Codification), to value any Indebtedness of the Borrower or any Subsidiary at “fair value,” as defined therein.
~~“Governmental Approvals” means all authorizations, consents, approvals, permits,licenses and exemptions of, registrations and filings with, and reports to, Governmental Authorities.~~
“Governmental Authority” means 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).
“Granting Lender” has the meaning assigned to such term in ~~Section 9.04(e)~~Section 9.04(e).
“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness of the payment thereof, (c) 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 (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness; provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Effective Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined in good faith by a Financial Officer. The term “Guarantee” as a verb has a corresponding meaning.
“Guarantee Agreement” means the Guarantee Agreement among the Loan Parties and the Administrative Agent, substantially in the form of Exhibit C.
“Guarantee Release Date” has the meaning assigned to such term in Section 9.14.
“Guarantors” means collectively, Parent and the Subsidiary Loan Parties.
“Hazardous Materials” means all explosive, radioactive, hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum by-products or distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated as hazardous or toxic, or any other term of similar import, pursuant to any Environmental Law.
~~“Identified Participating Lenders” has the meaning assigned to such term in Section2.11(a)(ii)(C).~~
~~“Identified Qualifying Lenders” has the meaning specified in Section 2.11(a)(ii)(D).~~
“Immaterial Subsidiary” means any Subsidiary that is not a Material Subsidiary.
-35-
“Immediate Family Members” means with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, qualified domestic partner, sibling, mother-in-law, father-in-law, son-in-law and daughter-in-law (including adoptive relationships) and any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals or any private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which any such individual is the donor.
~~“Incremental Cap” means, as of any date of determination (a) the greater of(i) $500,000,000 and (ii) 50% of Consolidated EBITDA for the Test Period then last ended, plus (b) the aggregate principal amount of all voluntary prepayments of the Loans pursuant to Section 2.11(a) (other than in respect ofRevolving Loans or Swingline Loans unless there is an equivalent permanent reduction in commitments) or purchases of Term Loans pursuant to Section 9.04(g) made prior to such date (other than, in each case, any such prepayments with theproceeds of long-term Indebtedness); provided, however, that in the case of any prepayment made pursuant toSection 9.04(g), the amount included in the calculation of the Incremental Cap pursuant to this clause (b) shall be limited to the amount actually paid in cash in order to consummate such prepayment, plus (c) the maximum aggregateprincipal amount that can be incurred without causing (1) if such Indebtedness is secured by the Collateral on a pari passu basis with the Liens securing the Term Loans, the First Lien Leverage Ratio, after giving effect to the incurrence orestablishment, as applicable, of any Incremental Facilities or Incremental Equivalent Debt (which shall assume that all such Indebtedness is Consolidated First Lien Debt and the full amounts of any Incremental Revolving Commitment Increase andAdditional/Replacement Revolving Commitments established at such time are fully drawn and netting only cash proceeds thereof against Consolidated First Lien Debt to the extent not promptly applied to the transaction financed in connection therewith)and the use of proceeds thereof, on a Pro Forma Basis (but without giving effect to any substantially simultaneous incurrence of any Incremental Facility or Incremental Equivalent Debt made pursuant to the foregoing clauses (a) and (b) inconnection therewith), to exceed (i) 4.25:1.00 for the most recent Test Period then ended or (ii) in the case of any such amount being applied to finance a Permitted Acquisition or other Investment permitted or not prohibited hereunder,either 4.25:1.00 for the most recent Test Period then ended or the First Lien Leverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment, (2) if such Indebtednessis secured by the Collateral on a junior Lien basis with the Liens securing the Term Loans, the Secured Leverage Ratio, after giving effect to the incurrence or establishment, as applicable, of any Incremental Facilities or Incremental EquivalentDebt (which shall assume that the full amounts of any Incremental Revolving Commitment Increase and Additional/Replacement Revolving Commitments established at such time are fully drawn and netting only cash proceeds thereof against ConsolidatedSecured Debt to the extent not promptly applied to the transaction financed in connection therewith) and the use of proceeds thereof, on a Pro Forma Basis (but without giving effect to any substantially simultaneous incurrence of any IncrementalFacility or Incremental Equivalent Debt made pursuant to the foregoing clauses (a) and (b) in connection therewith), to exceed (i) 5.50:1.00 for the most recent Test Period then ended or (ii) in the case of any such amount beingapplied to finance a Permitted Acquisition or other Investment permitted or not prohibited hereunder, either 5.50:1.00 for the most recent Test Period then ended or the Secured Leverage Ratio immediately prior to the incurrence of such Indebtednessand consummation of such Permitted Acquisition or other Investment, or (3) if such Indebtedness is unsecured, after giving effect to the incurrence or establishment, as applicable, of any Incremental Facilities or Incremental Equivalent Debt(which shall assume that the full amounts of any Incremental Revolving Commitment Increase and Additional/Replacement Revolving Commitments established at such time are fully drawn and netting only cash proceeds thereof against Consolidated TotalDebt to the extent not promptly applied to the transaction financed in connection therewith) and the use of proceeds thereof, on a Pro Forma Basis (but without giving effect to any substantially simultaneous~~ ~~incurrence of any Incremental Facility or Incremental Equivalent Debt made pursuant to the foregoing clauses (a) and (b) in connection therewith), (1) theTotal Leverage Ratio to exceed, either (i) 7.50:1.00 for the most recent Test Period then ended or (ii) in the case of any such amount being applied to finance a Permitted Acquisition or other Investment permitted or not prohibitedhereunder, either 7.50:1.00 for the most recent Test Period then ended or the Total Leverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment or (2) the InterestCoverage Ratio to be less than (i) 2.00:1.00 for the most recent Test Period then ended or (ii) in the case of any such amount being applied to finance a Permitted Acquisition or other Investment permitted or not prohibited hereunder,either 2.00:1.00 for the most recent Test Period then ended or the Interest Coverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment.~~
-36-
~~“Incremental Equivalent Debt” means Indebtedness incurred pursuant to Section6.01(a)(xxiii).~~
~~“Incremental Facilities” has the meaning assigned to such term in Section 2.20(a).~~
~~“Incremental Facility Amendment” has the meaning assigned to such term in Section2.20(f).~~
~~“Incremental Maturity Carveout Amount” means up to $100,000,000 of Incremental Term Loans and/or Incremental Equivalent Debt.~~
~~“Incremental Revolving Commitment Increase” has the meaning assigned to such term inSection 2.20(a).~~
~~“Incremental Revolving Loan” means Revolving Loans made pursuant to Additional/Replacement Revolving Commitments.~~
~~“Incremental Term Loans” has the meaning assigned to such term in Section2.20(a).~~
“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred and unpaid purchase price of property or services (excluding trade accounts or similar obligations payable in the ordinary course of business or consistent with industry or past practice, and any earn-out obligation until such earn-out obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and if not paid or satisfied within 120 days after being due and payable), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person of Indebtedness of others, (g) all Financing Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty and (i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances. If any Indebtedness of any Parent Entity would appear on the balance sheet of the Borrower solely by reason of push down accounting under GAAP shall be excluded. All guarantees in respect of Indebtedness specified in clause (a) through (c) of this definition (other than any exclusion therefrom) of another Person shall be included. ~~To the extent not otherwise included, the obligations of the type referred to in clauses(a) through (c) of this definition (other than any exclusion therefrom) of another Person secured by a consensual Lien (other than a Lien permitted pursuant to Section 6.02) on any assets owned by such Person, whether or not suchIndebtedness is assumed by such Person shall be included to such extent, but the amount of such Indebtedness will be the lesser of (x) the fair market value of such assets at such date of determination and (y) the amount of suchIndebtedness of such other Person (it being~~It is understood, however, that Indebtedness shall in no event include any amounts payable or other liabilities to trade creditors (including undrawn letters of credit) arising in the ordinary course of business or consistent with industry or past practice). Indebtedness of the Borrower and its Restricted Subsidiaries shall exclude (i) intercompany liabilities arising from their cash management and accounting operations and intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any rollover or extensions of terms) and made in the ordinary course of business or consistent with industry or past practice, (ii) deferred or prepaid revenues, (iii) accrued expenses and royalties, (iv) any liabilities for taxes, (v) Capital Stock and Disqualified Equity Interests, (vi) Film Obligations, (vii) obligations under any Program Services Agreement, Outsourcing Agreement or other similar agreement, (viii) any Put Obligations and (ix) any liability shown on the balance sheet of such Person solely as a result of the application of FIN 46 and for which such Person is not primarily or contingently liable for payment.
“Indemnified Taxes” means all 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.
“Indemnitee” has the meaning assigned to such term in ~~Section 9.03(b)~~Section 9.03(b).
“Information” has the meaning assigned to such term in ~~Section 9.12(a)~~Section 9.12(a).
-37-
“Information Memorandum” means the Confidential Information Memorandum dated July 2019 relating to, among other things, the Loan Parties and the Term B-2a Loans.
“Initial Revolving Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make Initial Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum possible aggregate amount of such Lender’s Revolving Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Lender pursuant to an Assignment and Assumption or (ii) a Refinancing Amendment or a Loan Modification Agreement. The ~~initialamount of each Lender’s Initial Revolving Commitment is set forth on Schedule 2.01(b), or in the Assignment and Assumption, Incremental Facility Amendment, Loan Modification Agreement or Refinancing Amendment pursuant to which such Lender shallhave assumed its Revolving Commitment, as the case may be. The initial~~ amount of the Lenders’ Initial Revolving Commitments as of the Fourth Amendment Effective Date was $37,500,000. The amount of the Lenders’ Initial Revolving Commitments as of the Seventh Amendment Effective Date is $37,500,000.
“Initial Revolving Lender” means a Lender with an Initial Revolving Commitment or, if the Initial Revolving Commitments have terminated or expired, a Lender with Revolving Exposure.
“Initial Revolving Loan” means a Loan made pursuant to clause (b) of ~~Section 2.01~~Section 2.01 in respect of the Initial Revolving Commitments.
“Initial Revolving Maturity Date” means December 4, 2025 (or, with respect to any Initial Revolving Lender that has extended its Initial Revolving Commitment pursuant to a Permitted Amendment, the extended maturity date, set forth in any such Loan Modification Agreement).
“Intellectual Property” has the meaning assigned to such term in the Collateral Agreement.
“Intercreditor Agreements” means (i) the First/Second/Third Lien Intercreditor Agreement and ~~anySecond~~(ii) the Third Lien Pari Passu Intercreditor Agreement.
~~“Interest Coverage Ratio” means, as of any date, the ratio of (a) ConsolidatedEBITDA to (b) Consolidated Interest Expense, in each case for the Test Period as of such date. Unless otherwise specified or the context requires otherwise, all references to “Interest Coverage Ratio” herein shall refer to theInterest Coverage Ratio of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period.~~
“Interest Election Request” means a request by the Borrower to convert or continue a Borrowing in accordance with ~~Section 2.07~~Section 2.07.
“Interest Payment Date” means (a) with respect to any ABR Loan, the last Business Day of March, June, September and December and (b) with respect to any Term Benchmark Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Term Benchmark Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period.
“Interest Period” means the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, three or six months thereafter as selected by the Borrower in its Borrowing Request, provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the preceding Business Day, and (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period; provided, further, that no Interest Period shall extend beyond the maturity date applicable to such Loan.
-38-
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or Indebtedness or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other Indebtedness or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person (excluding, (w) in the case of the Borrower and its Restricted Subsidiaries, intercompany loans, advances, or Indebtedness having a term not exceeding 364 days (inclusive of any rollover or extensions of terms), (x) accounts receivables in connection with the sale of programming or advertising time owing by such Persons or (y) obligations in respect of the lease or other use of spectrum space relating to sub-channels owing by Person, in each case made in the ordinary course of business) or (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person. The amount, as of any date of determination, of (i) any Investment in the form of a loan or an advance shall be the principal amount thereof outstanding on such date, minus any cash payments actually received by such investor representing interest in respect of such Investment (to the extent any such payment to be deducted does not exceed the remaining principal amount of such Investment ~~and without duplication ofamounts increasing the Available Amount or the Available Equity Amount~~), but without any adjustment for write-downs or write-offs (including as a result of forgiveness of any portion thereof) with respect to such loan or advance after the date thereof, (ii) any Investment in the form of a Guarantee shall be equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof, as determined in good faith by a Financial Officer, (iii) any Investment in the form of a transfer of Equity Interests or other non-cash property by the investor to the investee, including any such transfer in the form of a capital contribution, shall be the Fair Market Value of such Equity Interests or other property as of the time of the transfer, minus any payments actually received by such investor representing a return of capital of, or dividends or other distributions in respect of, such Investment (to the extent such payments do not exceed, in the aggregate, the original amount of such Investment ~~and without duplication of amounts increasing the Available Amount or the Available Equity Amount~~), but without any other adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the date of such Investment, and (iv) any Investment (other than any Investment referred to in clause (i), (ii) or (iii) above) by the specified Person in the form of a purchase or other acquisition for value of any Equity Interests, evidences of Indebtedness or other securities of any other Person shall be the original cost of such Investment (including any Indebtedness assumed in connection therewith), plus (A) the cost of all additions thereto and minus (B) the amount of any portion of such Investment that has been repaid to the investor in cash as a repayment of principal or a return of capital, and of any cash payments actually received by such investor representing interest, dividends or other distributions in respect of such Investment (to the extent the amounts referred to in this clause (B) do not, in the aggregate, exceed the original cost of such Investment plus the costs of additions thereto ~~and without duplication of amounts increasing theAvailable Amount or the Available Equity Amount~~), but without any other adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the date of such Investment. ~~For purposes of Section 6.04, if an Investment involves the acquisition of more than one Person, the amountof such Investment shall be allocated among the acquired Persons in accordance with GAAP; provided that pending the final determination of the amounts to be so allocated in accordance with GAAP, such allocation shall be as reasonably determined by a Financial Officer.~~
“Investor” means each of (1) (i) David D. Smith, Frederick G. Smith, J. Duncan Smith and Robert E. Smith, (ii) Immediate Family Members of the Persons described in clause (1)(i), (iii) any Affiliates, related estate plan and trusts created for the benefit of the Persons described in clause (1)(i), (ii) or (iv) or any trust for the benefit of any such Affiliate, estate plan or trust, or (iv) in the event of the incompetence of death of any of the Persons described in clause (1)(i) and (ii), such Persons’ estate, executor, administrator, committee or other personal representative or beneficiaries, in each case who at any particular date shall beneficially own or have the right to acquire, directly or indirectly, Equity Interests of the Borrower, any Parent Entity of the Borrower or any Subsidiary thereof and their respective Affiliates, and any funds, partnerships or other co-investment vehicles managed, advised or controlled by the foregoing or their respective Affiliates and (2) Parent.
“IPO” means an offering after the Effective Date in an underwritten public offering (other than a public offering pursuant to a registration statement on Form S-8) of common Equity Interests of Parent.
-39-
“ISP98” means the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“Issuing Bank” means (a) each Person listed on Schedule 2.01(c) with respect to such Person’s Letter of Credit Commitment only and (b) each Revolving Lender that shall have become an Issuing Bank hereunder as provided in ~~Section 2.05(k)~~Section 2.05(k) (other than any Person that shall have ceased to be an Issuing Bank as provided in ~~Section 2.05(l)~~Section 2.05(l)), each in its capacity as an issuer of Letters of Credit hereunder. Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate and for all purposes of the Loan Documents. In the event that there is more than one Issuing Bank at any time, references herein and in the other Loan Documents to the Issuing Bank shall be deemed to refer to the Issuing Bank in respect of the applicable Letter of Credit or to all Issuing Banks, as the context requires. As of the Seventh Amendment Effective Date, there shall be no Issuing Banks hereunder.
“Joint Bookrunners” means the Joint Bookrunners as defined in the Existing Credit Agreement (as defined in the Seventh Amendment).
~~“Joint Bookrunners” means JPMorgan Chase Bank, N.A., Deutsche Bank Securities Inc., RBCCapital Markets^2^, BofA Securities, Inc., Truist Securities, Inc., Wells Fargo Securities, LLC, Citibank, N.A., Citizens Bank, N.A., Credit Suisse Loan Funding LLC, Fifth Third Bank, NationalAssociation, Goldman Sachs Bank USA and Mizuho Bank, Ltd.~~
~~“Junior Financing” means any Material Indebtedness (other than any permittedintercompany Indebtedness owing to the Borrower or any of its Restricted Subsidiaries) that is subordinated in right of payment to the Loan Document Obligations.~~
“Latest Maturity Date” means, at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration date of any Other Term Loan, any Other Term Commitment, any Other Revolving Loan or any Other Revolving Commitment, in each case as extended in accordance with this Agreement from time to time.
“LC Application” has the meaning set forth in Section 2.05(b).
“LC Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of Credit.
“LC Exposure” means, at any time, the sum of (a) the aggregate amount of all Letters of Credit that remains available for drawing at such time (including, without limitation, any and all Letters of Credit for which documents have been presented that have not been honored or dishonored) and (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Revolving Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.13 or Rule 3.14 of the ISP98, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, that with respect to any Letter of Credit that, by its terms or the terms of any document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
“Lead Arrangers” means (a) means the Lead Arrangers as defined in the Existing Credit Agreement (as defined in the Seventh Amendment) and (b) with respect to the 2022A Revolving Credit Facility, the Term B-3A Facility and the Term B-4A Facility, JPMorgan Chase Bank, N.A.
| ~~^2^~~ | ~~RBC Capital Markets is a brand name for the capital marketsbusiness of Royal Bank of Canada and its affiliates.~~ |
|---|
-40-
~~“LCT Election” has the meaning provided in Section 1.06.~~
~~“LCT Test Date” has the meaning provided in Section 1.06.~~
~~“Lead Arrangers” means JPMorgan Chase Bank, N.A., Deutsche Bank Securities Inc., RBCCapital Markets, BofA Securities, Inc., Truist Securities, Inc., Wells Fargo Securities, LLC, Citibank, N.A., Citizens Bank, N.A., Credit Suisse Loan Funding LLC, Fifth Third Bank, National Association, Goldman Sachs Bank USA and Mizuho Bank,Ltd.~~
“Lenders” means the Term Lenders, the Revolving Lenders and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption~~, an Incremental FacilityAmendment,~~ or a Loan Modification Agreement or ~~a~~ Refinancing Amendment, in each case, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context otherwise requires, the term “Lenders” includes the Swingline Lenders and each Issuing Bank.
“Letter of Credit” means any letter of credit, or bank guarantees issued pursuant to this Agreement other than any such letter of credit or bank guarantee that shall have ceased to be a “Letter of Credit” outstanding hereunder pursuant to ~~Section 9.05~~Section 9.05, and shall include the Existing Letters of Credit.
“Letter of Credit Commitments” means, with respect to any Person, the amount set forth opposite the name of such Person on Schedule 2.01(c). As of the Effective Date, the aggregate amount of the Letter of Credit Commitments of all such Persons is $50,000,000; provided, however, notwithstanding anything in this Agreement to the contrary, immediately after consummation of the Exchange Transaction, the Letter of Credit Commitments shall be reduced to $0.
“Liabilities” means the recorded liabilities (including contingent liabilities that would be recorded in accordance with GAAP) of the Borrower and its Subsidiaries taken as a whole, as of the Effective Date after giving effect to the consummation of the Transactions, determined in accordance with GAAP consistently applied.
~~“License Subsidiaries” means (a) with respect to each Station that is an OwnedStation on the date hereof, the Subsidiary of the Borrower listed on Schedule 1.01(e) as the holder of the Broadcast Licenses for such Owned Station and (b) with respect to any Owned Station hereafter acquired by the Borrower or any of itsSubsidiaries, the Subsidiary of the Borrower formed, created, or acquired after the date hereof that holds the Broadcast Licenses for such Owned Station, and in each case any other Subsidiary into which any such License Subsidiary may be mergedpursuant to Section 6.03.~~
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset; provided that in no event shall a Non-Financing Lease Obligation be deemed to constitute a Lien.
~~“Limited Condition Transaction”means (1) any Investment or acquisition (whether bymerger, amalgamation, consolidation or other business combination or the acquisition of Capital Stock or otherwise), whose consummation is not conditioned on the availability of, or on obtaining, third party financing, (2) any redemption,~~~~repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Equity Interest or Preferred Stock requiring irrevocablenotice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment, (3) any Restricted Payment requiring irrevocable notice in advance thereof, and (4) any asset sale or a Disposition excluded from thedefinition of “Disposition”.~~
“Loan Document Obligations” means (a) the due and punctual payment by the Borrower of (i) the principal of and interest at the applicable rate or rates provided in this Agreement (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans including all obligations in respect of the LC Exposure, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise and (ii) all other
-41-
monetary obligations of the Borrower under or pursuant to this Agreement and each of the other Loan Documents, including obligations to reimburse LC Disbursements and pay fees, expense reimbursement obligations and indemnification obligations, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), (b) the due and punctual payment and performance of all other obligations of the Borrower under or pursuant to each of the Loan Documents and (c) the due and punctual payment and performance of all the obligations of each other Loan Party under or pursuant to this Agreement and each of the other Loan Documents (including interest and monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding).
“Loan Documents” means this Agreement, any Refinancing Amendment, any Loan Modification Agreement, the Guarantee Agreement, the Collateral Agreement, the Intercreditor Agreements, the other Security Documents, and except for purposes of ~~Section 9.02~~Section 9.02, any promissory notes delivered pursuant to ~~Section 2.09(e)~~Section 2.09(e).
“Loan Modification Agreement” means a loan modification agreement, in form reasonably satisfactory to the Administrative Agent (acting at the Direction of the Required Lenders), among the Borrower, the Administrative Agent and one or more Accepting Lenders, effecting one or more Permitted Amendments and such other amendments hereto and to the other Loan Documents as are contemplated by ~~Section 2.24~~Section 2.24.
“Loan Modification Offer” has the meaning specified in ~~Section 2.24(a)~~Section 2.24(a).
“Loan Parties” means Parent, the Borrower, the Subsidiary Loan Parties and any other Guarantor.
“Loans” means the loans made by the Lenders to the Borrower pursuant to this Agreement.
“Management Investors” means current and/or former directors, officers and employees of the Borrower, and/or any of its subsidiaries who are (directly or indirectly through one or more investment vehicles) Investors on the Effective Date.
“Master Agreement” has the meaning assigned to such term in the definition of “Swap Agreement.”
~~“Material Adverse Effect” means any event, circumstance or condition that has had, or could reasonably be expected to have, a materially adverse effect on (a) the business or financial conditionof the Borrower and its Restricted Subsidiaries, taken as a whole, (b) the ability of the Borrower and the Guarantors, taken as a whole, to perform their payment obligations under the Loan Documents or (c) the rights and remedies of theAdministrative Agent and the Lenders under the Loan Documents.~~
~~“Material Indebtedness” means any Indebtedness for borrowed money (other than the Loan Document Obligations), Financing Lease Obligations, purchase money Indebtedness, unreimbursed drawings underletters of credit, third party Indebtedness obligations evidenced by notes or similar instruments or obligations in respect of one or more Swap Agreements, of any one or more of the Borrower and the wholly-owned Restricted Subsidiaries in anaggregate principal amount exceeding $150,000,000; provided that in no event shall any Permitted Receivables Financing be considered Material Indebtedness for any purpose. For purposes of determining Material~~ ~~Indebtedness, the “principal amount” of the obligations in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to anynetting agreements) that the Borrower or such Restricted Subsidiary would be required to pay if such Swap Agreement were terminated at such time.~~
“Material Subsidiary” means (a) each wholly-owned Restricted Subsidiary that, as of the last day of the fiscal quarter of the Borrower most recently ended for which financial statements are available, had revenues or total assets for such quarter in excess of 2.5% of the consolidated revenues or total assets, as applicable, of the Borrower for such quarter or that is designated by the Borrower as a Material Subsidiary and (b) any group comprising wholly-owned Restricted Subsidiaries that each would not have been a Material Subsidiary under clause (a) but that, taken together, as of the last day of the fiscal quarter of the Borrower most recently ended for which financial statements are available, had revenues or total assets for such quarter in excess of 10.0% of the consolidated revenues or total assets, as applicable, of the Borrower for such quarter.
-42-
~~“Moody’s” means Moody’s Investors Service, Inc. and any successor to itsrating agency business.~~
“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA, and in respect of which a Loan Party or any ERISA Affiliate is an “employer” (as defined in Section 3(5) of ERISA) or has an obligation to contribute.
“Net Proceeds” means, with respect to any event, (a) the proceeds received in respect of such event in cash or ~~Permitted~~ Investments, including (i) any cash or ~~Permitted~~ Investments received in respect of any non-cash proceeds, including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment or earn-out (but excluding any interest payments), but only as and when received, (ii) in the case of a casualty, insurance proceeds that are actually received, and (iii) in the case of a condemnation or similar event, condemnation awards and similar payments that are actually received, minus (b) the sum of (i) all fees and out-of-pocket expenses paid by the Borrower and its Restricted Subsidiaries in connection with such event (including attorney’s fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, underwriting discounts and commissions, other customary expenses and brokerage, consultant, accountant and other customary fees), (ii) in the case of a ~~Disposition~~disposition of an asset ~~(including pursuant to a Sale Leaseback or Casualty Event or similar proceeding)~~, (A) any funded escrow established pursuant to the documents evidencing any ~~Disposition~~such disposition to secure any indemnification obligations or adjustments to the purchase price associated with any such sale or disposition; provided that the amount of any subsequent reduction of such escrow (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Proceeds occurring on the date of such reduction solely to the extent that the Borrower and/or any Restricted Subsidiaries receives cash in an amount equal to the amount of such reduction, (B) the amount of all payments that are permitted hereunder and are made by the Borrower and its Restricted Subsidiaries as a result of such event to repay Indebtedness (other than the Loans) secured by such asset or otherwise subject to mandatory prepayment as a result of such event, (C) the pro rata portion of net cash proceeds thereof (calculated without regard to this clause (C)) attributable to minority interests and not available for distribution to or for the account of the Borrower and its Restricted Subsidiaries as a result thereof and (D) the amount of any liabilities directly associated with such asset and retained by the Borrower or the Restricted Subsidiaries, (iii) the amount of all taxes paid (or reasonably estimated to be payable, including any withholding taxes estimated to be payable in connection with the repatriation of such Net Proceeds), and the amount of any reserves established by the Borrower and its Restricted Subsidiaries to fund contingent liabilities reasonably estimated to be payable, that are associated with such event, provided that any reduction at any time in the amount of any such reserves (other than as a result of payments made in respect thereof) shall be deemed to constitute the receipt by the Borrower at such time of Net Proceeds in the amount of such reduction and (iv) any amounts paid by the Borrower and any of its Subsidiaries in connection with any Channel Sharing Agreement related to the asset that is the subject of such event or any option agreement related thereto.
“Non-Accepting Lender” has the meaning assigned to such term in ~~Section 2.24(c)~~Section 2.24(c).
“Non-Cash Compensation Expense” means any non-cash expenses and costs that result from the issuance of stock-based awards, partnership interest-based awards and similar incentive based compensation awards or arrangements.
“Non-Consenting Lender” has the meaning assigned to such term in ~~Section 9.02(d)~~Section 9.02(d).
“Non-Financing Lease Obligation” means a lease obligation that is not required to be accounted for as a financing or capital lease on both the balance sheet and the income statement for financial reporting purposes in accordance with GAAP. For the avoidance of doubt, a straight-line or operating lease shall be considered a Non-Financing Lease Obligation.
~~“Non-Media Subsidiary” means any direct or indirect Subsidiary of the Borrower(including, for this purpose, any Designated SBG Subsidiary) that is not engaged in, and does derive any income from, (a) the business of owning and operating the Stations (and related retransmission facilities), (b) the commercialutilization of~~
-43-
~~frequencies licensed, granted or leased to the Borrower or any of its Subsidiaries by the FCC, any otherGovernmental Authority or any other Person in connection with the television or radio broadcasting businesses or (c) the production of programming broadcast on television stations or syndicated to others.~~
~~“Non-Recourse Indebtedness” means Indebtedness (a) as to which neither the Borrowernor any Subsidiary (other than any Unrestricted Subsidiary) is directly or indirectly liable (by virtue of the Borrower or any such Subsidiary being the primary obligor on, guarantor of, or otherwise liable in any respect to, such Indebtedness) and(b) which, upon the occurrence of a default with respect thereto, does not result in, or permit any holder of any other Indebtedness of the Borrower or any Subsidiary (other than any Unrestricted Subsidiary) to declare, a default on suchIndebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity.~~
“Non-Television Entities” means, collectively, Keyser Capital LLC and Sinclair Investment Group LLC.
“Non-Television Entity Notes” means the promissory notes made by the Non-Television Entities in favor of the Borrower. The Non-Television Entity Notes as of the Effective Date are listed on Schedule 1.01(d).
~~“Not Otherwise Applied” means, with reference to the Available Amount, the Starter Basket or the Available Equity Amount, as applicable, that was not previously applied pursuant toSection 6.04(n), Section 6.08(a)(viii) or Section 6.08(b)(iv).~~
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
~~“OFAC” has the meaning assigned to such term in Section 3.18(c).~~
~~“Offered Amount” has the meaning assigned to such term in Section 2.11(a)(ii)(D).~~
~~“Offered Discount” has the meaning assigned to such term in Section2.11(a)(ii)(D).~~
~~“Operating Subsidiary” has the meaning assigned to such term in Section 6.11(a).~~
“Organizational Documents” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
~~“Other Loans” means one or more Classes of Loans that result from a Refinancing Amendment or a Loan Modification Agreement.~~
“Other Revolving Commitments” means one or more Classes of revolving credit commitments hereunder or extended Revolving Commitments that result from a Refinancing Amendment or a Loan Modification Agreement.
-44-
“Other Revolving Loans” means the Revolving Loans made pursuant to any Other Revolving Commitment or a Loan Modification Agreement.
“Other Taxes” means any and all present or future recording, stamp, documentary, transfer, sales, property or similar Taxes arising from any payment made under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document.
“Other Term Commitments” means one or more Classes of term loan commitments hereunder that result from a Refinancing Amendment or Loan Modification Agreement.
“Other Term Loans” means one or more Classes of Term Loans that result from a Refinancing Amendment or Loan Modification Agreement.
“Outsourcing Agreements” means (a) any agreement to which the Borrower or any of its Subsidiaries is a party which provides for the Borrower or any of its Subsidiaries to deliver or receive non-programming related management and/or consulting services of any television station, and (b) any put or option agreement entered into in connection with any agreement referred to in clause (a) above that provides for the Borrower or any of its Subsidiaries to acquire or sell the license or non-license assets of the related television station.
“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight eurodollar borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
~~“Owned Station” means (a) each television or radio station identified as such inSchedule 1.01(e) and (b) any television or radio station the Broadcast Licenses of which are owned or held by the Borrower or any of its Subsidiaries on or after the date hereof.~~
“Parent” has the meaning assigned to such term in the preamble hereto.
“Parent Entity” means any Person that, with respect to another Person, owns (directly or indirectly) 50% or more of the total voting power of the Voting Equity Interests entitled to vote for the election of directors of such other Person having a majority of the aggregate votes on the Board of Directors of such other Person. Unless the context otherwise requires, any references to Parent Entity refer to a Parent Entity of the Borrower (including Parent).
“Participant” has the meaning assigned to such term in ~~Section 9.04(c)(i)~~Section 9.04(c)(i).
~~“Participant Register” has the meaning assigned to such term in Section9.04(c)(iii).~~
~~“Participating Lender” has the meaning assigned to such term in Section 2.11(a)(ii)(C).~~
“~~Payment~~Participant Register” has the meaning assigned to such term in Section ~~8.06~~9.04(c)(iii).
~~“Payment Notice” has the meaning assigned to such term in Section8.06(c).~~
~~“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.~~
~~“Permitted Acquisition” means an Acquisition Transaction; provided that (a) withrespect to each such Acquisition Transaction, all actions required to be taken with respect to any such newly created or acquired Subsidiary (including each subsidiary thereof) or assets in order to satisfy the requirements set forth in clauses (a),(b), (c) and (d) of the definition of the term “Collateral and Guarantee Requirement” to the extent applicable shall have been taken (or arrangements for the taking of such actions after the consummation of the PermittedAcquisition~~
-45-
~~shall have been made that are reasonably satisfactory to the Collateral Agent) (unless such newly created oracquired Subsidiary is designated as an Unrestricted Subsidiary pursuant to Section 5.15 or is otherwise an Excluded Subsidiary) and (b) after giving effect to any such purchase or other acquisition, no Event of Default underclause (a), (b), (h) or (i) of Section 7.01 shall have occurred and be continuing.~~
“Permitted Amendment” means an amendment to this Agreement and, if applicable the other Loan Documents, effected in connection with a Loan Modification Offer pursuant to ~~Section 2.24~~Section 2.24, providing for an extension of a maturity date applicable to all, or any portion of, the Loans and/or Commitments of any Class of the Accepting Lenders and, in connection therewith, (a) a change in the Applicable Rate with respect to the Loans and/or Commitments of such Accepting Lenders and/or (b) a change in the fees payable to, or the inclusion of new fees to be payable to, such Accepting Lenders and/or (c) additional covenants or other provisions applicable only to periods after the Latest Maturity Date at the time of such Loan Modification Offer (it being understood that to the extent that any financial maintenance covenant is added for the benefit of any such Loans and/or Commitments, no consent shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is either (i) also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Loans and/or Commitments or (ii) only applicable after the Latest Maturity Date at the time of such Loan Modification Offer).
~~“Permitted Asset Swap” means the concurrent purchase and sale or exchange of Related Business Assets or a combination of Related Business Assets and cash or Permitted Investments between theBorrower or a Restricted Subsidiary and another Person.~~
~~“Permitted Encumbrances” means:~~
~~(a) Liens for taxes, assessments or othergovernmental charges that are not overdue for a period of more than 60 days or that are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of theapplicable Person in accordance with GAAP;~~
~~(b) Liens imposed by law, such as carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or construction contractors’ Liens andother similar Liens arising in the ordinary course of business that secure amounts not overdue for a period of more than 60 days or, if more than 60 days overdue, are unfiled and no other action has been taken to enforce such Liens or that are beingcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP, in each case so long as such Liens do notindividually or in the aggregate have a Material Adverse Effect;~~
~~(c) Liens incurred or deposits made in theordinary course of business or consistent with industry or past practice (i) in connection with workers’ compensation, unemployment insurance and other social security legislation and (ii) securing liability for reimbursement orindemnification obligations of (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrower or any of itsRestricted Subsidiaries or otherwise supporting the payment of items set forth in the foregoing clause (i);~~
~~(d) Liens incurred or deposits made to securethe performance of bids, trade contracts, governmental contracts and leases, statutory obligations, surety, stay, customs and appeal bonds, performance bonds, bankers’ acceptance facilities and other obligations of a like nature (includingthose to secure health, safety and environmental obligations) and obligations in respect of letters of credit, bank~~ ~~guarantees or similar instrumentsthat have been posted to support the same, incurred in the ordinary course of business or consistent with past practices;~~
~~(e) easements, rights-of-way, restrictions,encroachments, protrusions, zoning restrictions and other similar encumbrances and minor title defects affecting real property that, in the aggregate, do not in any case materially interfere with the ordinary conduct of the business of the Borrowerand its Restricted Subsidiaries, taken as a whole;~~
-46-
~~(f) Liens securing, or otherwise arisingfrom, judgments not constituting an Event of Default under Section 7.01(j);~~
~~(g) Liens on goods the purchase price ofwhich is financed by a documentary letter of credit issued for the account of the Borrower or any of its Subsidiaries or Liens on bills of lading, drafts or other documents of title arising by operation of law or pursuant to the standard terms ofagreements relating to letters of credit, bank guarantees and other similar instruments, provided that such Lien secures only the obligations of the Borrower or such subsidiaries in respect of such letter of credit to the extent such obligations arepermitted by Section 6.01;~~
~~(h) rights of set-off, banker’s lien, netting agreements and other Liens arising by operation of law or by of the terms of documents of banks or other financialinstitutions in relation to the maintenance of administration of deposit accounts, securities accounts, cash management arrangements or in connection with the issuance of letters of credit, bank guarantees or other similar instruments;and~~
~~(i) Liens arising from precautionary Uniform Commercial Code financing statements or any similar filings made in respect of operating leases entered into by the Borrower orany of its subsidiaries.~~
~~“Permitted First Priority Refinancing Debt” means any secured Indebtedness incurred by the Borrower or any other Loan Party in the form of one or more series of senior secured notes or loans; provided that (i) such Indebtedness is secured by the Collateral on anequal priority basis (but without regard to control of remedies) with the Loan Document Obligations and is not secured by any property or assets of the Borrower or any Subsidiary other than the Collateral, (ii) such Indebtedness constitutesCredit Agreement Refinancing Indebtedness in respect of Loans (including portions of Classes of Loans or Other Loans), (iii) such Indebtedness does not have mandatory redemption features (other than customary asset sale, insurance andcondemnation proceeds events, excess cash flow sweeps, change of control offers or events of default) that could result in redemptions of such Indebtedness prior to the maturity of the Refinanced Debt and (iv) a Senior Representative acting onbehalf of the holders of such Indebtedness shall have become party to the First Lien Intercreditor Agreement and any Second Lien Intercreditor Agreement. Permitted First Priority Refinancing Debt will include any Registered Equivalent Notes issuedin exchange therefor.~~
“Permitted Holder” means (1) each of the Investors, (2) the Management Investors and their Permitted Transferees, (3) any Person who is acting solely as an underwriter in connection with a public or private offering of Capital Stock of the Borrower or any Parent Entity, acting in such capacity, (4) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) of which any of the foregoing Persons described in clauses (1) and (2) or any Permitted Holder specified in the last sentence of this definition are members and any member of such group; provided, that such Persons, without giving effect to the existence of such group or any other group, collectively own, directly or indirectly, more than 50% of the total voting power of the Voting Equity Interests entitled to vote for the election of directors of the Borrower having a majority of the aggregate votes on the Board of Directors of the Borrower held by such group, (5) any Permitted Parent and (6) any Permitted Plan, in each case of the foregoing clauses (1) through (5), whether holding Equity Interests of the Borrower directly or indirectly. Any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) whose acquisition of beneficial ownership constitutes a Change in Control will thereafter, together with its Affiliates, constitute an additional Permitted Holder.
~~“Permitted Investments” means any of the following, to the extent owned by the Borroweror any of its Restricted Subsidiaries:~~
~~(a) Canadian dollars, euro, pounds, sterling, any national currency of any participating member state of the EMU or such other currencies held by it from time to time in theordinary course of business;~~
~~(b) readily marketable obligations issued or directly and fully guaranteed or insured by the government or any agency or instrumentality of (i) the United States (whichshall include, but not be limited to, Export-Import Bank of the United States, Farmers Home Administration, Federal Housing Administration, General Services Administration, and Government National Mortgage Association) or~~
-47-
~~instrumentality (which shall include, but not be limited to, The Federal National Mortgage Association, FederalHome Loan Banks, Federal Home Loan Mortgage Corporation, Federal Land Banks, Federal Intermediate Credit Banks, Banks for Cooperative and the Farm Credit System, and The Student Loan Marketing Association) or (ii) any member nation of theEuropean Union rated A-2 (or the equivalent thereof) or better by S&P or P-2 (or the equivalent thereof) or better by Moody’s or F2 (or the equivalent thereof) or better by Fitch, having average maturities of not more than 24 months fromthe date of acquisition thereof; provided that the full faith and credit of the UnitedStates or such member nation of the European Union is pledged in support thereof;~~
~~(c) time deposits with, or insuredcertificates of deposit or bankers’ acceptances of, any commercial bank that (i) is a Lender or (ii) has combined capital and surplus of at least (x) $250,000,000 in the case of U.S. banks and (y) $100,000,000 (or the dollarequivalent as of the date of determination) in the case of non-U.S. banks (any such bank meeting the requirements of clause (i) or (ii) above being an “ApprovedBank”), in each case with average maturities of not more than 12 months from the date of acquisition thereof;~~
~~(d) commercial paper and variable or fixedrate notes issued by an Approved Bank (or by the parent company thereof) or any variable or fixed rate note issued by, or guaranteed by, a corporation rated A-2 (or the equivalent thereof) or better by S&P or P-2 (or the equivalent thereof) orbetter by Moody’s or F2 (or the equivalent thereof) or better by Fitch, in each case with average maturities of not more than 24 months from the date of acquisition thereof;~~
~~(e) repurchase agreements entered into by anyPerson with an Approved Bank, a bank or trust company (including any of the Lenders) or recognized securities dealer, in each case, having capital and surplus in excess of (i) $250,000,000 in the case of U.S. banks and (ii) $100,000,000(or the dollar equivalent as of the date of determination) in the case of non-U.S. banks, in each case, for direct obligations issued by or fully guaranteed or insured by the government or any agency or instrumentality of (i) the United Statesor (ii) any member nation of the European Union rated A (or the equivalent thereof) or better by S&P and A2 (or the equivalent thereof) or better by Moody’s or F1 (or the equivalent thereof) or better by Fitch, in which such Personshall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a Fair Market Value of at least 100% of the amount of the repurchase obligations;~~
~~(f) marketable short-term money market andsimilar highly liquid funds either (i) having assets in excess of (x) $250,000,000 in the case of U.S. banks or other U.S. financial institutions and (y) $100,000,000 (or the dollar equivalent as of the date of determination) in thecase of non-U.S. banks or other non-U.S. financial institutions or (ii) having a rating of at least A-2 or P-2 or F2 from either S&P or Moody’s or Fitch (or, if at any time neither S&P, Moody’s nor Fitch shall be rating suchobligations, an equivalent rating from another nationally recognized rating service);~~
~~(g) securities with average maturities of 24months or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, or by any political subdivision or taxing authority of any such state, commonwealth or territory having aninvestment grade rating from either S&P, Moody’s or Fitch (or the equivalent thereof);~~
~~(h) investments with average maturities of 24months or less from the date of acquisition in mutual funds rated A (or the equivalent thereof) or better by S&P or A2(or the equivalent thereof) or better by Moody’s or F1 (or the equivalent thereof) or better by Fitch;~~
~~(i) instruments equivalent to those referredto in clauses (a) through (h) above denominated in euro or any other foreign currency comparable in credit quality and tenor to those referred to above and customarily used by corporations for cash management purposes in any jurisdictionoutside the United States to the extent reasonably required in connection with any business conducted by any Subsidiary organized in such jurisdiction;~~
-48-
~~(j) investments, classified in accordancewith GAAP as current assets, in money market investment programs that are registered under the Investment Company Act of 1940 or that are administered by financial institutions having capital of at least $250,000,000, and, in either case, theportfolios of which are limited such that substantially all of such investments are of the character, quality and maturity described in clauses (a) through (i) of this definition;~~
~~(k) with respect to any ForeignSubsidiary: (i) obligations of the national government of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business,provided such country is a member of the Organization for Economic Cooperation andDevelopment, in each case maturing within one year after the date of investment therein, (ii) certificates of deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of thecountry in which such Foreign Subsidiary maintains its chief executive office and principal place of business, provided such country is a member of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least “A-2” or theequivalent thereof or from Moody’s is at least “P-2” or the equivalent thereof or from Fitch is at least F2 (any such bank being an“Approved Foreign Bank”), and in each case withmaturities of not more than 24 months from the date of acquisition and (iii) the equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank; and~~
~~(l) investment fundsinvesting at least 90% of their assets in securities of the types described in clauses (a) through (k) above.~~
~~For the avoidance of doubt, any items identified asPermitted Investments under this definition will be deemed to be “Cash Equivalents” for all purposes regardless of the treatment of such items under GAAP.~~
“Permitted Parent” means any Parent Entity that at the time it became a Parent Entity of the Borrower was a Permitted Holder pursuant to clause (1) of the definition thereof and was not formed in connection with, or in contemplation of, a transaction (other than the Transactions) that (assuming such parent was not formed) would otherwise constitute a Change in Control.
“Permitted Plan” means any employee benefits plan of the Borrower or its Affiliates and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan.
“Permitted Receivables Financing” means, collectively, (a) with respect to receivables (including, without limitation, trade and lease receivables), term securitizations, other receivables securitizations or other similar financings (including any factoring program) ~~~~ ~~i~~~~n an aggregate outstanding amount under this clause (a) not to exceed the greater of $375,000,000 and 40.0% of Consolidated EBITDA for the last Test Period (the“~~~~Permitted Receivables FinancingCap~~~~”) (provided that with respect to Permitted Receivables Financings incurred in the form of a factoring program under this clause (a), theoutstanding amount of such Permitted Receivables Financing for the purposes of this definition shall be deemed to be equal to the Permitted Receivables Net Investment for the last Test Period), so long as such financings are non-recourse to Borrowerand its Restricted Subsidiaries, other than any Receivables Subsidiary (except for customary representations, warranties, covenants and indemnities made in connection with such facilities)~~, (b) any modifications, refinancings, renewals, replacements or extensions thereof; provided that, in the case of this clause (b) the terms of the applicable Permitted Receivables Financing, after giving effect to any modifications, refinancings, renewals, replacements or extensions thereof would satisfy the requirements set forth in clause (a) above and (c) the financings and factoring facilities existing on the Effective Date (if any) and any modifications, refinancings, renewals, replacements or extensions thereof; provided that any recourse to Borrower and its Restricted Subsidiaries (other than any Receivables Subsidiary) is not expanded in any material respect by any such modification, refinancing, renewal, replacement or extension and the aggregate outstanding amount of such facilities is not increased after the Effective Date, in each case, except to the extent such recourse or increase would otherwise be permitted by clause (a) above (and is deemed a usage thereof).
~~“Permitted Receivables Financing Cap” has the meaning assigned to such term in thedefinition of the term “Permitted Receivables Financing”.~~
-49-
~~“Permitted Receivables Net Investment” means the aggregate cash amount paid by thepurchasers under any Permitted Receivables Financing in the form of a factoring program in connection with their purchase of accounts receivable and customary related assets or interests therein, as the same may be reduced from time to time bycollections with respect to such accounts receivable and related assets or otherwise in accordance with the terms of such Permitted Receivables Financing (but excluding any such collections used to make payments of commissions, discounts, yield andother fees and charges incurred in connection with any Permitted Receivables Financing in the form of a factoring program which are payable to any Person other than the Borrower or a Restricted Subsidiary).~~
~~“Permitted Refinancing” means, with respect to any Person, any modification,refinancing, refunding, renewal or extension of all or any portion of Indebtedness, Disqualified Equity Interests or Preferred Stock of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does notexceed the principal amount (or accreted value, if applicable) of the Indebtedness, Disqualified Equity Interests or Preferred Stock so modified, refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest andpremium thereon plus other amounts paid, and fees and expenses incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing revolving commitments unutilized thereunder to theextent that the portion of any existing and unutilized revolving commitment being refinanced was permitted to be drawn under Section 6.01 and Section 6.02 of this Agreement immediately prior to such refinancing (other than by reference toa Permitted Refinancing) and such drawing shall be deemed to have been made, (b) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to clauses (v), (vii) and (xxvii) ofSection 6.01(a), Indebtedness resulting from such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to orgreater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) if the Indebtedness being modified, refinanced, refunded, renewed or extended is subordinated in right ofpayment to the Loan Document Obligations, Indebtedness resulting from such modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Loan Document Obligations on terms at least as favorable to the Lendersas those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed or extended, (d) immediately after giving effect thereto, no Event of Default shall have occurred and be continuing, (e) ifthe Indebtedness being modified, refinanced, refunded, renewed or extended is permitted pursuant to Section 6.01(a)(ii), (xxi), (xxii) or (xxiii), (i) the terms and conditions (excluding as to subordination, interest rate (includingwhether such interest is payable in cash or in kind), rate floors, fees, discounts and premiums) of Indebtedness resulting from such modification, refinancing, refunding, renewal or extension are, taken as a whole, are not materially more favorableto the investors providing such Indebtedness than the terms and conditions of the Indebtedness being modified, refinanced, refunded, renewed or extended (except for covenants or other provisions applicable to periods after the Latest Maturity Dateat the time such Indebtedness is incurred) (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any such Permitted Refinancing, the terms shall not be considered materially more favorable ifsuch financial maintenance covenant is either (A) also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Permitted Refinancing or (B) only applicable after the Latest MaturityDate at the time of such refinancing); provided that acertificate of a Responsible Officer delivered to the Administrative Agent at least five Business Days prior to such modification, refinancing, refunding, renewal or extension, together with a reasonably detailed description of the material termsand conditions of such resulting Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence thatsuch terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis uponwhich it disagrees) and (ii) the primary obligor in respect of, and/or the Persons (if any) that Guarantee, the Indebtedness resulting from such modification, refinancing, refunding, renewal or extension are the primary obligor in respect of,and/or Persons (if any) that Guaranteed the Indebtedness being modified, refinanced, refunded, renewed or extended and (f) if the Indebtedness~~~~being modified, refinanced, refunded, renewed or extended is permitted pursuant to Section 6.01(a)(xix) or (xxvi), (i) the Indebtednessresulting from such modification, refinancing, refunding, renewal or extension shall be on market terms at the time of issuance; provided that no financial maintenance covenant shall be added for the benefit of any such Permitted Refinancing unless such financial maintenance covenant is either (A) also added forthe benefit of any Loans remaining outstanding after the issuance or incurrence of such Permitted Refinancing or (B) only applicable after the Latest Maturity Date at the time of such refinancing) and (ii) the primary obligor in respectof, and/or the Persons (if any) that Guarantee, the Indebtedness resulting from such~~
-50-
~~modification, refinancing, refunding, renewal or extension are the primary obligor in respect of, and/or Persons(if any) that Guaranteed the Indebtedness being modified, refinanced, refunded, renewed or extended. For the avoidance of doubt, it is understood that a Permitted Refinancing may constitute a portion of an issuance of Indebtedness in excess of theamount of such Permitted Refinancing; provided that such excess amount is otherwisepermitted to be incurred under Section 6.01. For the avoidance of doubt, it is understood and agreed that a Permitted Refinancing includes successive Permitted Refinancings of the same Indebtedness.~~
~~“Permitted Second Priority Refinancing Debt” means any secured Indebtedness incurred bythe Borrower or any other Loan Party (other than Parent) in the form of one or more series of junior lien secured notes or junior lien secured loans;provided that (i) such Indebtedness is secured by theCollateral on a junior basis with the Loan Document Obligations and is not secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral, (ii) such Indebtedness constitutes Credit Agreement RefinancingIndebtedness in respect of Loans (including portions of Classes of Loans or Other Loans), (iii) such Indebtedness does not have mandatory redemption features (other than customary asset sale, insurance and condemnation proceeds events, excesscash flow sweeps, change of control offers or events of default) that could result in redemptions of such Indebtedness prior to the maturity of the Refinanced Debt and (iv) a Senior Representative acting on behalf of the holders of suchIndebtedness shall have become party to the First Lien Intercreditor Agreement and any Second Lien Intercreditor Agreement. Permitted Second Priority Refinancing Debt will include any Registered Equivalent Notes issued in exchangetherefor.~~
~~“Permitted Transferees” means, with respect to any Person that is a natural person (and any Permitted Transferee of such Person), (a) such Person’s Immediate Family Members, including hisor her spouse, ex-spouse, children, step-children and their respective lineal descendants and (b) without duplication with any of the foregoing, such Person’s heirs, executors and/or administrators upon the death of such Person and anyother Person who was an Affiliate of such Person upon the death of such Person and who, upon such death, directly or indirectly owned Equity Interests in the Borrower.~~
~~“Permitted Unsecured Refinancing Debt” means unsecured Indebtedness incurred by theBorrower or any other Loan Party (other than Parent) in the form of one or more series of senior unsecured notes or loans; provided that (i) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness in respect of Loans (including portions of Classes of Loans or Other Loans), (ii) suchIndebtedness does not have mandatory redemption features (other than customary asset sale, insurance and condemnation proceeds events, change of control offers or events of default) that could result in redemptions of such Indebtedness prior to thematurity of the Refinanced Debt and (iii) such Indebtedness is not secured by any Lien on any property or assets of the Borrower or any of its Restricted Subsidiaries. Permitted Unsecured Refinancing Debt will include any Registered EquivalentNotes issued in exchange therefor.~~
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means 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 a Loan Party 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.
“Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time.
~~“Platform” has the meaning specified in Section 5.01.~~
“Post-Transaction Period” means, with respect to any Specified Transaction, the period beginning on the date on which such Specified Transaction is consummated and ending on the last day of the eighth full consecutive fiscal quarter of the Borrower immediately following the date on which such Specified Transaction is consummated.
-51-
“Preferred Stock” means any Equity Interest with preferential rights of payment of dividends or upon liquidation, dissolution, or winding up.
~~“Prepayment Event” means:~~
~~(a) any sale, transfer or other Dispositionof any property or asset of the Borrower or any of its Restricted Subsidiaries pursuant to clauses (j), (k) and (u) (other than with respect to any asset exchange, any Channel Sharing Agreement and/or any other agreement related thereto)of Section 6.05 other than Dispositions resulting in aggregate Net Proceeds not exceeding $100,000,000 in the case of any single transaction or series of related transactions); or~~
~~(b) the incurrence by theBorrower or any of its Restricted Subsidiaries of any Indebtedness, other than Indebtedness permitted under Section 6.01 (other than Permitted Unsecured Refinancing Debt, Permitted First Priority Refinancing Debt, Permitted Second PriorityRefinancing Debt and Other Term Loans resulting from a Refinancing Amendment) or permitted by the Required Lenders pursuant to Section 9.02.~~
“Present Fair Saleable Value” means the amount that could be obtained by an independent willing seller from an independent willing buyer if the assets of the Borrower and its Subsidiaries taken as a whole are sold with reasonable promptness in an arm’s-length transaction under present conditions for the sale of comparable business enterprises insofar as such conditions can be reasonably evaluated.
“primary obligor” has the meaning assigned to such term in the definition of “Guarantee.”
“Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the 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.
“Pro Forma Adjustment” means, for any Test Period, any adjustment to Consolidated EBITDA made in accordance with clause (b) of the definition of that term.
“Pro Forma Basis~~,” “Pro Forma Compliance” and “Pro Forma Effect~~” means, with respect to compliance with any test, financial ratio or covenant hereunder required by the terms of this Agreement to be made on a Pro Forma Basis, that (a) to the extent applicable, the Pro Forma Adjustment shall have been made and (b) all Specified Transactions and the following transactions in connection therewith that have been made during the applicable period of measurement or subsequent to such period and prior to or simultaneously with the event for which the calculation is made shall be deemed to have occurred as of the first day of the applicable period of measurement in such test, financial ratio or covenant: (i) income statement items (whether positive or negative) attributable to the property or Person subject to such Specified Transaction, (A) in the case of a ~~Disposition~~disposition of all or substantially all Equity Interests in any ~~subsidiary~~Subsidiary of the Borrower or any division, business line, or facility used for operations of the Borrower or any of its Restricted Subsidiaries, shall be excluded, and (B) in the case of ~~a Permitted Acquisitionor~~an Investment described in the definition of “Specified Transaction,” shall be included, (ii) any retirement of Indebtedness, (iii) any Indebtedness incurred or assumed by the Borrower or any of its Restricted Subsidiaries in connection therewith ~~(but without giving effect to any simultaneous incurrence of any Indebtedness pursuant to any fixed dollar basket or Consolidated EBITDA grower basket)~~ and if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect to such Indebtedness as at the relevant date of determination and (iv) cash and ~~Permitted~~ Investments of such Person or any Restricted Subsidiary shall be calculated on the date of the consummation of the Specified Transaction after giving pro forma effect to such Specified Transaction (other than, for the avoidance of doubt, the cash proceeds of any Indebtedness the incurrence of which is a Specified Transaction or that is incurred to finance such Specified Transaction); provided that, without limiting the application of the Pro Forma Adjustment pursuant to clause (a) above, the foregoing pro forma adjustments may be applied to any such test, financial ratio or covenant solely to the extent that such
-52-
adjustments are consistent with the definition of “Consolidated EBITDA” (and subject to the provisions set forth in clause (b) thereof) and give effect to events (including cost savings, operating expense reductions and synergies) that are (i) (x) directly attributable to such transaction, (y) expected to have a continuing impact on the Borrower and any of the Restricted Subsidiaries and (z) factually supportable or (ii) otherwise consistent with the definition of “Pro Forma Adjustment.”
“Pro Forma Disposal Adjustment” means, for any four-quarter period that includes all or a portion of a fiscal quarter included in any Post-Transaction Period with respect to any Sold Entity or Business, the pro forma increase or decrease in Consolidated EBITDA projected by the Borrower in good faith as a result of contractual arrangements between the Borrower or any of its Restricted Subsidiaries entered into with such Sold Entity or Business at the time of its disposal or within the Post-Transaction Period and which represent an increase or decrease in Consolidated EBITDA which is incremental to the Disposed EBITDA of such Sold Entity or Business for the most recent four-quarter period prior to its disposal.
“Pro Forma Entity” means any Acquired Entity or Business or any Converted Restricted Subsidiary.
~~“Program Services Agreements” means any agreement entered into by the Borrower or any ofits Subsidiaries (other than License Subsidiaries) in accordance with Section 5.16 relating to a Contract Station, pursuant to which agreement the Borrower or any of its Subsidiaries (other than License Subsidiaries) will obtain the right toprogram and/or sell advertising on a substantial portion of such Contract Station’s inventory of broadcast time.~~
“Proposed Change” has the meaning assigned to such term in Section 9.02(d).
“~~Proposed Change~~Protective Provisions” has the meaning assigned to such term in ~~Section 9.02(d)~~Section 9.03(f).
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender”~~hasthe meaning specified in Section 5.01.~~means certain of the Lenders that may have personnel who do not wish to reveive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.
“Purchasing Borrower Party” means Parent or any ~~subsidiary~~Subsidiary of Parent.
“Put Obligations” means the obligations of the Borrower or any of its Subsidiaries to purchase certain assets of any Station with respect to which the Borrower or such Subsidiary shall have entered into an Outsourcing Agreement.
| “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be<br>interpreted in accordance with,<br>12 U.S.C. 5390(c)(8)(D). |
|---|
“QFC Credit Support” has the meaning assigned to it in ~~Section 9.18~~Section 9.18.
~~“Qualified Equity Interests” means Equity Interests in the Borrower other thanDisqualified Equity Interests.~~
~~“Qualified Proceeds” means assets that are used or useful in, or Equity Interests of any Person engaged in, a Similar Business.~~
~~“Qualifying Lender” has the meaning assigned to such term in Section2.11(a)(ii)(D).~~
-53-
~~“Rating Agency” means (1) S&P,Moody’s and Fitch or (2) if S&P, Moody’s or Fitch or each of them shall not make a corporate rating with respect to the Borrower or a rating on the Loans publicly available, a nationally recognized statistical rating agency oragencies, as the case may be, selected by the Borrower, which shall be substituted for any or all of S&P, Moody’s or Fitch, as the case may be, with respect to such corporate rating or the rating of the applicable Term Loans, as the casemay be.~~
~~“Ratings Condition” means that, at the time of determination, the Borrower (or its successor) has received and maintains corporate family/corporate credit ratingsof at least Baa3 (or the equivalent) by Moody’s, BBB- (or the equivalent) by S&P and BBB- (or the equivalent) by Fitch, or the equivalent investment grade credit rating from any other Rating Agency substituted for Moody’s, S&P orFitch pursuant to clause (2) of the definition of “Rating Agency”.~~
“Receivables Subsidiary” means any Special Purpose Entity established in connection with a Permitted Receivables Financing.
“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Term SOFR Rate, 6:00 a.m., New York time, on the day that is two Business Days preceding the date of such setting, and (2) if such Benchmark is not the Term SOFR Rate, the time determined by the Administrative Agent in its reasonable discretion.
“Refinanced Debt” has the meaning assigned to such term in the definition of “Credit Agreement Refinancing Indebtedness.”
“Refinancing Amendment” means an amendment to this Agreement executed by each of (a) the Borrower and Parent, (b) the Administrative Agent (acting at the Direction of the Required Lenders) and (c) each Additional Lender and Lender that agrees to provide all or any portion of ~~the Credit AgreementRefinancing~~refinancing Indebtedness ~~being incurred pursuant thereto, in accordance withSection 2.21~~with respect to the Indebtedness hereunder.
“Register” has the meaning assigned to such term in ~~Section 9.04(b)(iv)~~Section 9.04(b)(iv).
~~“Registered Equivalent Notes” means, with respectto any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act of 1933, substantially identical notes (having substantially the same Guarantees) issued in a dollar-for-dollar exchange therefor pursuantto an exchange offer registered with the SEC.~~
~~“Related Business Assets” means assets (other than cash or Permitted Investments) used or useful in a Similar Business; provided that any assets received by theBorrower or the Restricted Subsidiaries in exchange for assets transferred by the Borrower or the Restricted Subsidiaries shall not be deemed to be Related Business Assets if they consist of securities of a Person, unless upon receipt of thesecurities of such Person, such Person would become a Restricted Subsidiary.~~
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the partners, directors, officers, employees, trustees, agents, controlling persons, advisors and other representatives of such Person and of each of such Person’s Affiliates and permitted successors and assigns.
“Release” means 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) and including the environment within any building or other structure.
“Relevant Governmental Body” means the Federal Reserve Board and/or the NYFRB, the CME Term SOFR Administrator, as applicable, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto.
-54-
“Repricing Transaction” means (a) the incurrence by the Borrower of any Indebtedness in the form of a term B loan that is broadly marketed or syndicated to banks and other institutional investors (i) having an Effective Yield for the respective Type of such Indebtedness that is less than the Effective Yield for the Term B-4 Loans of the respective equivalent Type, but excluding Indebtedness incurred in connection with an IPO, Change in Control, Transformative Acquisition or Transformative Disposition, and (ii) the proceeds of which are used to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole or in part, outstanding principal of the Term B-4 Loans, or (b) any effective reduction in the Effective Yield for the Term B-4 Loans (e.g., by way of amendment, waiver or otherwise), except for a reduction in connection with an IPO, Change in Control, Transformative Acquisition or Transformative Disposition. Any determination by the Administrative Agent with respect to whether a Repricing Transaction shall have occurred shall be conclusive and binding on all Lenders holding the Term B-4 Loans.
~~“Required Additional Debt Terms” means with respect to any Indebtedness, (a) except with respect to the Incremental Maturity Carveout Amount, suchIndebtedness does not mature earlier than the date that is 91 days after the Latest Maturity Date (except in the case of customary bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), wouldeither automatically be converted into or required to be exchanged for permanent refinancing which does not mature earlier than the date that is 91 days after the Latest Maturity Date), (b) such Indebtedness does not have mandatory redemptionfeatures (other than customary asset sale, insurance and condemnation proceeds events, change of control offers or events of default or excess cash flow prepayments applicable to periods before the Latest Maturity Date) that could result inredemptions of such Indebtedness prior to the Latest Maturity Date, (c) such Indebtedness is not guaranteed by any entity that is not a Loan Party, (d) such Indebtedness that is secured (i) is not secured by any assets not securingthe Secured Obligations, (ii) is subject to the relevant Intercreditor Agreement(s) and (iii) is subject to security agreements relating to such Indebtedness that are substantially the same as the Security Documents (with such differencesas are reasonably satisfactory to the Collateral Agent), (e) except with respect to the Incremental Maturity Carveout Amount, such Indebtedness does not have a shorter Weighted Average Life to Maturity than the Term Loans and (f) the termsand conditions of such Indebtedness (excluding pricing, interest rate margins, rate floors, discounts, fees, premiums and prepayment or redemption provisions) reflect prevailing market standards in effect at the time of incurrence (as determined bythe Borrower in its good faith judgment) and are not materially more favorable (when taken as a whole) to the lenders or investors providing such Indebtedness than the terms and conditions of this Agreement (when taken as a whole) are to the Lenders(except for covenants or other provisions applicable only to periods after the Latest Maturity Date at such time) (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any Indebtedness, noconsent shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is either (i) also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of anysuch Indebtedness in connection therewith or (ii) only applicable after the Latest Maturity Date at such time); provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least five Business Days prior to theincurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such resulting Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in goodfaith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Dayperiod that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees).~~
“Required Lenders” means, at any time, Lenders having Revolving Exposures, Term Loans and unused Commitments (exclusive of Swingline Commitments) representing more than 50.0% of the aggregate Revolving Exposures, outstanding Term Loans and unused Commitments (exclusive of Swingline Commitments) at such time; provided that (a) the Revolving Exposures, Term Loans and unused Commitments of the Borrower or any Affiliate thereof (other than an Affiliated Debt Fund) and (b) whenever there are one or more Defaulting Lenders, the total outstanding Term Loans and Revolving Exposures of, and the unused Revolving Commitments of, each Defaulting Lender, shall, in each case of clauses (a) and (b), be excluded for purposes of making a determination of Required Lenders.
-55-
“Required Revolving Lenders” means, at any time, Lenders having Revolving Exposures, and unused Revolving Commitments (exclusive of Swingline Commitments) representing more than 50.0% of the aggregate Revolving Exposures, and unused Revolving Commitments (exclusive of Swingline Commitments) at such time; provided that (a) the Revolving Exposures, and unused Revolving Commitments of the Borrower or any Affiliate thereof (other than an Affiliated Debt Fund) and (b) whenever there are one or more Defaulting Lenders, the total Revolving Exposures of, and the unused Revolving Commitments of, each Defaulting Lender, shall, in each case of clauses (a) and (b), be excluded for purposes of making a determination of Required Revolving Lenders.
~~“Required Term Loan Lenders” means, at any time,Lenders having Term Loans representing more than 50.0% of the aggregate outstanding Term Loans at such time; provided that (a) the Term Loans of the Borrower or any Affiliate thereof (other than an Affiliated Debt Fund) and (b) wheneverthere are one or more Defaulting Lenders, the total outstanding Term Loans of each Defaulting Lender, shall, in each case of clauses (a) and (b), be excluded purposes of making a determination of Required Lenders and Required Term Loan Lenders.~~
“Requirements of Law” means, with respect to any Person, any statutes, laws, treaties, rules, regulations, orders, decrees, writs, injunctions or determinations of any arbitrator or court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Responsible Officer” means the chief executive officer, president, vice president, chief financial officer, treasurer or assistant treasurer, or other similar officer, manager or a director of a Loan Party and with respect to certain limited liability companies or partnerships that do not have officers, any manager, sole member, managing member or general partner thereof, and as to any document delivered on the Effective Date or thereafter pursuant to paragraph (a) of the definition of the term “Collateral and Guarantee Requirement,” any secretary or assistant secretary of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the Borrower or any other Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests in the Borrower or any of its Restricted Subsidiaries or any option, warrant or other right to acquire any such Equity Interests.
“Restricted Subsidiary” means any Subsidiary of the Borrower (including, for the avoidance of doubt, any Designated SBG Subsidiary) other than an Unrestricted Subsidiary.
~~“Retained Asset Sale Proceeds” means that portionof Net Proceeds of a Prepayment Event not required to prepay Loans pursuant to Section 2.11(c) due to the Disposition Percentage being less than 100%.~~
~~“Retained Declined Proceeds” has the meaningassigned to such term in Section 2.11(d).~~
~~“Retained Proceeds” means, collectively, the Retained Declined Proceeds and the Retained Asset Sale Proceeds.~~
~~“Reversion Date” has the meaning specified inSection 6.12.~~
~~“Revolving Acceleration” has the meaning assigned to such term in Section 7.01.~~
“Revolving Availability Period” means the period from and including the Effective Date (or, (x) with respect to any 2022 Revolving Lender (without affecting any amounts previously drawn under the Revolving Credit Facility), the Fourth Amendment Effective Date or (y) with respect to any 2022A Revolving Lender (without affecting any amounts previously drawn under the Revolving Credit Facility, the Seventh Amendment Effective Date) to but excluding the earlier of (a) (i) with respect to any Initial Revolving Lender (including any Issuing Bank and Swingline Lender that is an Initial Revolving Lender and not a 2022 Revolving Lender), the Initial Revolving Maturity Date ~~and~~, (ii) with respect to any 2022 Revolving Lender (including any Issuing Bank and Swingline Lender that is a 2022 Revolving Lender), the 2022 Revolving Maturity Date~~,~~ and (iii) with respect to any 2022A Revolving Lender (including any Issuing Bank and Swingline Lender that is a 2022A Revolving Lender), the 2022A Revolving Maturity Date and (b) the date of termination of the applicable Revolving Commitments.
-56-
“Revolving Commitment” means the Initial Revolving Commitments ~~and~~, the 2022 Revolving Commitments and the 2022A Revolving Commitments. The ~~initial~~ aggregate amount of the Lenders’ Revolving Commitments as of the ~~Fourth~~Seventh Amendment Effective Date is $650,000,000, consisting of the Initial Revolving Commitments ~~and~~, the 2022 Revolving Commitments~~.~~ and the 2022A Revolving Commitments; provided that, upon the First Lien Exchange Effective Date (as defined in the Seventh Amendment), the aggregate amount of the Lenders’ Revolving Commitments shall be $75,000,000, consisting of $37,500,000 of Initial Revolving Commitments, $37,500,000 of 2022 Revolving Commitments and $0 of 2022A Revolving Commitments.
“Revolving Credit Facility” means the Revolving Commitments and the provisions herein related to the Revolving Loans, Swingline Loans and Letters of Credit.
“Revolving Exposure” means, with respect to any Revolving Lender at any time, the sum of the outstanding principal amount of such Revolving Lender’s Revolving Loans and its LC Exposure and Swingline Exposure at such time.
“Revolving Lender” means a Lender with a Revolving Commitment or, if the Revolving Commitments have terminated or expired, a Lender with Revolving Exposure.
“Revolving Loan” means a Loan made pursuant to clause (b) of ~~Section 2.01~~Section 2.01.
“Revolving Maturity Date” means the Initial Revolving Maturity Date~~or~~, the 2022 Revolving Maturity Date or the 2022A Revolving Maturity Date, as applicable.
“RSN” means Diamond Sports Group, LLC, a Delaware limited liability company.
“RSN Credit Agreement” means the Credit Agreement dated as of the date hereof among, inter alios, Diamond Sports Intermediate Holdings LLC, as holdings, RSN, as the borrower, the lenders party thereto, and JPMorgan Chase Bank, N.A., as administrative agent and collateral agent.
“RSN First Lien Notes” means $3,050,000,000 aggregate principal amount of Senior Secured Notes due 2026, issued by RSN and Diamond Sports Finance Company, a Delaware corporation.
“RSN Notes” means, collectively, the RSN First Lien Notes and the RSN Unsecured Notes.
“RSN Term Loans” means the term loans made pursuant to the RSN Credit Agreement.
“RSN Unsecured Notes” means $1,825,000,000 aggregate principal amount of Senior Notes due 2027, issued by RSN and Diamond Sports Finance Company, a Delaware corporation.
~~“S&P” means S&P Global Ratings, a businessunit of Standard & Poor’s Financial Services LLC, and any successor thereto.~~
~~“Sale Leaseback” means any transaction or seriesof related transactions pursuant to which the Borrower or any other Restricted Subsidiary (a) sells, transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and (b) as part of suchtransaction, thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold, transferred or disposed of.~~
-57-
~~“Sanctions” means economic sanctions administeredor enforced by the United States Government (including without limitation, sanctions enforced by OFAC), the United Nations Security Council, the European Union or Her Majesty’s Treasury.~~
“SEC” means the Securities and Exchange Commission or any Governmental Authority succeeding to any of its principal functions.
~~“Second Amendment” meansthe Second Amendment to the Seventh Amended and Restated Credit Agreement, dated as of December 4, 2020, among the Borrower, Parent, the other Guarantors party thereto, the Revolving Lenders, the Issuing Banks, the Swingline Lender, theAdministrative Agent and the Collateral Agent.~~
~~“Second Lien Intercreditor Agreement” means a Second Lien Intercreditor Agreement, substantially in the form of Exhibit F, entered into among the CollateralAgent, the Loan Parties and one or more Senior Representatives for holders of Indebtedness secured by Liens on the Collateral that rank junior to the Liens securing the Secured Obligations, with such modifications thereto as the Administrative Agentand the Borrower may reasonably agree.~~
“Secured Cash Management Obligations” means the due and punctual payment and performance of all obligations of Parent, the Borrower and its Restricted Subsidiaries in respect of any overdraft and related liabilities arising from treasury, depository, cash pooling arrangements and cash management services, corporate credit and purchasing cards and related programs or any automated clearing house transfers of funds (collectively, “Cash Management Services”) provided to Parent, the Borrower or any Subsidiary (whether absolute or contingent and howsoever and whenever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor)) that are (a) owed to the Administrative Agent or any of its Affiliates, (b) owed on the Effective Date to a Person that is a Lender or an Affiliate of a Lender as of the Effective Date or (c) owed to a Person that is an Agent, a Lender or an Affiliate of an Agent or Lender at the time such obligations are incurred.
“Secured Letter of Credit Obligations” means the obligations of any of the Borrower and its Restricted Subsidiaries in respect of letters of credit, bank guarantees or similar instruments that, when issued, are ~~incurred pursuant toSection 6.01(a)(xvi)(B) and that are~~ (a) owed to the Administrative Agent or any of its Affiliates, (b) owed on the Effective Date to a Person that is a Lender or an Affiliate of a Lender as of the Effective Date or (c) owed to a Person that is an Agent, a Lender or an Affiliate of an Agent or Lender at the time any such letter of credit, bank guarantee or similar instrument is issued.
~~“Secured Leverage Ratio” means, on any date, theratio of (a) Consolidated Secured Debt as of such date to (b) Consolidated EBITDA for the Test Period as of such date. Unless otherwise specified or the context requires otherwise, all references to “Secured Leverage Ratio”herein shall refer to the Secured Leverage Ratio of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period.~~
“Secured Obligations” means (a) the Loan Document Obligations, (b) the Secured Cash Management Obligations, (c) the Secured Swap Obligations (excluding with respect to any Loan Party, Excluded Swap Obligations of such Loan Party) and (d) Secured Letter of Credit Obligations.
“Secured Parties” means (a) each Lender and Issuing Bank, (b) the Administrative Agent and the Collateral Agent, (c) each ~~Joint~~ Bookrunner, (d) each Person to whom any Secured Cash Management Obligations are owed, (e) each counterparty to any Swap Agreement the obligations under which constitute Secured Swap Obligations, (f) each Person to whom any Secured Letter of Credit Obligations are owed and (g) the permitted successors and assigns of each of the foregoing.
“Secured Swap Obligations” means the due and punctual payment and performance of all obligations of Parent, the Borrower and its Restricted Subsidiaries under each Swap Agreement that (a) is with a counterparty that is the Administrative Agent or any of its Affiliates, (b) is in effect on the Effective Date with a counterparty that is a Lender, an Agent or an Affiliate of a Lender or an Agent as of the Effective Date, (c) is entered into after the Effective Date with any counterparty that is a Lender, an Agent or an Affiliate of a Lender or an Agent at the time such Swap Agreement is entered into or (d) until the 180th day after the Effective Date (or such later date as agreed to by the Collateral Agent (acting at the Direction of the Required Lenders) in its reasonable discretion), are owed to any other Person set forth on Schedule 1.01(b).
-58-
“Security Documents” means the Collateral Agreement, and each other security agreement or pledge agreement executed and delivered pursuant to the Collateral and Guarantee Requirement~~, Section 4.01(f), Section 5.11,Section 5.12 or Section 5.14~~ and Section 4.01(f) to secure any of the Secured Obligations. For the avoidance of doubt, Security Documents shall not include any mortgage, deed of trust, assignment of leases and rents, leasehold mortgage or other security document granting a Lien on any real property to secure the Secured Obligations.
“Senior Representative” means, with respect to any series of ~~Permitted First Priority Refinancing Debt, Permitted Second Priority Refinancing Debt or other~~ Indebtedness, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.
“Seventh Amendment” means the Seventh Amendment to the Seventh Amended and Restated Credit Agreement, dated as of February 12, 2025, among the Borrower, Parent, the other Guarantors party thereto, the lenders party thereto, the Administrative Agent and the Collateral Agent.
“Seventh Amendment Effective Date” means the date on which the conditions set forth in Section 5 of the Seventh Amendment were satisfied or waived in accordance with the Seventh Amendment, which date was February 12, 2025.
~~“Senior Unsecured Debt” means (a) the 6.125% Senior Unsecured Notes, (b) the5.125% Senior Unsecured Notes, (c) the 5.625% Senior Unsecured Notes, (d) the 5.875% Senior Unsecured Notes, (e) any Permitted Unsecured Refinancing Debt, and (f) any unsecured Indebtedness incurred under clauses (vii),(xix) and (xxvi) of Section 6.01(a) (including the senior unsecured Guarantees of such Indebtedness provided by any Guarantor thereunder).~~
~~“Separation Transaction” means the sale or separation of the non-television business ofParent in whole or in part, whether by asset sale or otherwise.~~
~~“Significant Subsidiary” means any Restricted Subsidiary that, or any group of Restricted Subsidiaries that, taken together, as of the last day of the fiscal quarter of the Borrower most recentlyended for which financial statements are available, had revenues or total assets for such quarter in excess of 10.0% of the consolidated revenues or total assets, as applicable, of the Borrower for such quarter; provided that solely for purposes of Section 7.01(h) and (i), eachRestricted Subsidiary forming part of such group is subject to an Event of Default under one or more of such Sections.~~
~~“Similar Business”means any business conducted or proposed to be conducted by Borrowerand its Restricted Subsidiaries on the Effective Date or any business that is similar (including, without limitation, (a) business of owning and operating the Stations (and related retransmission facilities), (b) the commercial utilizationof frequencies licensed, granted or leased to the Borrower or any of its Subsidiaries by the FCC, any other Governmental Authority or any other Person in connection with the television or radio broadcasting businesses, (c) the production ofstreaming programming, programming broadcast on television stations or syndicated to others, (d) the utilization of digital media, including, but not limited to, websites, mobile applications, and social media, to promote or distributeprogramming and to assist other businesses to reach audiences, (e) the business of broadcasting in a mobile environment, (f) the business of managing and/or consulting to television stations other than the Owned Stations and/or(g) from the technology, media and telecommunications industries, including sports team broadcasting, ownership or management and any sports gaming or wagering business), complementary, reasonably related, synergistic, incidental or ancillarythereto, or is a reasonable extension, development or expansion thereof.~~
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
-59-
“SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SOFR Determination Date” has the meaning specified in the definition of “Daily Simple SOFR”.
“SOFR Rate Day” has the meaning specified in the definition of “Daily Simple SOFR”.
“Sold Entity or Business” has the meaning given such term in the definition of “Consolidated EBITDA”.
~~“~~~~Solicited Discount Proration~~~~” has the meaning assigned to suchterm in Section 2.11(a)(ii)(D).~~
~~“~~~~Solicited Discounted Prepayment Amount~~~~” has the meaning assigned to such term in Section 2.11(a)(ii)(D).~~
~~“~~~~Solicited Discounted Prepayment Notice~~~~” means an irrevocablewritten notice of the Borrower Solicitation of Discounted Prepayment Offers made pursuant to Section 2.11(a)(ii)(D) substantially in the form of~~~~~~~~Exhibit M~~~~.~~
~~“~~~~Solicited Discounted Prepayment Offer~~~~” means the irrevocablewritten offer by each Lender, substantially in the form of~~ ~~Exhibit N~~~~, submitted following the Administrative Agent’s receipt of a Solicited Discounted Prepayment Notice.~~
~~“~~~~Solicited Discounted Prepayment Response Date~~~~” has the meaningassigned to such term in Section 2.11(a)(ii)(D).~~
“Solvent” means (a) the Fair Value of the assets of the Borrower and its Subsidiaries on a consolidated basis taken as a whole exceeds their Liabilities, (b) the Present Fair Saleable Value of the assets of the Borrower and its Subsidiaries on a consolidated basis taken as a whole exceeds their Liabilities, (c) the Borrower and its Subsidiaries on a consolidated basis taken as a whole after consummation of the Transactions is a going concern and has sufficient capital to reasonably ensure that it will continue to be a going concern for the period from the Effective Date through the Latest Maturity Date taking into account the nature of, and the needs and anticipated needs for capital of, the particular business or businesses conducted or to be conducted by the Borrower and its Subsidiaries on a consolidated basis as reflected in the projected financial statements and in light of the anticipated credit capacity and (d) for the period from the Effective Date through the Latest Maturity Date, the Borrower and its Subsidiaries on a consolidated basis taken as a whole will have sufficient assets and cash flow to pay their Liabilities as those liabilities mature or (in the case of contingent Liabilities) otherwise become payable, in light of business conducted or anticipated to be conducted by the Borrower and its Subsidiaries as reflected in the projected financial statements and in light of the anticipated credit capacity.
“Special Purpose Entity” means a direct or indirect ~~subsidiary~~Subsidiary of Borrower, whose organizational documents contain restrictions on its purpose and activities and impose requirements intended to preserve its separateness from Borrower and/or one or more Subsidiaries of Borrower.
~~“~~~~Specified Discount~~~~” has the meaning assigned to such term inSection 2.11(a)(ii)(B).~~
~~“~~~~Specified Discount Prepayment Amount~~~~” has the meaning assigned to such term in Section 2.11(a)(ii)(B).~~
~~“~~~~Specified Discount Prepayment Notice~~~~” means an irrevocablewritten notice of a Borrower Offer of Specified Discount Prepayment made pursuant to Section 2.11(a)(ii)(B) substantially in the form of~~~~Exhibit I~~~~.~~
~~“~~~~Specified Discount Prepayment Response~~~~” means the irrevocablewritten response by each Lender, substantially in the form of~~ ~~Exhibit J~~~~, to a Specified Discount Prepayment Notice.~~
~~“~~~~Specified Discount Prepayment Response Date~~~~” has the meaningassigned to such term in Section 2.11(a)(ii)(B).~~
-60-
~~“~~~~Specified Discount Proration~~~~” has the meaning assigned to suchterm in Section 2.11(a)(ii)(B).~~
“Specified Event” has the meaning assigned to such term in the definition of “Consolidated EBITDA.”
~~“~~~~Specified Representations~~~~” means the representations and warranties of the Borrower and the Subsidiary Loan Parties set forth in Section 3.01(a), Section 3.01(b), Section 3.02,Section 3.08, Section 3.14, Section 3.16, use of proceeds not in violation of Section 3.18 and Section 3.02(c) of the Collateral Agreement.~~
“Specified Transaction” means, with respect to any period, any Investment, ~~Disposition~~disposition of an asset, incurrence or repayment of Indebtedness, Restricted Payment, subsidiary designation or other event that by the terms of the Loan Documents requires ~~“Pro Forma Compliance” with a test or covenant hereunder or requiressuch~~any test or covenant to be calculated on a “Pro Forma Basis.”
~~“~~~~Sports Network II~~~~” means Sports Network II, LLC, a Delawarelimited liability company.~~
~~“~~~~Sports Network II Investment~~~~” means the acquisition by Parent and/or its Subsidiaries of a minority portion of the Capital Stock in the Sports Network II Joint Venture and/or contribution thereofto RSN, Sports Network II or other Subsidiaries of RSN.~~
~~“~~~~Sports Network II Joint Venture~~~~” means a joint venture or similar arrangement in a regional sports network among an Affiliate of Parent (whether a direct Subsidiary of Sports Network II or otherwise)and other partners, as disclosed to the Lead Arrangers prior to the Effective Date.~~
“SPV” has the meaning assigned to such term in ~~Section 9.04(e)~~Section 9.04(e).
“Standby Letter of Credit” means any Letter of Credit other than a Commercial Letter of Credit or a bank guarantee.
~~“~~~~Standstill Period~~~~” has the meaning assigned to such term inSection 7.01(d).~~
~~“~~~~Starter Basket~~~~” has the meaning assigned to such term in the definition of “Available Amount.”~~
“Stations” means the Owned Stations and the Contract Stations.
“Statutory Reserve Rate” means, with respect to any currency, a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve, liquid asset or similar percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by any Governmental Authority of the United States or of the jurisdiction of such currency or any jurisdiction in which Loans in such currency are made to which banks in such jurisdiction are subject for any category of deposits or liabilities customarily used to fund loans in such currency or by reference to which interest rates applicable to Loans in such currency are determined. Such reserve, liquid asset or similar percentages shall include those imposed pursuant to Regulation D of the Board of Governors, and if any Lender is required to comply with the requirements of The Bank of England and/or the Prudential Regulation Authority (or any authority that replaces any of the functions thereof) or the requirements of the European Central Bank. Term Benchmark Loans shall be deemed to be subject to such reserve, liquid asset or similar requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under Regulation D or any other applicable law, rule or regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
~~“~~~~Submitted Amount~~~~” has the meaning assigned to such term inSection 2.11(a)(ii)(C).~~
~~“~~~~Submitted Discount~~~~” has the meaning assigned to such term in Section 2.11(a)(ii)(C).~~
-61-
~~“~~~~Subordinated Film Indebtedness~~~~” means Film Obligations of theBorrower and its Subsidiaries which are subordinated to the obligations of the Borrower and its Subsidiaries hereunder on terms and conditions, and the other provisions of which are, satisfactory to the Administrative Agent.~~
“subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, 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 well as any other corporation, limited liability company, partnership, association or other entity (a) 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 (b) 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.
“Subsidiary” means, unless otherwise specified, any subsidiary of the Borrower. Notwithstanding anything to the contrary in the foregoing, however, each Designated SBG Subsidiary shall be deemed to be a Subsidiary of the Borrower for all purposes of this Agreement.
“Subsidiary Loan Party” means (a) each Subsidiary that is a party to the Guarantee Agreement and (b) any other Domestic Subsidiary of the Borrower that may be designated by the Borrower (by way of delivering to the Collateral Agent a supplement to the Collateral Agreement and a supplement to the Guarantee Agreement, in each case, duly executed by such Subsidiary) in its sole discretion from time to time to be a guarantor in respect of the Secured Obligations~~, whereupon such Subsidiary shall be obligated to complywith the other requirements of Section 5.11 as if it were newly acquired; provided that, after giving effect to such designation such subsidiary cannot be subsequently designated as a non-Guarantor unless such designation is permitted byArticle VI of this Agreement~~.
~~“~~~~Successor Borrower~~~~” has the meaning assigned to such term inSection 6.03(d).~~
“Supported QFC” has the meaning assigned to such term in ~~Section 9.18~~Section 9.18.
~~“~~~~Suspension Covenant~~~~” has the meaning specified in Section6.12.~~
~~“~~~~Suspension Period~~~~” means the period of time between the date of a Covenant Suspension Event and the Reversion Date.~~
“Swap” means any agreement, contract, or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Swap Agreement” means (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 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 (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Swap Obligation” means, with respect to any Person, any obligation to pay or perform under any Swap.
“Swingline Commitment” means the commitment of each Swingline Lender to make Swingline Loans.
-62-
“Swingline Exposure” means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Revolving Lender at any time shall be its Applicable Percentage of the aggregate Swingline Exposure at such time.
“Swingline Lender” means (a) ~~ChaseLincoln First Commercial Corporation, in its capacity as lender of Swingline Loanshereunder~~[reserved] and (b) each Revolving Lender that shall have become a Swingline Lender hereunder as provided in ~~Section 2.04(d)~~Section 2.04(d) (other than any Person that shall have ceased to be a Swingline Lender as provided in ~~Section 2.04(e)~~Section 2.04(e)), each in its capacity as a lender of Swingline Loans hereunder.
“Swingline Loan” means a Loan made pursuant to ~~Section 2.04~~Section 2.04.
“Swingline Sublimit” means $50,000,000.
~~“~~~~Tax Group~~~~” has the meaning assigned to such term in Section6.08(a)(vii)(A).~~
“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.
“Term Benchmark” when used in reference to any Loan or Borrowing, refers to whether such Loan is, or the Loans comprising such Borrowing are, bearing interest at a rate determined by reference to the Adjusted Term SOFR Rate, other than pursuant to clause (i)(c) of the definition of “Alternate Base Rate”.
“Term B-2 Commitment” means, as to each Term B-2 Lender, its obligation to make a Term B-2 Loan to the Borrower hereunder, expressed as an amount representing the maximum principal amount of the Term B-2 Loan to be made by such Term B-2 Lender under this Agreement, as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Term B-2 Lender pursuant to an Assignment and Assumption, (ii) ~~an Incremental FacilityAmendment,~~[reserved], (iii) a Loan Modification Agreement or (iv) a Refinancing Amendment. The initial amount of each Term B-2 Lender’s Term B-2 Commitment is set forth on Schedule 2.01(a) or in the Assignment and Assumption pursuant to which such Term B-2 Lender shall have assumed its Term B-2 Commitment or ~~an Incremental Facility Amendment,~~ a Loan Modification Agreement or a Refinancing Amendment, as applicable. As of the Effective Date, the total Term B-2 Commitment is $700,000,000.
“Term B-2 Facility” means the Term B-2 Loans ~~and any Incremental Term Loans~~ or any refinancing thereof.
“Term B-2 Lenders” means the Term B-2a Lenders, the Term B-2b Lenders and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, ~~an Incremental Facility Amendment in respect of any Term B-2 Loans,~~ or a Loan Modification Agreement or a Refinancing Amendment in respect of any Term B-2 Loans, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
“Term B-2 Loan Maturity Date” means September 30, 2026.
“Term B-2 Loans” means the Term B-2a Loans and the Term B-2b Loans. For the avoidance of doubt, upon the making of the Term B-2a Loans hereunder, the Term B-2a Loans shall be on the same terms and be treated as fungible for all purposes under this Agreement and the other Loan Documents with the Term B-2b Loans.
“Term B-2a Lenders” means the Persons listed on Schedule 2.01(a) and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, ~~an Incremental Facility Amendment in respect of any Term B-2a Loans,~~ or a Loan Modification Agreement or a Refinancing Amendment in respect of any Term B-2a Loans, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
“Term B-2a Loans” means a Term Loan made pursuant to clause (a) of Section 2.01.
-63-
“Term B-2b Lenders” means a Lender with an outstanding Term B-2b Loan and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, or a Loan Modification Agreement or a Refinancing Amendment in respect of any Term B-2b Loans, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
“Term B-2b Loans” means the Tranche B-2b Term Loans (as defined in the Existing Credit Agreement) made under the Existing Credit Agreement. The outstanding amount of the Term B-2b Loans as of the Effective Date is $600,000,000.
“Term B-3 Commitment” means, as to each Term B-3 Lender, its obligation to make (or otherwise fund, exchange or convert into, including by way of a cashless roll) a Term B-3 Loan to the Borrower hereunder pursuant to the terms and conditions of the Third Amendment to Credit Agreement, expressed as an amount representing the maximum principal amount of the Term B-3 Loan to be made (or otherwise be funded, exchanged or converted into, including by way of a cashless roll, a Term B-3 Loan) by such Term B-3 Lender under this Agreement (pursuant to the Third Amendment to Credit Agreement), as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Term B-3 Lender pursuant to an Assignment and Assumption, (ii) ~~an Incremental FacilityAmendment,~~[reserved], (iii) a Loan Modification Agreement or (iv) a Refinancing Amendment. The initial amount of each Term B-3 Lender’s Term B-3 Commitment is set forth on Schedule 2.01(a) or in the Assignment and Assumption pursuant to which such Term Lender shall have assumed its Term Commitment or ~~an Incremental Facility Amendment,~~ a Loan Modification Agreement or a Refinancing Amendment, as applicable. As of the Third Amendment to Credit Agreement Effective Date, the total Term B-3 Commitment is $740,000,000.
“Term B-3 Facility” means the Term B-3 Loans ~~and any Incremental Term Loans~~ or any refinancing thereof.
“Term B-3 Lenders” means the Persons listed on Schedule 2.01(a) and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, ~~an Incremental Facility Amendment in respect of any Term B-3 Loans,~~ or a Loan Modification Agreement or a Refinancing Amendment in respect of any Term B-3 Loans, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
“Term B-3 Loan” means a Refinancing Term Loan (as defined in the Third Amendment to Credit Agreement). The outstanding amount of Term B-3 Loans as of the Third Amendment to Credit Agreement Effective Date is $740,000,000.
“Term B-3 Loan Maturity Date” means April 1, 2028.
“Term B-3A Commitment” means, as to each Term B-3A Lender, its obligation to make (or otherwise fund, exchange or convert into, including by way of a cashless roll) a Term B-3A Loan to the Borrower hereunder pursuant to the terms and conditions of the Seventh Amendment, expressed as an amount representing the maximum principal amount of the Term B-3A Loan to be made (or otherwise be funded, exchanged or converted into, including by way of a cashless roll, a Term B-3A Loan) by such Term B-3A Lender under this Agreement (pursuant to the Seventh Amendment), as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Term B-3A Lender pursuant to an Assignment and Assumption, (ii) [reserved], (iii) a Loan Modification Agreement or (iv) a Refinancing Amendment. The initial amount of each Term B-3A Lender’s Term B-3A Commitment is set forth on Schedule 2.01(a) or in the Assignment and Assumption pursuant to which such Term Lender shall have assumed its Term Commitment or a Loan Modification Agreement or a Refinancing Amendment, as applicable. As of the Seventh Amendment Effective Date, the total Term B-3A Commitment is $711,373,373.78; provided that, upon the First Lien Exchange Effective Date (as defined in the Seventh Amendment), the aggregate amount of Term B-3A Commitments shall be $0.
“Term B-3A Facility” means the Term B-3A Loans or any refinancing thereof.
-64-
“Term B-3A Lenders” means the Persons listed on Schedule 2.01(a) and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, or a Loan Modification Agreement or a Refinancing Amendment in respect of any Term B-3A Loans, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
“Term B-3A Loan” means a “Term B-3A Loan” (as defined in the Seventh Amendment). The outstanding amount of Term B-3A Loans as of the Seventh Amendment Effective Date is $711,373,373.78.
“Term B-3A Loan Maturity Date” means July 1, 2028.
“Term B-4 Commitment” means, as to each Term B-4 Lender, its obligation to make (or otherwise fund, exchange or convert into, including by way of a cashless roll) a Term B-4 Loan to the Borrower hereunder pursuant to the terms and conditions of the Fourth Amendment to Credit Agreement, expressed as an amount representing the maximum principal amount of the Term B-4 Loan to be made (or otherwise be funded, exchanged or converted into, including by way of a cashless roll, a Term B-4 Loan) by such Term B-4 Lender under this Agreement (pursuant to the Fourth Amendment to Credit Agreement), as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Term B-4 Lender pursuant to an Assignment and Assumption, (ii) ~~an Incremental Facility Amendment,~~[reserved], (iii) a Loan Modification Agreement or (iv) a Refinancing Amendment. The initial amount of each Term B-4 Lender’s Term B-4 Commitment is set forth on Schedule 2.01(a) or in the Assignment and Assumption pursuant to which such Term Lender shall have assumed its Term Commitment or ~~an Incremental Facility Amendment,~~ a Loan Modification Agreement or a Refinancing Amendment, as applicable. As of the Fourth Amendment Effective Date, the total Term B-4 Commitment is $750,000,000.
“Term B-4 Facility” means the Term B-4 Loans ~~and any Incremental Term Loans~~ or any refinancing thereof.
“Term B-4 Lenders” means the Persons listed on Schedule 2.01(a) and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, ~~an Incremental Facility Amendment in respect of any Term B-4 Loans,~~ or a Loan Modification Agreement or a Refinancing Amendment in respect of any Term B-4 Loans, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
“Term B-4 Loan” means either of a Refinancing Term Loan or an Incremental Term Loan (each as defined in the Fourth Amendment to Credit Agreement). The outstanding aggregate amount of Term B-4 Loans as of the Fourth Amendment Effective Date is $750,000,000. For the avoidance of doubt, upon the making of the Term B-4 Loans under the Fourth Amendment to Credit Agreement, the Term B-4 Loans, whether incurred as Refinancing Term Loans or Incremental Term Loans under (and as defined in) the Fourth Amendment to Credit Agreement shall be on the same terms and be treated as fungible with each other for all purposes under this Agreement and the other Loan Documents.
“Term B-4 Loan Maturity Date” means April 21, 2029.
“Term B-4A Commitment” means, as to each Term B-4A Lender, its obligation to make (or otherwise fund, exchange or convert into, including by way of a cashless roll) a Term B-4A Loan to the Borrower hereunder pursuant to the terms and conditions of the Seventh Amendment, expressed as an amount representing the maximum principal amount of the Term B-4A Loan to be made (or otherwise be funded, exchanged or converted into, including by way of a cashless roll, a Term B-4A Loan) by such Term B-4A Lender under this Agreement (pursuant to the Seventh Amendment), as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Term B-4A Lender pursuant to an Assignment and Assumption, (ii) [reserved], (iii) a Loan Modification Agreement or (iv) a Refinancing Amendment. The initial amount of each Term B-4A Lender’s Term B-4A Commitment is set forth on Schedule 2.01(a) or in the Assignment and Assumption pursuant to which such Term Lender shall have assumed its Term Commitment or a Loan Modification Agreement or a Refinancing Amendment, as applicable. As of the Seventh Amendment Effective Date, the total Term B-4A Commitment is $731,250,000; provided that, upon the First Lien Exchange Effective Date (as defined in the Seventh Amendment), the aggregate amount of Term B-4A Commitments shall be $0.
-65-
“Term B-4A Facility” means the Term B-4A Loans or any refinancing thereof.
“Term B-4A Lenders” means the Persons listed on Schedule 2.01(a) and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, or a Loan Modification Agreement or a Refinancing Amendment in respect of any Term B-4A Loans, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
“Term B-4A Loan” means a “Term B-4A Loan” (as defined in the Seventh Amendment). The outstanding amount of Term B-4A Loans as of the Seventh Amendment Effective Date is $731,250,000.
“Term B-4A Loan Maturity Date” means July 21, 2029.
“Term Lenders” means the Term B-2 Lenders, the Term B-3 Lenders, the Term B-3A Lenders, the Term B-4 Lenders and ~~eachAdditional~~the Term ~~Lender~~B-4A Lenders.
“Term Loan” means, individually or collectively as the context requires, the Term B-2 Loans, the Term B-3 Loans and the Term B-4 Loans.
“Term SOFR Determination Day” has the meaning assigned to it under the definition of “Term SOFR Reference Rate”.
“Term SOFR Rate” means, with respect to any Term Benchmark Borrowing and for any tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate at approximately 6:00 a.m., New York 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” means, for any day and time (such day, the “Term SOFR Determination Day”), with respect to any Term Benchmark Borrowing and for any tenor comparable to the applicable Interest Period, the rate per annum determined 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 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 Business Day is not more than five Business Days prior to such Term SOFR Determination Day.
“Termination Date” means the date on which (a) all Commitments shall have been terminated, (b) all Loan Document Obligations (other than in respect of contingent indemnification and contingent expense reimbursement claims not then due) have been paid in full and (c) all Letters of Credit (other than those that have been 100% Cash Collateralized) have been cancelled or have expired (without any drawing having been made thereunder that has not been rejected or honored) and all amounts drawn or paid thereunder have been reimbursed in full.
~~“~~~~Test Date~~~~” has the meaning assigned to such term in thedefinition of “2022 Revolving Maturity Date”.~~
“Test Period” means, at any date of determination, the most recently completed eight consecutive fiscal quarters of the Borrower ending on or prior to such date for which financial statements have been (or were required to have been) delivered pursuant to ~~Section 5.01(a) or5.01(b)~~Section 5.01(a) or 5.01(b). When used in reference to (x) a measurement of Consolidated EBITDA, the Consolidated EBITDA for such Test Period shall be measured as the Consolidated EBITDA for such eight consecutive fiscal quarters, divided by two and (y) a measurement of the ~~Interest Coverage Ratio, the~~ First Lien ~~Leverage Ratio, the Secured Leverage Ratio or the Total~~ Leverage Ratio, the applicable ratio shall be calculated using the Consolidated EBITDA (in the numerator or the denominator of such ratio, as applicable) for such eight consecutive fiscal quarters, divided by two.
-66-
“Third Amendment” means the Third Amendment to the Existing Credit Agreement, dated as of January 3, 2017.
~~“~~~~Third Amendment Effective Date~~~~” means January 3,2017.~~
“Third Amendment to Credit Agreement” means the Third Amendment to the Seventh Amended and Restated Credit Agreement, dated as of April 1, 2021, among the Borrower, Parent, the other Guarantors party thereto, the lenders party thereto, the Administrative Agent and the Collateral Agent.
“Third Amendment to Credit Agreement Effective Date” means the date on which the conditions set forth in Article IV of the Third Amendment to Credit Agreement were satisfied or waived in accordance with the Third Amendment to Credit Agreement, which date was April 1, 2021.
~~“~~~~Total Leverage Ratio~~~~” means, on any date, the ratio of(a) Consolidated Total Debt as of such date to (b) Consolidated EBITDA for the Test Period as of such date. Unless otherwise specified or the context requires otherwise, all references to “Total Leverage Ratio” herein shall referto the Total Leverage Ratio of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period.~~
“Third Lien Pari Passu Intercreditor Agreement” means a Third Lien Pari Passu Intercreditor Agreement, in form and substance mutually agreed among the Administrative Agent (acting at the Direction of the Required Lenders), the applicable Senior Representative(s) for holders of Indebtedness secured by Liens on the Collateral that rank pari with the Liens securing the Secured Obligations and the Borrower, entered into among the Collateral Agent (acting at the Direction of the Required Lenders), the Loan Parties and one or more Senior Representatives for holders of Indebtedness secured by Liens on the Collateral that rank pari with the Liens securing the Secured Obligations.
“Transaction Costs” means any fees or expenses incurred or paid by the Borrower, its Restricted Subsidiaries, any Parent Entity and any of their Affiliates and any Investors in connection with the Transactions (including, without limitation, payments to former, current and future employees, directors, officers, managers, members, partners, independent contractors or consultants as change of control payments, severance payments, consent payments, special or retention bonuses and charges for repurchase or rollover, acceleration or payments of, or modifications to, stock options, expenses in connection with hedging transactions and any original issue discount or upfront fees, as well as any legal, filing, auditing and printing fees and expenses), this Agreement, the RSN Notes and the transactions contemplated hereby and thereby.
“Transactions” means, collectively, (a) the Equity Financing, (b) the Acquisition, (c) the funding of the Term B-2a Loans on the Effective Date and the consummation of the other transactions contemplated by this Agreement, (d) the payment of the Effective Date Dividend, (e) the issuance and sale of the RSN First Lien Notes and RSN Unsecured Notes, (f) the consummation of any other transactions in connection with the foregoing (including in connection with the Acquisition Documents) and (g) the payment of the fees and expenses incurred in connection with any of the foregoing (including the Transaction Costs).
“Transformative Acquisition” means any merger, acquisition, investment, dissolution, liquidation, or consolidation by Parent, the Borrower or any of its Restricted Subsidiaries that is either (a) not permitted by the terms of this Agreement immediately prior to the consummation of such acquisition or (b) permitted by the terms of this Agreement immediately prior to the consummation of such acquisition, but would not provide Parent, the Borrower and its Restricted Subsidiaries with adequate flexibility under this Agreement for the continuation and/or expansion of the combined operations following such consummation, as determined by Parent acting in good faith.
“Transformative Disposition” means any ~~Disposition~~disposition of assets by Parent, the Borrower or any of its Restricted Subsidiaries that is either (a) not permitted by the terms of this Agreement immediately prior to the consummation of such ~~Disposition~~disposition or (b) permitted by the terms of this Agreement immediately prior to the consummation of such ~~Disposition~~disposition , but would not provide Parent, the Borrower or any of its Restricted Subsidiaries with a durable capital structure following such consummation, as determined by Parent acting in good faith.
-67-
~~“~~~~TV/Radio Acquisition~~~~” means (a) the acquisition by theBorrower or any of its Subsidiaries in accordance with the terms hereof of substantially all of the assets (including Broadcast Licenses) of a television or radio station in the United States in a single transaction (i.e., not by means of theacquisition of an option for such assets and the subsequent exercise of such option), (b) (i) the acquisition by the Borrower or any of its Subsidiaries in accordance with the terms hereof of (x) substantially all of the assets (otherthan Broadcast Licenses and other property required pursuant to the rules and regulations of the FCC to be sold in connection with the transfer of such Broadcast Licenses) of a television or radio station in the United States and (y) an optionto acquire the Broadcast Licenses and such other assets of such television or radio station and (ii) the entering into by the Borrower or any of its Subsidiaries of an agreement contemplated by the definition of “Program ServicesAgreement” in this Section with respect to such station and (c) the consummation of the acquisition of assets by the Borrower or any of its Subsidiaries pursuant to the exercise of an option referred to in the precedingclause (b)(i)(y), together with the termination of the related Program Services Agreement referred to in the preceding clause (b)(ii). As used in this definition, the acquisition of assets shall be deemed to include reference to theacquisition of the voting Capital Stock of the Person that owns such assets and references to the acquisition and exercise of an option to acquire assets shall be deemed to include the acquisition and exercise of the option to acquire voting CapitalStock of the Person that owns such assets.~~
“Type,” when used in reference to any 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 Rate or the Alternate Base Rate.
“UCC” or “Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that, at any time, if by reason of mandatory provisions of law, any or all of the perfection or priority of the Collateral Agent’s security interest in any item or portion of the Collateral (as defined in the Collateral Agreement) is governed by the Uniform Commercial Code as in effect in a U.S. jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect, at such time, in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions relating to such provisions.
“UCP” means the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 600 (or such later version as may be in effect at the time of issuance).
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unrestricted Subsidiary” means (a) any Subsidiary (other than the Borrower) designated by the Borrower as an Unrestricted Subsidiary ~~pursuant toSection 5.15~~ subsequent to the Effective Date and (b) any Subsidiary of any such Unrestricted Subsidiary.
“USA Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended from time to time.
“U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) 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. Special Resolution Regimes” has the meaning assigned to such term in ~~Section 9.18~~Section 9.18.
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in ~~Section 2.17(e)~~Section 2.17(e).
“Vehicles” means all railcars, cars, trucks, trailers, construction and earth moving equipment and other vehicles covered by a certificate of title law of any state and all tires and other appurtenances to any of the foregoing.
-68-
“Voting Equity Interests” means Equity Interests that are entitled to vote generally for the election of directors to the Board of Directors of the issuer thereof. Shares of Preferred Stock that have the right to elect one or more directors to the Board of Directors of the issuer thereof only upon the occurrence of a breach or default by such issuer thereunder shall not be considered Voting Equity Interests as long as the directors that may be elected to the Board of Directors of the issuer upon the occurrence of such a breach or default represent a minority of the aggregate voting power of all directors of Board of Directors of the issuer. The percentage of Voting Equity Interests of any issuer thereof beneficially owned by a Person shall be determined by reference to the percentage of the aggregate voting power of all Voting Equity Interests of such issuer that are represented by the Voting Equity Interests beneficially owned by such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required 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.
“wholly-owned subsidiary” means, with respect to any Person at any date, a subsidiary of such Person of which securities or other ownership interests representing 100% of the Equity Interests (other than (a) directors’ qualifying shares and (b) nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law) are, as of such date, owned, controlled or held by such Person or one or more wholly-owned subsidiaries of such Person or by such Person and one or more wholly-owned subsidiaries of such Person.
~~“~~~~Withdrawal Liability~~~~” means liability to a Multiemployer Planas 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.~~
“Withholding Agent” means any Loan Party, the Administrative Agent and, in the case of any U.S. federal withholding tax, any other withholding agent, if applicable.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule~~.~~, and (b) with respect to the United Kingdom, any 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 1.02 Classification of Loans and Borrowings . For purposes of this Agreement, Loans and Borrowings may be classified and referred to by Class (e.g., a “Term Loan”) or by Type (e.g., a “Term Benchmark Loan”) or by Class and Type (e.g., a “Term Benchmark Term Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Term Loan Borrowing”) or by Type (e.g., a “Term Benchmark Borrowing”) or by Class and Type (e.g., a “Term Benchmark Term Borrowing”).
SECTION 1.03 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.” Unless the context requires otherwise, (a) any definition of or reference to any agreement (including this Agreement and the other Loan Documents), instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, amended and restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions
-69-
thereof, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) 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. All terms herein which are defined as having the meanings assigned to such terms in the Existing Credit Agreement shall have the meanings assigned to such terms as defined in the Existing Credit Agreement, including any defined or used terms and cross-references therein.
SECTION 1.04 Accounting Terms; GAAP.
(a) All accounting terms not specifically or completely defined herein shall be construed in conformity with~~, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformitywith~~ GAAP.
(b) ~~Notwithstanding anything to the contrary herein, for purposes of determining compliance with any test contained in this Agreement, the First Lien Leverage Ratio, theInterest Coverage Ratio, the Total Leverage Ratio and the Secured Leverage Ratio shall be calculated on a Pro Forma Basis to give effect to all Specified Transactions (including the Transactions) that have been made during the applicable period ofmeasurement or subsequent to such period and prior to or simultaneously with the event for which the calculation ismade.~~[Reserved].
(c) Where reference is made to “Borrower and its Restricted Subsidiaries on a consolidated basis” or similar language, such consolidation shall not include any Subsidiaries of the Borrower other than the Restricted Subsidiaries; provided that any calculations or measure shall be determined hereunder with respect to Borrower (including, without limitation, ~~Consolidated EBITDA, Consolidated Interest Expense, Consolidated Net Income, Consolidated Total Assets, Consolidated Total Debt, the First Lien Leverage Ratio, the InterestCoverage Ratio,~~ Permitted Receivables Financing~~, Total Leverage Ratio and the Secured LeverageRatio~~) on a consolidated basis, which consolidation shall only include the Borrower and its Restricted Subsidiaries.
(d) If there occurs a change in generally accepted accounting principles occurring after the Effective Date and such change would cause a change in the method of calculation of any term or measure used in this Agreement (an “Accounting Change”), then the Borrower may elect, as evidenced by a written notice of the Borrower to the Administrative Agent, that such term or measure shall be calculated as if such Accounting Change had not occurred; provided that, with respect to any Accounting Change (other than an Accounting Change in respect of the treatment of leases), in Borrower’s good faith determination, Borrower’s election to calculate such term or measure as if such Accounting Change had not occurred will not be less favorable to the Lenders in any material respect than the method of calculation of such term or measure as in effect on the Effective Date. If such an election is made, and either the Borrower or the Required Lenders shall so request, the Administrative Agent (acting at the Direction of the Required Lenders), the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such Accounting Change (subject to the approval of the Required Lenders).
(e) Unless otherwise specified or the context requires otherwise, all references to ~~First Lien Leverage Ratio, the Interest Coverage Ratio, the Total Leverage Ratio and the Secured Leverage Ratio and~~any financial definitions ~~(including, without limitation, Consolidated EBITDA, Consolidated InterestExpense, Consolidated Net Income, Consolidated Total Assets, Consolidated Total Debt, the First Lien Leverage Ratio, the Interest CoverageRatio,~~and to the Permitted Receivables Financing~~, Total Leverage Ratio and the Secured Leverage Ratio)~~ herein shall refer to the calculation thereof in respect of the Borrower and its Restricted Subsidiaries on a consolidated basis for the most recently ended Test Period.
SECTION 1.05 Effectuation of Transactions. All references herein to Parent, the Borrower and their subsidiaries shall be deemed to be references to such Persons, and all the representations and warranties of Parent, the Borrower and the other Loan Parties contained in this Agreement and the other Loan Documents shall be deemed made, in each case, after giving effect to the Acquisition and the other Transactions to occur on the Effective Date, unless the context otherwise requires.
-70-
SECTION 1.06 ~~Limited ConditionTransactions~~[Reserved].
~~When determining compliance with, or inapplicability of, anyprovision or term of this Agreement in connection with or related to any Limited Condition Transaction and any actions or transactions related or appurtenant thereto, at the option of the Borrower, including for purposes of:~~
~~(i) determining compliance with any provisionof this Agreement which requires the calculation of the Interest Coverage Ratio, the Secured Leverage Ratio, the Total Leverage Ratio or the First Lien Leverage Ratio;~~
~~(ii) determining the accuracy ofrepresentations and warranties and/or whether a Default or Event of Default shall have occurred and be continuing (or any subset of Defaults or Events of Default); or~~
~~(iii) testing availability under baskets setforth in this Agreement (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets or by reference to the Available Amount or the Available EquityAmount);~~
~~in each case, at the option of the Borrower (the Borrower’s election toexercise such option in connection with any Limited Condition Transaction, an “~~~~LCT Election~~~~”), the date of determination of compliance with, or inapplicability of, such provision or term shall be deemed to be the first date (the “~~~~LCT Test Date~~~~”) any of the definitive agreements for such Limited Condition Transaction are entered into. If after giving pro forma effect to the Limited Condition Transaction andany actions or transactions related or appurtenant thereto, the Borrower or any of its Restricted Subsidiaries would have been permitted or not prohibited to consummate such Limited Condition Transaction and any actions or transactions related orappurtenant thereto on the relevant LCT Test Date in compliance with such term or provision, such term or provision shall be deemed to have been complied with (or satisfied) for all purposes; provided that (a) if financial statements areavailable for one or more fiscal quarters after such LCT Test Date, the Borrower may elect in its sole discretion to determine such compliance or inapplicability of such terms or provisions on the basis of such financial statements, and the LCT TestDate shall be the date of determination of such compliance or inapplicability after the date of availability of such financial statements, (b) no determination of compliance or inapplicability of any such term or provision shall be required atany time after the applicable LCT Test Date for such Limited Condition Transaction and any actions or transactions related or appurtenant thereto and (c) Consolidated Interest Expense for purposes of the Interest Coverage Ratio will becalculated using an assumed interest rate as reasonably determined by the Borrower.~~
~~For the avoidance of doubt, if the Borrower has made an LCT Election,(1) if any term or provision of this Agreement for which compliance was determined or tested as of the LCT Test Date would at any time after the LCT Test Date otherwise not be complied with for any reason, such terms and provisions willnevertheless continue to be determined to be complied with; (2) no such determination of compliance or inapplicability of any such term or provision of this Agreement shall be affected by any subsequent Default or Event of Default and suchDefault or Event of Default shall be deemed not to have occurred or be continuing solely for purposes of such compliance or inapplicability; and (3) all determinations of compliance with or inapplicability of any term or provision of thisAgreement for any action or inaction that are not comprised within the action or inaction contemplated or related to such Limited Condition Transaction after the LCT Test Date and prior to the earlier of the date on which such Limited ConditionTransaction is consummated or the date that such Limited Condition Transaction is terminated, expires or is abandoned, shall be determined after giving pro forma effect to such Limited Condition Transaction. Until the consummation of the SportsNetwork II Investment, such transaction shall be treated under this Agreement as a Limited Condition Transaction in respect of which an LCT Election has been made.~~
SECTION 1.07 Divisions . For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws), (a) 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 and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized and acquired on the first date of its existence by the holders of its Equity Interests at such time.
SECTION 1.08 Interest Rates; Benchmark Notification.
-71-
(a) [Reserved]
(b) The interest rate on a Loan may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, ~~Section 2.14(b)~~Section 2.14(b) provides a mechanism for determining an alternative rate of interest. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any interest rate used in this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its Affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower or its Subsidiaries. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
ARTICLE II
THE CREDITS
SECTION 2.01 Commitments. (a) Subject to the terms and conditions set forth herein, each Term B-2a Lender severally agrees to make a Term B-2a Loan to the Borrower on the Effective Date denominated in dollars in a principal amount not exceeding its Term B-2 Commitment and (b) each Revolving Lender severally agrees to make Revolving Loans to the Borrower denominated in dollars from time to time during the Revolving Availability Period in an aggregate principal amount which will not result in such Lender’s Revolving Exposure exceeding such Lender’s Revolving Commitment. The Borrower may borrow, prepay and reborrow Revolving Loans. Amounts repaid or prepaid in respect of Term Loans may not be reborrowed.
SECTION 2.02 Loans and Borrowings.
(a) Each Loan (other than a Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the Lenders ratably in accordance with their respective Commitments of the applicable Class; provided that, for the avoidance of doubt, (i) all Revolving Loans will be made by all Revolving Lenders (including both the Initial Revolving Lenders ~~and~~, the 2022 Revolving Lenders and the 2022A Revolving Lenders) in accordance with their respective Applicable Percentages until the applicable Maturity Date and (ii) on the Initial Revolving Maturity Date, all Initial Revolving Loans outstanding on such date shall be paid in full, ~~and~~ on 2022 Revolving Maturity Date, all 2022 Revolving Loans outstanding on such date shall be paid in full, and on the 2022A Revolving Maturity Date, all 2022A Revolving Loans outstanding on such date shall be paid in full. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder, provided that the Commitments of the Lenders are several and, other than as expressly provided herein with respect to a Defaulting Lender, no Lender shall be responsible for any other Lender’s failure to make Loans as required hereby.
(b) Subject to ~~Section 2.14~~Section 2.14, each Revolving Loan Borrowing and Term Loan Borrowing shall be comprised entirely of ABR Loans or Term Benchmark Loans as the Borrower may request in accordance herewith; provided that all Borrowings made on the Effective Date must be made as ABR Borrowings unless the Borrower shall have given the notice required for a Term Benchmark Borrowing under ~~Section 2.03~~Section 2.03. Each Swingline Loan shall be an ABR Loan.
-72-
(c) At the commencement of each Interest Period for any Term Benchmark Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum; provided that a Term Benchmark Borrowing that results from a continuation of an outstanding Term Benchmark Borrowing may be in an aggregate amount that is equal to such outstanding Borrowing. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum. Each Swingline Loan shall be in an amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum. Borrowings of more than one Type and Class may be outstanding at the same time.
SECTION 2.03 Requests for Borrowings . To request a Revolving Loan Borrowing or Term Loan Borrowing, the Borrower shall notify the Administrative Agent of such request by telephone (a) in the case of a Term Benchmark Borrowing, not later than 2:00 p.m., New York City time, three Business Days before the date of the proposed Borrowing (or, in the case of any Term Benchmark Borrowing to be made on the Effective Date, such shorter period of time as may be agreed to by the Administrative Agent) or (b) in the case of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of the proposed Borrowing; provided that any such notice of an ABR Revolving Loan Borrowing to finance the reimbursement of an LC Disbursement as contemplated by ~~Section 2.05(f)~~Section 2.05(f) may be given no later than 10:00 a.m., New York City time, on the date of the proposed Borrowing. Each such Borrowing Request shall be irrevocable and shall be delivered by hand delivery, facsimile or other electronic transmission to the Administrative Agent and shall be signed by the Borrower. Each such Borrowing Request shall specify the following information:
(i) whether the requested Borrowing is to be a Term B-2 Loan Borrowing, a Term B-3 Loan Borrowing, a Term B-3A Loan Borrowing, a Term B-4 Loan Borrowing, a Term B-4A Loan Borrowing, a Revolving Loan Borrowing or a Borrowing of any other Class (specifying the Class thereof);
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Term Benchmark Borrowing;
(v) in the case of a Term Benchmark Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”;
(vi) the location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of ~~Section 2.06~~Section 2.06 or, in the case of any ABR Revolving Loan Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in ~~Section 2.05(f)~~Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement; and
(vii) ~~except onthe Effective Date and with respect to the initial Borrowings, that, as of the date of such Borrowing, the conditions set forth in Section 4.02(a) and Section 4.02(b) are satisfied~~[reserved].
Notwithstanding anything to the contrary in this Agreement or any other Loan Document, any Revolving Borrowing Request prior to the Initial Revolving Maturity Date (a) shall be deemed to be a request that such Revolving Borrowing shall consist of Initial Revolving Loans ~~and~~, 2022 Revolving Loans and 2022A Revolving Loans on a pro rata basis, and (b) for the avoidance of doubt, to the extent the applicable Borrowing is not an ABR Borrowing, shall specify the same Interest Period in respect of all Loans comprising such Borrowing, which shall be a period contemplated by the definition of the term “Interest Period”. If no election as to the Type of Borrowing is specified as to any Borrowing, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Term Benchmark Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the applicable Class of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.
-73-
SECTION 2.04 Swingline Loans.
(a) Subject to the terms and conditions set forth herein (including ~~Section 2.22~~Section 2.22), in reliance upon the agreements of the other Lenders set forth in this ~~Section 2.04~~Section 2.04, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (ii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile or electronic communication, if arrangements for doing so have been approved by the applicable Issuing Bank (confirmed by telephone), not later than 11:00 a.m., New York City time, or, if agreed by the Swingline Lender, 3:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and in the case of any ABR Revolving Loan Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in ~~Section 2.05(f)~~Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to any accounts of the Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in ~~Section 2.05(f)~~Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in ~~Section 2.06~~Section 2.06 with respect to Loans made by such Lender (and ~~Section 2.06~~Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other Person on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrower, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
-74-
(d) The Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder.
(e) The Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.
(f) Any Swingline Lender may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Swingline Lender and the successor Swingline Lender. The Administrative Agent shall notify the Lenders of any such replacement of a Swingline Lender. At the time any such replacement shall become effective, the Borrower shall pay all unpaid interest accrued for the account of the replaced Swingline Lender pursuant to ~~Section 2.13(a)~~Section 2.13(a). From and after the effective date of any such replacement, (x) the successor Swingline Lender shall have all the rights and obligations of the replaced Swingline Lender under this Agreement with respect to Swingline Loans made thereafter and (y) references herein to the term “Swingline Lender” shall be deemed to refer to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline Lenders, as the context shall require. After the replacement of a Swingline Lender hereunder, the replaced Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to its replacement, but shall not be required to make additional Swingline Loans.
(g) Subject to the appointment and acceptance of a successor Swingline Lender, any Swingline Lender may resign as a Swingline Lender at any time upon 30 days’ prior written notice to the Administrative Agent, the Borrower and the Lenders, in which case, such Swingline Lender shall be replaced in accordance with ~~Section 2.04(f)~~Section 2.04(f) above.
(h) As of the Seventh Amendment Effective Date, there shall be no Swingline Lender hereunder.
SECTION 2.05 Letters of Credit .
(a) General. Subject to the terms and conditions set forth herein (including ~~Section 2.22~~Section 2.22), each Issuing Bank that is so requested by the Borrower agrees, in reliance upon the agreement of the Revolving Lenders set forth in this ~~Section 2.05~~Section 2.05, to issue Letters of Credit denominated in dollars for the Borrower’s own account (or for the account of any Subsidiary so long as the Borrower and such other Subsidiary are co-applicants and jointly and severally liable in respect of such Letter of Credit), in a form reasonably acceptable to the Administrative Agent and the applicable Issuing Bank, which shall reflect the standard operating procedures of such Issuing Bank, at any time and from time to time during the Revolving Availability Period and prior to the fifth Business Day prior to the applicable Revolving Maturity Date, provided that, if applicable Issuing Bank’s standard operating procedures do not provide for the issuance of electronic Letters of Credit, it shall only be required to issue paper Letters of Credit hereunder; provided, further, that Royal Bank of Canada and Deutsche Bank AG New York Branch shall only be required to issue Standby Letters of Credit. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with, any Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. Subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired (without any drawing having been made thereunder that has not been rejected or honored) or that have been drawn upon and reimbursed. The letters of credit issued and outstanding under the Existing Credit Agreement on the Effective Date as described on Schedule 2.05(a) (the “Existing Letters of Credit”) shall be deemed to be “Letters of Credit” for all purposes of this Agreement and the other Loan Documents (and, for avoidance of doubt, the interests and participations therein of all the Revolving Lenders in the Existing Letters of Credit as of the Effective Date shall be deemed re-allocated ratably in proportion to their respective Revolving Commitments as of such date).
-75-
(b) Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall deliver in writing by hand delivery or facsimile (or transmit by electronic communication, if arrangements for doing so have been approved by the recipient) to the applicable Issuing Bank and the Administrative Agent (at least five Business Days before the requested date of issuance, amendment, renewal or extension or such shorter period as the applicable Issuing Bank and the Administrative Agent may agree) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (d) of this ~~Section 2.05~~Section 2.05), the currency and 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. If requested by the applicable Issuing Bank, the Borrower also shall submit a letter of credit or bank guarantee application on such Issuing Bank’s standard form in connection with any request for a Letter of Credit (an “LC Application”). A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of any Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension, (i) subject to ~~Section 9.04(b)(ii)~~Section 9.04(b)(ii), the Applicable Fronting Exposure of each Issuing Bank shall not exceed its Letter of Credit Commitment or its Revolving Commitment, (ii) the aggregate Revolving Exposures shall not exceed the aggregate Revolving Commitments, (iii) the Revolving Exposure of the applicable Issuing Bank shall not exceed its Revolving Commitment, (iv) the aggregate LC Exposure shall not exceed the aggregate Letter of Credit Commitments and (v) the LC Exposure of the applicable Issuing Bank shall not exceed its Letter of Credit Commitment. No Issuing Bank shall be under any obligation to issue (or amend) any Letter of Credit if (i) any order, judgment or decree of any Governmental Authority or arbitrator shall enjoin or restrain such Issuing Bank from issuing (or amending) the Letter of Credit, or any law applicable to such Issuing Bank or any directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit the issuance (or amendment) of letters of credit generally or the Letter of Credit in particular or shall impose upon such Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which such Issuing Bank in good faith deems material to it, (ii) the issuance of such Letter of Credit would violate one or more policies of general application of such Issuing Bank now or hereafter applicable to letters of credit generally, (iii) except as otherwise agreed by such Issuing Bank, the Letter of Credit is in an initial stated amount less than $250,000 or (iv) any Lender is at that time a Defaulting Lender, if after giving effect to ~~Section 2.22(a)(iv)~~Section 2.22(a)(iv), any Defaulting Lender Fronting Exposure remains outstanding, unless such Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, reasonably satisfactory to such Issuing Bank with the Borrower or such Lender to eliminate such Issuing Bank’s Defaulting Lender Fronting Exposure arising from either the Letter of Credit then proposed to be issued (or amended) or such Letter of Credit and all other LC Exposure as to which such Issuing Bank has Defaulting Lender Fronting Exposure.
(c) Notice. Each Issuing Bank agrees that it shall not permit any issuance, amendment, renewal or extension of a Letter of Credit to occur unless it shall have given to the Administrative Agent any written notice thereof required under paragraph (m) of this Section and each Issuing Bank hereby agrees to give such notice.
(d) Expiration Date. Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date that is one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (ii) the date that is five Business Days prior to the applicable Revolving Maturity Date; provided that if such expiry date is not a Business Day, such Letter of Credit shall expire at or prior to close of business on the next succeeding Business Day; provided, however, that any Letter of Credit may, upon the request of the Borrower, include a provision whereby such Letter of Credit shall be renewed automatically for additional consecutive periods of one year or less (but not beyond the date that is five Business Days prior to the applicable Revolving Maturity Date) unless the applicable Issuing Bank notifies the beneficiary thereof within the time period specified in such Letter of Credit or, if no such time period is specified, at least 30 days prior to the then-applicable expiration date, that such Letter of Credit will not be renewed.
-76-
(e) Participations. By the issuance of a Letter of Credit or an amendment to a Letter of Credit increasing the amount thereof, and without any further action on the part of the Issuing Bank that is the issuer thereof or the Lenders, such Issuing Bank hereby grants to each Revolving Lender, and each Revolving Lender hereby irrevocably and unconditionally acquires from such Issuing Bank without recourse or warranty (regardless of whether the conditions set forth in Section 4.02 shall have been satisfied), a participation in such Letter of Credit equal to such Revolving Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of such Issuing Bank, such Revolving Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (f) of this ~~Section 2.05~~Section 2.05 in dollars, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(f) Reimbursement. If an Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Issuing Bank, with notice of such payment given to the Administrative Agent, an amount equal to such LC Disbursement in the same currency as the LC Disbursement not later than 4:00 p.m., New York City time, on the Business Day immediately following the day that the Borrower receives notice of such LC Disbursement; provided that, if such LC Disbursement is not less than $1,000,000, the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with ~~Section 2.03 orSection 2.04~~Section 2.03 or Section 2.04 that such payment be financed with an ABR Revolving Loan Borrowing or a Swingline Loan, in each case in an equivalent amount, and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting ABR Revolving Loan Borrowing or Swingline Loan. If the Borrower fails to make such payment when due, the Administrative Agent shall notify each Revolving Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such Revolving Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each Revolving Lender shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the Borrower, in dollars and in the same manner as provided in ~~Section 2.06~~Section 2.06 with respect to Loans made by such Lender (and ~~Section 2.06~~Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the applicable Issuing Bank the amounts so received by it from the Revolving Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank in dollars or, to the extent that Revolving Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Revolving Lenders and such Issuing Bank as their interests may appear. Any payment made by a Revolving Lender pursuant to this paragraph to reimburse any Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.
(g) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (f) of this ~~Section 2.05~~Section 2.05 and the obligations of the Revolving Lenders as provided in paragraph (e) of this ~~Section 2.05~~Section 2.05 is absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement or any of the other Loan Documents, or any term or provision therein, (ii) 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, (iii) payment by an Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, (iv) the occurrence of any Default or Event of Default, (v) the existence of any claim, counterclaim, setoff, defense or other right that the Borrower may have at any time against any beneficiary, the Issuing Bank or any other person, or (vi) any other event or circumstance whatsoever, whether
-77-
or not similar to any of the foregoing, that might, but for the provisions of this ~~Section 2.05~~Section 2.05, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. None of the Administrative Agent, the Lenders, the Issuing Banks or any of their Affiliates 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 in the preceding sentence), 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 any Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to consequential, exemplary 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 such Issuing Bank’s failure to exercise care when determining whether drafts and 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 an Issuing Bank (as determined by a court of competent jurisdiction in a final, non-appealable judgment), such Issuing Bank shall be deemed to have exercised 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, an 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, and any such acceptance or refusal shall be deemed not to constitute gross negligence or willful misconduct.
(h) Disbursement Procedures. The applicable Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. Such Issuing Bank shall promptly notify the Administrative Agent and the Borrower by telephone (confirmed by hand delivery, facsimile or electronic communication (if arrangements for doing so have been approved by the applicable Issuing Bank) of such demand for payment and whether such Issuing Bank has made an 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 such Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement in accordance with paragraph (f) of this Section.
(i) Interim Interest. If an Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement, at the rate per annum then applicable to ABR Revolving Loans; provided that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (f) of this ~~Section 2.05~~Section 2.05, then ~~Section 2.13(c)~~Section 2.13(c) shall apply. Interest accrued pursuant to this paragraph shall be paid to the Administrative Agent, for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender pursuant to paragraph (f) of this ~~Section 2.05~~Section 2.05 to reimburse such Issuing Bank shall be for the account of such Lender to the extent of such payment and shall be payable within two Business Days of demand or, if no demand has been made, within two Business Days of the date on which the Borrower reimburses the applicable LC Disbursement in full. If any Revolving Lender shall not have made its Applicable Percentage of such LC Disbursement available to the Administrative Agent as provided in clause (f) above, such Revolving Lender shall agree to pay interest on such amount, for each day from and including the date such amount is required to be paid at a rate determined by the Administrative Agent in accordance with banking industry rules or practices on interbank compensation.
(j) Cash Collateralization. If any Event of Default under clause (a), (b), (h) or (i) of ~~Section 7.01~~Section 7.01 shall occur and be continuing, on the Business Day on which the Borrower receives notice from the Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated, Revolving Lenders with LC Exposure representing more than 50.0% of the aggregate LC Exposure of all Revolving Lenders) demanding the deposit of Cash Collateral 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 Issuing Banks and the Lenders, an amount of cash in dollars equal to the portions of the LC Exposure attributable to Letters of Credit, as of such date plus any accrued and unpaid interest thereon; provided that the obligation to deposit such Cash Collateral
-78-
shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other 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 7.01~~Section 7.01. The Borrower also shall deposit Cash Collateral pursuant to this paragraph as and to the extent required by ~~Section 2.11(b)~~Section 2.11(b). Each 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. At any time that there shall exist a Defaulting Lender, if any Defaulting Lender Fronting Exposure remains outstanding (after giving effect to ~~Section 2.22(a)(iv)~~Section 2.22(a)(iv)), then promptly upon the request of the Administrative Agent, any Issuing Bank or the Swingline Lender, the Borrower shall deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover such Defaulting Lender Fronting Exposure (after giving effect to any Cash Collateral provided by the Defaulting Lender). The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. 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 in ~~Permitted~~ Investments and at the Borrower’s risk and expense, such deposits shall not bear interest. Interest or 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 Issuing Banks for LC Disbursements for which they have not been reimbursed and, to the extent not 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 (but subject to the consent of Revolving Lenders with LC Exposure representing more than 50.0% of the aggregate LC Exposure of all the Revolving Lenders), be applied to satisfy other obligations of the Borrower under this Agreement in accordance with the terms of the Loan Documents. If the Borrower is required to provide an amount of Cash Collateral hereunder as a result of the occurrence of an Event of Default or the existence of a Defaulting Lender, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default have been cured or waived or after the termination of Defaulting Lender status, as applicable. If the Borrower is required to provide an amount of Cash Collateral hereunder pursuant to ~~Section 2.11(b)~~Section 2.11(b), such amount (to the extent not applied as aforesaid) shall be returned to the Borrower as and to the extent that, after giving effect to such return, the Borrower would remain in compliance with ~~Section 2.11(b)~~Section 2.11(b) and no Event of Default shall have occurred and be continuing.
(k) Designation of Additional Issuing Banks. The Borrower may, at any time and from time to time, designate as additional Issuing Banks one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as an Issuing Bank hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Revolving Lender and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of an Issuing Bank under this Agreement and (ii) references herein to the term “Issuing Bank” shall be deemed to include such Revolving Lender in its capacity as an issuer of Letters of Credit hereunder.
(l) Termination of an Issuing Bank. The Borrower may terminate the appointment of any Issuing Bank as an “Issuing Bank” hereunder by providing a written notice thereof to such Issuing Bank, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Issuing Bank’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the LC Exposure attributable to Letters of Credit issued by such Issuing Bank (or its Affiliates) shall have been reduced to zero. At the time any such termination shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the terminated Issuing Bank pursuant to ~~Section 2.12(b)~~Section 2.12(b). Notwithstanding the effectiveness of any such termination, the terminated Issuing Bank shall remain a party hereto and shall continue to have all the rights of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such termination, but shall not issue any additional Letters of Credit.
(m) Issuing Bank Reports to the Administrative Agent. Unless otherwise agreed by the Administrative Agent, each Issuing Bank shall, in addition to its notification obligations set forth elsewhere in this Section, report in writing to the Administrative Agent (i) periodic activity (for such period or recurrent periods as shall be reasonably requested by the Administrative Agent) in respect of Letters of Credit issued by such Issuing Bank, including all issuances, extensions, amendments and renewals, all expirations and cancellations and all disbursements and reimbursements, (ii) within five Business Days following the time that such Issuing Bank issues, amends, renews or extends any Letter of Credit, the date of such issuance, amendment, renewal or extension, and the currency and face
-79-
amount of the Letters of Credit issued, amended, renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension (and whether the amounts thereof shall have changed), (iii) on each Business Day on which such Issuing Bank makes any LC Disbursement, the date, currency and amount of such LC Disbursement, (iv) on any Business Day on which the Borrower fails to reimburse an LC Disbursement required to be reimbursed to such Issuing Bank on such day, the date of such failure and currency and amount of such LC Disbursement and (v) on any other Business Day, such other information as the Administrative Agent shall reasonably request as to the Letters of Credit issued by such Issuing Bank.
(n) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by the Issuing Bank and the Borrower, when a Letter of Credit is issued, (i) the rules of the ISP98 shall apply to each Standby Letter of Credit, and (ii) the rules of UCP shall apply to each Commercial Letter of Credit, and as to all matters not governed thereby, the laws of the State of New York.
(o) Reallocation of Participations. On the Initial Revolving Maturity Date, all participations in Letters of Credit issued on or prior to the Initial Revolving Maturity Date and expiring on or after the Initial Revolving Maturity Date shall be reallocated among the 2022 Revolving Lenders in accordance with their respective Applicable Percentages after giving effect to the expiration of the Initial Revolving Commitment on the Initial Revolving Maturity Date. On the 2022 Revolving Maturity Date, all participations in Letters of Credit issued on or prior to the 2022 Revolving Maturity Date and expiring on or after the 2022 Revolving Maturity Date shall be reallocated among the 2022A Revolving Lenders in accordance with their respective Applicable Percentages after giving effect to the expiration of the 2022 Revolving Commitment on the 2022 Revolving Maturity Date.
SECTION 2.06 Funding of Borrowings .
(a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds in dollars by 2:00 p.m., New York City time, to the applicable account of the Administrative Agent most-recently designated by it for such purpose by notice to the Lenders; provided that Swingline Loans shall be made as provided in ~~Section 2.04~~Section 2.04. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower designated by the Borrower in the applicable Borrowing Request; provided that ABR Revolving Loans made to finance the reimbursement of an LC Disbursement as provided in ~~Section 2.05(f)~~Section 2.05(f) shall be remitted by the Administrative Agent to the applicable Issuing Bank or, to the extent that Revolving Lenders have made payments pursuant to ~~Section 2.05(f)~~Section 2.05(f) to reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as their interests may appear.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing 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 share available on such date in accordance with paragraph (a) of this Section and may, in reliance on such assumption and in its sole discretion, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender agrees to pay to the Administrative Agent an amount equal to such share on demand of the Administrative Agent. If such Lender does not pay such corresponding amount forthwith upon demand of the Administrative Agent therefor, the Administrative Agent shall promptly notify the Borrower, and the Borrower agrees to pay such corresponding amount to the Administrative Agent forthwith on demand. The Administrative Agent shall also be entitled to recover from such Lender or the Borrower interest on such corresponding amount, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, the rate reasonably determined by the Administrative Agent to be its cost of funding such amount, or (ii) in the case of the Borrower, the interest rate applicable to such Borrowing in accordance with ~~Section 2.13~~Section 2.13. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.
-80-
(c) Obligations of the Lenders hereunder to make Term Loans and Revolving Loans, to fund participations in Letters of Credit and Swingline Loans and to make payments pursuant to ~~Section 9.03(c)~~Section 9.03(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under ~~Section 9.03(c)~~Section 9.03(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and, other than as expressly provided herein with respect to a Defaulting Lender, no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under ~~Section 9.03(c)~~Section 9.03(c).
SECTION 2.07 Interest Elections .
(a) Each Revolving Loan Borrowing and Term Loan Borrowing initially shall be of the Type specified in the applicable Borrowing Request or designated by ~~Section 2.03~~Section 2.03 and, in the case of a Term Benchmark Borrowing, shall have an initial Interest Period as specified in such Borrowing Request or designated by ~~Section 2.03~~Section 2.03. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Term Benchmark Borrowing, may elect Interest Periods therefor, all as provided in this Section. 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 the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. This Section shall not apply to Swingline Loans, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election by telephone by the time that a Borrowing Request would be required under ~~Section 2.03~~Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and confirmed promptly by hand delivery, facsimile or other electronic transmission to the Administrative Agent of a written Interest Election Request signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify the following information in compliance with ~~Section 2.03~~Section 2.03:
(i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Term Benchmark Borrowing; and
(iv) if the resulting Borrowing is to be a Term Benchmark Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period.”
If any such Interest Election Request requests a Term Benchmark Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
(d) Promptly following receipt of an Interest Election Request in accordance with this Section, the Administrative Agent shall advise each Lender of the applicable Class of the details thereof and of such Lender’s portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a Term Benchmark Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period, the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
-81-
SECTION 2.08 Termination and Reduction of Commitments .
(a) Unless previously terminated, the Term B-2 Commitments of the Term B-2a Lenders shall terminate upon the earlier of (i) 5:00 p.m., New York City time, on the Effective Date and (ii) the funding of the Term B-2a Loans to the Borrower. The Revolving Commitments shall terminate on the applicable Revolving Maturity Date. The Term B-3 Commitment terminated on the Third Amendment to Credit Agreement Effective Date. The Term B-4 Commitment shall terminate on the Fourth Amendment Effective Date. The Term B-3A Commitment and the Term B-4A Commitment shall terminate on the Seventh Amendment Effective Date.
(b) The Borrower may at any time terminate, or from time to time reduce, the Commitments of any Class; provided that (i) each reduction of the Commitments of any Class shall be in an amount that is an integral multiple of $500,000 and not less than $1,000,000 and (ii) the Borrower shall not terminate or reduce the Revolving Commitments if, after giving effect to any concurrent prepayment of the Revolving Loans or Swingline Loans in accordance with ~~Section 2.11~~Section 2.11, the aggregate Revolving Exposures would exceed the aggregate Revolving Commitments.
(c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Commitments under paragraph (b) of this Section at least one Business Day prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided that a notice of termination of the Revolving Commitments delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities or the receipt of the proceeds from the issuance of other Indebtedness or the occurrence of some other identifiable event or condition, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date of termination) if such condition is not satisfied. Any termination or reduction of the Commitments of any Class shall be permanent. Each reduction of the Commitments of any Class shall be made ratably among the Lenders in accordance with their respective Commitments of such Class; provided that for the avoidance of doubt, any reduction of the Revolving Commitments prior to the Initial Revolving Maturity Date shall be allocated among the Initial Revolving Commitments and the 2022 Revolving Commitments ratably.
SECTION 2.09 Repayment of Loans; Evidence of Debt .
(a) The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Revolving Loan of such Lender on the applicable Revolving Maturity Date, (ii) to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Term Loan of such Lender as provided in ~~Section 2.10~~Section 2.10 and (iii) to the Swingline Lender the then unpaid principal amount of each Swingline Loan made by the Swingline Lender on the earlier to occur of (A) the date that is 10 Business Days after such Loan is made~~and~~, (B) the 2022 Revolving Maturity Date and (C) the 2022A Revolving Maturity Date; provided that on each date that a Revolving Loan Borrowing is made, the Borrower shall repay all Swingline Loans that were outstanding on the date such Borrowing was requested.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein, provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to pay any amounts due hereunder in accordance with the terms of this Agreement. In the event of any inconsistency between the entries made pursuant to paragraphs (b) and (c) of this Section, the accounts maintained by the Administrative Agent pursuant to paragraph (c) of this Section shall control.
-82-
(e) Any Lender may request through the Administrative Agent that Loans of any Class made by it be evidenced by a promissory note. In such event, the Borrower shall execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form provided by the Administrative Agent and approved by the Borrower.
SECTION 2.10 Amortization of Term Loans .
(a) Subject to adjustment pursuant to paragraph (b) of this Section, the Borrower shall repay Term B-2 Loan Borrowings, Term B-3 Loan Borrowings ~~and~~, Term B-3A Loan Borrowings, Term B-4 Loan Borrowings and Term B-4A Loan Borrowings on the last Business Day of each of March, June, September and December (commencing on December 31, 2019 in the case of Term B-2 Loans, commencing on September 30, 2021 in the case of Term B-3 Loans~~and~~, commencing on September 30, 2022 in the case of Term B-4 Loans and commencing on March 31, 2025 in the case of Term B-3A Loans and Term B-4A Loans) in the amount equal to (i) in the case of the Term B-2 Loans, (A) in the case of each such installment due prior to the Term B-2 Loan Maturity Date, 0.25% of the aggregate original principal amount of the Term B-2 Loans outstanding as of the Effective Date and (B) in the case of the installment due on the Term B-2 Loan Maturity Date, the entire remaining balance of the Term B-2 Loan, (ii) in the case of the Term B-3 Loans, (A) in the case of each such installment due prior to the Term B-3 Loan Maturity Date, 0.25% of the aggregate original principal amount of the Term B-3 Loans outstanding as of the Third Amendment to Credit Agreement Effective Date and (B) in the case of the installment due on the Term B-3 Loan Maturity Date, the entire remaining balance of the Term B-3 Loan ~~and~~, (iii) in the case of the Term B-3A Loans, (A) in the case of each such installment due prior to the Term B-3A Loan Maturity Date, 0.25% of the aggregate original principal amount of the Term B-3A Loans outstanding as of the Seventh Amendment Effective Date and (B) in the case of the installment due on the Term B-3A Loan Maturity Date, the entire remaining balance of the Term B-3A Loan, (iv) in the case of the Term B-4 Loans, (A) in the case of each such installment due prior to the Term B-4 Loan Maturity Date, 0.25% of the aggregate original principal amount of the Term B-4 Loans outstanding as of the Fourth Amendment Effective Date and (B) in the case of the installment due on the Term B-4 Loan Maturity Date, the entire remaining balance of the Term B-4 Loan~~.~~ and (v) in the case of the Term B-4A Loans, (A) in the case of each such installment due prior to the Term B-4A Loan Maturity Date, 0.25% of the aggregate original principal amount of the Term B-4A Loans outstanding as of the Seventh Amendment Effective Date and (B) in the case of the installment due on the Term B-4A Loan Maturity Date, the entire remaining balance of the Term B-4A Loan.
(b) Any prepayment of a Term Loan Borrowing of any Class (i) pursuant to ~~Section 2.11(a)(i)~~Section 2.11(a)(i) shall be applied to reduce the subsequent scheduled and outstanding repayments of the Term Loan Borrowings of such Class to be made pursuant to this Section as directed by the Borrower (and absent such direction in direct order of maturity) and (ii) pursuant to ~~Section 2.11(c)~~Section 2.11(c) shall be applied to reduce the subsequent scheduled and outstanding repayments of the Term Loan Borrowings of such Class to be made pursuant to this Section, or, except as otherwise provided in any Refinancing Amendment or Loan Modification Offer, pursuant to the corresponding section of such Refinancing Amendment or Loan Modification Offer, as applicable, in direct order of maturity.
(c) Prior to any repayment of any Term Loan Borrowings of any Class hereunder, the Borrower shall select the Borrowing or Borrowings of the applicable Class to be repaid and shall notify the Administrative Agent by telephone (confirmed by hand delivery or facsimile) of such election not later than 2:00 p.m., New York City time, two Business Day before the scheduled date of such repayment. In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall make such designation in its reasonable discretion with a view, but no obligation, to minimize breakage costs owing under ~~Section 2.16~~Section 2.16. Each repayment of a Borrowing shall be applied ratably to the Loans included in the repaid Borrowing. Repayments of Term Loan Borrowings shall be accompanied by accrued interest on the amount repaid.
-83-
SECTION 2.11 Prepayment of Loans .
(a) ~~(i)~~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 (subject to the immediately succeeding proviso); provided that in the event that, on or prior to the date that is six months after the Fourth Amendment Effective Date (and solely with respect to the Term B-4 Loans), the Borrower (A) makes any prepayment of Term B-4 Loans in connection with any Repricing Transaction the primary purpose of which is to decrease the Effective Yield on such Term B-4 Loans or (B) effects any amendment of this Agreement resulting in a Repricing Transaction the primary purpose of which is to decrease the Effective Yield on the Term B-4 Loans, the Borrower shall pay to the Administrative Agent, for the ratable account of each of the applicable Lenders, (x) in the case of clause (A), a prepayment premium of 1.00% of the principal amount of the Term B-4 Loans being prepaid in connection with such Repricing Transaction and (y) in the case of clause (B), an amount equal to 1.00% of the aggregate amount of the applicable Term B-4 Loans outstanding immediately prior to such amendment that are subject to an effective pricing reduction pursuant to such Repricing Transaction.
~~(ii) Notwithstanding anything in any Loan Document to the contrary, so long as no Default or Event of Default has occurred and is continuing, the Borrower may prepay theoutstanding Term Loans on the following basis:~~
~~(A) The Borrower shall have the right to make a voluntary prepayment of Term Loans at a discount to par (such prepayment, the “~~~~Discounted Term Loan Prepayment~~~~”) pursuant to a Borrower Offerof Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offers or Borrower Solicitation of Discounted Prepayment Offers, in each case made in accordance with this Section 2.11(a)(ii);~~ ~~provided~~ ~~that (x) the Borrower shall not make any Borrowing ofRevolving Loans to fund any Discounted Term Loan Prepayment and (y) the Borrower shall not initiate any action under this Section 2.11(a)(ii) in order to make a Discounted Term Loan Prepayment with respect to any Class unless (I) atleast ten Business Days shall have passed since the consummation of the most recent Discounted Term Loan Prepayment with respect to such Class as a result of a prepayment made by the Borrower on the applicable Discounted Prepayment Effective Date;or (II) at least three Business Days shall have passed since the date the Borrower was notified that no Term Lender was willing to accept any prepayment of any Term Loan and/or Other Term Loan at the Specified Discount, within the Discount Range orat any discount to par value, as applicable, or in the case of Borrower Solicitation of Discounted Prepayment Offers, the date of the Borrower’s election not to accept any Solicited Discounted Prepayment Offers.~~
~~(B) (1) Subject to the proviso tosubsection (A) above, the Borrower may from time to time offer to make a Discounted Term Loan Prepayment by providing the Auction Agent with three Business Days’ notice in the form of a Specified Discount Prepayment Notice; provided that(I) any such offer shall be made available, at the sole discretion of the Borrower, to each Term Lender and/or each Lender with respect to any Class of Term Loans on an individual tranche basis, (II) any such offer shall specify the aggregateprincipal amount offered to be prepaid (the “Specified Discount Prepayment Amount”) with respect to each applicable tranche, the tranche or tranches of Term Loans subject to such offer and the specific percentage discount to par (the“Specified Discount”) of such Term Loans to be prepaid (it being understood that different Specified Discounts and/or Specified Discount Prepayment Amounts may be offered with respect to different tranches of Term Loans and, in such anevent, each such offer will be treated as a separate offer pursuant to the terms of this Section), (III) the Specified Discount Prepayment Amount shall be in an aggregate amount not less than $10,000,000 and whole increments of $1,000,000 in excessthereof and (IV) each such offer shall remain outstanding through the Specified Discount Prepayment Response Date. The Auction Agent will promptly provide each relevant Term Lender with a copy of such Specified Discount Prepayment Notice and a formof the Specified Discount Prepayment Response to be completed and returned by each such Term Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., New York time, on the third Business Day after the date of delivery of suchnotice to the relevant Term Lenders (the “Specified Discount Prepayment Response Date”).~~
-84-
~~(2) Each relevant Term Lender receiving suchoffer shall notify the Auction Agent (or its delegate) by the Specified Discount Prepayment Response Date whether or not it agrees to accept a prepayment of any of its relevant then outstanding Term Loans at the Specified Discount and, if so (suchaccepting Term Lender, a “~~~~Discount Prepayment Accepting Lender~~~~”), the amount and the tranches of such Term Lender’s Term Loans to be prepaid at such offered discount. Each acceptance of a Discounted Term Loan Prepayment by aDiscount Prepayment Accepting Lender shall be irrevocable. Any Term Lender whose Specified Discount Prepayment Response is not received by the Auction Agent by the Specified Discount Prepayment Response Date shall be deemed to have declined toaccept the Borrower Offer of Specified Discount Prepayment.~~
~~(3) If there is at least one DiscountPrepayment Accepting Lender, the Borrower will make prepayment of outstanding Term Loans pursuant to this paragraph (B) to each Discount Prepayment Accepting Lender in accordance with the respective outstanding amount and tranches of Term Loansspecified in such Term Lender’s Specified Discount Prepayment Response given pursuant to subsection (2);~~ ~~provided~~ ~~that, if the aggregate principal amount of Term Loans accepted for prepayment by all Discount Prepayment Accepting Lenders exceeds the Specified Discount Prepayment Amount,such prepayment shall be made pro-rata among the Discount Prepayment Accepting Lenders in accordance with the respective principal amounts accepted to be prepaid by each such Discount Prepayment Accepting Lender and the Auction Agent (inconsultation with the Borrower and subject to rounding requirements of the Auction Agent made in its reasonable discretion) will calculate such proration (the “~~~~Specified Discount Proration~~~~”). The Auction Agent shallpromptly, and in any case within three Business Days following the Specified Discount Prepayment Response Date, notify (I) the Borrower of the respective Term Lenders’ responses to such offer, the Discounted Prepayment Effective Date andthe aggregate principal amount of the Discounted Term Loan Prepayment and the tranches to be prepaid, (II) each Term Lender of the Discounted Prepayment Effective Date, and the aggregate principal amount and the tranches of Term Loans to be prepaidat the Specified Discount on such date and (III) each Discount Prepayment Accepting Lender of the Specified Discount Proration, if any, and confirmation of the principal amount, tranche and Type of Loans of such Term Lender to be prepaid at theSpecified Discount on such date. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the Borrower and Term Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amountspecified in such notice to the Borrower shall be due and payable by the Borrower on the Discounted Prepayment Effective Date in accordance with subsection (F) below (subject to subsection (J) below).~~
~~(C) (1) Subject to the proviso tosubsection (A) above, the Borrower may from time to time solicit Discount Range Prepayment Offers by providing the Auction Agent with three Business Days’ notice in the form of a Discount Range Prepayment Notice; provided that (I) anysuch solicitation shall be extended, at the sole discretion of the Borrower, to each Term Lender and/or each Lender with respect to any Class of Loans on an individual tranche basis, (II) any such notice shall specify the maximum aggregate principalamount of the relevant Term Loans (the “~~~~Discount Range Prepayment Amount~~~~”), the tranche or tranches of Term Loans subject to such offer and the maximum and minimum percentage discounts to par (the “~~~~Discount Range~~~~”) of the principal amount of such Term Loanswith respect to each relevant tranche of Term Loans willing to be prepaid by the Borrower (it being understood that different Discount Ranges and/or Discount Range Prepayment Amounts may be offered with respect to different tranches of Term Loansand, in such an event, each such offer will be treated as a separate offer pursuant to the terms of this Section), (III) the Discount Range Prepayment Amount shall be in an aggregate amount not less than $10,000,000 and whole increments of$1,000,000 in excess thereof and (IV) each such solicitation by the Borrower shall remain outstanding through the Discount Range Prepayment Response Date. The Auction Agent will promptly provide each relevant Term Lender with a copy of such DiscountRange Prepayment Notice and a form of the Discount Range Prepayment Offer~~
-85-
~~to be submitted by a responding relevant Term Lender to the Auction Agent (or its delegate) by no later than5:00 p.m., New York time, on the third Business Day after the date of delivery of such notice to the relevant Term Lenders (the “~~~~DiscountRange Prepayment Response Date~~~~”). Each relevant Term Lender’s Discount Range Prepayment Offer shall be irrevocable and shall specify adiscount to par within the Discount Range (the “~~~~Submitted Discount~~~~”) at which such Lender is willing to allow prepayment of any or all of its then outstanding Term Loans of the applicable tranche or tranches and the maximum aggregateprincipal amount and tranches of such Term Lender’s Term Loans (the “~~~~Submitted Amount~~~~”) such Term Lender is willing to have prepaid at the Submitted Discount. Any Term Lender whose Discount Range Prepayment Offer is not received by the Auction Agent bythe Discount Range Prepayment Response Date shall be deemed to have declined to accept a Discounted Term Loan Prepayment of any of its Term Loans at any discount to their par value within the Discount Range.~~
~~(2) The Auction Agent shall review allDiscount Range Prepayment Offers received on or before the applicable Discount Range Prepayment Response Date and shall determine (in consultation with the Borrower and subject to rounding requirements of the Auction Agent made in its solereasonable discretion) the Applicable Discount and Term Loans to be prepaid at such Applicable Discount in accordance with this subsection (C). The Borrower agrees to accept on the Discount Range Prepayment Response Date all Discount RangePrepayment Offers received by Auction Agent by the Discount Range Prepayment Response Date, in the order from the Submitted Discount that is the largest discount to par to the Submitted Discount that is the smallest discount to par, up to andincluding the Submitted Discount that is the smallest discount to par within the Discount Range (such Submitted Discount that is the smallest discount to par within the Discount Range being referred to as the “~~~~Applicable Discount~~~~”) which yields a Discounted Term LoanPrepayment in an aggregate principal amount equal to the lower of (I) the Discount Range Prepayment Amount and (II) the sum of all Submitted Amounts. Each Term Lender that has submitted a Discount Range Prepayment Offer to accept prepayment ata discount to par that is larger than or equal to the Applicable Discount shall be deemed to have irrevocably consented to prepayment of Term Loans equal to its Submitted Amount (subject to any required proration pursuant to the following subsection(3)) at the Applicable Discount (each such Term Lender, a “~~~~Participating Lender~~~~”).~~
~~(3) If there is at least one ParticipatingLender, the Borrower will prepay the respective outstanding Term Loans of each Participating Lender in the aggregate principal amount and of the tranches specified in such Term Lender’s Discount Range Prepayment Offer at the ApplicableDiscount;~~ ~~provided~~ ~~that if the SubmittedAmount by all Participating Lenders offered at a discount to par greater than the Applicable Discount exceeds the Discount Range Prepayment Amount, prepayment of the principal amount of the relevant Term Loans for those Participating Lenders whoseSubmitted Discount is a discount to par greater than or equal to the Applicable Discount (the “~~~~Identified ParticipatingLenders~~~~”) shall be made pro-rata among the Identified Participating Lenders in accordance with the Submitted Amount of each such IdentifiedParticipating Lender and the Auction Agent (in consultation with the Borrower and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) will calculate such proration (the “~~~~Discount Range Proration~~~~”). The Auction Agent shall promptly,and in any case within five Business Days following the Discount Range Prepayment Response Date, notify (I) the Borrower of the respective Term Lenders’ responses to such solicitation, the Discounted Prepayment Effective Date, theApplicable Discount, and the aggregate principal amount of the Discounted Term Loan Prepayment and the tranches to be prepaid, (II) each Term Lender of the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate principalamount and tranches of Term Loans to be prepaid at the Applicable Discount on such date, (III) each Participating Lender of the aggregate principal amount and tranches of such Term Lender to be prepaid at the Applicable Discount on such date, and(IV) if applicable, each Identified Participating Lender of the Discount Range Proration. Each determination by the Auction Agent of~~
-86-
~~the amounts stated in the foregoing notices to the Borrower and Term Lenders shall be conclusive and binding forall purposes absent manifest error. The payment amount specified in such notice to the Borrower shall be due and payable by the Borrower on the Discounted Prepayment Effective Date in accordance with subsection (F) below (subject to subsection(J) below).~~
~~(D) (1) Subject to the proviso to subsection (A) above, the Borrower may from time to time solicit Solicited Discounted Prepayment Offers by providing the AuctionAgent with three Business Days’ notice in the form of a Solicited Discounted Prepayment Notice;~~ ~~provided~~ ~~that (I) any such solicitation shall be extended, at the sole discretion of the Borrower, to each Term Lender and/or each Lender with respect to any Class of TermLoans on an individual tranche basis, (II) any such notice shall specify the maximum aggregate dollar amount of the Term Loans (the “~~~~SolicitedDiscounted Prepayment Amount~~~~”) and the tranche or tranches of Term Loans the Borrower is willing to prepay at a discount (it being understoodthat different Solicited Discounted Prepayment Amounts may be offered with respect to different tranches of Term Loans and, in such an event, each such offer will be treated as a separate offer pursuant to the terms of this Section), (III) theSolicited Discounted Prepayment Amount shall be in an aggregate amount not less than $10,000,000 and whole increments of $1,000,000 in excess thereof and (IV) each such solicitation by the Borrower shall remain outstanding through the SolicitedDiscounted Prepayment Response Date. The Auction Agent will promptly provide each relevant Term Lender with a copy of such Solicited Discounted Prepayment Notice and a form of the Solicited Discounted Prepayment Offer to be submitted by a respondingTerm Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., New York time on the third Business Day after the date of delivery of such notice to the relevant Term Lenders (the “~~~~Solicited Discounted Prepayment Response Date~~~~”). Each TermLender’s Solicited Discounted Prepayment Offer shall (x) be irrevocable, (y) remain outstanding until the Acceptance Date, and (z) specify both a discount to par (the “~~~~Offered Discount~~~~”) at which such Term Lender is willing toallow prepayment of its then outstanding Term Loan and the maximum aggregate principal amount and tranches of such Term Loans (the “~~~~OfferedAmount~~~~”) such Term Lender is willing to have prepaid at the Offered Discount. Any Term Lender whose Solicited Discounted Prepayment Offer isnot received by the Auction Agent by the Solicited Discounted Prepayment Response Date shall be deemed to have declined prepayment of any of its Term Loans at any discount.~~
~~(2) The Auction Agent shall promptly providethe Borrower with a copy of all Solicited Discounted Prepayment Offers received on or before the Solicited Discounted Prepayment Response Date. The Borrower shall review all such Solicited Discounted Prepayment Offers and select the largest of theOffered Discounts specified by the relevant responding Term Lenders in the Solicited Discounted Prepayment Offers that is acceptable to the Borrower (the“~~~~Acceptable Discount~~~~”), if any. Ifthe Borrower elects to accept any Offered Discount as the Acceptable Discount, then as soon as practicable after the determination of the Acceptable Discount, but in no event later than by the third Business Day after the date of receipt by theBorrower from the Auction Agent of a copy of all Solicited Discounted Prepayment Offers pursuant to the first sentence of this subsection (2) (the“~~~~Acceptance Date~~~~”), the Borrowershall submit an Acceptance and Prepayment Notice to the Auction Agent setting forth the Acceptable Discount. If the Auction Agent shall fail to receive an Acceptance and Prepayment Notice from the Borrower by the Acceptance Date, the Borrower shallbe deemed to have rejected all Solicited Discounted Prepayment Offers.~~
~~(3) Based upon the Acceptable Discount andthe Solicited Discounted Prepayment Offers received by Auction Agent by the Solicited Discounted Prepayment Response Date, within three Business Days after receipt of an Acceptance and Prepayment Notice (the “~~~~Discounted Prepayment Determination Date~~~~”), the Auction Agentwill determine (in consultation with the Borrower and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) the aggregate principal amount and the tranches of Term Loans (the “~~~~Acceptable Prepayment~~
-87-
~~Amount~~~~”) to be prepaid by the Borrower at the Acceptable Discount in accordance with this Section 2.11(a)(ii)(D)). If the Borrower elects to accept any Acceptable Discount, then the Borrower agrees to accept all Solicited Discounted Prepayment Offersreceived by Auction Agent by the Solicited Discounted Prepayment Response Date, in the order from largest Offered Discount to smallest Offered Discount, up to and including the Acceptable Discount. Each Term Lender that has submitted a SolicitedDiscounted Prepayment Offer with an Offered Discount that is greater than or equal to the Acceptable Discount shall be deemed to have irrevocably consented to prepayment of Term Loans equal to its Offered Amount (subject to any required pro-ratareduction pursuant to the following sentence) at the Acceptable Discount (each such Term Lender, a “~~~~Qualifying Lender~~~~”). The Borrower will prepay outstanding Term Loans pursuant to this subsection (D) to each Qualifying Lender in the aggregate principal amount and of the tranchesspecified in such Term Lender’s Solicited Discounted Prepayment Offer at the Acceptable Discount;~~ ~~provided~~ ~~that if the aggregate Offered Amount by all Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount exceeds the Solicited DiscountedPrepayment Amount, prepayment of the principal amount of the Term Loans for those Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount (the “~~~~Identified Qualifying Lenders~~~~”) shall be made pro rata amongthe Identified Qualifying Lenders in accordance with the Offered Amount of each such Identified Qualifying Lender and the Auction Agent (in consultation with the Borrower and subject to rounding requirements of the Auction Agent made in its solereasonable discretion) will calculate such proration (the “~~~~Solicited Discount Proration~~~~”). On or prior to the Discounted Prepayment Determination Date, the Auction Agent shall promptly notify (I) the Borrower of the Discounted Prepayment EffectiveDate and Acceptable Prepayment Amount comprising the Discounted Term Loan Prepayment and the tranches to be prepaid, (II) each Lender of the Discounted Prepayment Effective Date, the Acceptable Discount, and the Acceptable Prepayment Amount of allTerm Loans and the tranches to be prepaid to be prepaid at the Applicable Discount on such date, (III) each Qualifying Lender of the aggregate principal amount and the tranches of such Term Lender to be prepaid at the Acceptable Discount on suchdate, and (IV) if applicable, each Identified Qualifying Lender of the Solicited Discount Proration. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the Borrower and Term Lenders shall be conclusive andbinding for all purposes absent manifest error. The payment amount specified in such notice to the Borrower shall be due and payable by the Borrower on the Discounted Prepayment Effective Date in accordance with subsection (F) below (subject tosubsection (J) below).~~
~~(E) In connection with any Discounted Term Loan Prepayment, the Borrower and the Term Lenders acknowledge and agree that the Auction Agent may require as a condition to anyDiscounted Term Loan Prepayment, the payment of customary fees and expenses from the Borrower in connection therewith.~~
~~(F) If any Term Loan is prepaid in accordancewith paragraphs (B) through (D) above, the Borrower shall prepay such Term Loans on the Discounted Prepayment Effective Date. The Borrower shall make such prepayment to the Auction Agent, for the account of the Discount PrepaymentAccepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable, at the Administrative Agent’s office in immediately available funds not later than 11:00 a.m., New York City time, on the Discounted Prepayment Effective Dateand all such prepayments shall be applied to the remaining principal installments of the relevant tranche of Term Loans on a pro rata basis across such installments. The Term Loans so prepaid shall be accompanied by all accrued and unpaid intereston the par principal amount so prepaid up to, but not including, the Discounted Prepayment Effective Date. Each prepayment of the outstanding Term Loans pursuant to this Section 2.11(a)(ii) shall be paid to the Discount Prepayment AcceptingLenders, Participating Lenders, or Qualifying Lenders, as applicable. The aggregate principal amount of the tranches and installments of the relevant Term Loans outstanding shall be deemed reduced by the full par~~ ~~value of the aggregate principal amount of the tranches of Term Loans prepaid on the Discounted Prepayment Effective Date in any Discounted Term LoanPrepayment.~~
-88-
~~(G) To the extent not expressly provided forherein, each Discounted Term Loan Prepayment shall be consummated pursuant to procedures consistent, with the provisions in this Section 2.11(a)(ii), established by the Auction Agent acting in its reasonable discretion and as reasonably agreedby the Borrower.~~
~~(H) Notwithstanding anything in any Loan Document to the contrary, for purposes of this Section 2.11(a)(ii), each notice or other communication required to be deliveredor otherwise provided to the Auction Agent (or its delegate) shall be deemed to have been given upon Auction Agent’s (or its delegate’s) actual receipt during normal business hours of such notice or communication;~~ ~~provided~~ ~~that any notice or communication actually received outsideof normal business hours shall be deemed to have been given as of the opening of business on the next Business Day.~~
~~(I) Each of the Borrower and the Term Lendersacknowledges and agrees that the Auction Agent may perform any and all of its duties under this Section 2.11(a)(ii) by itself or through any Affiliate of the Auction Agent and expressly consents to any such delegation of duties by the AuctionAgent to such Affiliate and the performance of such delegated duties by such Affiliate. The exculpatory provisions pursuant to this Agreement shall apply to each Affiliate of the Auction Agent and its respective activities in connection with anyDiscounted Term Loan Prepayment provided for in this Section 2.11(a)(ii) as well as activities of the Auction Agent.~~
~~(J) The Borrower shall have the right, bywritten notice to the Auction Agent, to revoke in full (but not in part) its offer to make a Discounted Term Loan Prepayment and rescind the applicable Specified Discount Prepayment Notice, Discount Range Prepayment Notice or Solicited DiscountedPrepayment Notice therefor at its discretion at any time on or prior to the applicable Specified Discount Prepayment Response Date (and if such offer is revoked pursuant to this subclause (J), any failure by the Borrower to make any prepayment to aTerm Lender, as applicable, pursuant to this Section 2.11(a)(ii) shall not constitute a Default or Event of Default under Section 7.01 or otherwise).~~
~~Notwithstanding anything to contrary, the provisions of thisSection 2.11(a)(ii) shall permit any transaction permitted by such section to be conducted on a Class by Class basis and on a non-pro rata basis across Classes (but not within a single Class), in each case, as selected by the Borrower.~~
(b) In the event and on each occasion that the aggregate Revolving Exposures exceed the aggregate Revolving Commitments, the Borrower shall prepay Revolving Loan Borrowings (provided that any prepayment of the Revolving Loans prior to the Initial Revolving Maturity Date shall be allocated among the Initial Revolving Loans~~and~~, the 2022 Revolving Loans and the 2022A Revolving Loans ratably, and any prepayment of the Revolving Loans prior to the 2022 Revolving Maturity Date shall be allocated among the 2022 Revolving Loans and the 2022A Revolving Loans ratably) or Swingline Loans (or, if no such Borrowings are outstanding, deposit Cash Collateral in an account with the Administrative Agent pursuant to ~~Section 2.05(j)~~Section 2.05(j)) in an aggregate amount necessary to eliminate such excess.
~~(c) In theevent and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any of its Restricted Subsidiaries in respect of any Prepayment Event, the Borrower shall, within ten Business Days after such Net Proceeds are received(or, in the case of a Prepayment Event described in clause (b) of the definition of the term “Prepayment Event,” on the date of such Prepayment Event), prepay Term Loan Borrowings in an aggregate amount equal to the DispositionPercentage of the amount of such Net Proceeds;~~~~provided~~ ~~that, in the case of any eventdescribed in clause (a) of the definition of the term “Prepayment Event,” if the Borrower and its Restricted Subsidiaries invest (or commit to invest) the Net Proceeds from such event (or a portion thereof) within 450 days afterreceipt of such Net Proceeds in the business of the Borrower and the other Subsidiaries (including any acquisitions or other Investment permitted under Section 6.04), then no prepayment shall be required pursuant to this paragraph in respect ofsuch Net Proceeds in respect of such event (or the applicable portion of such Net~~
-89-
~~Proceeds, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so invested(or agreed or committed to be invested) by the end of such 450 day period (or if agreed or committed to be so invested within such 450 day period, have not been so invested within 630 days after receipt thereof (or if agreed or committed to be soinvested within such 630 day period, have not been so invested within 810 days after receipt thereof)), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so invested (or committed to beinvested); provided, further, the Borrower may use a portion of such Net Proceeds to prepay orrepurchase any other Indebtedness (and in the case of revolving obligations to correspondingly reduce commitments with respect thereto) to the extent such other Indebtedness and the Liens securing the same are permitted hereunder and thedocumentation governing such other Indebtedness requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and(y) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness and the denominator of which is the aggregate outstanding principal amount of Term Loans and such other Indebtedness~~
| (c) | [Reserved].<br> |
|---|
(d) Prior to any optional or mandatory prepayment of Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment pursuant to paragraph (~~f~~e) of this Section; provided that (i) any prepayment of the Revolving Loans prior to the Initial Revolving Maturity Date shall be allocated among the Initial Revolving Loans ~~and~~, the 2022 Revolving Loans ratably and (ii) any prepayment of the Revolving Loans prior to the 2022 Revolving Maturity Date shall be allocated among the 2022 Revolving Loans and the 2022A Revolving Loans ratably. In the event of any mandatory prepayment of Term Loan Borrowings made at a time when Term Loan Borrowings of more than one Class remain outstanding, the Borrower shall select which Class (or Classes) of Term Loan Borrowings are to be prepaid in their sole discretion; provided that the aggregate amount of such prepayment is allocated pro rata among the Term Loan Borrowings of each such Class~~; provided, further, that any Term Lender (and, to the extent provided in the Refinancing Amendment or Loan Modification Offer forany Class of Other Term Loans, any Lender that holds Other Term Loans of such Class) may elect, by notice to the Administrative Agent by telephone (confirmed by facsimile) at least one Business Day prior to the prepayment date, to decline all or anyportion of any prepayment of its Term Loans or Other Term Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to paragraph (a)(i) of this Section or a mandatory prepayment as a result of the Prepayment Eventset forth in clause (b) of the definition thereof, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Term Loans or Other Term Loans of any such Class but was so declined shall beretained by the Borrower and its Restricted Subsidiaries (such amounts, “~~~~Retained Declined Proceeds~~~~”)~~. Optional prepayments of Term Loan Borrowings shall be allocated among the Classes of Term Loan Borrowings as directed by the Borrower. In the absence of a designation by the Borrower as described in the preceding provisions of this paragraph of the Type of Borrowing of any Class, the Administrative Agent shall make such designation in its reasonable discretion with a view, but no obligation, to minimizing breakage costs owing under ~~Section 2.16~~Section 2.16.
(e) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by facsimile) of any prepayment hereunder (i) in the case of prepayment of a Term Benchmark Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid ~~and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of suchprepayment~~; provided ~~that~~(i) that a notice of optional prepayment may state that such notice is conditional upon the effectiveness of other credit facilities or the receipt of the proceeds from the issuance of other Indebtedness or the occurrence of some other identifiable event or condition, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied ~~and~~, (ii) each notice of a prepayment in respect of any Revolving Loans prior to the Initial Revolving Maturity Date shall be deemed to be a notice that such prepayment shall apply to ~~both~~ the outstanding Initial Revolving Loans ~~and~~, the outstanding 2022 Revolving Loans and the 2022A Revolving Loans on a pro rata basis and (iii) each notice of a prepayment in respect of any Revolving Loans prior to the 2022 Revolving Maturity
-90-
Date shall be deemed to be a notice that such prepayment shall apply to both the outstanding 2022 Revolving Loans and the 2022A Revolving Loans on a pro rata basis. Promptly following receipt of any such notice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in ~~Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment~~Section 2.02. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by ~~Section 2.13~~Section 2.13. At the Borrower’s election in connection with any prepayment pursuant to this ~~Section 2.11~~Section 2.11, such prepayment shall not be applied to any Term Loan or Revolving Loan of a Defaulting Lender and shall be allocated ratably among the relevant non-Defaulting Lenders.
~~(f) Notwithstanding any other provisions ofSection 2.11(c), (A) to the extent that any of or all the Net Proceeds of any Prepayment Event set forth in clause (a) of the definition thereof by a Foreign Subsidiary giving rise to a prepayment pursuant to Section 2.11(c) (a“Foreign Prepayment Event”) are prohibited or delayed by any Requirement ofLaw from being repatriated to the Borrower, the portion of such Net Proceeds so affected will not be required to be applied to repay Term Loans at the times provided in Section 2.11(c) and such amounts may be retained by the applicable ForeignSubsidiary so long, but only so long, as the applicable Requirement of Law will not permit repatriation to the Borrower (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by theapplicable Requirement of Law to permit such repatriation), and once such repatriation of any of such affected Net Proceeds is permitted under the applicable Requirement of Law, such repatriation will be promptly effected and such repatriated NetProceeds will be promptly (and in any event not later than three Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant toSection 2.11(c) and (B) to the extent that and for so long as the Borrower has determined in good faith that repatriation of any or all of the Net Proceeds of any Foreign Prepayment Event would have a material adverse tax consequence withrespect to such Net Proceeds, the Net Proceeds so affected will not be required to be applied to repay Term Loans at the times provided in Section 2.11(c) and such amounts may be retained by the applicable Foreign Subsidiary; provided that when the Borrower determines in good faith that repatriationof any of or all the Net Proceeds of any Foreign Prepayment Event would no longer have a material adverse tax consequence with respect to such Net Proceeds, such Net Proceeds shall be promptly (and in any event not later than three Business Daysafter such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to Section 2.11(c); provided that in the case of clause (A), on or before the date on which anysuch Net Proceeds so retained would otherwise have been required as permitted to be applied to reinvestments or prepayments pursuant to Section 2.11, the Borrower may apply an amount equal to such Net Proceeds to such reinvestments orprepayments, as applicable, as if such Net Proceeds had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Proceeds had been repatriated(or, if less, the Net Proceeds that would be calculated if received by such Foreign Subsidiary).~~
| (f) | [Reserved].<br> |
|---|---|
| SECTION | 2.12 Fees. |
| --- | --- |
(a) The Borrower agrees to pay to the Administrative Agent in dollars for the account of each Revolving Lender a commitment fee, which shall accrue at the Applicable Revolving Commitment Fee Rate on the average daily unused amount of the Revolving Commitment of such Lender during the period from and including the Effective Date to but excluding the date on which the Revolving Commitments terminate. Accrued commitment fees shall be payable in arrears on the third Business Day following the last day of each of the Borrower’s fiscal quarters and on the date on which the Revolving Commitments terminate, commencing on the first such date to occur after the Effective Date. All commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). For purposes of computing commitment fees, a Revolving Commitment of a Lender shall be deemed to be used to the extent of the outstanding Revolving Loans and LC Exposure of such Lender (and the Swingline Exposure of such Lender shall be disregarded for such purpose).
-91-
(b) The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender (other than any Defaulting Lender) a participation fee with respect to its participations in Letters of Credit, which shall accrue at the Applicable Rate, in each case, used to determine the interest rate applicable to Term Benchmark Revolving Loans, as applicable, on the daily amount of such Revolving Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements), during the period from and including the Effective Date to but excluding the later of the date on which such Revolving Lender’s Revolving Commitment terminates and the date on which such Revolving Lender ceases to have any LC Exposure. In addition, the Borrower agrees to pay to each Issuing Bank, for its own account, a fronting fee, in respect of each Letter of Credit issued by such Issuing Bank to the Borrower for the period from the date of issuance of such Letter of Credit through the expiration date of such Letter of Credit (or if terminated on an earlier date to the termination date of such Letter of Credit), computed at a rate equal to 0.125% per annum or such other percentage per annum to be agreed upon between the Borrower and such Issuing Bank of the daily outstanding amount of such Letter of Credit, as well as such Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder. Participation fees and fronting fees accrued through and including the last day of each March, June, September and December shall be payable in accordance with clause (c) below; 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 until the expiration or cancellation of all outstanding Letters of Credit. All participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed.
(c) All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent (or to an Issuing Bank, in the case of fees payable to it) for distribution, in the case of commitment fees and participation fees, to the Revolving Lenders entitled thereto. Fees paid hereunder shall not be refundable under any circumstances.
(d) The Borrower agrees to pay to the Administrative Agent, for its own account, an agency fee payable in the amount and at the times separately agreed upon between Borrower and the Administrative Agent.
(e) Notwithstanding the foregoing, and subject to ~~Section 2.22~~Section 2.22, the Borrower shall not be obligated to pay any amounts to any Defaulting Lender pursuant to this ~~Section 2.12~~Section 2.12; provided that such amounts shall be payable to any non-Defaulting Lender that assumes the obligations of a Defaulting Lender pursuant to ~~Section 2.22(a)(iv)~~Section 2.22(a)(iv).
(f) The Borrower agrees to pay to the Agents, without duplication, such fees as shall have been separately agreed upon in writing, as set forth in the Fee Letters in the amounts and at the times so specified therein.
| SECTION | 2.13 Interest. |
|---|---|
| (a) | The Loans comprising each ABR Borrowing (including each Swingline Loan) shall bear interest at the Alternate<br>Base Rate plus the Applicable Rate. |
| --- | --- |
(b) The Loans comprising each Term Benchmark Borrowing shall bear interest at the Adjusted Term SOFR Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.
(c) During the continuance of an Event of Default under clauses (a) or (b) of Section 7.01, the Borrower shall pay interest on past due amounts owing by it hereunder, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2.00% per annum plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount, 2.00% per annum plus the rate applicable to ABR Revolving Loans as provided in paragraph (a) of this Section; provided that no amount shall be payable pursuant to this Section 2.13(c) to a Defaulting Lender so long as such Lender shall be a Defaulting Lender; provided, further, that no amounts shall accrue pursuant to this ~~Section 2.13(c)~~Section 2.13(c) on any overdue amount, reimbursement obligation in respect of any LC Disbursement or other amount payable to a Defaulting Lender so long as such Lender shall be a Defaulting Lender; provided, further, that such amounts shall be payable to any non-Defaulting Lender that assumes the obligations of a Defaulting Lender pursuant to ~~Section 2.22(a)(iv)~~Section 2.22(a)(iv).
-92-
(d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan and, in the case of Revolving Loans, upon termination of the Revolving Commitments, provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of the Revolving Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Term Benchmark Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.
(e) All computations of interest for ABR Loans (including ABR Loans determined by reference to the Adjusted Term SOFR Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to ~~Section 2.18~~Section 2.18, bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
SECTION 2.14 Alternate Rate of Interest.
(a) Subject to clauses (b), (c), (d), (e) and (f) of this ~~Section 2.14~~Section 2.14, if, prior to the commencement of any Interest Period for a Term Benchmark Borrowing:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted Term SOFR Rate or the Term SOFR Rate, as applicable (including because the Term SOFR Reference Rate is not available or published on a current basis) for such Interest Period; or
(ii) the Administrative Agent is advised by the Required Lenders that the Adjusted Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period,
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone, electronic mail or facsimile as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Term Benchmark Borrowing shall be ineffective and (ii) if any Borrowing Request requests a Term Benchmark Borrowing then such Borrowing shall be made as an ABR Borrowing and the utilization of the Term SOFR Rate component in determining the Alternate Base Rate shall be suspended; provided, however, that, in each case, the Borrower may revoke any Borrowing Request that is pending when such notice is received.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
-93-
(c) Notwithstanding anything to the contrary herein or in any other Loan Document, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes in consultation with the Borrower from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (e) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this ~~Section 2.14~~Section 2.14, 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 2.14~~Section 2.14.
(e) 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 the Term SOFR 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 or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” 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 or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(f) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Term Benchmark Borrowing of, conversion to or continuation of Term Benchmark Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to an ABR Borrowing. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to the Adjusted Term SOFR Rate applicable to such Term Benchmark Loan, then until such time as a Benchmark Replacement is implemented pursuant to this ~~Section 2.14~~Section 2.14, (A) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such day.
| SECTION | 2.15 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 against assets of, deposits with or for the account of, or credit extended by, any Lender or any Issuing Bank (except any such reserve requirement reflected in the Adjusted Term SOFR Rate); or
-94-
(ii) impose on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than with respect to Taxes) affecting this Agreement or Term Benchmark Loans made by such Lender or any Letter of Credit or participation therein; or
(iii) subject any Lender to any Taxes on its Loans, letters of credit, Commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
and the result of any of the foregoing shall be to increase the actual cost to such Lender of making or maintaining any Term Benchmark Loan (or of maintaining its obligation to make any such Loan) or to increase the actual cost to such Lender or Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or issue any Letter of Credit) or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or otherwise), then, from time to time upon request of such Lender or Issuing Bank, the Borrower will 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, as the case may be, for such increased costs actually incurred or reduction actually suffered, provided that to the extent any such costs or reductions are incurred by any Lender as a result of any requests, rules, guidelines or directives enacted or promulgated under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and Basel III after the Effective Date, then such Lender shall be compensated pursuant to this ~~Section 2.15(a)~~Section 2.15(a) only to the extent such Lender is imposing such charges on similarly situated borrowers under the other syndicated credit facilities that such Lender is a lender under. Notwithstanding the foregoing, this paragraph (a) will not apply to (A) Indemnified Taxes or Other Taxes or (B) Excluded Taxes.
(b) If any Lender or Issuing Bank determines that any Change in Law regarding capital or liquidity requirements has 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 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 such 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 and liquidity requirements), then, from time to time upon request of such Lender or Issuing Bank, the Borrower will 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 actually suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or Issuing Bank or its holding company in reasonable detail, as the case may be, as specified in paragraph (a) or (b) of this Section delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or Issuing Bank, as the case may be, the amount shown as due on any such certificate within 15 Business Days after receipt thereof.
(d) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section for any increased costs incurred or reductions suffered more than 180 days prior to the date that such Lender or Issuing Bank, 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 or Issuing Bank’s intention to claim compensation therefor; provided, further, that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.16 Break Funding Payments. In the event of (a) the optional payment of any principal of any Term Benchmark Borrowing other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Term Benchmark Borrowing other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or optionally prepay any Revolving
-95-
Loan or Term Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under ~~Section 2.11(e)~~Section 2.11(e) and is revoked in accordance therewith) or (d) the assignment of any Term Benchmark Borrowing other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to ~~Section 2.19 or Section 9.02(d)~~Section 2.19 or Section 9.02(d), then, in any such event, the Borrower shall, after receipt of a written request by any Lender affected by any such event (which request shall set forth in reasonable detail the basis for requesting such amount), compensate each Lender for the actual loss, cost and expense attributable to such event. For purposes of calculating amounts payable by the Borrower to the Lenders under this ~~Section 2.16~~Section 2.16, each Lender shall be deemed to have funded each Term Benchmark Borrowing made by it at the Adjusted Term SOFR Rate for such Loan by a matching deposit or other borrowing for a comparable amount and for a comparable period, whether or not such Term Benchmark Borrowing was in fact so funded. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section delivered within ten Business Days of such event to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 15 Business Days after receipt of such demand. Notwithstanding the foregoing, this ~~Section 2.16~~Section 2.16 will not apply to losses, costs or expenses resulting from Taxes, as to which ~~Section 2.17~~Section 2.17 shall govern.
SECTION 2.17 Taxes.
(a) Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made free and clear of and without deduction for any Taxes, provided that if the applicable Withholding Agent shall be required by applicable Requirements of Law to deduct any Taxes from such payments, then (i) the applicable Withholding Agent shall make such deductions, (ii) the applicable Withholding Agent shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Requirements of Law and (iii) if the Tax in question is an Indemnified Tax or Other Tax, the amount payable by the applicable Loan Party shall be increased as necessary so that after all required deductions have been made (including deductions applicable to additional amounts payable under this ~~Section 2.17~~Section 2.17) the Administrative Agent or Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made.
(b) Without limiting the provisions of paragraph (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with Requirements of Law.
(c) The Borrower shall indemnify the Administrative Agent and each Lender, within 30 days after written demand therefor, for the full amount of any Indemnified Taxes paid by the Administrative Agent or such Lender, as the case may be, and any Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this ~~Section 2.17~~Section 2.17) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth in reasonable detail the basis and calculation of the amount of such payment or liability delivered to the Borrower by a Lender or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a Loan Party to a Governmental Authority pursuant to this ~~Section 2.17~~Section 2.17, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Each Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Requirements of Law and such other documentation reasonably requested by the Borrower or the Administrative Agent (i) as will permit such payments to be made without, or at a reduced rate of, withholding or (ii) as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to withholding or information reporting requirements. Each Lender shall, whenever a lapse or time or change in circumstances renders such documentation obsolete, expired or inaccurate in any material respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrower or the Administrative Agent) or promptly notify the Borrower and the Administrative Agent in writing of its inability to do so.
-96-
Without limiting the foregoing:
(1) Each Lender that is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent) two properly completed and duly signed original copies of Internal Revenue Service Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding.
(2) Each Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent) whichever of the following is applicable:
(A) two properly completed and duly signed original copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any successor forms) claiming eligibility for the benefits of an income tax treaty to which the United States is a party,
(B) two properly completed and duly signed original copies of Internal Revenue Service Form W-8ECI (or any successor forms),
(C) in the case of a Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or Section 881(c) of the Code, (x) two properly completed and duly signed certificates substantially in the form of Exhibit P-1, P-2, P-3 and P-4, as applicable, (any such certificate, a “U.S. Tax Compliance Certificate”) and (y) two properly completed and duly signed original copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any successor forms),
(D) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two properly completed and duly signed original copies of Internal Revenue Service Form W-8IMY (or any successor forms) of the Lender, accompanied by a Form W-8ECI, W-8BEN, W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY or any other required information (or any successor forms) from each beneficial owner that would be required under this ~~Section 2.17(e)~~Section 2.17(e) if such beneficial owner were a Lender, as applicable (provided that, if the Lender is a partnership for U.S. federal income tax purposes (and not a participating Lender) and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)), or
(E) two properly completed and duly signed original copies of any other form prescribed by applicable U.S. federal income tax laws as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding tax on any payments to such Lender under the Loan Documents, together with such supplementary 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.
(3) 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 , to determine whether such Lender has or has not complied with such Lender’s obligations under FATCA and, if necessary, to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (3), “FATCA” shall include any amendments made to FATCA after the Effective Date.
-97-
Notwithstanding any other provisions of this clause (e), a Lender shall not be required to deliver any form or other documentation that such Lender is not legally eligible to deliver.
(f) If the Borrower determines in good faith that a reasonable basis exists for contesting any Taxes for which indemnification has been demanded hereunder, the Administrative Agent or the relevant Lender, as applicable, shall use commercially reasonable efforts to cooperate with the Borrower in a reasonable challenge of such Taxes if so requested by the Borrower; provided that (a) the Administrative Agent or such Lender determines in its reasonable discretion that it would not be subject to any unreimbursed third party cost or expense or otherwise be prejudiced by cooperating in such challenge, (b) the Borrower pays all related expenses of the Administrative Agent or such Lender, as applicable and (c) the Borrower indemnifies the Administrative Agent or such Lender, as applicable, for any liabilities or other costs incurred by such party in connection with such challenge. The Administrative Agent or a Lender shall claim any refund that it determines is reasonably available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. If the Administrative Agent or a Lender receives a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this ~~Section 2.17~~Section 2.17, it shall pay over such refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of the Administrative Agent or such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the request of the Administrative Agent or such Lender, agrees promptly to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. The Administrative Agent or such Lender, as the case may be, shall, at the Borrower’s request, provide the Borrower with a copy of any notice of assessment or other evidence of the requirement to repay such refund received from the relevant taxing authority (provided that the Administrative Agent or such Lender may delete any information therein that the Administrative Agent or such Lender deems confidential). Notwithstanding anything to the contrary, this ~~Section 2.17(f)~~Section 2.17(f) shall not be construed to require the Administrative Agent or any Lender to make available its Tax returns (or any other information relating to Taxes which it deems confidential to any Loan Party or any other Person).
(g) The agreements in this ~~Section 2.17~~Section 2.17 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(h) For purposes of this ~~Section 2.17~~Section 2.17, the term “Lender” shall include any Issuing Bank and the Swingline Lender.
(i) In addition, if applicable, the Administrative Agent shall deliver to the Borrower (x)(I) in the case of the Administrative Agent, prior to the date on which the first payment by the Borrower is due hereunder or (II) in the case of any successor Administrative Agent appointed pursuant to Article VIII that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code, prior to the first date on or after the date on which the Administrative Agent becomes a successor Administrative Agent pursuant to Article VIII on which payment by the Borrower is due hereunder, as applicable, two copies of a properly completed and executed IRS Form W-8IMY certifying that the Administrative Agent is a U.S. branch and intends to be treated as a U.S. person for purposes of withholding under Chapter 3 of the Code pursuant to Section 1.1441-1(b)(2)(iv) or Section 1.441-1T(b)(2)(iv), as applicable, of the United States Treasury Regulations, and (y) on or before the date on which any such previously delivered documentation expires or becomes obsolete or invalid, after the occurrence of any event requiring a change in the most recent documentation previously delivered by it to the Borrower, and from time to time if reasonably requested by the Borrower, two further copies of such documentation.
-98-
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of Setoffs.
(a) The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees, or reimbursement of LC Disbursement or of amounts payable under ~~Section 2.15, 2.16 or 2.17~~Section 2.15, 2.16 or 2.17, or otherwise) prior to the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections ~~2.15, 2.16,2.17~~2.15, 2.16, 2.17 and ~~9.03~~9.03 shall be made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. 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 (other than payments on the Term Benchmark Borrowings) under any Loan Document 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. If any payment on a Term Benchmark Borrowing becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all applicable amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of applicable interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the applicable amounts of interest and fees then due to such parties, and (ii) second, towards payment of applicable principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans of a given Class or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans of such Class or participations in LC Disbursements or Swingline Loans and accrued interest thereon than the proportion received by any other Lender with outstanding Loans of the same Class or participations in LC Disbursements or Swingline Loans, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans of such Class or 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 of such Class or 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 (A) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from existence of a Defaulting Lender), (B) 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 to any assignee or participant (including a Purchasing Borrower Party) or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. 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 setoff 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. Except to the extent otherwise provided herein: (i) each Borrowing of a particular Class shall be made from the relevant Lenders, each payment of commitment fee under ~~Section 2.12~~Section 2.12 shall be made for account of the relevant Lenders, and each termination or reduction of the amount of the Commitments of a particular Class under ~~Section 2.08~~Section 2.08 shall be applied to the respective Commitments of such Class of the relevant Lenders, pro
-99-
rata according to the amounts of their respective Commitments of such Class; (ii) each Borrowing of any Class shall be allocated pro rata among the relevant Lenders according to the amounts of their respective Commitments of such Class (in the case of the making of Loans) or their respective Loans of such Class (in the case of conversions and continuations of Loans); (iii) each payment or prepayment of principal of Revolving Loans~~, Term Loans, Incremental Revolving Loans andIncremental~~ and Term Loans by the Borrower shall be made for account of the relevant Lenders pro rata in accordance with the respective unpaid principal amounts of the Loans of such Class held by them; and (iv) each payment of interest on Revolving Loans~~,~~ and Term Loans, ~~Incremental Revolving Loans and Incremental Term Loans~~by the Borrower shall be made for account of the relevant Lenders pro rata in accordance with the amounts of interest on such Loans then due and payable to the respective Lenders. Except to the extent otherwise provided herein: (i) each Borrowing of a particular Class shall be made from the relevant Lenders, each payment of commitment fee under ~~Section 2.12~~Section 2.12 shall be made for account of the relevant Lenders, and each termination or reduction of the amount of the Commitments of a particular Class under ~~Section 2.08~~Section 2.08 shall be applied to the respective Commitments of such Class of the relevant Lenders, pro rata according to the amounts of their respective Commitments of such Class; (ii) each Borrowing of any Class shall be allocated pro rata among the relevant Lenders according to the amounts of their respective Commitments of such Class (in the case of the making of Loans) or their respective Loans of such Class (in the case of conversions and continuations of Loans); (iii) each payment or prepayment of principal of Revolving Loans~~, Term Loans, Incremental Revolving Loans andIncremental~~ and Term Loans by the Borrower shall be made for account of the relevant Lenders pro rata in accordance with the respective unpaid principal amounts of the Loans of such Class held by them; and (iv) each payment of interest on Revolving Loans~~, Term Loans, Incremental Revolving Loans andIncremental~~ and Term Loans by the Borrower shall be made for account of the relevant Lenders pro rata in accordance with the amounts of interest on such Loans then due and payable to the respective Lenders.
(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 and in its sole discretion, distribute to the Lenders or the Issuing Banks, as the case may be, the amount 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 Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to ~~Section 2.04(c), Section 2.05(e), Section 2.05(f), Section 2.06(a), Section 2.06(b), Section 2.06(c), Section 2.18(d) orSection 9.03(c),~~Section 2.04(c), Section 2.05(e), Section 2.05(f), Section 2.06(a), Section 2.06(b), Section 2.06(c), Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as Cash Collateral for, and to be applied to, any future funding obligations of such Lender under any such Section.
SECTION 2.19 Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under ~~Section 2.15~~Section 2.15, 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 2.17~~Section 2.17 or any event that gives rise to the operation of ~~Section 2.23~~Section 2.23, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or its participation in any Letter of Credit affected by such event, or to assign and delegate its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of such Lender, such designation or assignment and delegation (i) would eliminate or reduce amounts payable pursuant to ~~Section 2.15 orSection 2.17~~Section 2.15 or Section 2.17 or mitigate the applicability of ~~Section 2.23~~Section 2.23, as the case may be, and (ii) and (ii) would not subject such Lender to any unreimbursed cost or expense reasonably deemed by such Lender to be material and would not be inconsistent with the internal policies of, or otherwise be disadvantageous in any material economic, legal or regulatory respect to, such Lender.
-100-
(b) If (i) any Lender requests compensation under ~~Section 2.15~~Section 2.15 or gives notice under ~~Section 2.23~~Section 2.23, (ii) the Borrower is required to pay any additional amount to any Lender or to any Governmental Authority for the account of any Lender pursuant to ~~Section 2.17~~Section 2.17, or (iii) any Lender becomes a Defaulting Lender, then the Borrower may, at its sole expense and effort, 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 contained in ~~Section 9.04~~Section 9.04), all its interests, rights and obligations under this Agreement and the other Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender or an Affiliated Lender, if a Lender accepts such assignment and delegation), provided that (A) the Borrower shall have received the prior written consent of the Administrative Agent to the extent such consent would be required under ~~Section 9.04(b)~~Section 9.04(b) for an assignment of Loans or Commitments, as applicable (and if a Revolving Commitment is being assigned and delegated, each Issuing Bank and each Swingline Lender), which consents, in each case, shall not unreasonably be withheld or delayed, (B) such Lender shall have received payment of an amount equal to the then market value of the outstanding principal of its Loans and unreimbursed participations in LC Disbursements and Swingline Loans, accrued but unpaid interest thereon, accrued but unpaid fees and all other amounts payable to it hereunder from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts), (C) the Borrower or such assignee shall have paid (unless waived) to the Administrative Agent the processing and recordation fee specified in ~~Section 9.04(b)(ii)~~Section 9.04(b)(ii) and (D) in the case of any such assignment resulting from a claim for compensation under ~~Section 2.15~~Section 2.15, payment required to be made pursuant to ~~Section 2.17~~Section 2.17 or a notice given under ~~Section 2.23~~Section 2.23, such assignment will result in a material reduction in such compensation or payments. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise (including as a result of any action taken by such Lender under paragraph (a) above), the circumstances entitling the Borrower to require such assignment and delegation cease to apply. Each party hereto agrees that an assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee and that the Lender required to make such assignment need not be a party thereto.
SECTION 2.20~~Incremental Credit Extension~~[Reserved].
~~(a) The Borrower may at any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, by notice to the Administrative Agentrequest (i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the“~~~~Incremental Term Loans~~~~”),(ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “~~~~Incremental RevolvingCommitment Increase~~~~”) or (iii) one or more additional Classes of Revolving Commitments (the “~~~~Additional/Replacement Revolving Commitments,~~~~” and, togetherwith the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “~~~~Incremental Facilities~~~~”);~~ ~~provided~~ ~~that, subject to Section 1.06, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any suchIncremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of theincurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment permitted or not prohibited by the terms of this Agreement or irrevocable repayment, repurchase or redemption of any Indebtedness,which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01 having occurred and being continuing). Notwithstanding anything to the contrary herein, the aggregate principal amount of the IncrementalFacilities (including, without duplication, the aggregate outstanding principal amount of any Incremental Equivalent Debt issued in lieu of Incremental Term Loans) shall not at the time of incurrence of any such Incremental Facilities (and aftergiving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”).~~
-101-
~~(b) EachIncremental Term Loan shall comply with the following clauses (A) through (F): (A) except with respect to the Incremental Maturity Carveout Amount, the maturity date of any Incremental Term Loans shall not be earlier than the Term B-2 LoanMaturity Date (in respect of any Incremental Term Loans under the Term B-2 Facility), the Term B-3 Loan Maturity Date (in respect of any Incremental Term Loans under the Term B-3 Facility)~~ ~~or the Term B-4 Loan Maturity Date (in respect of any Incremental Term Loans under the Term B-4 Facility) and the Weighted Average Life to Maturity of the Incremental TermLoans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term B-2 Loans (in respect of any Incremental Term Loans under the Term B-2 Facility), the Term B-3 Loans (in respect of any Incremental Term Loans under the TermB-3 Facility) or the Term B-4 Loans (in respect of any Incremental Term Loans under the Term B-4 Facility), (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (includingprepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders, (C)(i) the Incremental Term Loansshall be secured solely by the Collateral on an equal and ratable basis (or a junior basis, subject to a Second Lien Intercreditor Agreement) with the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities otherthan the Guarantors and (D) any Incremental Term Loan that has terms and conditions consistent with the Term Loans in the reasonable determination of the Borrower shall be on terms and pursuant to documentation to be determined by the Borrowerand the applicable Additional Lenders; provided, that to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory tothe Administrative Agent (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders tothe extent that such financial maintenance covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date).~~
~~(c) The Incremental Revolving Commitment Increase shall betreated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, ifrequired to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similarfees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)).~~
~~(d) The Additional/Replacement Revolving Commitments(i) shall rank equal in right of payment with the Revolving Loans, shall be secured only by the Collateral securing the Secured Obligations and shall only be guaranteed by only the Loan Parties, (ii) shall not mature, require scheduledamortization payments or require mandatory reduction of the such Additional/Replacement Revolving Commitments, in each case, earlier than the latest Revolving Maturity Date, (iii) subject to clause (v) below, shall have interest rates(including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determinedby the Borrower and the lenders of such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the Borrower and the lenders of such commitments and (v) may otherwise have terms andconditions different from those of the Revolving Credit Facility; provided that (x) except with respect to matters contemplated by clauses (i), (ii) (iii) and (iv) above, any differences shall be reasonably satisfactory to theAdministrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financialmaintenance covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant for the benefit of each facility (~~~~provided~~~~,~~ ~~further~~~~,~~ ~~however~~~~, that, (x) if the applicable new financial maintenancecovenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall beautomatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)) and (y) to the extent that any financial maintenance covenant is added forthe benefit of any Additional/Replacement Revolving Commitments and is only applicable after the Latest Maturity Date, no such financial maintenance covenant shall be required to be added to this Agreement.~~
-102-
~~(e) Eachnotice from the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Term Loans, Incremental Revolving Commitment Increases or Additional/Replacement Revolving Commitments.~~
~~(f)Commitments in respect of Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided byan existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “~~~~Incremental Facility Amendment~~~~”) to this Agreement and, asappropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), ifany, each Additional Lender, if any, the Administrative Agent and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank and the Swingline Lender. Incremental Term Loans and loans under Incremental Revolving CommitmentIncreases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may without the consent of any other Lenders, effect suchamendments to this Agreement and the other Loan Documents as may be necessary, appropriate or advisable (including changing the amortization schedule of existing Term Loans in a manner required to make the Incremental Term Loans fungible with suchTerm Loans), in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure ona pro rata basis among the relevant Revolving Lenders). The Borrower may use the proceeds of the Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose permitted or notprohibited by this Agreement.~~
~~(g) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to thecontrary.~~
~~(h) The Borrower may elect to have used amounts under clause (b) of the definition of “Incremental Cap”, if any prior to utilization of clause (a) of thedefinition of “Incremental Cap” and the Borrower may elect to have used amounts under clause (c) of the definition of “Incremental Cap” prior to utilization of clauses (a) or (b) of the definition of“Incremental Cap”.~~
SECTION 2.21 Refinancing Amendments.
(a) At any time after the Effective Date, the Borrower may obtain, from any Lender or any Additional Lender, Credit Agreement Refinancing Indebtedness in respect of (a) all or any portion of any Class of Term Loans then outstanding under this Agreement (which for purposes of this clause (a) will be deemed to include any then outstanding Other Term Loans) or (b) all or any portion of the Revolving Loans (or unused Revolving Commitments) under this Agreement (which for purposes of this clause (b) will be deemed to include any then outstanding Other Revolving Loans and Other Revolving Commitments), in the form of (x) Other Term Loans or Other Term Commitments or (y) Other Revolving Loans or Other Revolving Commitments, as the case may be, in each case pursuant to a Refinancing Amendment; provided that the Net Proceeds of such Credit Agreement Refinancing Indebtedness shall be applied, substantially concurrently with the incurrence thereof, to the prepayment of outstanding Term Loans or reduction of Revolving Commitments being so refinanced, as the case may be; provided further that the terms and conditions applicable to such Credit Agreement Refinancing Indebtedness may provide for any additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders thereof ~~and applicable only during periods after the Latest Maturity Date that is in effect on the date such Credit AgreementRefinancing Indebtedness is issued, incurred or obtained~~. Each Class of Credit Agreement Refinancing Indebtedness incurred under this ~~Section 2.21~~Section 2.21 shall be in an aggregate principal amount that is ~~(x)~~not less than $10,000,000 in the case of Other Term Loans or $10,000,000 in the case of Other Revolving Loans ~~and(y) an integral multiple of $1,000,000 in excess thereof~~ (in each case unless the Borrower and the Administrative Agent otherwise agree). Any Refinancing Amendment may provide for the issuance of Letters of Credit for the account of the Borrower, or the provision to the Borrower of Swingline Loans, pursuant to any Other Revolving Commitments established thereby, in each case on terms
-103-
substantially equivalent to the terms applicable to Letters of Credit and Swingline Loans under the Revolving Commitments and reasonably satisfactory to the Issuing Banks and the Swingline Lender. ~~The Administrative Agent shall promptly notify each applicable Lender as to the effectiveness of each Refinancing Amendment.~~ Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Loans and Commitments subject thereto as Other Term Loans, Other Revolving Loans, Other Revolving Commitments and/or Other Term Commitments). Any Refinancing Amendment 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 reasonable opinion of the Administrative Agent (acting at the Direction of the Required Lenders) and the Borrower, to effect the provisions of this Section. In addition, if so provided in the relevant Refinancing Amendment and with the consent of each Issuing Bank, participations in Letters of Credit expiring on or after the latest Revolving Maturity Date shall be reallocated from Lenders holding Revolving Commitments to Lenders holding extended revolving commitments in accordance with the terms of such Refinancing Amendment; provided, however, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Revolving Commitments, be deemed to be participation interests in respect of such Revolving Commitments and the terms of such participation interests (including, without limitation, the commission applicable thereto) shall be adjusted accordingly.
(b) Notwithstanding anything to the contrary, this ~~Section 2.21~~Section 2.21 shall supersede any provisions in ~~Section 2.18 orSection 9.02~~Section 2.18 or Section 9.02 to the contrary.
SECTION 2.22 Defaulting Lenders.
(a) General. Notwithstanding anything to the contrary contained in this Agreement (except as set forth in ~~Section 9.17~~Section 9.17), if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(i) Waivers and Amendments. 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 ~~Section 9.02~~Section 9.02.
(ii) Reallocation of Payments. Subject to the last sentence of ~~Section 2.11(e)~~Section 2.11(e), any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to ~~Section 9.08~~Section 9.08), shall be applied at such time or times as may be determined by the Administrative Agent (acting at the Direction of the Required Lenders) as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, in the case of a Revolving Lender, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to each Issuing Bank and the Swingline Lender hereunder; third, 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 that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; fifth, in the case of a Revolving Lender, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; 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, such Issuing Bank or the Swingline Lender against that Defaulting Lender as a result of that 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 any Loan Party as a result of any judgment of a court of competent jurisdiction obtained by any Loan Party against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction.
-104-
(iii) Certain Fees. That Defaulting Lender (x) shall not be entitled to receive or accrue any commitment fee pursuant to ~~Section 2.12(a)~~Section 2.12(a) 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) and (y) shall be limited in its right to receive Letter of Credit fees as provided in ~~Section 2.12(b)~~Section 2.12(b).
(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure. During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Swingline Loans and Letters of Credit pursuant to ~~Section 2.04 andSection 2.05~~Section 2.04 and Section 2.05, the “Applicable Percentage” of each non-Defaulting Lender shall be computed without giving effect to the Revolving Commitment of that Defaulting Lender; provided that the aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit and Swingline Loans shall not exceed the positive difference, if any, of (1) the Revolving Commitment of that non-Defaulting Lender minus (2) the aggregate principal amount of the Revolving Loans of that non-Defaulting Lender.
(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, the Swingline Lender and each Issuing Bank agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be 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, such Lender will, to the extent applicable, purchase 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 on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to ~~Section 2.22(a)(iv)~~Section 2.22(a)(iv)), whereupon that 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.
SECTION 2.23 Illegality. If any Lender determines that any law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender to make, maintain or fund Loans whose interest is determined by reference to the Adjusted Term SOFR Rate, or to determine or charge interest rates based upon the Adjusted Term SOFR Rate, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such Lender to make or continue Term Benchmark Loans or to convert ABR Loans to Term Benchmark Loans, as applicable, shall be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Borrower shall, upon three Business Days’ notice from such Lender (with a copy to the Administrative Agent), in the case of Term Benchmark Loans, prepay or, if applicable, convert all Term Benchmark Loans of such Lender to ABR Loans either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Term Benchmark Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Term Benchmark Loans, and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Adjusted Term SOFR Rate, the Administrative Agent shall, during the period of such suspension, compute the Alternate Base Rate applicable to such Lender without reference to the Adjusted Term SOFR Rate, as applicable, component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Adjusted Term SOFR Rate, as applicable. Each Lender agrees to notify the Administrative Agent and the Borrower in writing promptly upon becoming aware that it is no longer illegal for such Lender to determine or charge interest rates based upon the Adjusted Term SOFR Rate, as applicable. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
-105-
SECTION 2.24 Loan Modification Offers.
(a) At any time after the Effective Date, the Borrower may on one or more occasions, by written notice to the Administrative Agent, make one or more offers (each, a “Loan Modification Offer”) to all the Lenders of one or more Classes (each Class subject to such a Loan Modification Offer, an “Affected Class”) to effect one or more Permitted Amendments relating to such Affected Class pursuant to procedures reasonably specified by the Administrative Agent (acting at the Direction of the Required Lenders) and reasonably acceptable to the Borrower (including mechanics to permit conversions, cashless rollovers and exchanges by Lenders and other repayments and reborrowings of Loans of Accepting Lenders or Non-Accepting Lenders replaced in accordance with this ~~Section 2.24~~Section 2.24). Such notice shall set forth (i) the terms and conditions of the requested Permitted Amendment and (ii) the date on which such Permitted Amendment is requested to become effective. Permitted Amendments shall become effective only with respect to the Loans and Commitments of the Lenders of the Affected Class that accept the applicable Loan Modification Offer (such Lenders, the “Accepting Lenders”) and, in the case of any Accepting Lender, only with respect to such Lender’s Loans and Commitments of such Affected Class as to which such Lender’s acceptance has been made.
(b) A Permitted Amendment shall be effected pursuant to a Loan Modification Agreement executed and delivered by Parent, the Borrower, each applicable Accepting Lender and the Administrative Agent; provided that no Permitted Amendment shall become effective unless Parent and the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall be reasonably requested by the Administrative Agent (acting at the Direction of the Required Lenders) in connection therewith. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each Loan Modification Agreement may, without the consent of any Lender other than the applicable Accepting 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 (acting at the Direction of the Required Lenders), to give effect to the provisions of this ~~Section 2.24~~Section 2.24, including any amendments necessary to treat the applicable Loans and/or Commitments of the Accepting Lenders as a new “Class” of loans and/or commitments hereunder.
(c) If, in connection with any proposed Loan Modification Offer, any Lender declines to consent to such Loan Modification Offer on the terms and by the deadline set forth in such Loan Modification Offer (each such Lender, a “Non-Accepting Lender”) then the Borrower may, on notice to the Administrative Agent and the Non-Accepting Lender, replace such Non-Accepting Lender in whole or in part by causing such Lender to (and such Lender shall be obligated to) assign and delegate, without recourse (in accordance with and subject to the restrictions contained in ~~Section 9.04~~Section 9.04) all or any part of its interests, rights and obligations under this Agreement in respect of the Loans and Commitments of the Affected Class to one or more Eligible Assignees (which Eligible Assignee may be another Lender, if a Lender accepts such assignment); provided that neither the Administrative Agent nor any Lender shall have any obligation to the Borrower to find a replacement Lender; provided, further, that (a) the applicable assignee shall have agreed to provide Loans and/or Commitments on the terms set forth in the applicable Permitted Amendment, (b) such Non-Accepting Lender shall have received payment of an amount equal to the outstanding principal of the Loans of the Affected Class assigned by it pursuant to this ~~Section 2.24(c)~~Section 2.24(c), accrued interest thereon, accrued fees and all other amounts payable to it hereunder from the Eligible Assignee (to the extent of such outstanding principal and accrued interest and fees) and (c) unless waived, the Borrower or such Eligible Assignee shall have paid to the Administrative Agent the processing and recordation fee specified in ~~Section 9.04(b)~~Section 9.04(b).
(d) No rollover, conversion or exchange (or other repayment or termination) of Loans or Commitments pursuant to any Loan Modification Agreement in accordance with this ~~Section 2.24~~Section 2.24 shall constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement.
(e) Notwithstanding anything to the contrary, this ~~Section 2.24~~Section 2.24 shall supersede any provisions in ~~Section 2.18 or Section 9.02~~Section 2.18 or Section 9.02 to the contrary.
ARTICLE III
NO REPRESENTATIONS AND WARRANTIES
There are no representations and warranties binding on Parent, the Borrower, or any of its Subsidiaries pursuant to this Agreement or the other Loan Documents.
-106-
~~Each ofParent (as to Sections 3.01, 3.02, 3.03, 3.07, 3.08 and 3.16 only), the Borrower and the Subsidiary Loan Parties party hereto represents and warrants to the Lenders as of the Effective Date that:~~
~~SECTION 3.01~~ ~~Organization; Powers~~~~. Each of Parent, the Borrower and eachRestricted Subsidiary is (a) duly organized, validly existing and in good standing (to the extent such concept exists in the relevant jurisdictions) under the laws of the jurisdiction of its organization, (b) has the corporate or otherorganizational power and authority to carry on its business as now conducted and to execute, deliver and perform its obligations under each Loan Document to which it is a party and (c) is qualified to do business in, and is in good standing in,every jurisdiction where such qualification is required, except in the case of clause (a) (other than with respect to any Loan Party), clause (b) (other than with respect to Parent and the Borrower) and clause (c), where the failure to doso, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.~~
~~SECTION 3.02~~ ~~Authorization;Enforceability~~~~. This Agreement has been duly authorized, executed and delivered by each of Parent and the Borrower and constitutes, and each otherLoan Document to which any Loan Party is to be a party, when executed and delivered by such Loan Party, will constitute, a legal, valid and binding obligation of Parent, the Borrower or such Loan Party, as the case may be, enforceable against it inaccordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in aproceeding in equity or at law.~~
~~SECTION 3.03~~ ~~Governmental Approvals; NoConflicts~~~~. The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, anyGovernmental Authority, except (i) such as have been obtained or made and are in full force and effect and except filings necessary to perfect Liens created under the Loan Documents, (ii) the reporting and/or disclosure of certain LoanDocuments as required by Sections 73.3526 and 73.3613 of the FCC’s rules and (iii) the approval by the FCC of the acquisition of any Broadcast License, (b) will not violate (i) the Organizational Documents of Parent, the Borroweror any other Loan Party, or (ii)any Requirements of Law applicable to Parent, the Borrower or any of its Restricted Subsidiaries, (c) will not violate or result in a default under any indenture or other agreement or instrument binding uponParent, the Borrower or any other Restricted Subsidiary or their respective assets, or give rise to a right thereunder to require any payment, repurchase or redemption to be made by Parent, the Borrower or any of its Restricted Subsidiaries, or giverise to a right of, or result in, termination, cancellation or acceleration of any obligation thereunder, and (d) will not result in the creation or imposition of any Lien on any asset of Parent, the Borrower or any of its RestrictedSubsidiaries, except Liens created under the Loan Documents, except (in the case of each of clauses (a), (b)(ii) and (c)) to the extent that the failure to obtain or make such consent, approval, registration, filing or action, or such violation,default or right as the case may be, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.~~
~~SECTION 3.04~~ ~~~~ ~~Financial Condition; No Material Adverse Effect~~~~.~~
~~(a) TheBorrower has heretofore furnished to the Lenders its consolidated balance sheets and statements of income, stockholders’ equity and cash flows as of and for the fiscal year ended December 31, 2018, reported on by Pricewaterhouse CoopersLLP, independent public accountants. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower and its Subsidiaries as of such respective dates and for suchrespective fiscal years on a consolidated basis in accordance with GAAP.~~
~~(b) Parent has heretofore furnished to the Lenders itsconsolidated balance sheets and statements of income, stockholders’ equity and cash flows as of and for the fiscal year ended December 31, 2018, reported on by Pricewaterhouse Coopers LLP, independent public accountants. Such financialstatements present fairly, in all material respects, the financial position and results of operations and cash flows of Parent and its Subsidiaries as of such respective dates and for such respective fiscal years on a consolidated basis inaccordance with GAAP.~~
~~(c) Since December 31, 2018, there has been no material adverse change in the business, assets, operations, prospects or condition, financial or otherwise, of theBorrower and its Subsidiaries, taken as a whole.~~
-107-
~~SECTION3.05~~ ~~Properties~~ ~~. Each of the Borrower andeach Restricted Subsidiary has good title to, or valid leasehold interests in, all its personal property material to its business, if any, (i) free and clear of all Liens except for Liens permitted by Section 6.02 and (ii) except forminor defects in title that do not interfere with its ability to conduct its business as currently conducted or as proposed to be conducted or to utilize such properties for their~~ ~~intended purposes, in each case, except as could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.~~
~~SECTION 3.06~~ ~~Litigation and Environmental Matters~~~~.~~
~~(a) There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower, threatened inwriting against or affecting the Borrower or any of its Restricted Subsidiaries that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.~~
~~(b) Except with respect to any other mattersthat, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, none of the Borrower or any of its Restricted Subsidiaries (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, to the knowledge of the Borrower, become subject to any Environmental Liability, (iii) has received written notice of any claimwith respect to any Environmental Liability or (iv) has, to the knowledge of the Borrower, any basis to reasonably expect that the Borrower or any of its Restricted Subsidiaries will become subject to any EnvironmentalLiability.~~
~~SECTION 3.07~~ ~~Compliance with Laws and Agreements~~ ~~. Each of Parent,the Borrower and each Restricted Subsidiary is in compliance with (a) its Organizational Documents, (b) all Requirements of Law applicable to it or its property and (c) all indentures and other agreements and instruments binding uponit or its property, except, in the case of clauses (b) and (c) of this Section, where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.~~
~~SECTION 3.08~~ ~~Investment Company Status~~~~. None of Parent, the Borrower or any other Loan Party is an “investment company” as defined in, or subject to regulation under, theInvestment Company Act of 1940, as amended from time to time.~~
~~SECTION 3.09~~ ~~Taxes~~ ~~. Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Borrower and each Restricted Subsidiary(a) have timely filed or caused to be filed all Tax returns required to have been filed and (b) have paid or caused to be paid all Taxes required to have been paid (whether or not shown on a Tax return) including in their capacity as taxwithholding agents, except any Taxes (i) that are not overdue by more than 30 days or (ii) that are being contested in good faith by appropriate proceedings, provided that the Borrower or such Restricted Subsidiary, as the case may be, hasset aside on its books adequate reserves therefor in accordance with GAAP.~~
~~SECTION 3.10~~ ~~ERISA~~ ~~.~~
~~(a) Except as could not, individually or in the aggregate,reasonably be expected to result in a Material Adverse Effect, each Plan is in compliance with the applicable provisions of ERISA, the Code and other federal or state laws.~~
~~(b) Except as could not, individually or in the aggregate,reasonably be expected to result in a Material Adverse Effect, (i) no ERISA Event has occurred during the five year period prior to the date on which this representation is made or deemed made or is reasonably expected to occur, (ii) noPlan has failed to satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, whether or not waived, (iii) neither any Loan Party nor any ERISA Affiliate hasincurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Plan (other than premiums due and not delinquent under Section 4007 of ERISA), (iv) neither any Loan Party nor any ERISA Affiliate hasincurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to aMultiemployer Plan and (v) neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that could reasonably be subject to Section 4069 or 4212(c) of ERISA.~~
-108-
~~SECTION 3.11~~ ~~Disclosure~~ ~~. As ofthe Effective Date, neither (i) the Information Memorandum nor (ii) any of the other reports, financial statements, certificates or other written information furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender inconnection with the negotiation of any Loan Document or delivered thereunder (as modified or supplemented by other information so furnished) when taken as a whole contains any material misstatement of fact or omits to state any material factnecessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading,~~~~provided~~ ~~that, with respect to projectedfinancial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed by them to be reasonable at the time delivered and, if such projected financial information was delivered prior tothe Effective Date, only as of the Effective Date, it being understood that any such projected financial information may vary from actual results and such variations could be material. As of the Effective Date, to the knowledge of the Borrower, theinformation included in the Beneficial Ownership Certification provided on or prior to the Effective Date to any Lender in connection with this Agreement is true and correct in all respects.~~
~~SECTION 3.12~~ ~~Subsidiaries~~ ~~. Asof the Effective Date,~~ ~~Schedule 3.12~~ ~~sets forth the name of, and the ownership interest of the Borrower and each Subsidiary of the Borrower in, each Subsidiary.~~
~~SECTION 3.13~~ ~~Intellectual Property; Licenses, Etc.~~ ~~Each of the Borrower and each Restricted Subsidiary owns, licenses or possesses the right to use, all of the rights to Intellectual Property that are reasonably necessaryfor the operation of its business as currently conducted, and, without conflict with the rights of any Person, except to the extent such conflicts, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.The Borrower or any of its Restricted Subsidiaries do not, in the operation of their businesses as currently conducted, infringe upon any Intellectual Property rights held by any Person except for such infringements, individually or in theaggregate, which could not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any of the Intellectual Property owned by the Borrower or any of its Restricted Subsidiaries is pending or, to the knowledge of theBorrower, threatened in writing against the Borrower or any of its Restricted Subsidiaries, which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.~~
~~SECTION3.14~~ ~~Solvency~~ ~~. On the Effective Date, immediately after the consummation of the Transactions to occur on the Effective Date, the Borrower and its Subsidiaries are, on a consolidatedbasis after giving effect to the Transactions, Solvent.~~
~~SECTION 3.15~~ ~~Senior Indebtedness~~ ~~. The Loan Document Obligationsconstitute “Senior Indebtedness” (or any comparable term) under and as defined in the documentation governing any Junior Financing.~~
~~SECTION 3.16~~ ~~Federal Reserve Regulations~~ ~~. None of Parent, the Borrower or anyof its Restricted Subsidiaries is engaged or will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U of the Board of Governors), or extending creditfor the purpose of purchasing or carrying margin stock. No part of the proceeds of the Loans will be used, directly or indirectly, to purchase or carry any margin stock or to refinance any Indebtedness originally incurred for such purpose, or forany other purpose that entails a violation (including on the part of any Lender) of the provisions of Regulations U or X of the Board of Governors.~~
~~SECTION 3.17~~ ~~Use of Proceeds~~ ~~. The Borrower will use the proceeds of(a) the Term B-2 Loans made on the Effective Date to make the Effective Date Dividend to finance the Transactions and pay Transaction Costs and (b) the Revolving Loans and Swingline Loans on the Effective Date (if any) to pay a portion ofthe Transaction Costs (directly or indirectly, via a portion of the Effective Date Dividend or otherwise) and after the Effective Date for working capital, general corporate purposes or any other purpose permitted or not prohibited by thisAgreement.~~
~~SECTION 3.18~~ ~~PATRIOT Act, OFAC and FCPA~~ ~~.~~
~~(a) The Borrower will not, directly or indirectly, use theproceeds of the transaction, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, for the purpose of funding (i) any activities of or business with any Person, or in any countryor territory, that, at the time of such funding, is the subject of Sanctions, or (ii) any other transaction that will result in a violation by any Person~~~~(including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.~~
-109-
~~(b) TheBorrower and its Restricted Subsidiaries will not use the proceeds of the Loans directly, or, to the knowledge of the Borrower, indirectly, for any payments to any governmental official or employee, political party, official of a political party,candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended (the~~~~“FCPA~~~~”).~~
~~(c) To theknowledge of the Borrower, none of the Borrower or the Restricted Subsidiaries has, in the past three years, committed a violation of applicable regulations of the United States Department of the Treasury’s Office of Foreign Assets Control(“~~~~OFAC~~~~”), Title III of the USAPatriot Act or the FCPA in any material respect.~~
~~(d) None of Parent, the Borrower, the Restricted Subsidiaries, or, to the knowledge of the Borrower, no director, officer, employee or agent thereof is an individual orentity currently on OFAC’s list of Specially Designated Nationals and Blocked Persons, nor is the Borrower or any of its Restricted Subsidiaries located, organized or resident in a country or territory that is the subject ofSanctions.~~
~~SECTION 3.19~~ ~~BroadcastLicenses.~~ ~~Schedule 3.19~~ ~~accurately and completely lists, as of the Effective Date, all Broadcast Licenses issued by the FCC for each Owned Station granted or assigned to the Borrower or itsSubsidiaries, and the Borrower or its Subsidiaries have the right to operate each such Owned Station. The Broadcast Licenses listed in Schedule 3.19 with respect to any Owned Station include all material authorizations, licenses and permits issuedby the FCC that are required or necessary for the operation of such Owned Station, and the conduct of the business of the Borrower and its Subsidiaries with respect to such Owned Station, as now conducted or proposed to be conducted. The BroadcastLicenses listed in Schedule 3.19 are issued in the name of the respective License Subsidiary for the Owned Station being operated under authority of such Broadcast Licenses and are on the Effective Date validly issued and in full force and effect,and the Borrower and its Subsidiaries have fulfilled and performed in all material respects all of their obligations with respect thereto and have full power and authority to operatethereunder.~~
~~SECTION 3.20~~ ~~Plan Assets~~~~. None of the Loan Parties or Subsidiaries is an entity deemed to hold “plan assets” within the meaning of the Plan Asset Regulations.~~
ARTICLE IV
CONDITIONS
SECTION 4.01 Effective Date . The obligations of the Lenders to make Loans and each Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions shall be satisfied (or waived in accordance with ~~Section 9.02~~Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a written opinion (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of ~~(i)~~Pillsbury Winthrop Shaw Pittman LLP, special New York counsel for the Loan Parties, ~~(ii)~~Thomas & Libowitz, P.A., special Maryland counsel for the Loan Parties, ~~(iii)~~Kolesar & Leatham, Chtd., special Nevada counsel for the Loan Parties and ~~(iv)~~ Stoel Rives LLP, special Washington counsel for the Loan Parties. The Borrower hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Effective Date, substantially in the form of Exhibit G with appropriate insertions, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section or, if applicable, certify that no changes have been made since the date of the last delivery of a certificate of a Responsible Officer.
-110-
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) resolutions of the Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of Loan Documents to which it is a party, certified as of the Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received all fees and other amounts previously agreed in writing by the Joint Bookrunners and the Borrower to be due and payable on or prior to the Effective Date, including, to the extent invoiced at least three Business Days prior to the Effective Date (except as otherwise reasonably agreed by the Borrower), reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document.
(f) The Collateral and Guarantee Requirement shall have been satisfied; provided that if, notwithstanding the use by the Borrower of commercially reasonable efforts to cause the Collateral and Guarantee Requirement to be satisfied on the Effective Date, the requirements thereof (other than (a) the execution and delivery of the Guarantee Agreement and the Collateral Agreement by the Loan Parties, (b) creation of and perfection of security interests in the certificated Equity Interests of (i) the Borrower and Material Subsidiaries (other than Foreign Subsidiaries) of the Borrower; and (c) delivery of Uniform Commercial Code financing statements with respect to perfection of security interests in other assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code) are not satisfied as of the Effective Date, the satisfaction of such requirements shall not be a condition to the availability of the initial Loans on the Effective Date (but shall be required to be satisfied as promptly as practicable after the Effective Date and in any event within the period specified therefor in Schedule 5.14 or such later date as the Administrative Agent (acting at the Direction of the Required Lenders) may reasonably agree).
(g) The Specified Representations (as such term was defined in this Agreement prior to giving effect to the Seventh Amendment hereto) shall be true and correct in all material respects on and as of the Effective Date (except to the extent such representations are subject to a materiality qualifier, in which case such representations shall be true and correct in all respects).
(h) The Acquisition shall have been consummated, or substantially simultaneously with the initial funding of Loans on the Effective Date, shall be consummated, in all material respects in accordance with the Acquisition Agreement (without giving effect to any amendments, supplements, waivers or other modifications to or of the Acquisition Agreement that are materially adverse to the interests of the Lenders or the Joint Bookrunners in their capacities as such, except to the extent that the Joint Bookrunners have consented thereto).
(i) The Equity Financing shall have been made, or substantially simultaneously with the initial Borrowings under the Term B-2 Facilities shall be made.
(j) The Administrative Agent shall have received a certificate from the chief financial officer (or another senior Responsible Officer with similar responsibilities) of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are Solvent.
-111-
(k) The Administrative Agent and the Joint Bookrunners shall have received all documentation at least three Business Days prior to the Effective Date and other information about the Loan Parties that shall have been reasonably requested in writing at least 10 Business Days prior to the Effective Date and that the Administrative Agent or the Joint Bookrunners have reasonably determined is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation Title III of the USA Patriot Act. If the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered to the Administrative Agent, at least 3 Business Days prior to the Effective Date, a Beneficial Ownership Certification to the extent requested by the Administrative Agent at least 10 Business Days prior to the Effective Date.
SECTION 4.02 Each Credit Event . The obligation of (i) each Lender to make a Loan on the occasion of any Borrowing and (ii) of each Issuing Bank to issue, amend, renew or extend any Letter of Credit, in each case other than on the Effective Date or in connection with any ~~Incremental Facility,~~ Loan Modification Offer or Permitted Amendment, is subject to receipt of the request therefor in accordance herewith and to the satisfaction of the following conditions:
~~(a) The representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects on and as of the date of suchBorrowing, the date of issuance, amendment, renewal or extension of such Letter of Credit or the date of such extension, as the case may be (in each case, unless such date is the Effective Date);~~ ~~provided~~ ~~that, to the extent that such representations andwarranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date;~~~~provided~~ ~~~~ ~~further~~ ~~that any representation and warranty that is qualified as to“materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on the date of such credit extension or on such earlier date, as the case may be.~~
(a) [Reserved].
(b) At the time of and immediately after giving effect to such Borrowing, the issuance, amendment, renewal or extension of such Letter of Credit or such extension, as the case may be (unless such Borrowing is on the Effective Date), no Default or Event of Default shall have occurred and be continuing or would result therefrom.
(c) To the extent this ~~Section 4.02~~Section 4.02 is applicable, each Borrowing (provided that a conversion or a continuation of a Borrowing shall not constitute a “Borrowing” for purposes of this Section) and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in ~~clauses(a) and~~clause (b) of this Section.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Termination Date shall have occurred, each of Parent and Borrower covenants and agrees with the Lenders that:
SECTION 5.01 Financial Statements and Other Information.
Parent or the Borrower will furnish to the Administrative Agent, on behalf of each Lender:
(a) beginning with the fiscal year ending December 31, 2019, on or before the date that is 120 days after the end of each such fiscal year of the Borrower, audited consolidated balance sheets, statements of operations and statements of cash flows of ~~the Borrower and the Guarantors, presented inaccordance with Rule 3-10 of Regulation S-X promulgated by the SEC (as in effect from time totime)~~Parent as of the end of and for such fiscal year, and related notes thereto, setting forth in each case in comparative form the figures for the previous fiscal year (or in the case of the balance sheet, as of the end of such previous fiscal year), all reported on by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing ~~(without a~~
-112-
~~“going concern” or like qualification or exception and without any qualification or exception as to thescope of such audit (other than any exception or explanatory paragraph, but not a qualification, that is expressly solely with respect to, or expressly resulting solely from, (A) an upcoming maturity date of any Indebtedness occurring withinone year from the time such opinion is delivered or (B) any potential inability to satisfy a financial maintenance covenant on a future date or in a future period))~~ to the effect that such consolidated financial statements present fairly in all material respects the financial position and results of operations and cash flows of ~~the Borrowerand its Subsidiaries (excluding non-Guarantor Subsidiaries), or~~ Parent and its Subsidiaries, as the case may be, as of the end of and for such year on a consolidated basis in accordance with GAAP consistently applied; ~~provided~~~~,however~~~~, that in the event the financial statements of Parent are no longer required by Rule 3-10 of Regulation S-X to include the consolidatedbalance sheets, statements of operations and statements of cash flows of the Borrower and the Guarantors, then so long as a Guarantee Release Date has not occurred (or, if a Guarantee Release Date has occurred, so long as the obligations of Parentunder the Guarantee Agreement have been reinstated pursuant to Section 9.14 and are in effect), the Borrower’s and Parent’s obligations under this Section 5.01(a) shall be deemed satisfied solely by Parent’s filing of itsfinancial statements with the U.S. Securities and Exchange Commission in compliance with the requirements of the Exchange Act and the rules and regulations promulgated thereunder as in effect from time to time;~~
(b) commencing with the financial statements for the fiscal quarter ending September 30, 2019 with respect to each of the first three fiscal quarters of each fiscal year of ~~the Borrower~~Parent on or before the date that is 60 days after the end of each such fiscal quarter, consolidated balance sheets, statements of operations and statements of cash flows of ~~the Borrower and the Guarantors, presented in accordancewith Rule 3-10 of Regulation S-X promulgated by the SEC (as in effect from time totime)~~Parent as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer as presenting fairly in all material respects the financial position and results of operations and cash flows of ~~the Borrowerand the Subsidiaries (excluding non-Guarantor Subsidiaries), or~~ Parent and its Subsidiaries~~, as thecase may be,~~ as of the end of and for such fiscal quarter (except in the case of cash flows) and such portion of the fiscal year on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; ~~provided~~~~,~~ ~~however~~~~, that in the event the financial statements of Parent are no longer required by Rule 3-10 of Regulation S-X to include the consolidated balance sheets, statements ofoperations and statements of cash flows of the Borrower and the Guarantors, then so long as a Guarantee Release Date has not occurred (or, if a Guarantee Release Date has occurred, so long as the obligations of Parent under the Guarantee Agreementhave been reinstated pursuant to Section 9.14 and are in effect), the Borrower’s and Parent’s obligations under this Section 5.01(b) shall be deemed satisfied solely by Parent’s filing of its financial statements with theU.S. Securities and Exchange Commission in compliance with the requirements of the Exchange Act and the rules and regulations promulgated thereunder as in effect from time to time;~~
(c) [reserved]; and
(d) not later than five Business Days after any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto and (ii) setting forth the First Lien Leverage Ratio as of the most recently ended Test Period;
Any Parent Entity (including Sinclair) may satisfy the obligations of Parent in paragraphs (a) and (b) of this Section 5.01 by providing the requisite financial and other information of such Parent Entity instead of Parent; provided that to the extent such Parent Entity either (i) holds assets (other than its direct or indirect interest in Parent and its Subsidiaries) that exceeds 1.0% of the total assets of such Parent Entity and its Subsidiaries or (ii) has revenue (other than revenue from its direct or indirect interest in Parent and its Subsidiaries) that exceeds 1.0% of the total revenue for the preceding fiscal year of such Parent Entity and its Subsidiaries, then such information related to such Parent Entity shall be accompanied by consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information of such Parent Entity, on the one hand, and the information relating to Parent and its Subsidiaries on a stand-alone basis, on the other hand.
-113-
~~(e) notlater than 120 days after the commencement of each fiscal year of the Borrower, a detailed forecast for the Borrower and its Subsidiaries for the next following fiscal year setting forth anticipated income, expense and capital expenditure items foreach quarter during such fiscal year in form substantially similar to forecasts historically provided by Parent or other Affiliates of the Borrower (in the good faith judgment of the Borrower); provided that if the Ratings Condition is satisfied atsuch time, the Borrower shall only be required to deliver a consolidated statement of operations pursuant to this Section 5.01(e);~~
~~(f) promptly after the same become publicly available,copies of all periodic and other reports, proxy statements and registration statements (other than amendments to any registration statement (to the extent such registration statement, in the form it became effective, is delivered to theAdministrative Agent), exhibits to any registration statement and, if applicable, any registration statement on Form S-8) filed by Parent, the Borrower or any Subsidiary with the SEC or with any national securities exchange;~~
~~(g)promptly upon the same become publicly available, copies of any and all periodic or special reports filed by Parent, the Borrower or any of the Borrower’s Subsidiaries with the FCC or with any other Federal, state or local GovernmentalAuthority, if such reports indicate any material adverse change in the business, operations, affairs or condition of the Borrower or any of its Subsidiaries or if copies thereof are requested by any Lender or the Administrative Agent, and copies ofany and all material notices and other material communications from the FCC or from any other Federal, state or local Governmental Authority with respect to the Borrower, any of its Subsidiaries or any Station;~~
~~(h)promptly following any request therefor, (i) such other information regarding the operations, business affairs and financial condition of the Borrower or any Restricted Subsidiary, or compliance with the terms of any Loan Document specified insuch request, as the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in writing and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes ofcompliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation; and~~
~~(i) during each fiscal quarter, the Borrower willparticipate in a conference call with the Administrative Agent and the Lenders, during which the financial condition of the Borrower and its Subsidiaries shall be discussed; provided that this obligation may be satisfied by a Parent Entity of theBorrower holding a public investor call during any such fiscal quarter.~~
~~Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 5.01 may be satisfied with respect to financial information of theBorrower and its Subsidiaries by furnishing (A) the Form 10-K or 10-Q (or the equivalent), as applicable, of the Borrower (or a Parent Entity thereof) filed with the SEC or with a similar regulatory authority in a foreign jurisdiction or(B) the applicable financial statements of the Borrower (or any Parent Entity);~~ ~~provided~~ ~~that to the extent such information relates to a Parent Entity that exceeds the lesser of (i) 1.0% of the Consolidated Total Assets of such Parent Entity and itsRestricted Subsidiaries and (ii) 1.0% of the total revenue for the preceding year of such Parent Entity and its Restricted Subsidiaries, then such information relating to such Parent Entity shall be accompanied by consolidating information,which may be unaudited, that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Borrower and its Subsidiaries on a stand-alone basis, on the other hand,and to the extent such information is in lieu of information required to be provided under Section 5.01(a), such materials are accompanied by a report and opinion of PricewaterhouseCoopers LLP or any other independent registered publicaccounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception orany qualification or exception as to the scope of such audit (other than any exception or explanatory paragraph, but not a qualification, that is expressly solely with respect to, or expressly resulting solely from, (i) an upcoming maturitydate of any Indebtedness occurring within one year from the time such opinion is delivered or (ii) any potential inability to satisfy a financial maintenance covenant on a future date or in a future period); provided, further, that clauses(a) and (b) of this Section 5.01 shall in any event be deemed satisfied so long as the financial statements of Parent filed with the SEC for the corresponding period comply in all material respect with Regulation S-X, as in effectfrom time to time.~~
-114-
(e) Documents required to be delivered pursuant to ~~Se~~~~ction 5.01(a), (b),(f)~~Section 5.01(a) or (~~g~~b) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the earlier of the date (A) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s website on the Internet or (B) on which such documents are posted on the Borrower’s behalf on ~~IntraLinks/IntraAgency~~Debtdomain or another website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver such documents to the Administrative Agent upon its reasonable request until a written notice to cease delivering such documents is given by the Administrative Agent and (ii) the Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and upon its reasonable request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or maintain paper copies of the documents referred to above, and each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. The Borrower will be deemed to have furnished the documents required to be delivered pursuant to Section 5.01(a) and (b) if Parent, the Borrower or any of the Borrower’s Subsidiaries, as applicable, has filed reports containing such information (or any such information of a Parent Entity in accordance with the immediately preceding paragraph) with the SEC.
~~The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Bookrunners will make available to the Lenders materials and/or information providedby or on behalf of the Borrower hereunder (collectively, “~~~~Borrower Materials~~~~”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “~~~~Platform~~~~”) and (b) certain of the Lenders (each, a“~~~~Public Lender~~~~”) may have personnelwho do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect tosuch Persons’ securities. The Borrower hereby agrees that it will, upon the Administrative Agent’s reasonable request, identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (i) all suchBorrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (ii) by marking Borrower Materials“PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Joint Bookrunners and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitiveand proprietary) with respect to the Borrower or their respective securities for purposes of United States federal and state securities laws(~~~~provided~~~~,~~ ~~however~~~~, that to the extent such Borrower Materials constituteInformation, they shall be treated as set forth in Section 9.12); (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”;and (iv) the Administrative Agent and the Joint Bookrunners shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “PublicSide Information.” Other than as set forth in the immediately preceding sentence, the Borrower shall be under no obligation to mark the Borrower Materials “PUBLIC.”~~
~~SECTION 5.02~~ ~~Notices of Material Events~~ ~~. Promptly after any Responsible Officerof Parent or the Borrower obtains actual knowledge thereof, Parent or the Borrower will furnish to the Administrative Agent (for distribution to each Lender through the Administrative Agent) written notice of the following:~~
~~(a) theoccurrence of any Default; and~~
~~(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or, to the knowledge of a Financial Officer oranother executive officer of Parent, the Borrower or any of its Subsidiaries, affecting the Borrower or any of its Subsidiaries or the receipt of a written notice of an Environmental Liability or the occurrence of an ERISA Event, in each case, thatcould reasonably be expected to result in a Material Adverse Effect; and~~
-115-
~~(c) anychange in the information provided in the Beneficial Ownership Certification delivered to the Administrative Agent that would result in a change to the list of beneficial owners identified in such certification.~~ ~~Each notice delivered under this Section shall be accompanied by a written statement of a Responsible Officer of theBorrower 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 5.03~~ ~~~~ ~~Information Regarding Collateral~~~~.~~
~~(a) Parent or the Borrower will furnish to theAdministrative Agent promptly (and in any event within 60 days or such longer period as reasonably agreed to by the Collateral Agent) written notice of any change (i) in any Loan Party’s legal name (as set forth in its certificate oforganization or like document) or (ii) in the jurisdiction of incorporation or organization of any Loan Party or in the form of its organization.~~
~~(b) Not later than five Business Days after delivery offinancial statements pursuant to Section 5.01(a), the Borrower shall deliver to the Administrative Agent a certificate executed by a Responsible Officer of the Borrower (i) setting forth the information required pursuant to Schedules Ithrough IV of the Collateral Agreement or confirming that there has been no change in such information since the Effective Date or the date of the most recent certificate delivered pursuant to this Section, (ii) identifying any wholly-ownedSubsidiary that has become, or ceased to be, a Material Subsidiary during the most recently ended fiscal quarter (unless such Subsidiary was and remains a Loan Party) and (iii) certifying that all notices required to be given prior to the dateof such certificate by this Section 5.03 and Section 5.12 have been given.~~
~~SECTION 5.04~~ ~~Existence; Conduct of Business~~~~. Each ofParent and the Borrower will, and will cause each Restricted Subsidiary to, do or cause to be done all things necessary to obtain, preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges,and franchises, and Intellectual Property material to the conduct of its business, in each case (other than the preservation of the existence of Parent and the Borrower) to the extent that the failure to do so could reasonably be expected to have aMaterial Adverse Effect, provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03 or any Disposition permitted by Section 6.05.~~
~~SECTION 5.05~~ ~~Payment of Taxes, Etc~~~~.~~ ~~Each of Parent and the Borrower will, and will cause each RestrictedSubsidiary to, pay its obligations in respect of Taxes before the same shall become delinquent or in default, unless the same are being contested in good faith by appropriate proceedings diligently conducted with adequate reserves in accordance withGAAP being maintained, except where the failure to make payment could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.~~
~~SECTION 5.06~~ ~~Maintenance of Properties~~~~. Each of Parent andthe Borrower will, and will cause each Restricted Subsidiary to, keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted, except where the failure to do so could notreasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.~~
~~SECTION 5.07~~ ~~Insurance~~~~. Each of Parent and the Borrower (a) will, and willcause each Restricted Subsidiary to, maintain, with insurance companies that Parent and the Borrower believe (in the good faith judgment of the management of Parent and the Borrower) are financially sound and responsible at the time the relevantcoverage is placed or renewed, insurance in at least such amounts (after giving effect to any self-insurance which Parent and the Borrower believe (in the good faith judgment of management of Parent and the Borrower) is reasonable and prudent inlight of the size and nature of its business) and against at least such risks (and with such risk retentions) as Parent and the Borrower believe (in the good faith judgment of the management of Parent and the Borrower) are reasonable and prudent inlight of the size and nature of its business; and (b) and will furnish to the Lenders, upon written request from the Administrative Agent, information presented in reasonable detail as to the insurance so carried. Each such policy of insurancemaintained by a Loan Party shall (i) name the Collateral Agent, on behalf of the Secured Parties, as an additional insured thereunder as its interests may appear and (ii) in the case of each casualty insurance policy, contain a losspayable clause or endorsement that names Collateral Agent, on behalf of the Secured Parties as the loss payee thereunder.~~
~~SECTION 5.08~~ ~~Books and Records; Inspection and AuditRights~~~~. Each of Parent and the Borrower will, and will cause each Restricted Subsidiary to, maintain proper books of record and account in whichentries that are full, true and correct in all material respects and are in conformity with GAAP (or applicable local standards)~~
-116-
~~consistently applied shall be made of all material financial transactions and matters involving the assets andbusiness of Parent, the Borrower or the Restricted Subsidiaries, as the case may be. Each of Parent and the Borrower will, and will cause the Restricted Subsidiaries to, permit any representatives designated by the Administrative Agent or anyLender, upon reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at suchreasonable times and as often as reasonably requested;~~ ~~provided~~ ~~that, excluding any such visits and inspections during the continuation of an Event of Default, only the Administrative Agent (acting jointly) on behalf of the Lenders mayexercise visitation and inspection rights of the Administrative Agent and the Lenders under this Section 5.08 and the Administrative Agent shall not exercise such rights more often than one time during any calendar year absent the existence ofan Event of Default, which visitation and inspection shall be at the reasonable expense of the Administrative Agent; provided, further that (a) when an Event of Default exists, the Administrative Agent or any Lender (or any of their respectiverepresentatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and upon reasonable advance notice and (b) the Administrative Agent and the Lenders shall giveParent and the Borrower the opportunity to participate in any discussions with Parent’s independent public accountants.~~
~~SECTION 5.09~~ ~~Compliance with Laws~~ ~~. Each of Parent and the Borrower will, andwill cause each Restricted Subsidiary to, comply with its Organizational Documents and all Requirements of Law with respect to it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expectedto result in a Material Adverse Effect.~~
~~SECTION 5.10~~ ~~Use of Proceeds and Letters of Credit~~ ~~. The Borrower will use thenet proceeds of the Term Loans and any Revolving Loans drawn on the Effective Date, together with the Equity Financing, the net proceeds of the RSN Notes, the borrowings under the RSN Credit Agreement and cash on hand to, directly or indirectlyfinance a portion of the Transactions;~~ ~~provided~~ ~~that the Revolving Loans shall be available to the Borrower on the Effective Date in an amount necessary to fund working capital and general corporate purposes, originalissue discount or upfront fees required to be paid on the Effective Date and any Transactions Costs. The Borrower and its subsidiaries will use the proceeds of the Revolving Loans and Swingline Loans drawn after the Effective Date and Letters ofCredit for (i) any for working capital, general corporate purposes or any other purpose permitted or not prohibited by this Agreement (including Permitted Acquisitions and any other purpose permitted or not prohibited by this Agreement) and(ii) any Credit Agreement Refinancing Indebtedness, applied among the Loans and any Incremental Term Loans in accordance with the terms of this Agreement. The proceeds of the Incremental Term Loans will be used for working capital and generalcorporate purposes (including Permitted Acquisitions and any other purpose permitted or not prohibited by this Agreement).~~
~~SECTION 5.11~~ ~~Additional Subsidiaries~~ ~~. If any additional Restricted Subsidiaryis formed or acquired after the Effective Date (including, without limitation, upon the formation of any Subsidiary that is a Delaware Divided LLC and is not otherwise an Excluded Subsidiary), Parent or the Borrower will, within 90 days after suchnewly formed or acquired Restricted Subsidiary is formed or acquired (unless such Restricted Subsidiary is an Excluded Subsidiary), notify the Collateral Agent thereof, and all actions (if any) required to be taken with respect to such newly formedor acquired Restricted Subsidiary in order to satisfy the Collateral and Guarantee Requirement shall have been taken with respect to such Restricted Subsidiary and with respect to any Equity Interest in or Indebtedness of such Restricted Subsidiaryowned by or on behalf of any Loan Party within 90 days after such notice (or such longer period as the Collateral Agent shall reasonably agree).~~
SECTION 5.02 ~~SECTION 5.12~~ Further Assurances. ~~.~~
~~(a)~~ (a) Each of Parent and the Borrower will, and will cause each Loan Party to, execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements and other documents), that may be required under any applicable law and that the Collateral Agent (acting at the Direction of the Required Lenders) or the Required Lenders may reasonably request, to cause the Collateral and Guarantee Requirement (subject to the last paragraph of the definition of the term “Collateral and Guarantee Requirement”) to be and remain satisfied, all at the expense of the Loan Parties.
-117-
~~(b)~~(b) If, after the Effective Date, any material assets (excluding any owned or leased real property or improvements thereto or any interest therein) are acquired by the Borrower or any other Loan Party or are held by any Subsidiary on or after the time it becomes a Loan Party pursuant to ~~Section5.11~~Section 5.11 (other than assets constituting Collateral under a Security Document that become subject to the Lien created by such Security Document upon acquisition thereof or constituting Excluded Assets), the Borrower will (subject to the terms and conditions of the last paragraph of the definition of the term “Collateral and Guarantee Requirement” and of the Security Documents) notify the Collateral Agent thereof, and, if requested by the Collateral Agent (acting at the Direction of the Required Lenders), the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take and cause the other Loan Parties to take, such actions as shall be necessary and reasonably requested by the Collateral Agent (acting at the Direction of the Required Lenders) and consistent with the Collateral and Guarantee Requirement to grant and perfect such Liens, including actions described in paragraph (a) of this Section, all at the expense of the Loan Parties and subject to last paragraph of the definition of the term “Collateral and Guarantee Requirement.”
~~SECTION 5.13~~ ~~Ratings~~ ~~. Each of Parent and the Borrower will use commerciallyreasonable efforts to cause (a) the Borrower to continuously have a corporate rating from each of S&P and Moody’s (but not to maintain any specific rating) and (b) the Term B-3 Loans and Term B-4 Loans to be continuously rated byeach of S&P and Moody’s (but not to maintain a specific rating).~~
~~SECTION 5.14~~ ~~Certain Post-Closing Obligations~~ ~~. As promptly as practicable, and in any event within the time periods after the Effective Date specified in~~ ~~Schedule 5.14~~ ~~orsuch later date as the Collateral Agent reasonably agrees to in writing, including to reasonably accommodate circumstances unforeseen on the Effective Date, Parent, the Borrower and each other Loan Party shall deliver the documents or take theactions specified on~~ ~~Schedule 5.14~~ ~~that would have been required to be delivered or taken on the Effective Date but for the proviso to Section 4.01(f), in each case except to the extent otherwise agreedby the Collateral Agent pursuant to its authority as set forth in the definition of the term “Collateral and Guarantee Requirement”.~~
SECTION 5.03 ~~SECTION 5.15~~ Designation of Subsidiaries ~~.~~
~~(a)~~ . Parent may at any time after the Effective Date designate any Restricted Subsidiary (other than the Borrower) as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary or any Subsidiary as a Designated SBG Subsidiary; provided that, immediately before and after such designation on a Pro Forma Basis as of the end of the most recent Test Period, no Event of Default under clauses (a), (b), (h) or (i) of Section 7.01 shall have occurred and be continuing. ~~The designation of any Subsidiary as an Unrestricted Subsidiary or the removal of any Designated SBGSubsidiary as a Subsidiary after the Effective Date shall constitute an Investment by Parent or its applicable Subsidiary therein at the date of designation in an amount equal to the Fair Market Value of Parent’s or its Subsidiary’s (asapplicable) investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (i) the incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing atsuch time and (ii) a return on any Investment by such Person in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the Fair Market Value at the date of such designation of such Person or its Subsidiary’s (asapplicable) Investment in such Subsidiary.~~
~~(b) Each Designated SBG Subsidiary (unless constituting an Excluded Subsidiary) shall become a “Subsidiary Loan Party” hereunder and all actions required to betaken with respect to such Designated SBG Subsidiary in order to satisfy the Collateral and Guarantee Requirement shall have been taken with respect to such Designated SBG Subsidiary. Notwithstanding the foregoing, any Designated SBG Subsidiaryshall not be required to become a “Subsidiary Loan Party” hereunder or a “Grantor” under the Security Documents, so long as the following requirements are satisfied: (i) (A) such Subsidiary is not liable, directly orindirectly, with respect to any Indebtedness other than Non-Recourse Indebtedness and has not guaranteed or otherwise provided credit support at the time of such designation for any Indebtedness of the Borrower or any of its Subsidiaries (other thanthe Subsidiaries of such Subsidiary) and (B) such Subsidiary is directly owned by Parent or a wholly owned subsidiary thereof which is a Guarantor hereunder and the Capital Stock of such Subsidiary has been pledged in favor of the CollateralAgent pursuant to the Collateral Agreement or (ii) at the time of acquisition of such Subsidiary by Parent, satisfaction of the Collateral and Guarantee Requirement would violate any provision of applicable law or any agreement to which suchSubsidiary is a party, provided that if at any time thereafter such Subsidiary (or any of its Subsidiaries) shall cease to be subject to the prohibitions referred to in this clause (ii), Parent will take such action, and will cause each of itsSubsidiaries to take such action, promptly to ensure that such Subsidiary (and/or the~~
-118-
~~relevant Subsidiary or Subsidiaries of such Subsidiary) become “Subsidiary Loan Parties” hereunder andpromptly to satisfy the Collateral and Guarantee Requirement with respect thereto (and the Administrative Agent is hereby authorized, without further approval of the Lenders, to enter into such supplements to the Guarantee and to the CollateralAgreement or any joinder or other agreement relating thereto as shall be necessary to give effect to the foregoing).~~
~~SECTION 5.16~~ ~~Change in Business~~ ~~. Parent, the Borrower and its Restricted Subsidiaries, taken as a whole, will not fundamentally and substantively alter the character of their business, taken as a whole,from the business conducted by them on the Effective Date and other business activities which are extensions, development or expansion thereof or otherwise incidental, complementary, reasonably related or ancillary to any of the foregoing(including, without limitation, any such extension, development or expansion into any Similar Business).~~
~~SECTION 5.17~~ ~~Changes in Fiscal Perio~~ds ~~. The Borrower shall not make any change in its fiscal year; provided, however, that the Borrower may, upon writtennotice to the Administrative Agent, change its fiscal year to any other fiscal year reasonably acceptable to the Administrative Agent, in which case, the Borrower and the Administrative Agent will, and are hereby authorized by the Lenders to, makeany adjustments to this Agreement that are necessary to reflect such change in fiscal year.~~
~~SECTION 5.18~~ ~~Plan Assets~~ ~~. No Loan Party or Subsidiary will be an entity deemedto hold “plan assets” within the meaning of the Plan Asset Regulations.~~
ARTICLE VI
NO NEGATIVE COVENANTS
There are no negative covenants binding on Parent, the Borrower or their Subsidiaries pursuant to this Agreement or the other Loan Documents. Any reference herein or in any other Loan Document to a transaction (including the granting of any Lien, the consummation of any asset sale, mergers or consolidation, the entering into of any lease, the consummation of any asset disposition, the incurrence of any Indebtedness, the entering into of any amendments of or the obtaining of any waivers in respect of organizational documents, the granting of any negative pledges, the implantation of any changes in line of business, or agreeing to be bound by any financial covenant) being “permitted hereunder”, permitted by this Article VI or permitted by a specific section or clause of this Article VI shall be deemed to be permitted without restriction.
~~Until the Termination Date shall have occurred, each ofParent (solely with respect to each of the Designated SBG Subsidiaries and in the case of Section 6.07) and the Borrower covenants and agrees with the Lenders that:~~
~~SECTION 6.01~~ ~~Indebtedness; Certain Equity Securities~~ ~~.~~
~~(a) The Borrower will not, and will not permit any of itsRestricted Subsidiaries to, create, incur, assume or permit to exist any Indebtedness or to issue any shares of Disqualified Equity Interests or Preferred Stock, except:~~
~~(i) Indebtedness under the Loan Documents(including any Indebtedness incurred pursuant to Section 2.20, 2.21 or 2.24);~~
~~(ii) Indebtedness, Disqualified EquityInterests and Preferred Stock (A) in existence on, and in an amount not to exceed the amount outstanding on the Effective Date and listed on~~~~Schedule 6.01~~ ~~and any PermittedRefinancing thereof, (B) that is intercompany Indebtedness outstanding on the Effective Date and any refinancing thereof in a principal amount that does not exceed the principal amount (or accreted value, if applicable) of the intercompanyIndebtedness so refinanced, and (C) consisting of the Existing Senior Unsecured Notes and any Permitted Refinancing thereof;~~
-119-
~~(iii) Guarantees in respect of Indebtednessotherwise permitted hereunder; provided that (A) such Guarantee is otherwisepermitted by Section 6.04, (B) no Guarantee by any Restricted Subsidiary of any Junior Financing shall be permitted unless such Restricted Subsidiary shall have also provided a Guarantee of the Loan Document Obligations pursuant to theGuarantee Agreement and (C) if the Indebtedness being Guaranteed is subordinated to the Loan Document Obligations, such Guarantee shall be subordinated to the Guarantee of the Loan Document Obligations on terms at least as favorable to theLenders as those contained in the subordination of such Indebtedness;~~
~~(iv) Indebtedness, Disqualified EquityInterests and Preferred Stock owing to any other Restricted Subsidiary, the Borrower or Parent to the extent permitted by Section 6.04; provided that all such Indebtedness of Borrower or its Restricted Subsidiary owing to any Restricted Subsidiary that is not a Loan Party shall be subordinated to the Loan DocumentObligations (but only to the extent permitted by applicable law and not giving rise to material adverse Tax consequences) on terms (A) at least as favorable to the Lenders as those set forth in the form of intercompany note attached as Exhibit H or (B) otherwise reasonably satisfactory to theAdministrative Agent;~~
~~(v) (A) Indebtedness (including Financing Lease Obligations), Disqualified Equity Interests and preferred Stock of the Borrower or any of its Restricted Subsidiariesfinancing the acquisition, construction, expansion, construction, development, maintenance, upgrade, installation, repair, replacement or improvement of fixed or capital assets (whether through the direct purchase of property or any Person owningsuch property (real or personal)); provided that such Indebtedness is incurredconcurrently with or within 12 months after the applicable acquisition, construction, expansion, construction, development, maintenance, upgrade, installation, repair, replacement or improvement, and (B) any Permitted Refinancing of anyIndebtedness set forth in the immediately preceding subclause (A); provided further that, at the time of any such incurrence of Indebtedness and after giving Pro Forma Effect thereto and the use of the proceeds thereof, the aggregate principal amount ofIndebtedness that is outstanding in reliance on this clause (v) shall not exceed the greater of $180,000,000 and 19.3% of Consolidated EBITDA for the most recently ended Test Period as of such time;~~
~~(vi) Indebtedness in respect of SwapAgreements (other than Swap Agreement entered into for speculative purposes);~~
~~(vii) (A) Indebtedness, DisqualifiedEquity Interests and Preferred Stock of any Person that becomes a Restricted Subsidiary (or of any Person not previously a Restricted Subsidiary that is merged or consolidated with or into the Borrower or a Restricted Subsidiary) after the EffectiveDate as a result of a Permitted Acquisition or any Investment permitted by or not prohibited by this Agreement, or Indebtedness, Disqualified Equity Interests or Preferred Stock of any Person that is assumed by the Borrower or any of its RestrictedSubsidiaries in connection with an acquisition of assets by the Borrower or such Restricted Subsidiary in a Permitted Acquisition; provided that such Indebtedness, Disqualified Equity Interests or Preferred Stock is not incurred in contemplation of such Permitted Acquisition; provided further that, after giving Pro Forma Effect to the assumption of suchIndebtedness, Disqualified Equity Interests or Preferred Stock and such Permitted Acquisition, either (1) if such Indebtedness, Disqualified Equity Interests or Preferred Stock is secured by the Collateral on a pari passu basis with the Lienssecuring the Term Loans, the First Lien Leverage Ratio is equal to or less than (i) 4.25:1.00 or (ii) the First Lien Leverage Ratio immediately prior to the incurrence of such Indebtedness, Disqualified Equity Interests or Preferred Stockand consummation of such Permitted Acquisition or Investment for the most recently ended Test Period of such time, (2) if such Indebtedness, Disqualified Equity Interests or Preferred Stock is secured by the Collateral on a junior Lien basiswith the Liens securing the Term Loans, the Secured Leverage Ratio is equal to or less than (i) 5.50:1.00 or (ii) the Secured Leverage Ratio immediately prior to the incurrence of such Indebtedness, Disqualified Equity Interests orPreferred Stock and consummation of such Permitted Acquisition or Investment for the most recently ended Test Period of such time, or (3) if such Indebtedness, Disqualified Equity Interests or Preferred Stock is unsecured either (a) theTotal Leverage Ratio is equal to or less than (i) 7.50:1.00 for the most recent Test Period then ended or (ii) the Total Leverage Ratio immediately prior to the incurrence of such Indebtedness, Disqualified Equity Interests or PreferredStock and consummation of such Permitted Acquisition for the most recently ended Test Period of such time or (b) the Interest Coverage Ratio is greater than or equal to either (i) 2.00:1.00 for~~ ~~the most recent Test Period then ended or (ii) the Interest Coverage Ratio immediately prior to the incurrence of such Indebtedness, Disqualified Equity Interests orPreferred Stock and such Permitted~~
-120-
~~Acquisition or Investment for the most recently ended Test Period as of such time and (B) any PermittedRefinancing of Indebtedness, Disqualified Equity Interests and Preferred Stock incurred pursuant to the foregoing subclause (A); provided, further, that the aggregate principal amount of Indebtedness, Disqualified Equity Interests or Preferred Stock of which the primary obligor or a guarantor is a RestrictedSubsidiary that is not a Loan Party outstanding in reliance on this clause (vii), together with amounts incurred and outstanding pursuant to the final provisos of clauses (xix) and (xxvi) below, shall not exceed, at the time of incurrencethereof and after giving Pro Forma Effect thereto, the greater of $115,000,000 and 12.5% of Consolidated EBITDA for the most recently ended Test Period as of such time;~~
~~(viii) Indebtedness in respect of PermittedReceivables Financings;~~
~~(ix) Indebtedness representing deferred compensation or stock-based compensation to directors, to employees, consultants or independent contractors of any Parent Entity, theBorrower and its Restricted Subsidiaries incurred in the ordinary course of business or consistent with industry or past practice;~~
~~(x) Indebtedness consisting of unsecuredpromissory notes issued by the Borrower or any of its Restricted Subsidiaries to current or former officers, directors, employees, consultants or independent contractors or their respective estates, spouses or former spouses to finance the purchaseor redemption of Equity Interests in the Borrower (or any direct or indirect parent thereof) permitted by Section 6.08(a);~~
~~(xi) Indebtedness constitutingindemnification obligations or obligations in respect of purchase price or other similar adjustments (including earnout or similar obligations) incurred in connection with the Transactions or any Permitted Acquisition, any other Investment or anyDisposition, in each case permitted under this Agreement;~~
~~(xii) Indebtedness consisting of obligationsunder deferred compensation or other similar arrangements incurred in connection with the Transactions or any Permitted Acquisition or other Investment permitted hereunder;~~
~~(xiii) Cash Management Obligations and otherIndebtedness in respect of netting services, overdraft protections and similar arrangements and Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds,(including Indebtedness owed on a short term basis of no longer than 30 days to banks and other financial institutions incurred in the ordinary course of business of the Borrower and its Restricted Subsidiaries with such banks or financialinstitutions that arises in connection with ordinary banking arrangements to manage cash balances of the Borrower and its Restricted Subsidiaries);~~
~~(xiv) Indebtedness of the Borrower and theSubsidiary Loan Parties; provided that at the time of the incurrence thereof and aftergiving Pro Forma Effect thereto, the aggregate principal amount of Indebtedness outstanding in reliance on this clause (xiv) shall not exceed the greater of $350,000,000 and 38.7% of Consolidated EBITDA for the most recently ended Test Periodas of such time;~~
~~(xv) Indebtedness consisting of (A) the financing of insurance premiums or (B) take-or-pay obligations contained in supply arrangements, in each case in theordinary course of business;~~
~~(xvi) (A) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances orsimilar instruments issued or created, or related to obligations or liabilities incurred, in the ordinary course of business or consistent with industry or past practice, including in respect of workers compensation claims, health, disability orother employee benefits or property, casualty or liability insurance or self-insurance or other reimbursement-type obligations regarding workers compensation claims and (B) Indebtedness of the Borrower or any of its Restricted Subsidiaries asan account party in respect of letters of credit, bank guarantees or similar instruments in favor of suppliers, customers or other creditors issued in the ordinary course of business or consistent with~~ ~~industry or past practice; provided that the aggregate principal amount of Indebtedness outstanding in reliance on this clause (B) shall not exceed, at the time ofincurrence thereof and after giving Pro Forma Effect thereto, the greater of $90,000,000 and 10.0% of Consolidated EBITDA for the most recently ended Test Period as of such time;~~
-121-
~~(xvii) obligations in respect ofself-insurance and obligations in respect of stays, customs, performance, indemnity, bid, appeal, judgment, surety and other similar bonds or instruments and performance, bankers’ acceptance facilities and completion guarantees and similarobligations provided by the Borrower or any of its Restricted Subsidiaries or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business or consistent withindustry or past practice;~~
~~(xviii) [reserved];~~
~~(xix) (A) Indebtedness, DisqualifiedEquity Interests or Preferred Stock of the Borrower or any of its Restricted Subsidiaries; provided that, after giving Pro Forma Effect to the incurrence of such Indebtedness, Disqualified Equity Interests or Preferred Stock and, if applicable, such Permitted Acquisition or otherInvestment permitted or not prohibited hereunder, (1) if such Indebtedness, Disqualified Equity Interests or Preferred Stock is secured by the Collateral on a pari passu basis with the Liens securing the Term Loans, the First Lien LeverageRatio is equal to or less than (i) 4.25:1.00 or (ii) in the case of any such amount being applied to finance a Permitted Acquisition or other Investment permitted or not prohibited hereunder, either 4.25:1.00 or the First Lien LeverageRatio immediately prior to the incurrence of such Indebtedness, Disqualified Equity Interests or Preferred Stock and consummation of such Permitted Acquisition or other Investment for the most recently ended Test Period of such time, (2) ifsuch Indebtedness, Disqualified Equity Interests or Preferred Stock is secured by the Collateral on a junior Lien basis with the Liens securing the Term Loans, the Secured Leverage Ratio is equal to or less than (i) 5.50:1.00 or (ii) inthe case of any such amount being applied to finance a Permitted Acquisition or other Investment permitted or not prohibited hereunder, either 5.50:1.00 or the Secured Leverage Ratio immediately prior to the incurrence of such Indebtedness,Disqualified Equity Interests or Preferred Stock and consummation of such Permitted Acquisition or other Investment for the most recently ended Test Period of such time, or (3) if such Indebtedness, Disqualified Equity Interests or PreferredStock is unsecured either (a) the Total Leverage Ratio is equal to or less than (i) 7.50:1.00 for the most recent Test Period then ended or (ii) in the case of any such amount being applied to finance a Permitted Acquisition or otherInvestment permitted or not prohibited hereunder, either 7.50:1.00 or the Total Leverage Ratio immediately prior to the incurrence of such Indebtedness, Disqualified Equity Interests or Preferred Stock and consummation of such Permitted Acquisitionor other Investment for the most recently ended Test Period of such time or (b) the Interest Coverage Ratio is to be greater than or equal to either (i) 2.00:1.00 for the most recent Test Period then ended or (ii) in the case of anysuch amount being applied to finance a Permitted Acquisition or other Investment permitted or not prohibited hereunder, either 2.00:1.00 for the most recent Test Period then ended or the Interest Coverage Ratio immediately prior to the incurrence ofsuch Indebtedness, Disqualified Equity Interests or Preferred Stock and such Permitted Acquisition or other Investment for the most recently ended Test Period as of such time and (B) any Permitted Refinancing of Indebtedness, DisqualifiedEquity Interests or Preferred Stock incurred pursuant to the foregoing subclause (A); provided, further, that the aggregate principal amount of Indebtedness of which the primary obligor or a guarantor is a Restricted Subsidiary that is not a Loan Party outstanding in reliance on thisclause (xix), together with amounts incurred and outstanding pursuant to the final provisos of clause (vii) above and clause (xxvi) below, shall not exceed, at the time of incurrence thereof and after giving Pro Forma Effect thereto, thegreater of $115,000,000 and 12.50% of Consolidated EBITDA for the most recently ended Test Period as of such time;~~
~~(xx) Indebtedness supported by a letter ofcredit issued pursuant to this Agreement or any other letter of credit, bank guarantee or similar instrument permitted by this Section 6.01(a), in a principal amount not to exceed the face amount of such letter of credit, bank guarantee or suchother instrument;~~
~~(xxi) Permitted Unsecured Refinancing Debt and any Permitted Refinancing thereof;~~
~~(xxii) Permitted First Priority RefinancingDebt and Permitted Second Priority Refinancing Debt, and any Permitted Refinancing thereof;~~
-122-
~~(xxiii) (A) Indebtedness of the Borroweror any Subsidiary Loan Party issued in lieu of Incremental Term Loans consisting of (i) secured or unsecured bonds, notes or debentures (which bonds, notes or debentures, if secured, may be secured either by Liens having equal priority with theLiens on the Collateral securing the Secured Obligations (but without regard to control of remedies) or by Liens having a junior priority relative to the Liens on the Collateral securing the Secured Obligations) or (ii) secured (which must besecured by Liens having equal priority with the Liens on the Collateral securing the Secured Obligations (but without regard to control of remedies) or by Liens having a junior priority relative to the Liens on the Collateral securing the SecuredObligations) or unsecured loans; provided that (i) the aggregate outstandingprincipal amount of all such Indebtedness issued pursuant to this clause shall not exceed at the time of incurrence thereof (x) the Incremental Cap less (y) the amount of all Incremental Facilities, (ii) such Indebtedness complieswith the Required Additional Debt Terms and (iii) the condition set forth in the proviso in Section 2.20(a) shall have been complied with as if such Indebtedness was an Incremental Facility and (B) any Permitted Refinancing ofIndebtedness incurred pursuant to the foregoing clause (A);~~
~~(xxiv) additional Indebtedness, DisqualifiedEquity Interests and Preferred Stock in an aggregate principal amount or liquidation preference, measured at the time of incurrence and after giving Pro Forma Effect thereto and the use of the proceeds thereof, not to exceed 150.0% of the aggregateamount or liquidation preference of direct or indirect equity investments in cash or Permitted Investments in the form of common Equity Interests or Qualified Equity Interests (excluding, for the avoidance of doubt, any Cure Amounts) received by theBorrower or any Parent Entity (to the extent contributed to the Borrower in the form of common Equity Interests or Qualified Equity Interests) to the extent not included within the Available Equity Amount or applied to increase any other baskethereunder;~~
~~(xxv) Indebtedness, Disqualified Equity Interests or Preferred Stock of any Restricted Subsidiary that is not a Loan Party; provided that the aggregate principal amount of Indebtedness, Disqualified Equity Interestsor Preferred Stock of which the primary obligor or a guarantor is a Restricted Subsidiary that is not a Loan Party outstanding in reliance on this clause (xxv) shall not exceed, at the time of incurrence thereof and after giving Pro FormaEffect thereto, the greater of $250,000,000 and 27.0% of Consolidated EBITDA for the most recently ended Test Period as of such time;~~
~~(xxvi) (A) Indebtedness incurred tofinance a Permitted Acquisition; provided that, after giving Pro Forma Effect to theincurrence of such Indebtedness and such Permitted Acquisition, either (1) if such Indebtedness is secured by the Collateral on a pari passu basis with the Liens securing the Term Loans, the First Lien Leverage Ratio is equal to or less than(i) 4.25:1.00 or (ii) the First Lien Leverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition for the most recently ended Test Period of such time, (2) if such Indebtednessis secured by the Collateral on a junior Lien basis with the Liens securing the Term Loans, the Secured Leverage Ratio is equal to or less than (i) 5.50:1.00 or (ii) the Secured Leverage Ratio immediately prior to the incurrence of suchIndebtedness and consummation of such Permitted Acquisition for the most recently ended Test Period of such time, or (3) if such Indebtedness is unsecured either (a) the Total Leverage Ratio is equal to or less than (i) 7.50:1.00 forthe most recent Test Period then ended or (ii) the Total Leverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition for the most recently ended Test Period of such time or (b) theInterest Coverage Ratio is greater than or equal to either (i) 2.00:1.00 for the most recent Test Period then ended or (ii) the Interest Coverage Ratio immediately prior to the incurrence of such Indebtedness and such Permitted Acquisitionfor the most recently ended Test Period as of such time and (B) any Permitted Refinancing of Indebtedness incurred pursuant to the foregoing subclause (A);provided, further, that the aggregate principal amount of Indebtedness of which theprimary obligor or a guarantor is a Restricted Subsidiary that is not a Loan Party outstanding in reliance on this clause (xxvi), together with amounts incurred and outstanding pursuant to the final provisos of clauses (vii) and(xix) above, shall not exceed at the time of incurrence thereof and after giving Pro Forma Effect thereto, the greater of $115,000,000 and 12.5% of Consolidated EBITDA for the most recently ended Test Period as of such time;~~
~~(xxvii) Indebtedness in the form of FinancingLease Obligations arising out of any Sale Leaseback and any Permitted Refinancing thereof;~~
-123-
~~(xxviii) Indebtedness of Foreign Subsidiariesof the Borrower and any Permitted Refinancing thereof; provided that the aggregateprincipal amount of such Indebtedness, shall not, at the time of incurrence of Indebtedness under this clause (xxviii), exceed 10.0% of the total assets of the Foreign Subsidiaries on a consolidated basis (in each case, determined on the date ofsuch incurrence);~~
~~(xxix) Indebtedness, Disqualified Equity Interests or Preferred Stock of the Borrower or any of its Restricted Subsidiaries incurred to finance or assumed in connection withan acquisition or Investment in an aggregate amount outstanding under this clause (xxix) not to exceed, at the time of incurrence of such Indebtedness or issuance of Disqualified Equity Interests or Preferred Stock, the greater of $160,000,000and 17.5% of Consolidated EBITDA for the most recently ended Test Period as of such time;~~
~~(xxx) shares of Preferred Stock orDisqualified Equity Interests of a Restricted Subsidiary issued to the Borrower or another Restricted Subsidiary; provided that if any such Restricted Subsidiary ceases to be a Restricted Subsidiary or any such Preferred Stock or Disqualified Equity Interests is not held by the Borrower or anotherRestricted Subsidiary thereupon then the outstanding amount of such capital stock shall no longer be permitted by this clause (xxx);~~
~~(xxxi) any guarantee or co-issuance by theBorrower or any of its Restricted Subsidiaries of Indebtedness or other obligations of the Borrower or any of its Restricted Subsidiaries if the incurrence of such Indebtedness incurred by the Borrower or such Restricted Subsidiary is permitted ornot prohibited by this Agreement;~~
~~(xxxii) Subordinated Film Indebtedness of the Borrower and its Subsidiaries in an aggregate principal amount not to exceed the greater of $50,000,000 and 5.4% ofConsolidated EBITDA for the most recently ended Test Period as of such time; and~~
~~(xxxiii) all premiums (if any), interest(including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (i) through (xxxii) above.~~
~~(b) [reserved].~~
~~Forpurposes of determining compliance with this Section 6.01, in the event that an item of Indebtedness, Disqualified Equity Interests or Preferred Stock meets the criteria of more than one of the categories of Indebtedness, Disqualified EquityInterests or Preferred Stock described in clauses (a)(i) through (a)(xxxiii) above or from clauses (a) through (c) of the definition of Incremental Cap, the Borrower shall, in its sole discretion, classify and reclassify or later divide,classify or reclassify such item of Indebtedness, Disqualified Equity Interests or Preferred Stock (or any portion thereof) and will only be required to include the amount and type of such Indebtedness, Disqualified Equity Interests or PreferredStock in one or more of the above clauses; provided that all Indebtedness outstandingunder the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a)(i). In the event that a portion of Indebtedness or other obligations could be classified as incurred under a “ratio-based” basketunder this Section 6.01 or under clause (c) of the definition of Incremental Cap (giving pro forma effect to the incurrence of such portion of such Indebtedness or other obligations), the Borrower, in its sole discretion, may classify suchportion of such Indebtedness (and any obligations in respect thereof) as having been incurred pursuant to such “ratio-based” basket and thereafter the remainder of the Indebtedness or other obligations as having been incurred pursuant toone or more of the other clauses of this Section 6.01 or under clause (c) of the definition of Incremental Cap and if any such test would be satisfied in any subsequent fiscal quarter following the relevant date of determination, then suchreclassification shall be deemed to have automatically occurred at such time.~~
~~Accrual of interest or dividends, the accretion of accretedvalue, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Indebtedness or Disqualified Equity~~ ~~Interests or Preferred Stock will not be deemed to be an incurrence of Indebtedness or Disqualified Equity Interests or Preferred Stock for purposes of this covenant.~~
-124-
~~Section 6.02 Liens.~~
~~(a) The Borrower will not, nor will it permit any of itsRestricted Subsidiaries to, create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, except:~~
~~(i) Liens created under the Loan Documents(including any Liens to secure Indebtedness incurred pursuant to Section 2.20, 2.21 or 2.24);~~
~~(ii) Permitted Encumbrances;~~
~~(iii) Liens existing on the Effective Date; provided that any Lien securing Indebtedness or other obligations in excess of $10,000,000individually shall only be permitted if set forth on Schedule6.02, and any modifications, replacements, renewals or extensions thereof;provided that (A) such modified, replacement, renewal orextension Lien does not extend to any additional property other than (i) after-acquired property that is affixed or incorporated into the property covered by such Lien and (ii) proceeds and products thereof, and (B) the obligationssecured or benefited by such modified, replacement, renewal or extension Lien are permitted by Section 6.01;~~
~~(iv) Liens securing Indebtedness permittedunder Section 6.01(a)(v) or (xxvii); provided that (A) such Liens attach concurrently with or within 12 months after the acquisition, repair, replacement, construction or improvement (as applicable) of the property or assets subject tosuch Liens, (B) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, except for accessions to such property and the proceeds and the products thereof, and any lease of such property(including accessions thereto) and the proceeds and products thereof and (C) with respect to Financing Lease Obligations, such Liens do not at any time extend to or cover any assets (except for accessions to or proceeds of such assets) otherthan the assets subject to such Financing Lease Obligations; provided, further, that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender;~~
~~(v) leases (includingleases of aircraft), licenses, subleases or sublicenses granted to others that do not (A) interfere in any material respect with the business of the Borrower and its Restricted Subsidiaries, taken as a whole or (B) secure anyIndebtedness;~~
~~(vi) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation ofgoods;~~
~~(vii) Liens (A) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection and (B) in favor of abanking institution arising as a matter of law encumbering deposits (including the right of setoff) and that are within the general parameters customary in the banking industry;~~
~~(viii) Liens (A) on cash advances orescrow deposits in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 6.04 to be applied against the purchase price for such Investment or otherwise in connection with any escrow arrangements withrespect to any such Investment or any Disposition permitted under Section 6.05 (including any letter of intent or purchase agreement with respect to such Investment or Disposition) or (B) consisting of an agreement to dispose of anyproperty in a Disposition permitted under Section 6.05, in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such Lien;~~
~~(ix) Liens on property of any RestrictedSubsidiary that is not a Loan Party, which Liens secure Indebtedness of such Restricted Subsidiary or another Restricted Subsidiary that is not a Loan Party, in each case permitted under Section 6.01;~~
~~(x) Liens granted by a Restricted Subsidiarythat is not a Loan Party in favor of any Loan Party, Liens granted by a Restricted Subsidiary that is not a Loan Party in favor of a Restricted Subsidiary that is not a Loan Party and Liens granted by a Loan Party in favor of any other LoanParty;~~
-125-
~~(xi) Liens existing on property or assets atthe time of acquisition thereof by the Borrower or any of its Subsidiaries (by a merger, consolidation or amalgamation or otherwise) or existing on the property or assets or Equity Interest issued by any Person at the time such Person is or becomesa Restricted Subsidiary (including by the designation of an Unrestricted Subsidiary as a Restricted Subsidiary), in each case after the Effective Date (other than Liens on the Equity Interests of any Person that is or becomes a RestrictedSubsidiary); provided that (A) such Lien was not created in contemplation of suchacquisition or such Person becoming a Restricted Subsidiary, (B) such Lien does not extend to or cover any other assets or property of the Borrower or any of its other Restricted Subsidiaries, except that individual financings of equipmentprovided by one lender may be cross collateralized to other financings of equipment provided by such lender, and (C) the Indebtedness secured thereby is permitted under Section 6.01(a)(v) or (vii);~~
~~(xii) any interest or title of a lessor underleases (other than leases constituting Financing Lease Obligations) entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business or consistent with industry or past practice;~~
~~(xiii) Liens arising out of conditional sale,title retention, consignment or similar arrangements for sale or purchase of goods by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;~~
~~(xiv) Liens deemed to exist in connectionwith Investments in repurchase agreements permitted under clause (e) of the definition of the term “Permitted Investments”;~~
~~(xv) Liens encumbering reasonable customaryinitial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business or consistent with industry or past practice and not for speculativepurposes;~~
~~(xvi) Liens that are contractual rights of setoff (A) relating to the establishment of depository relations with banks not given in connection with the incurrence ofIndebtedness, (B) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business or consistent with industry or past practice or (C) relating to purchaseorders and other agreements entered into with customers of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business or consistent with industry or past practice;~~
~~(xvii) ground leases in respectof real property on which facilities owned or leased by the Borrower or any of its Restricted Subsidiaries are located;~~
~~(xviii) (a) Liens on insurance policiesand the proceeds thereof securing the financing of the premiums with respect thereto or (b) deposits made or other security provided to secure liabilities to insurance carriers under insurance or self-insurance arrangements in the ordinarycourse of business and on ordinary terms or consistent with industry or past practice;~~
~~(xix) Liens on the Collateral(A) securing Permitted First Priority Refinancing Debt, (B) securing Permitted Second Priority Refinancing Debt, (C) securing Incremental Equivalent Debt or (D) securing Indebtedness permitted pursuant toSection 6.01(a)(vii), Section 6.01(a)(xix) and Section 6.01(a)(xxvi); provided that (in the case of clause (B), such Liens do not secure Consolidated First Lien Debt and the applicable holders of such Indebtedness (or a representativethereof on behalf of such holders) shall have entered into with the Collateral Agent the Second Lien Intercreditor Agreement which agreement shall~~~~provide that the Liens on the Collateral shall rank junior to the Liens on the Collateral securing the Secured Obligations;~~
~~(xx) other Liens securing outstandingIndebtedness in an aggregate principal amount not to exceed, the greater of (x) $180,000,000 and (y) 19.3% of Consolidated EBITDA for the most recently ended Test Period as of such time; provided that if such Liens are on Collateral, then the Borrower may elect that the holdersof the Indebtedness or other obligations secured thereby (or a representative or trustee on their behalf) shall have entered into with the Collateral Agent the Second Lien Intercreditor Agreement or the First Lien Intercreditor Agreement providingthat the Liens on the Collateral securing such Indebtedness or other obligations shall rank equal or junior to the Liens on the Collateral securing the Loan Document Obligations;~~
-126-
~~(xxi) Liens on cash and Permitted Investmentsused to satisfy or discharge Indebtedness; provided such satisfaction or discharge ispermitted hereunder;~~
~~(xxii) Liens on receivables and related assets incurred in connection with Permitted Receivables Financings;~~
~~(xxiii) (A) receipt ofprogress payments and advances from customers in the ordinary course of business and on ordinary terms or consistent with industry or past practice to the extent the same creates a Lien on the related inventory and proceeds thereof and(B) Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase,shipment, or storage of such inventory or other goods;~~
~~(xxiv) Liens on cash or Permitted Investments securing Swap Agreements in the ordinary course of business in accordance with applicable Requirements of Law;~~
~~(xxv) Liens securing Indebtedness permittedto be incurred pursuant to Section 6.01(xiii), 6.01(xiv), 6.01(xvi)(B), 6.01(xx) or 6.01(xxix);~~
~~(xxvi) Liens on equipment of the Borrower orany of its Restricted Subsidiaries granted in the ordinary course of business to the Borrower’s or such Restricted Subsidiary’s customer at which such equipment is located;~~
~~(xxvii) security given to apublic utility or any municipality or governmental authority when required by such utility or authority in connection with the operations of such Person in the ordinary course of business;~~
~~(xxviii) Liens on Capital Stockof an Unrestricted Subsidiary that secure Indebtedness or other obligations of the Borrower, any of its Subsidiaries or such Unrestricted Subsidiary; and~~
~~(xxix) (A) Liens on Equity Interests injoint ventures; provided that any such Lien is in favor of a creditor of such jointventure and such creditor is not an Affiliate of any partner to such joint venture and (B) purchase options, call, and similar rights of, and restrictions for the benefit of, a third party with respect to Equity Interests held by the Borroweror any of its Restricted Subsidiaries in joint ventures.~~
~~(b) [reserved].~~
~~Forpurposes of determining compliance with this Section 6.02, (A) Liens need not be incurred solely by reference to one category of Liens permitted by this Section 6.02 but are permitted to be incurred in part under any combinationthereof and of any other available exemption, (B) in the event that Lien (or any portion thereof) meets the criteria of one or more of the categories of Liens permitted by this Section 6.02, the Borrower may, in its sole discretion,classify or reclassify (or later divide, classify or reclassify in whole or in part in its sole discretion) such Lien (or any portion thereof) in any manner that complies with this provision, (C) in the event that a portion of~~ ~~Indebtedness or other obligations secured by a Lien could be classified as secured in part pursuant to Indebtedness incurred under a “ratio-based” basket (givingpro forma effect to the incurrence of such portion of such Indebtedness or other obligations), the Borrower, in its sole discretion, may classify such portion of such Indebtedness (and any obligations in respect thereof) as having been securedpursuant to Section 6.02(a)(xix) above and thereafter the remainder of the Indebtedness or other obligations as having been secured pursuant to one or more of the other clauses of this Section 6.02 and if any such test would be satisfiedin any subsequent fiscal quarter following the relevant date of determination, then such reclassification shall be deemed to have automatically occurred at such time and (D) with respect to any Lien securing Indebtedness that was permitted tosecure such Indebtedness at the~~
-127-
~~time of the incurrence of such Indebtedness, such Lien shall also be permitted to secure any amount permittedunder Section 6.01(a)(xxxiii) in respect of such Indebtedness. Any Liens in respect of the accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Indebtedness, in each case in respect of anyIndebtedness, shall not be deemed to be an incurrence of a Lien in respect of such Indebtedness for purposes of this Section 6.02.~~
~~SECTION 6.03 Fundamental Changes; Holding Companies~~ ~~. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, merge into or consolidate or amalgamate with any other Person, or permit any other Personto merge into or consolidate with it, or liquidate or dissolve, except that:~~
~~(a) any Restricted Subsidiary (other than theBorrower) may merge, consolidate or amalgamate with (i) the Borrower; providedthat the Borrower shall be the continuing or surviving Person or (ii) one or more other Restricted Subsidiaries of the Borrower;provided that when any Subsidiary Loan Party is merging oramalgamating with another Restricted Subsidiary either (A) the continuing or surviving Person shall be a Subsidiary Loan Party or (B) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such SubsidiaryLoan Party by such surviving Restricted Subsidiary is permitted under Section 6.04;~~
~~(b) any Restricted Subsidiary (other than theBorrower) may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to theLenders;~~
~~(c) any Restricted Subsidiary (other than the Borrower) may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to anotherRestricted Subsidiary; provided that if the transferor in such a transaction is a LoanParty, then either (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment must be an Investment in a Restricted Subsidiary that is not a Loan Party permitted by Section 6.04 or(C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is an Investment ina Restricted Subsidiary that is not a Loan Party permitted by Section 6.04;~~
~~(d) the Borrower may merge, amalgamate orconsolidate with any other Person; provided that (A) the Borrower shall be thecontinuing or surviving Person or (B) if the Person formed by or surviving any such merger, amalgamation or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (1) a Successor Borrower shall be an entityorganized or existing under the laws of the United States or any political subdivision thereof, (2) a Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which theBorrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation,amalgamation or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of, and grant of any Liens as security for, the Secured Obligations shallapply to a Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger,amalgamation or consolidation complies with this Agreement; provided, further, that (a) if such Person is not a Loan Party, no Event of Default exists after giving effect to such merger or consolidation, and (b) if the foregoingrequirements are satisfied, a Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents;provided, further, that the Borrower agrees to~~ ~~provide any documentation and other information about such Successor Borrower as shall have been reasonably requested in writing by any Lender through the AdministrativeAgent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PatriotAct;~~
-128-
~~(e) [reserved];~~
~~(f) any Restricted Subsidiary (other than theBorrower) may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 6.04; provided that the continuing or surviving Person shall be a Restricted Subsidiary, which together witheach of the Restricted Subsidiaries, shall have complied with the requirements of Sections 5.11 and 5.12;~~
~~(g) any License Subsidiary may be merged orconsolidated with or into (i) any other License Subsidiary or (ii) a newly formed Subsidiary of the Borrower (which may be organized as a limited liability company) established for the purpose of becoming a License Subsidiary, providedthat such newly formed Subsidiary (x) if it is the continuing or surviving entity, it shall have assumed all of the obligations of such Subsidiary hereunder and under the other Loan Documents and (y) shall be in compliance withSection 6.11;~~
~~(h) the Borrower and its Restricted Subsidiaries may consummate the Transactions;~~
~~(i) any Restricted Subsidiary (other than theBorrower) may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 6.05; and~~
~~(j) the Borrower and its Subsidiaries mayeffect the formation, dissolution, liquidation or Disposition of any Subsidiary that is a Delaware Divided LLC; provided that Borrower has complied with Section 5.11 to the extent applicable.~~
~~SECTION 6.04 Investments, Loans, Advances, Guarantees and Acquisitions~~~~. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make or hold any Investment, except:~~
~~(a) Permitted Investments at the time suchPermitted Investment is made;~~
~~(b) loans or advances to officers, directors, managers, independent contractors, consultants and employees of the Borrower and its Restricted Subsidiaries (i) forreasonable and customary business-related travel, entertainment, relocation, moving, payroll advances and other analogous or similar expenses or payroll expenses, (ii) in connection with such Person’s purchase of Equity Interests in theBorrower (or any direct or indirect parent thereof) (provided that the amount of such loans and advances made in cash to such Person shall be contributed to the Borrower in cash as common equity or Qualified Equity Interests) and (iii) forpurposes not described in the foregoing clauses (i) and (ii); provided that atthe time of incurrence thereof and after giving Pro Forma Effect thereto, the aggregate principal amount outstanding in reliance on this clause (iii) shall not exceed the greater of (x) $25,000,000 and (y) 2.7% of ConsolidatedEBITDA;~~
~~(c) Investments by the Borrower or any of its Restricted Subsidiaries in any of the Borrower or any of its Restricted Subsidiaries;~~
~~(d) advances, loans or extensions of tradecredit (including the creation of receivables) or prepayments to suppliers or lessors or loans or advances made to distributors, and performance guarantees, in each case in the ordinary course of business or consistent with past practice by theBorrower or any of its Restricted Subsidiaries;~~
~~(e) [reserved];~~
~~(f) Investments (i) existing orcontemplated on the Effective Date and set forth on Schedule 6.04(f) and any modification, replacement, renewal, reinvestment or extension thereof and (ii) Investments existing~~ ~~on the Effective Date by the Borrower or any of its Restricted Subsidiaries in the Borrower or any of its Restricted Subsidiaries and any modification, renewal or extensionthereof; provided that the amount of the original Investment is not increased exceptby the terms of such Investment to the extent as set forth on Schedule 6.04(f) or as otherwise permitted by this Section 6.04;~~
~~(g) Investments in Swap Agreements permittedunder Section 6.01;~~
~~(h) promissory notes and other non-cash consideration received in connection with Dispositions permitted by Section 6.05;~~
-129-
~~(i) Permitted Acquisitions;~~
~~(j) the Transactions;~~
~~(k) Investments in the ordinary course ofbusiness or consistent with industry or past practice consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers consistent with past practices;~~
~~(l) Investments (including debt obligationsand Equity Interests) received in connection with the bankruptcy or reorganization of suppliers and customers, from financially troubled account debtors or in settlement of delinquent obligations of, or other disputes with, customers and suppliersor upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;~~
~~(m) loans and advances to Parent (or anyother direct or indirect parent of the Borrower) or the Borrower in lieu of, and not in excess of the amount of (after giving effect to any other loans, advances or Restricted Payments in respect thereof), Restricted Payments to the extent permittedto be made to Parent (or such parent) in accordance with Section 6.08(a);~~
~~(n) other Investments and other acquisitions;~~~~provided~~ ~~that at the time any such Investmentor other acquisition is made, the aggregate outstanding amount of all Investments made in reliance on this clause (n), when aggregated with all other Investments outstanding under this clause (n) shall not exceed the sum of (A) the greaterof $300,000,000 and 33.0% of Consolidated EBITDA for the most recently ended Test Period after giving Pro Forma Effect to the making of such Investment or other acquisition;~~ ~~provided~~ ~~that if any Investment pursuant to this clause (n)(A) ismade in any Person that is not a Restricted Subsidiary of the Borrower at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been madepursuant to Section 6.04(c) and shall cease to have been made pursuant to this clause (n)(A); plus (B) so long as immediately after giving effect to any such Investment no Event of Default under Section 7.01(a), (b), (h) or(i) has occurred and is continuing, the Available Amount that is Not Otherwise Applied as in effect immediately prior to the time of making of such Investment; plus (C) the Available Equity Amount that is Not Otherwise Applied as in effectimmediately prior to the time of making of such Investment;~~
~~(o) advances of payroll payments to employeesin the ordinary course of business;~~
~~(p) Investments and other acquisitions to the extent that payment for such Investments is made with Qualified Equity Interests (excluding Cure Amounts) of the Borrower (orany direct or indirect parent thereof); provided that (i) such amounts usedpursuant to this clause (p) shall not increase the Available Equity Amount or be applied to increase any other basket hereunder and (ii) any amounts used for such an Investment or other acquisition that are not Qualified Equity Interestsof the Borrower (or any direct or indirect parent thereof) shall otherwise be permitted pursuant to this Section 6.04;~~
~~(q) Investments of a Subsidiary acquiredafter the Effective Date or of a Person merged or consolidated with any Subsidiary in accordance with this Section and Section 6.03 after the Effective Date to the extent that such Investments were not made in contemplation of or in connectionwith such~~ ~~acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;~~
~~(r) non-cash Investments in connection withtax planning and reorganization activities; provided that after giving effect to anysuch activities, the security interests of the Lenders in the Collateral, taken as a whole, would not be materially impaired;~~
~~(s) Investments consisting of Liens,Indebtedness, fundamental changes, Dispositions, Restricted Payments and transactions with Affiliates permitted (other than by reference to this Section 6.04(s)) under Section 6.01, 6.02, 6.03, 6.05, 6.08 and 6.09, respectively, in eachcase, other than by reference to this Section 6.04(s);~~
-130-
~~(t) additional Investments and acquisitions; provided that on the date of such Investment, after giving effect to such Investment(A) on a Pro Forma Basis, the Total Leverage Ratio is less than or equal to 4.30 to 1.00 and (B) there is no continuing Event of Default under Section 7.01(a), (b), (h) or (i);~~
~~(u) contributions to a “rabbi”trust for the benefit of employees, directors, consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the case of a bankruptcy of the Borrower or any of its RestrictedSubsidiaries;~~
~~(v) to the extent that they constitute Investments, purchases and acquisitions of inventory, supplies, materials or equipment or purchases, acquisitions, licenses or leasesof other assets, intellectual property, or other rights, or the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons;~~
~~(w) Investments in Subsidiaries in the formof receivables and related assets required in connection with a Permitted Receivables Financing (including the contribution or lending of cash and cash equivalents to Subsidiaries to finance the purchase of such assets from the Borrower or otherRestricted Subsidiaries or to otherwise fund required reserves);~~
~~(x) Investments made in the ordinary courseof business on ordinary terms or consistent with industry or past practice in connection with obtaining, maintaining or renewing vendor contracts;~~
~~(y) Investments consisting of promissorynotes issued by the Borrower or any Subsidiary Loan Party to future, present or former employees, directors, officers, managers, members, partners, independent contractors or consultants of the Borrower or any of its Subsidiaries or their respectiveestates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Borrower or any direct or indirect parent thereof, to the extent the applicable Restricted Payment is permitted hereunder;~~
~~(z) Investments made from casualty insuranceproceeds in connection with the replacement, substitution, restoration or repair of assets on account of a casualty event;~~
~~(aa) Investments by an UnrestrictedSubsidiary entered into prior to the day such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary pursuant to the definition of “Unrestricted Subsidiary”;~~
~~(bb) any Investment in a Similar Business; provided that at the time any such Investment is made, the aggregate outstanding amount ofall Investments made in reliance on this clause (bb), when aggregated with all other Investments outstanding under this clause (bb), shall not exceed the greater of (A) $300,000,000 and (B) 33.0% of Consolidated EBITDA for the mostrecently ended Test Period after giving Pro Forma Effect to the making of such Investment; provided that if any Investment pursuant to this clause (bb) is made in any Person that is not a Restricted Subsidiary of the Borrower at the date of the making of such Investment and suchPerson becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to Section 6.04(c) and shall cease to have been made pursuant to this clause (bb);~~
~~(cc) Investments in UnrestrictedSubsidiaries; provided that at the time any such Investment is made, the aggregateoutstanding amount of all Investments made in reliance on this clause (cc), when aggregated with all other Investments outstanding under this clause (cc), shall not exceed the greater of (A) $150,000,000 and (B) 16.1% of ConsolidatedEBITDA for the most recently ended Test Period after giving Pro Forma Effect to the making of such Investment; provided that if any Investment pursuant to this clause (cc) is made in any Person that is not a Restricted Subsidiary of the Borrower at the date of the making of such Investment and suchPerson becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to Section 6.04(c) and shall cease to have been made pursuant to this clause (cc);~~
-131-
~~(dd) Investments made after the EffectiveDate in joint ventures of the Borrower or any of its Restricted Subsidiaries existing on the Effective Date; provided that if any Investment pursuant to this clause (ee) is made in any Person that is not a Restricted Subsidiary of the Borrower at the date of the making of such Investment and suchPerson becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to Section 6.04(c) and shall cease to have been made pursuant to this clause (dd);~~
~~(ee) Investments consisting of purchases andacquisitions of assets or services in the ordinary course of business or consistent with industry or past practice and any earnest money deposits in connection therewith;~~
~~(ff) intercompany current liabilities owed toUnrestricted Subsidiaries or joint ventures incurred in the ordinary course of business or consistent with industry or past practice in connection with cash management operations of the Borrower and its Subsidiaries;~~
~~(gg) any Investment in any Subsidiary or anyjoint venture in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business or consistent with industry or past practice; and~~
~~(hh) any Investment with respectto purchase options relating to the purchase of Stations by the Borrower and its Subsidiaries; provided that at the time any such Investment is made, the aggregate outstanding amount of all Investments made in reliance on this clause (hh), when aggregated with all other Investmentsoutstanding under this clause (hh), shall not exceed the greater of (A) $200,000,000 and (B) 21.6% of Consolidated EBITDA for the most recently ended Test Period after giving Pro Forma Effect to the making of suchInvestment.~~
~~For purposes of determining compliance with this Section 6.04, in the event that a proposed Investment (or portion thereof) meets the criteria of clauses(a) through (hh) above, the Borrower will be entitled to classify or later divide, classify or reclassify (based on circumstances existing on the date of such reclassification) such Investment (or portion thereof) between such clauses(a) through (hh), in a manner that otherwise complies with this Section 6.04. In the event that a portion of the Investments could be classified as incurred under a “ratio-based” basket (giving pro forma effect to the making ofsuch Investments), the Borrower, in its sole discretion, may classify such portion of such Investment as having been incurred pursuant to such “ratio-based” basket and thereafter the remainder of the Investments as having been incurredpursuant to one or more of the other clauses of this 6.04 and if any such test would be satisfied in any subsequent fiscal quarter following the relevant date of determination, then such reclassification shall be deemed to have automaticallyoccurred at such time.~~
~~SECTION 6.05 Asset Sales~~~~. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to (i) sell, transfer, lease, license or otherwise dispose of any asset, including anyEquity Interest owned by it and including any disposition of property to a Delaware Divided LLC pursuant to a Delaware LLC Division or (ii) permit any of its Restricted Subsidiaries to issue any additional Equity Interest in such RestrictedSubsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiaryin compliance with Section 6.04(c)) (each, a “Disposition”),except:~~
~~(a) Dispositions of obsolete, non-core, surplus, damaged, unnecessary, unsuitable or worn out property or equipment, inventory or other assets, whether now owned orhereafter acquired, in the ordinary course of business or consistent with industry or past practice and Dispositions of property no longer used or useful, or economically practicable to maintain, in the conduct of the business of the Borrower andits Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse or go abandoned or beinvalidated);~~
~~(b) the lapse, abandonment or invalidation of intellectual property rights that are not material to the conduct of the Borrower and its Restricted Subsidiaries, taken as awhole, or that are no longer used or useful or no longer economically practicable or commercially reasonable to maintain, in each case as reasonably determined by the Borrower;~~
-132-
~~(c)Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to thepurchase price of such replacement property or (iii) such Disposition is allowable under Section 1031 of the Code, or any comparable or successor provision is for like property (and any boot thereon) and for use in a SimilarBusiness;~~
~~(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, suchInvestment must be an Investment in a Restricted Subsidiary that is not a Loan Party permitted by Section 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is forFair Market Value and any promissory note or other non-cash consideration received in respect thereof is an Investment in a Restricted Subsidiary that is not a Loan Party permitted by Section 6.04;~~
~~(e)Dispositions permitted by Section 6.03, Investments permitted by Section 6.04, Restricted Payments permitted by Section 6.08, Liens permitted by Section 6.02, in each case, other than by reference to this Section6.05(e);~~
~~(f) any issuance, disposition or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary (or a Restricted Subsidiary which owns anUnrestricted Subsidiary so long as such Restricted Subsidiary owns no assets other than the Equity Interests of such Unrestricted Subsidiary);~~
~~(g) Dispositions of Permitted Investments;~~
~~(h)Dispositions or discounts without recourse (including by way of assignment or participation) of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and(B) receivables and related assets pursuant to any Permitted Receivables Financing;~~
~~(i) leases, subleases, licenses or sublicenses (includingthe provision of software under an open source license), in each case in the ordinary course of business and that do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;~~
~~(j)transfers of property subject to any Casualty Event upon receipt of the Net Proceeds of such Casualty Event;~~
~~(k) Dispositions of property to Persons other than theBorrower or any of its Restricted Subsidiaries (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is made for Fair Market Value and (ii) exceptin the case of a Permitted Asset Swap, with respect to any Disposition or series of related Dispositions pursuant to this clause (k) for a purchase price in excess of the greater of $300,000,000 and 33.0% of Consolidated EBITDA for the mostrecently ended Test Period, for all transactions permitted pursuant to this clause (k) since the Effective Date, the Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or PermittedInvestments; provided, however, that for the purposes of this clause (ii), (A) thegreater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of the~~ ~~Borrower provided hereunderor in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Borrower or in the footnotes thereto if such incurrence,accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the LoanDocument Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases the Borrower or suchRestricted Subsidiary from such liabilities, (B) any securities received by the Borrower, the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or PermittedInvestments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by the Borrower orsuch Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not inexcess (at the date of agreement for the related Disposition) of the greater of $330,000,000 and 5.0% of Consolidated Total Assets of the Borrower and its Restricted Subsidiaries, with the Fair Market Value of each item of Designated Non-CashConsideration being measured at the time of contractually agreeing to such Disposition and without giving effect to subsequent changes in value, shall be deemed to be cash;~~
-133-
~~(l)Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;~~
~~(m)Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of the Borrower andits Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority or any other Governmental Authority or otherwise necessary or advisable to consummate any acquisition (including any Permitted Acquisition)after the Effective Date, as determined by the Borrower;~~
~~(n) transfers of condemned property, asset, Equity Interests or Indebtedness as a result of the exercise of “eminent domain” or other similar powers to therespective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property, asset, Equity Interests or Indebtedness arising from foreclosure, condemnation, expropriation,forced dispositions, or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;~~
~~(o) the sale or discount or disposition (with or withoutrecourse) (including by way of assignment or participation) of receivables (including, without limitation, trade and lease receivables) and related assets in connection with a Permitted Receivables Financing;~~
~~(p) theunwinding of any Swap Obligations or Cash Management Obligations;~~
~~(q) any disposition of property, assets or Equity Interests in connection with the College Sports Transaction;~~
~~(r) any sale, transfer or other disposition toeffect the formation of any Subsidiary that is a Delaware Divided LLC; provided thatthe Borrower has complied with Section 5.11 to the extent applicable;~~
~~(s) any disposition of property, assets, Equity Interests orIndebtedness that was acquired with Excluded Contributions if the proceeds of such disposition are used to make a Restricted Payment pursuant to Section 6.08(a)(xx);~~
~~(t) the Separation Transaction, including the Disposition ortransfer of the Non-Television Entity Notes in connection therewith; and~~
~~(u) the Borrower or any of its Subsidiaries may dispose ofassets (including by way of an exchange for assets of equal or greater value, as determined in good faith by the Board of Directors of the Borrower or such~~~~Subsidiary), including assets relating to any Owned Station that is a television broadcasting station or a radio broadcasting station (or the CapitalStock of the Subsidiary of the Borrower that owns such assets if such Subsidiary does not own property related to any other Owned Station not included in such Disposition),provided that:~~
~~(i) both immediately priorto such Disposition and, after giving effect thereto, no Default shall have occurred and be continuing;~~
~~(ii) such Disposition is a sale to any Personfor cash or in exchange for assets, in each case, in an amount not less than the fair market value of the assets being disposed of;~~
-134-
~~(iii) in the case of the Disposition(including an exchange) of assets relating to any Owned Station that is a television broadcasting station or a radio broadcasting station (or the Capital Stock of the Subsidiary of the Borrower that owns such assets if such Subsidiary does not ownproperty related to any other Owned Station not included in such Disposition) and which are owned as of the Effective Date the~~ ~~Fair Market Value of such assets together with the Fair Market Value attributable to all other such assets sold or exchanged pursuant to this clause (iii) during anytwelve month period since the Effective Date but excluding the Fair Market Value attributable to any assets sold or exchanged (1) as required by any Governmental Authority or (2) any Channel Sharing Agreement or the grant of a sharedtelevision broadcast license pursuant to 47 C.F.R. § 73.3700(b) and/or any other agreement related thereto shall not exceed the greater of $280,000,000 and 30.0% of Consolidated EBITDA;and~~
~~(iv) the Borrower shall have furnished to the Lenders such other information or documents relating to such Disposition as the Administrative Agent or any Lender or Lenders(through the Administrative Agent) shall have reasonably requested.~~
~~To the extent any Collateral is Disposed of as expressly permitted by this Section 6.05 to any Person other than a Loan Party, such Collateral shall be sold free andclear of the Liens created by the Loan Documents, and the Administrative Agent or the Collateral Agent, as applicable, shall take any actions deemed appropriate in order to effect theforegoing.~~
~~SECTION 6.06 [Reserved]~~~~.~~
~~SECTION 6.07 Negative Pledge; Covenants Applicable to Parent~~~~. Parent and the Borrower will not, and will not permit any Restricted Subsidiary to enter into any agreement, instrument, deed or lease that prohibits or limits(i) the ability of any Loan Party to create, incur, assume or suffer to exist any Lien upon any of their respective properties or revenues, whether now owned or hereafter acquired, for the benefit of the Secured Parties with respect to theSecured Obligations or under the Loan Documents, or (ii) the ability of any Subsidiary of any Designated SBG Subsidiary to pay dividends or other distributions to such Designated SBG Subsidiary with respect to its ownership interests or toGuarantee Indebtedness of the Borrower or any Subsidiary of the Borrower or the ability of any Designated SBG Subsidiary or any of its Subsidiaries to make loans or advances to the Borrower or any Subsidiary of the Borrower or to GuaranteeIndebtedness of the Borrower or any Subsidiary of the Borrower; provided that theforegoing shall not apply to restrictions and conditions imposed by:~~
~~(a) (i) Requirements of Law,(ii) any Loan Document, (iii) the Existing Senior Unsecured Notes, (iv) any documentation relating to any Permitted Receivables Financing, (v) any documentation governing Incremental Equivalent Debt, (vi) any documentationgoverning Permitted Unsecured Refinancing Debt, Permitted First Priority Refinancing Debt or Permitted Second Priority Refinancing Debt and (vii) any documentation governing any Permitted Refinancing incurred to refinance any such Indebtednessreferenced in clauses (i) through (vi) above; provided that with respect toIndebtedness referenced in (A) clauses (vi) and (vii) above, such restrictions shall be no more restrictive in any material respect than the restrictions and conditions in the Loan Documents or, in the case of Junior Financing, aremarket terms at the time of issuance and (B) clause (vi) above, such restrictions shall not expand the scope in any material respect of any such restriction or condition contained in the Indebtedness being refinanced;~~
~~(b) customary restrictions and conditionsexisting on the Effective Date (including those entered into in connection with or in order to consummate the Transactions) and any extension, renewal, amendment, modification or replacement thereof, except to the extent any such amendment,modification or replacement expands the scope of any such restriction or condition;~~
~~(c) restrictions and conditions contained inagreements relating to the sale of a Subsidiary or any assets pending such sale;provided that such restrictions and conditions apply only to the Subsidiary or assetsthat is or are to be sold and such sale is permitted hereunder;~~
~~(d) customary provisions in leases, licensesand other contracts restricting the assignment thereof or other transfer thereof (or the assets subject thereto), including with respect to intellectual property;~~
~~(e) restrictions imposed by any agreementrelating to secured Indebtedness permitted by this Agreement to the extent such restriction applies only to the property securing such Indebtedness;~~
-135-
~~(f) any restrictions or conditions set forthin any agreement in effect at any time any Person is or becomes a Restricted Subsidiary (but not any modification or amendment expanding the scope of any such restriction or condition);provided that such agreement was not entered into in contemplation of such Personbecoming a Restricted Subsidiary and the restriction or condition set forth in such agreement does not apply to the Borrower or any of its Restricted Subsidiaries;~~
~~(g) restrictions or conditions in anyIndebtedness, Disqualified Equity Interests or Preferred Stock permitted pursuant to Section 6.01 that is incurred or assumed by Restricted Subsidiaries that are not Loan Parties to the extent such restrictions or conditions are no morerestrictive in any material respect than the restrictions and conditions in the Loan Documents or, in the case of Junior Financing, are market terms at the time of issuance and are imposed solely on such Restricted Subsidiary and its Subsidiaries orare not materially more disadvantageous, taken as a whole, to the Lenders than is ordinary or customary at the time and under the circumstances for financings for similarly situated borrowers or issuers or available to the Borrower and itsSubsidiaries (as determined by the Borrower);~~
~~(h) restrictions on cash (or Permitted Investments) or other deposits under contracts or customary net worth provisions contained in real property leases, in each case,entered into in the ordinary course of business or consistent with industry or past practice (or other restrictions on cash or deposits constituting Permitted Encumbrances) and restrictions on cash, Permitted Investments or other deposits permittedunder Section 6.01;~~
~~(i) restrictions set forth on Schedule 6.07 and any extension, renewal, amendment, modification or replacement thereof, except to the extent any such amendment, modification or replacement expands the scope of any suchrestriction or condition;~~
~~(j) provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted by Section 6.02 and applicable solely to such jointventure and entered into in the ordinary course of business;~~
~~(k) customary net worth provisions containedin real property leases entered into by Subsidiaries, so long as the Borrower has determined in good faith that such net worth provisions could not reasonably be expected to impair the ability of the Borrower and its Subsidiaries to meet theirongoing obligations;~~
~~(l) other indebtedness, Disqualified Equity Interests or Preferred Stock permitted to be incurred subsequent to the Effective Date pursuant to Section 6.01 if(A) in the judgment of the Borrower, such incurrence will not materially impair the Borrower’s ability to make payments under the Loan Documents when due, (B) the encumbrances and restrictions in such Indebtedness, Disqualified EquityInterests or Preferred Stock otherwise not permitted by this Agreement apply only so long as a default in respect of a payment or financial maintenance covenant relating to such Indebtedness, Disqualified Equity Interests or Preferred Stock is notcured or waived or (C) the encumbrances and restrictions in such Indebtedness,~~ ~~Disqualified Equity Interests or Preferred Stock either are notmaterially more restrictive taken as a whole than those contained in the Loan Documents, the Senior Unsecured Debt as in effect on the Effective Date or are not materially more disadvantageous, taken as a whole, to the Lenders than is ordinary orcustomary at the time and under the circumstances for financings for similarly situated borrowers or issuers or available to the Borrower and its Subsidiaries (as determined by the Borrower);~~
~~(m) (i) any agreement,arrangement, Indebtedness or Capital Stock of any Person or its affiliates that is acquired by or merged, consolidated or amalgamated with or into any of the Borrower or any of its Restricted Subsidiaries that applies to such Person or itsaffiliates or any assets acquired in any such acquisition, merger, consolidation or amalgamation or acquisition of assets in existence at the time thereof, or assumed in connection therewith unless and to the extent created in contemplationthereof), which encumbrance or restriction is not applicable to the Borrower or any of its Restricted Subsidiaries or its properties or assets, other than any such Person or its affiliates or such assets, or any Unrestricted Subsidiary; and(ii) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger, amalgamation or consolidation of an Unrestricted Subsidiary into the Borrower or a Restricted Subsidiary or the transfer of all,substantially all or any of the assets of an Unrestricted Subsidiary to the Borrower or a Restricted Subsidiary, any such encumbrance or restriction existing or assumed (unless and to the extent created in contemplation thereof);~~
-136-
~~(n) contracts, including sale-leasebackagreements, for the sale or disposition of assets, including customary restrictions with respect to a Subsidiary of the Borrower pursuant to an agreement that has been entered into for the sale or disposition of Capital Stock or assets of suchSubsidiary;~~
~~(o) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any ofits Restricted Subsidiaries is a party entered into in the ordinary course or consistent with industry or past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary party thereto, the payment rights arising thereunder orthe proceeds thereof; and~~
~~(p) any encumbrance or restriction with respect to any Unrestricted Subsidiary or any of its affiliates or their respective properties or assets that existed before the datethat such Subsidiary became a Restricted Subsidiary if such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary unless and to the extent otherwise permitted hereunder.~~
~~Parent willnot, nor will it permit any of the Designated SBG Subsidiaries to, guarantee any Indebtedness of the Borrower or any of its Subsidiaries that is permitted under Section 6.01 unless (i) each such Person whose Indebtedness is so guaranteedwhich was a Loan Party immediately prior to such guarantee remains a Loan Party hereunder and (ii) if such guarantee is secured, such guarantee shall have the same (or lower) priority as the Indebtedness to which it relates.~~
~~SECTION 6.08 Restricted Payments; Certain Payments of Indebtedness~~~~.~~
~~(a) The Borrower will not, nor will it permit any of itsRestricted Subsidiaries, to pay or make, directly or indirectly, any Restricted Payment, except:~~
~~(i) the Borrower and each RestrictedSubsidiary may make Restricted Payments to the Borrower or any Restricted Subsidiary; provided that in the case of any such Restricted Payment by a Restricted Subsidiary that is not a wholly-owned Subsidiary of the Borrower, such Restricted Payment is made to the Borrower,any Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;~~
~~(ii) payments ordistributions to satisfy dissenters’ or appraisal rights, pursuant to or in connection with a consolidation, amalgamation, merger or transfer of assets that complies withSection 6.03;~~
~~(iii) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests of suchPerson;~~
~~(iv) any Restricted Payment on or after the Effective Date made in connection with or as a result of the Transactions and the fees and expenses related thereto or used tofund amounts owed in connection with the Transactions (including dividends or distributions to any direct or indirect parent company of the Borrower to permit payment by such parent company of such amounts), including the settlement of claims oractions in connection with or as a result of the Acquisition or to satisfy indemnity or other similar obligations or any other earnouts, purchase price adjustments, working capital adjustments and any other payments under or as a result of theAcquisition Agreement;~~
~~(v) (a) repurchases of Equity Interests in the Borrower (or Restricted Payments by the Borrower to allow repurchases of Equity Interest in any direct or indirect parentof the Borrower) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants or other incentive interests if such Equity Interests represent a portion of the exercise price of such stock options orwarrants or other incentive interest and (b) the extent constituting Restricted Payments, the acquisition of Equity Interests held by joint venture partners pursuant to put and call or similar arrangements under any joint venture or similaragreement;~~
-137-
~~(vi) Restricted Payments to the Borrowerwhich the Borrower may use to redeem, acquire, retire or repurchase its Equity Interests (or any options, warrants, restricted stock units or stock appreciation rights issued with respect to any of such Equity Interests) (or make Restricted Paymentsto allow any of the Borrower’s direct or indirect parent companies to so redeem, retire, acquire or repurchase their Equity Interests) held by current or former officers, managers, consultants, independent contractors, directors or employees(or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of the Borrower (or any direct or indirect parent thereof), the Borrower and its Restricted Subsidiaries, upon the death,disability, retirement, resignation or termination of employment of any such Person or otherwise in accordance with any stock option or stock appreciation rights plan, any management, director and/or employee stock ownership or incentive plan, stocksubscription plan, employment termination agreement or any other employment agreements or equity holders’ agreement; provided that the aggregate amount of Restricted Payments permitted by this clause (vi) after the Effective Date shall not exceed the sum of (A) the greater of $25,000,000 and2.7% of Consolidated EBITDA for the most recently ended Test Period in any fiscal year of the Borrower, (B) the amount in any fiscal year equal to the cash proceeds of key man life insurance policies received by the Borrower or the RestrictedSubsidiaries after the Effective Date, (C) the amount of any cash bonuses otherwise payable to future, present or former employees, directors, officers, managers, members, partners or consultants (or their respective Controlled InvestmentAffiliates or Immediate Family Members) of the Borrower, any of its Subsidiaries or any Parent Entity that are foregone in exchange for the receipt of Equity Interests of the Borrower or any Parent Entity pursuant to any compensation arrangement,including any deferred compensation plan and (D) the cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of the Borrower and, to the extent contributed to the Borrower, the cash proceeds from the sale ofEquity Interests of any direct or indirect Parent Entity or management investment vehicle, in each case to any future, present or former employees, directors, managers or consultants of the Borrower, any of its Subsidiaries or any direct or indirectParent Entity or management investment vehicle that occurs after the Effective Date, to the extent the cash proceeds from the sale of such Equity Interests are not Cure Amounts and have not otherwise been applied to the payment of RestrictedPayments by virtue of the Available Equity Amount or are otherwise applied to increase any other basket hereunder; provided that any unused portion of the preceding basket above for any fiscal year may be carried forward to any succeeding fiscal year at the election of the Borrower; provided further that that cancellation of Indebtedness owing to the Borrower or anyof its Restricted Subsidiaries from any future, present or former employees, directors, officers, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of theBorrower, any of its Restricted Subsidiaries or any Parent Entity in connection with a repurchase of Equity Interests of the Borrower or any Parent Entity is not a Restricted Payment under this covenant or any other provision of thisAgreement;~~
~~(vii) Borrower may make Restricted Payments to any direct or indirect parent of Borrower (including Parent) incash:~~
~~(A) the proceeds of which shall be used by the Borrower to pay (or to make Restricted Payments to allow any direct or indirect parent of the Borrower to pay), for anytaxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or unitary tax group for U.S. federal and/or applicable state, local or foreign income Tax purposes of which a direct or indirect parent ofthe Borrower is the common parent (a “Tax Group”), the portion of any U.S.federal, state, local or foreign Taxes (as applicable) of such Tax Group for such taxable period that are attributable to the income of the Borrower and/or its Subsidiaries; provided that Restricted Payments made pursuant to this clause (a)(vii)(A)shall not exceed the Tax liability that the Borrower and/or its Subsidiaries (as applicable) would have incurred were such Taxes determined as if such entity(ies) were a stand alone taxpayer or stand alone group;~~
-138-
~~(B) the proceeds of which shall be used bythe Borrower to pay (or to make Restricted Payments to allow any direct or indirect parent of the Borrower to pay) (1) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (includingadministrative, legal, accounting, tax reporting, management fees, service fees, rent and building costs and systems costs and similar expenses payable to third parties) that are reasonable and customary and incurred in the ordinary course ofbusiness, (2) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, (3) feesand expenses (x) due and payable by any of the Borrower and its Restricted Subsidiaries and (y) otherwise permitted to be paid by the Borrower and its Restricted Subsidiaries under this Agreement and (4) payments that would otherwisebe permitted to be paid directly by the Borrower or the Restricted Subsidiaries pursuant to Section 6.09(iii) or (x);~~
~~(C) the proceeds of which shall be used bythe Borrower to pay (or to make Restricted Payments to allow any direct or indirect parent of the Borrower to pay) franchise and similar Taxes, and other fees and expenses, required to maintain its organizational existence;~~
~~(D) the proceeds of which shall be used bythe Borrower to make Restricted Payments permitted by Section 6.08(a)(iv) or Section 6.08(a)(vi);~~
~~(E) any Investment permitted to be madepursuant to Section 6.04 other than Section 6.04(m); provided that(1) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (2) the Borrower shall cause (x) all property acquired (whether assets or Equity Interests but not including any loans oradvances made pursuant to Section 6.04(b)) to be contributed to the Borrower or the Restricted Subsidiaries or (y) the Person formed or acquired to merge into or consolidate with the Borrower or any of its Restricted Subsidiaries to theextent such merger, amalgamation or consolidation is permitted in Section 6.03) in order to consummate such Investment, in each case in accordance with the requirements of Sections 5.11 and 5.12;~~
~~(F) the proceeds of which shall be used topay customary salary, incentive compensation, bonus and other benefits payable to officers and employees of the Borrower or any direct or indirect parent company of the Borrower to the extent such salaries, bonuses and other benefits areattributable to the ownership or operation of the Borrower and its Restricted Subsidiaries; and~~
~~(G) the proceeds of which shall be used bythe Borrower to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity offering, debt offering or other non-ordinary course transaction permitted or not prohibited by thisAgreement (whether or not such offering or other transaction is successful);~~
~~(viii) in addition to the foregoingRestricted Payments, the Borrower and any Restricted Subsidiary may make additional Restricted Payments to Parent, the proceeds of which may be utilized by~~~~Parent to make additional Restricted Payments, in an aggregate amount not to exceed the sum of (A) an amount at the time of making any suchRestricted Payment and together with any other Restricted Payment made utilizing this subclause (A) and amounts utilized under Section 6.08(b)(iv)(A), not to exceed the greater of $300,000,000 and 33.0% of Consolidated EBITDA for the mostrecently ended Test Period after giving Pro Forma Effect to the making of such Restricted Payment so long as no Event of Default under Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing or would result therefrom,plus (B) the Available Amount that is Not Otherwise Applied so long as no Event of Default under Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing or would result therefrom, plus (C) the Available EquityAmount that is Not Otherwise Applied;~~
~~(ix) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equitycontributions or issuances of new Equity Interests; provided that such new EquityInterests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby;~~
~~(x) payments made orexpected to be made in respect of withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchasesin connection with the exercise of stock options, and the vesting of restricted stock and restricted stock units;~~
-139-
~~(xi) the Borrower may (a) pay cash inlieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition (or other similar Investment) and (b) honor any conversion request by a holder of convertible Indebtedness and makecash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;~~
~~(xii) the declaration and payment ordistributions on, or the purchase, redemption, defeasance or other acquisition or retirement for value of, the Borrower’s of Restricted Payment on the Borrower’s common stock (or the payment of dividends or distributions of RestrictedPayments to any direct or indirect parent company of the Borrower to fund a payment of dividends on such company’s common stock), following consummation of an IPO, of up to sum of (a) 6.0% per annum of the net cash proceeds of suchIPO received by or contributed to the Borrower, other than public offerings with respect to Parent’s common stock registered on Form S-8 and any public sale constituting an Excluded Contribution and (b) 7.0% of the market capitalization ofthe Borrower at the time of such IPO;~~
~~(xiii) payments made or expected to be made by the Borrower or any of its Restricted Subsidiaries in respect of withholding or similar taxes payable upon exercise of EquityInterests or any other equity award (including restricted stock units in connection with the Transactions) by any future, present or former employee, director, officer, manager or consultant (or their respective Controlled Investment Affiliates orImmediate Family Members, or any Permitted Transferees or any legatee or distribute thereof) of the Borrower, any of its Restricted Subsidiaries or any Parent Entity and repurchases or withholdings of Equity Interests in connection with the exerciseor vesting of any stock or other equity options or, warrants or other incentive interests or the grant, vesting or delivery of equity awards if such Equity Interests represent all or a portion of the exercise price thereof or payments in lieu of theissuance of fractional Equity Interests, or withholding obligations with respect to, such options, warrants or other incentive interests or other Equity Interests or equity awards;~~
~~(xiv) additional RestrictedPayments; provided that after giving effect to any such Restricted Payment (A) ona Pro Forma Basis, the Total Leverage Ratio is less than or equal to 3.80 to 1.00 and (B) there is no continuing Event of Default under Section 7.01(a), (b), (h) or (i);~~
~~(xv) the distribution, bydividend or otherwise, of shares of Equity Interests of, or Indebtedness owed to Parent, the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are PermittedInvestments);~~
~~(xvi) the declaration and payment of dividends in respect of Disqualified Equity Interest of the Borrower or any of its Restricted Subsidiaries or any class or series ofPreferred Stock of any Restricted Subsidiary, in each case issued in accordance with Section 6.01 to the extent such dividends are included in the calculation of Consolidated Interest Expense;~~
~~(xvii) to the extent constituting RestrictedPayments, the acquisition of Equity Interests held by joint venture partners pursuant to put and call or similar arrangements under any joint venture or similar agreement;~~
~~(xviii) payments, distributions or otherRestricted Payments made in connection with transactions among the Borrower and any of its Restricted Subsidiaries, on the one hand, and Parent and any of its direct or indirect Subsidiaries and/or any joint venture partners, customers and/orclients, on the other hand entered into in the ordinary course of business or consistent with industry or past practice, including, without limitation, any cash management and treasury activities and any shared services, offices or facilitiesincluding back office, accounting, books and records keeping or similar functions, and shared production or other facilities, branch offices and other shared spaces, and licensing or similar arrangements related thereto;~~
-140-
~~(xix) payments of dividends or distributionsof Restricted Payments directly or indirectly by Parent, the Borrower or any of its Restricted Subsidiaries of the assets acquired in connection with the Sports Network II Investment in connection with the transfer of such assets to RSN or anaffiliate thereof;~~
~~(xx) payments of longevity bonuses due to certain executive employees of the Borrower under employment agreements in an aggregate amount not to exceed the greater of$50,000,000 and 5.4% of Consolidated EBITDA;~~
~~(xxi) payments of dividends or distributions of Restricted Payments directly or indirectly by Parent, the Borrower or any of its Restricted Subsidiaries in connection withthe College Sports Transaction;~~
~~(xxii) payments of cash dividends to Parent in connection with (A) unfunded obligations in respect of the Investments by Parent or any of its Subsidiaries (other thanthe Borrower and its Subsidiaries) that are in effect on the Effective Date when such obligations are due and payable or called pursuant to the respective terms of such Investments,provided that the aggregate amount of dividends under this sub-clause (A) shallnot exceed the greater of $100,000,000 and 10.8% of Consolidated EBITDA from and after the Effective Date; (B) general and administrative expenses of Parent or Subsidiaries of Parent (other than the Borrower or any of its Subsidiaries) in anaggregate amount not to exceed the greater of $25,000,000 and 2.7% of Consolidated EBITDA for any fiscal year; (C) Capital Expenditures of Parent and its Subsidiaries (other than the Borrower and its Subsidiaries) in an aggregate amount not toexceed the greater of $75,000,000 and 8.1% of Consolidated EBITDA from and after the Effective Date; (D) amounts payable in respect of Parent’s lease for its corporate headquarters; (E) principal and interest payments in respect ofpermitted Indebtedness of Parent incurred to refinance Indebtedness outstanding on the Effective Date, provided that at the time of any such Restricted Payments permitted by this clause (E) no Event of Default under Section 7.01(a), (b), (h) or (i) shall have occurred andbe continuing or would result therefrom; and (F) other ordinary expenses of Parent in respect of the normal operations of Parent in an aggregate amount not to exceed the greater of $10,000,000 and 1.1% of Consolidated EBITDA for any fiscalyear, which payments (in each case, in the case of sub-clauses (A) through (D) above) may be paid from time to time but only in an amount not exceeding the amount of such obligations, expenses or other amounts permitted under thisclause (xxii), as applicable, and at the time the same are due and payable;~~
~~(xxiii) payments, distributions and otherRestricted Payments made in connection with the Separation Transaction, including the Disposition or transfer of the Non-Television Entity Notes in connection therewith;~~
~~(xxiv) payment of the Effective DateDividend, to the extent the proceeds of the Effective Date Dividend are used, directly or indirectly by Parent, to fund a portion of the consideration (including Transaction Costs) in connection with the consummation of the Acquisition and the otherTransactions; and~~
~~(xxv) Restricted Payments that are made (a) in an amount not to exceed the amount of Excluded Contributions received following the Effective Date and (b) withoutduplication with clause (a), in an amount not to exceed the net cash proceeds from any sale or disposition of Investments acquired after the Effective Date, to the extent the acquisition of such Investments was financed with Excluded Contributions.~~
~~For purposes of determining compliance with thisSection 6.08(a), in the event that a proposed Restricted Payment (or a portion thereof) meets the criteria of clauses (i) through (xxv) above, the Borrower will be entitled to classify or later divide, classify or reclassify (based oncircumstances existing on the date of such reclassification) such Restricted Payment (or portion thereof) between such clauses (i) through (xxv), in a manner that otherwise complies with this Section 6.08(a). In the event that a payment orother obligation could be classified as incurred under a “ratio- based” basket (giving pro forma effect to the making of such portion of such payment), the Borrower, in its sole discretion, may classify such portion of such payment (andany obligations in respect thereof) as having been made pursuant to such “ratio-based” basket and thereafter the remainder of the payment as having been made pursuant to one or more of the other clauses of this Section 6.08 and if anysuch test would be satisfied in any subsequent fiscal quarter following the relevant date of determination, then such reclassification shall be deemed to have automatically occurred at such time.~~
-141-
~~(b) TheBorrower will not, nor will they permit any of its Restricted Subsidiaries to, make or pay, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on anyJunior Financing, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination ofany Junior Financing, except:~~
~~(i) payment of regularly scheduled interest and principal payments as, in the form of payment and when due in respect of any Indebtedness, other than payments in respect ofany Junior Financing prohibited by the subordination provisions thereof;~~
~~(ii) refinancings of Junior Financing withproceeds of other Junior Financing permitted to be incurred under Section 6.01;~~
~~(iii) the conversion of any Junior Financingto Equity Interests (other than Disqualified Equity Interests) of the Borrower or any of its direct or indirect parent companies;~~
~~(iv) prepayments, redemptions, purchases,defeasances and other payments in respect of Junior Financings prior to their scheduled maturity in an aggregate amount not to exceed the sum of (A) so long as no Event of Default under Section 7.01(a), (b), (h) or (i) shall haveoccurred and be continuing or would result therefrom, an amount at the time of making any such prepayment, redemption, purchase, defeasance or other payment and together with any other prepayment, redemption, purchase, defeasance or other paymentmade utilizing this subclause (A) and amounts utilized under Section 6.08(a)(viii)(A), not to exceed the greater of $300,000,000 and 33.0% of Consolidated EBITDA for the most recently ended Test Period after giving Pro Forma Effect to themaking of such prepayment, redemption, purchase, defeasance or other payment, plus (B) so long as no Event of Default under Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing or would result therefrom, theAvailable Amount that is Not Otherwise Applied plus (C) the Available Equity Amount that is Not Otherwise Applied; and~~
~~(v) prepayments, redemptions, purchases,defeasances and other payments in respect of Junior Financings prior to their scheduled maturity; provided that after giving effect to such Restricted Payment (A) on a Pro Forma Basis, the Total Leverage Ratio is less than or equal to 3.80 to 1.00 and (B) there is nocontinuing Event of Default under Section 7.01(a), (b), (h) or (i).~~
~~For purposes of determining compliance with thisSection 6.08(b), in the event that any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Junior Financing, or any payment or other distribution (whether in cash,securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Financing (or a portion thereof) meets the criteria of clauses(i) through (v) above, the Borrower will be entitled to divide, classify or later reclassify (based on circumstances existing on the date of such reclassification) such payment (or portion thereof) between such clauses (i) through(v), in a manner that otherwise complies with this Section 6.08(b).~~
~~(c) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, amend or modify any documentation governing any Junior Financing, in each case if theeffect of such amendment or modification (when taken as a whole) is materially adverse to the Lenders.~~
~~Notwithstanding anything herein to the contrary, theforegoing provisions of this Section 6.08 will not prohibit the payment of any Restricted Payment or the consummation of any irrevocable redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof orthe giving of such irrevocable notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. In the event that a Restricted Payment or other obligationscould be classified as incurred under a “ratio-based” basket (giving pro forma effect to the making of such portion of such Restricted Payment), the Borrower, in its sole discretion, may classify such portion of such Restricted Payment(and any obligations in respect thereof) as having been made pursuant to such “ratio-based” basket and thereafter the remainder of the Restricted Payment as having been made pursuant to one or more of the other clauses of thisSection 6.08 and if any such test would be satisfied in any subsequent fiscal quarter following the relevant date of determination, then such reclassification shall be deemed to have automatically occurred at such time.~~
-142-
~~SECTION 6.09~~ ~~Transactions with Affiliates~~~~. The Borrower will not,nor will it permit any of its Restricted 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 respect theretowith, any of its Affiliates, except:~~
~~(i) (A) transactions with Parent, the Borrower or any of its Restricted Subsidiaries and (B) transactions involving aggregate payments in respect of suchtransaction or consideration of less than the greater of $27,800,000 and 3.0% of Consolidated EBITDA for the most recently ended Test Period prior to such transaction;~~
~~(ii) on terms substantially as favorable tothe Borrower or such Restricted Subsidiary as would be obtainable by such Person at the time in a comparable arm’s-length transaction with a Person other than an Affiliate or, if in the good faith judgment of the Borrower, no comparabletransaction is available with which to compare such transaction, such transaction is otherwise fair to the Borrower or such Restricted Subsidiary from a financial point of view and when such transaction is taken in its entirety;~~
~~(iii) the Transactions and the payment offees and expenses related to the Transactions, including Transaction Costs;~~
~~(iv) issuances of Equity Interests of theBorrower to the extent otherwise permitted by this Agreement;~~
~~(v) employment and severance arrangements(including salary or guaranteed payments and bonuses) between Parent, the Borrower and its Restricted Subsidiaries and their respective officers and employees in the ordinary course of business or otherwise in connection with theTransactions;~~
~~(vi) payments by the Borrower (and any direct or indirect parent thereof) and the Restricted Subsidiaries pursuant to tax sharing agreements among the Borrower (and any suchparent thereof) and the Restricted Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries, to the extent payments are permitted by Section 6.08;~~
~~(vii) the payment of customary fees andreasonable out-of-pocket costs to, and indemnities provided on behalf of, directors, officers and employees of the Borrower (or any direct or indirect parent company thereof) and the Restricted Subsidiaries in the ordinary course of business to theextent attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries;~~
~~(viii) transactions pursuant to permittedagreements in existence or contemplated on the Effective Date and set forth on~~ ~~Schedule 6.09~~ ~~or any amendment thereto (so long as the totality of all such amendments, modifications, waivers, consents or replacementsis not materially more disadvantageous in the judgment of the Board of Directors of the Borrower or the senior management of the Borrower to the Lenders when taken as a whole as compared to the totality of such agreements or arrangements as ineffect on the Effective Date);~~
~~(ix) Restricted Payments permitted under Section 6.08;~~
~~(x) customary payments by the Borrower andany of the Restricted Subsidiaries made for any financial advisory, consulting, financing, underwriting or placement services or in respect of other investment banking activities (including in connection with acquisitions, divestitures orfinancings), which payments are approved by the majority of the members of the Board of Directors or a majority of the disinterested members of the Board of Directors of such Person in good faith;~~
-143-
~~(xi) the issuance or transfer of EquityInterests (other than Disqualified Equity Interests) of the Borrower to any Permitted Holder or to any former, current or future director, manager, officer, employee or consultant (or any Affiliate of any of the foregoing) of the Borrower, any ofthe Subsidiaries or any direct or indirect parent thereof;~~
~~(xii) transactions related to or inconnection with any Permitted Receivables Financing;~~
~~(xiii) payment or satisfaction by the Borrower (and any Parent Entity) and its Subsidiaries pursuant to, or the entry into, any tax sharing agreement or arrangement amongthe Borrower (and any such Parent Entity) and its Subsidiaries, to the extent such payments are permitted under Section 6.08(a)(vii);~~
~~(xiv) payment or satisfaction of reasonableout of pocket costs and expenses relating to registration rights and indemnities provided to equity holders of the Borrower or any direct or indirect parent thereof pursuant to any equity holders, registration rights or similaragreements;~~
~~(xv) transactions with a Person which would constitute an affiliate transaction solely because a director of such other Person is also a director of the Borrower or anydirect or indirect parent company if such director abstains from voting as a director of the Borrower or such direct or indirect parent company, as the case may be, on any matter including such other Person;~~
~~(xvi) intercompany transactions undertaken ingood faith for the purpose of improving the consolidated tax efficiency of the Borrower and its Restricted Subsidiaries and not for the purpose of circumventing any covenant set forth in this Agreement;~~
~~(xvii) pledges of Equity Interests ofUnrestricted Subsidiaries; and~~
~~(xviii) the College Sports Transaction and the Sports Network II Investment.~~
~~SECTION 6.10~~ ~~Financial Covenant~~~~. Except with the written consent of the Required Revolving Lenders, the Borrower will not permit the First Lien Leverage Ratio as of the last day of a Test Period(commencing with the Test Period ending on or about December 31, 2019) to exceed 4.50 to 1.00 (provided that theprovisions of this Section 6.10 shall not be applicable to any such Test Period if on the last day of such Test Period the aggregate principal amount of Revolving Loans (excluding any Revolving Loans applied to finance Transaction Cost) and/orSwingline Loans (excluding any Swingline Loans applied to finance Transaction Costs) and/or Letters of Credit~~
~~(whether cash collateralized or not) that are issued and/or outstanding) isequal to or less than 35% of the Revolving Credit Facility.~~
~~SECTION 6.11~~ ~~License Subsidiaries.~~
~~(a) Whenever the Borrower or any of its Subsidiariesacquires any Broadcast License after the Effective Date, the Borrower shall cause such acquisition to take place as follows in accordance with all applicable laws and regulations, including~~ ~~pursuant~~ ~~to approvals from the FCC: (i) each Broadcast Licenseso acquired shall be transferred to and held by a wholly-owned Subsidiary of the Borrower that is a License Subsidiary (provided that any License Subsidiary shall be permitted to hold one or more Broadcast Licenses); (ii) the related operatingassets shall be transferred to and held by an operating company that is a Subsidiary of the Borrower (an “~~~~OperatingSubsidiary~~~~”); and (iii) the Borrower shall deliver or cause to be delivered (if not theretofore delivered) to the Administrative Agent,to the extent required under the Collateral Agreement and the Collateral and Guarantee Requirement pursuant to and subject to the terms thereof, a pledge of all Capital Stock of such License Subsidiary and such Operating Subsidiary (and, ifreasonably requested by the Administrative Agent, furnish to the Administrative Agent evidence that the foregoing transactions have been so effected).~~
-144-
~~(b)Notwithstanding anything herein to the contrary, the Borrower shall not permit any License Subsidiary to: (i) create, incur, assume or have outstanding any Indebtedness or other liabilities or obligations except for obligations under the LoanDocuments, the Guarantees of such License Subsidiary in respect of Indebtedness that is unsecured, secured on a junior basis to the Secured Obligations and subject to a Second Lien Intercreditor Agreement or subordinated to the Loan DocumentObligations, in each case to the extent permitted or not prohibited under Section 6.01 and the contractual agreements with one or more Operating Subsidiaries entered into in the ordinary course of business solely with respect to the managementof the relevant Station’s operations; (ii) own any right, franchise or other asset, except for Broadcast Licenses transferred to it by the Borrower of which it is a wholly-owned Subsidiary, Broadcast Licenses acquired in the ordinarycourse of business and rights under any such agreements with one or more Operating Subsidiaries; (iii) enter into any transaction of merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation ordissolution); (iv) create, incur or permit to exist any Lien (other than the Lien created by the Security Documents and the Liens permitted under Section 6.02) on or in respect of, or sell, lease, assign, transfer or otherwise dispose of,any of its rights, franchises or other assets; (v) engage in any business other than holding Broadcast Licenses, such agreements with Operating Subsidiaries and incidental activities thereto; or (vi) make or hold anyInvestment.~~
~~(c) Notwithstanding anything in this Section to the contrary, the Borrower and the Subsidiary Loan Parties shall not be obligated to effect any transaction contrary to lawor the rules, regulations or policies of the FCC, and shall be permitted to unwind the transactions contemplated by this Section to the extent necessary to comply with a ruling of the FCC;~~ ~~provided~~ ~~that the Borrower shall and shall cause each of theSubsidiary Loan Parties to use its best efforts to carry out the provisions of this Section consistent with all laws and all rules, regulations and policies of the FCC, including pursuing any necessary approval or consents of theFCC.~~
~~(d) The Borrower will cause all Broadcast Licenses for Owned Stations at all times to be held in the name of the respective License Subsidiary for the Owned Station beingoperated under authority of such Broadcast Licenses.~~
~~SECTION 6.12~~ ~~CovenantSuspension~~. ~~Notwithstanding anything in this Agreement to the contrary, during any period of timewhen (x) the Borrower (or its successor) satisfies the Ratings Condition and is rated by two Rating Agencies, or from any two or three Rating Agencies in the event the Borrower is rated by three Rating Agencies and (y) no Default hasoccurred and is continuing (such event, a “~~~~Covenant Suspension Event~~~~”), Parent (solely in the case of Section 6.07), the Borrower and its Restricted Subsidiaries will not be required to comply with the terms of Section 6.01,the Permitted Receivables Financing Cap, Section 6.04, Section 6.06, Section 6.07, Section 6.08, Section 6.09 and Section 6.11 (the covenants in such Sections, the “~~~~Suspension Covenants~~~~”);~~ ~~provided~~ ~~that (x) for purposes of compliance withSection 6.02, if Section 6.02 references any portion of Section 6.01, such limitation or restriction included in Section 6.01 will continue to apply under Section 6.02 as if Section 6.01 was in effect and any failure tocomply with such limitations or restrictions shall be a default under Section 7.01(d) and (y) the 75% cash consideration requirement set forth in Section 6.05(k) shall be calculated on an aggregate basis with respect to allDispositions made under such covenant from and after the Effective Date and until the Reversion~~ ~~Date.In the event that Parent, the Borrower and its Restricted Subsidiaries are not required to comply with the Suspension Covenants for any period of time as a result of the foregoing, and on any subsequent date (the “~~~~Reversion Date~~~~”) the Ratings Condition is not satisfied, thenParent (solely with respect to Section 6.07), the Borrower and its Restricted Subsidiaries will thereafter again be required to comply with the Suspension Covenants with respect to any future events or transactions. Notwithstanding that theSuspension Covenants may be reinstated, no Default, Event of Default or breach of any kind shall be deemed to exist under any Loan Document with respect to the Suspension Covenants and none of Parent (solely with respect to Section 6.07), theBorrower and its Restricted Subsidiaries shall bear any liability for any actions taken or events occurring during the Suspension Period, or any actions taken at any time pursuant to any contractual obligation arising prior to the Reversion Date, asa result of a failure to comply with the Suspension Covenants during the Suspension Period (or upon termination of the Suspension Period or after that time based solely on events that occurred during the Suspension Period).~~
~~Itis understood and agreed that (a) with respect to Restricted Payments or payments of Junior Financing made on or after the Reversion Date, the amount of Restricted Payments and Junior Financing made will be calculated as though the covenant inSection 6.08(a) or Section 6.08(b) had been in effect prior to, but not during the Suspension Period, (b) all Indebtedness incurred or issued during the Suspension Period will be classified to have been incurred or issued pursuant toSection 6.01(a)(ii), (c) all Investments completed during the Suspension Period will be classified to have been incurred or issued pursuant to Section 6.04(f), (d) any transaction prohibited pursuant to Section 6.07 enteredinto after the Reversion Date pursuant to an agreement entered into during any Suspension Period shall be deemed to be permitted pursuant to clause (a)(i) of Section 6.07 and (e) any transaction with an Affiliate entered into after theReversion Date pursuant to an agreement entered into during any Suspension Period shall be deemed to be permitted pursuant to clause (viii) of Section 6.09. No subsidiary may be designated as an Unrestricted Subsidiary during thecontinuance of a Covenant Suspension Event, unless such designation would have complied with Section 6.04 of this Agreement as if such Section 6.04 would have been in effect for the purposes of designating Unrestricted Subsidiaries fromthe Effective Date to the date of such designation.~~
-145-
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01 Events of Default. If any of the following events (any such event, an “Event of Default”) shall occur:
(a) any Loan Party shall fail to pay any principal of any Loan when and as the same shall become due and payable and in the currency required hereunder, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any Loan Party shall fail to pay any interest on any Loan, or any reimbursement obligation in respect of any LC Disbursement or any fee or any other amount (other than an amount referred to in paragraph (a) of this Section) payable under any Loan Document, when and as the same shall become due and payable and in the currency required hereunder, and such failure shall continue unremedied for a period of five Business Days;
(c) any ~~representation or warranty made or deemed made by or on behalf of Parent, the Borrower or any of its Restricted Subsidiaries in or in connection with any Loan Document orany amendment or modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Loan Document or any amendment or modification thereof or waiverthereunder, shall prove to have been incorrect in any material respect when made or deemed made, and such incorrect representation or warranty (if curable, including by a restatement of any relevant financial statements) shall remain incorrect for aperiod of 30 days after notice thereof from the~~Lien purported to be created under any Security Document shall be asserted by any Loan Party not to be a valid and perfected Lien on any material portion of the Collateral, except (i) as a result of the sale or other disposition of the applicable Collateral to a Person that is not a Loan Party in a transaction permitted or not prohibited under the Loan Documents, (ii) as a result of the Collateral Agent’s failure to (A) maintain possession of any stock certificates, promissory notes or other instruments delivered to it under the Security Documents or (B) file Uniform Commercial Code continuation statements or (iii) as a result of acts or omissions of the Collateral Agent, any Administrative Agent ~~to theBorrower~~or any Lender;
(d) any material provision of any Guarantee of the Loan Document Obligations shall for any reason be asserted by any Loan Party not to be a legal, valid and binding obligation of any Loan Party thereto other than as expressly permitted hereunder or thereunder;
(e) [Reserved];
(f) [Reserved];
(g) [Reserved];
~~(d) Parent, the Borrower or any of itsRestricted Subsidiaries shall fail to observe or perform any covenant, condition or agreement applicable to such Person contained in Sections 5.02(a), 5.04 (with respect to the existence of the Borrower) or in Article VI (other thanSection 6.12);~~ ~~provided~~ ~~that (i) anyEvent of Default under Section 6.10 is subject to cure as provided in Section 7.02 and an Event of Default with respect to such Section shall not occur until the expiration of the 10th Business Day subsequent to the date on which thefinancial statements with respect to the applicable fiscal quarter (or the fiscal year ended on the last day of such fiscal quarter) are required to be delivered pursuant to Section 5.01(a) or Section 5.01(b), asapplicable;~~ ~~provided~~~~,~~ ~~further~~~~, that in the event the Borrower and itsRestricted Subsidiaries fail to comply with Section 6.10, the Lenders shall not be required to make any credit extension in respect~~
-146-
~~of a Borrowing or issue, amend to increase the face amount of or extend any Letter of Credit unless and until theBorrower has received the Cure Amount required to cause the Borrower to be in compliance with Section 6.10 and (ii) a default under Section 6.10 shall not constitute an Event of Default with respect t~~~~o the Term Loans unless and until the Required Revolving Lenders shall have terminated their Revolving Commitments and declared all amounts under the Revolving Loans to bedue and payable, respectively (such period commencing with a default under Section 6.10 and ending on the date on which the Required Lenders with respect to the Revolving Credit Facility terminate and accelerate the Revolving Loans, the“~~~~StandstillPeriod~~~~”);~~
~~(e) any Loan Party shall fail to observe orperform any covenant, condition or agreement contained in any Loan Document (other than those specified in paragraph (a), (b) or (d) of this Section), and such failure shall continue unremedied for a period of 30 consecutive days (or, inthe case of a default under Sections 5.01, 5.02, or 5.03, 90 consecutive days) after notice thereof from the Administrative Agent to the Borrower;~~
~~(f) the Borrower or any of its RestrictedSubsidiaries shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable (after giving effect to any applicable graceperiod);~~
~~(g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with all applicablegrace periods having expired) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasancethereof, prior to its scheduled maturity,~~~~provided~~ ~~that this paragraph (g) shallnot apply to (i) secured Indebtedness that becomes due as a result of the sale, transfer or other disposition (including as a result of a casualty or condemnation event) of the property or assets securing such Indebtedness,(ii) termination events or similar events occurring under any Swap Agreement that constitutes Material Indebtedness (it being understood that paragraph (f) of this Section will apply to any failure to make any payment required as a resultof any such termination or similar event) or (iii) any breach or default that is (I) remedied by the Borrower or the applicable Restricted Subsidiary or (II) waived (including in the form of amendment) by the required holders of theapplicable item of Indebtedness, in either case, prior to the acceleration of Loans and Commitments pursuant to this Article VII;~~
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, court protection, reorganization or other relief in respect of ~~Parent,~~ the Borrower ~~or any Significant Subsidiary~~ or its debts, or of a material part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, examiner, sequestrator, conservator or similar official for ~~Parent,~~ the Borrower or ~~any Significant Subsidiary or~~ for a material part of its assets, and, in any such case, such proceeding or petition shall continue undismissed or unstayed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered; or
(i) ~~Parent,~~ the Borrower~~, or any Significant Subsidiary~~ shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, court protection, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in paragraph (h) of this Section, (iii) apply for or consent to the appointment of a receiver, trustee, examiner, custodian, sequestrator, conservator or similar official for ~~Parent,~~ the Borrower or ~~any Significant Subsidiary or~~ for a material part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding or (v) make a general assignment for the benefit of creditors;
~~(j) one or more enforceable judgments for thepayment of money in an aggregate amount in excess of $150,000,000 (net of (x) amounts covered by insurance policies issued by reputable insurance companies as determined by the Borrower and (y) amounts covered by valid third partyindemnification obligations from a third party that is solvent and has been notified of the claim under such indemnification obligation and has not disputed that it is liable for such claim) shall be rendered against Parent, the~~
-147-
~~B~~~~orrower, anyof the Restricted Subsidiaries or any combination thereof and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed, or any judgment creditor shall legally attach or levy uponassets of such Loan Party that are material to the businesses and operations of Parent, the Borrower and its Restricted Subsidiaries, taken as a whole, to enforce any such judgment;~~
~~(k) (i) an ERISA Eventoccurs that has resulted or could reasonably be expected to result in liability of any Loan Party under Title IV of ERISA in an aggregate amount that could reasonably be expected to result in a Material Adverse Effect, or (ii) any Loan Party orany ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its Withdrawal Liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount thatcould reasonably be expected to result in a Material Adverse Effect;~~
~~(l) to the extent unremedied for a period of10 Business Days (in respect of a default under clause (x) only), any Lien purported to be created under any Security Document (x) shall cease to be, or (y) shall be asserted by any Loan Party not to be, a valid and perfected Lien onany material portion of the Collateral, except (i) as a result of the sale or other disposition of the applicable Collateral to a Person that is not a Loan Party in a transaction permitted or not prohibited under the Loan Documents,(ii) as a result of the Collateral Agent’s failure to (A) maintain possession of any stock certificates, promissory notes or other instruments delivered to it under the Security Documents or (B) file Uniform Commercial Codecontinuation statements or (iii) as a result of acts or omissions of the Collateral Agent, the Administrative Agent or any Lender;~~
~~(m) any material provision of any LoanDocument or any Guarantee of the Loan Document Obligations shall for any reason be asserted by any Loan Party not to be a legal, valid and binding obligation of any Loan Party thereto other than as expressly permitted hereunder orthereunder;~~
~~(n) any Guarantees of the Loan Document Obligations by Parent, the Borrower or Subsidiary Loan Party pursuant to the Guarantee Agreement shall cease to be in full force andeffect (in each case, other than in accordance with the terms of the Loan Documents); or~~
~~(o) a Change in Control shalloccur;~~
then, and in every such event (other than an event with respect to Parent or the Borrower described in paragraph (h) or (i) of this ~~Article~~Section ), and at any time thereafter during the continuance of such event, the Administrative Agent ~~may, and at the requestof the Required Lenders (or, if an Event of Default resulting from a breach of the Financial Performance Covenant occurs and is continuing and prior to the expiration of the Standstill Period, (x) at the request of the Required RevolvingLenders (in such case only with respect to the Revolving Commitments, Revolving Loans, Swingline Commitments, and any Letters of Credit) only (a “Revolving Acceleration”) and (y) after a Revolving Acceleration, at the request of theRequired Term Loan~~(acting at the Direction of the Requested Lenders)~~,~~ shall, by notice to the Borrower, take either or both of the following actions, at the same or different times: (i) terminate the applicable Commitments, and thereupon the Commitments shall terminate immediately, (ii) declare the applicable Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately and (iii) require the deposit of cash collateral in respect of LC Exposure as provided in Section 2.05(j), in each case, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; and in case of any event with respect to Parent or the Borrower described in paragraph (h) or (i) of this ~~Article~~Section, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.
-148-
~~SECTION 7.02~~ ~~Right to Cure~~~~. Notwithstanding anything to the contrary containedin Section 7.01, in the event that the Borrower and its Restricted Subsidiaries fail to comply with the requirements of the Financial Performance Covenant as of the last day of any fiscal quarter of the Borrower, at any time after the beginningof such fiscal quarter until the expiration of the10^th^ Business Day following the date on which thefinancial statements with respect to such fiscal quarter (or the fiscal year ended on the last day of such fiscal quarter) are required to be delivered pursuant to Section 5.01(a) or Section 5.01(b), the Borrower or any Parent Entitythereof shall have the right to issue common Equity Interests or other Equity Interests (provided such other Equity Interests are reasonably satisfactory to the Administrative Agent) for cash or otherwise receive cash contributions to the capital ofthe Borrower as cash common Equity Interests or other Equity Interests (provided such other Equity Interests are reasonably satisfactory to the Administrative Agent) (collectively, the “~~~~Cure Right~~~~”), and upon the receipt by the Borrower of the NetProceeds of such issuance that are not otherwise applied (the “~~~~Cure Amount~~~~”) pursuant to the exercise by the Borrower of such Cure Right such Financial Performance Covenant shall be recalculated giving effect to the following pro formaadjustment:~~
~~(a) Consolidated EBITDA shall be increased with respect to such applicable fiscal quarter and any four fiscal quarter period that contains such fiscal quarter, solely forthe purpose of measuring the Financial Performance Covenant and not for any other purpose under this Agreement, by an amount equal to the Cure Amount;~~
~~(b) if, after giving effect to the foregoingpro forma adjustment (without giving effect to any portion of the Cure Amount on the balance sheet of the Borrower and its Restricted Subsidiaries with respect to such fiscal quarter only but with giving pro forma effect to any portion of the CureAmount applied to any repayment of any Indebtedness), the Borrower and its Restricted Subsidiaries shall then be in compliance with the requirements of the Financial Performance Covenants, the Borrower and its Restricted Subsidiaries shall be deemedto have satisfied the requirements of the Financial Performance Covenant as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of theFinancial Performance Covenant that had occurred shall be deemed cured for the purposes of this Agreement; and~~
~~(c) notwithstanding anything herein to thecontrary, (i) in each four consecutive fiscal quarter period of the Borrower there shall be at least two fiscal quarters in which the Cure Right is not exercised, (ii) during the term of this Agreement, the Cure Right shall not beexercised more than five times and (iii) the Cure Amount shall be no greater than the amount required for purposes of complying with the Financial Performance Covenant and any amounts in excess thereof shall not be deemed to be a Cure Amount.Notwithstanding any other provision in this Agreement to the contrary, the Cure Amount received pursuant~~ ~~to any exercise of the Cure Right shall bedisregarded for purposes of determining the Available Amount, the Available Equity Amount, any financial ratio-based conditions or tests, pricing or any available basket under Article VI of this Agreement.~~
SECTION 7.02 ~~SECTION 7.03~~ Application of Proceeds. After the exercise of remedies provided for in ~~Section 7.01~~Section 7.01, any amounts received on account of the Secured Obligations shall be applied by the Collateral Agent (acting at the Direction of the Required Lenders) in accordance with Section 4.02 of the Collateral Agreement and/or the similar provisions in the other Security Documents (subject to the terms and conditions of any relevant Intercreditor Agreement). Notwithstanding the foregoing, Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received from such Guarantor or its assets, but appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the allocation to Secured Obligations otherwise set forth in Section 4.02 of the Collateral Agreement and/or the similar provisions in the other Security Documents.
ARTICLE VIII
THE ADMINISTRATIVE AGENT AND COLLATERAL AGENT
SECTION 8.01 Authorization and Action. ~~(a)~~(a) Each Lender and each Issuing Bank hereby irrevocably appoints ~~JPMorgan Chase Bank, N.A.~~CSC Delaware Trust Company (“Delaware Trust”) and its successors and assigns to serve as the administrative agent and collateral agent under the Loan Documents and each Lender and each Issuing Bank authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative
-149-
Agent under such agreements and to exercise such powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than within the United States, each Lender and each Issuing Bank hereby grants to the Administrative Agent any required powers of attorney to execute and enforce any Security Document governed by the laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. Each Lender authorizes and directs CSC Delaware Trust Company to enter into the Guarantee Agreement, the Security Documents and the Intercreditor Agreements and each other agreement, document or instrument related thereto or otherwise contemplated by this Agreement or the Seventh Amendment on behalf of and for the benefit of the Lenders and the other Secured Parties named therein and agrees to be bound by the terms of the Guarantee Agreement, each Security Document and the Intercreditor Agreements and each such other agreement, document or instrument. For the avoidance of doubt, each Lender and each Issuing Bank hereby directs the Administrative Agent and the Collateral Agent to enter into any subordination arrangements contemplated by the Intercreditor Agreements (including the subordination of the Secured Obligations provided for or as effected by the First/Second/Third Lien Intercreditor Agreement). Without limiting the foregoing, each Lender and each Issuing Bank hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. All references in this Article VIII to the Administrative Agent shall include the Collateral Agent in connection with the rights, privileges and indemnities provided herein.
(b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions 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 to be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender and each Issuing Bank; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives an indemnification and is exculpated in a manner satisfactory to it from the Lenders and the Issuing Banks with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(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 mechanical and administrative in nature. 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;
-150-
(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 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;
(d) The Administrative Agent may perform any 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 of their respective duties and exercise their respective rights and powers 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 pursuant to this Agreement. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and ~~nonappealable~~non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent.
(e) None of the Lead ~~Arranger~~Arrangers shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder.
(f) In case of the pendency of any proceeding with respect to any Loan Party under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or any reimbursement obligation 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) 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, LC Disbursements and all other Loan Document 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 and the Administrative Agent (including any claim under Sections 2.12, 2.13, 2.15, 2.17 and 9.03) 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 any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender, each Issuing Bank and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, the Issuing Banks or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under ~~Section 9.03~~Section 9.03). 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 or Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Loan Document Obligations or the rights of any Lender or Issuing Bank or to authorize the Administrative Agent to vote in respect of the claim of any Lender or Issuing Bank in any such proceeding.
-151-
(g) The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and, except solely to the extent of the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Article, none of the Borrower or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Loan Document Obligations provided under the Loan Documents, to have agreed to the provisions of this Article.
SECTION 8.02 Administrative Agent’s Reliance, Indemnification, Etc~~. (a)~~. (a) Neither the Administrative Agent nor any of its Related Parties shall be (i) liable for any action taken or omitted to be taken by such party, the Administrative Agent or any of its Related Parties under or in connection with this Agreement or the other Loan Documents (x) with the consent of 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 to be necessary, under the circumstances as provided in the Loan Documents) or (y) in the absence of its own gross negligence or willful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and non-appealable judgment) or (ii) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any Loan Party or any officer thereof contained in this Agreement or any other Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of any Loan Party to perform its obligations hereunder or thereunder.
(b) The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by the Borrower, a Lender or an Issuing Bank, and 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 any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items (which on their face purport to be such items) expressly required to be delivered to the Administrative Agent ~~or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the~~~~Administrative Agent~~, (vi) the creation, perfection or priority of Liens on the Collateral or (vii) compliance by Affiliated Lenders with the terms hereof relating to Affiliated Lenders. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any claim, liability, loss, cost or expense suffered by the Borrower, any Subsidiary, any Lender or any Issuing Bank as a result of, any determination of the Revolving Exposure, any of the component amounts thereof or any portion thereof attributable to each Lender or Issuing Bank.
(c) Without limiting the foregoing, the Administrative Agent (i) may treat the payee of any promissory note as its holder until such promissory note has been assigned in accordance with Section 9.04, (ii) may rely on the Register to the extent set forth in ~~Section 9.04(b)~~Section 9.04(b), (iii) may consult with legal counsel (including counsel to the Borrower), independent public accountants and other experts selected by it, and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts, (iv) makes no warranty or representation to any Lender or Issuing Bank and shall not be responsible to any Lender or Issuing Bank for any statements, warranties or representations made by or on behalf of any Loan Party in connection with this Agreement or any other Loan Document, (v) in determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, may presume that such condition is satisfactory to such Lender or Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or Issuing Bank sufficiently in advance of the making of such Loan or the issuance of such Letter of Credit and (vi) shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement or any other Loan Document by acting upon, any notice, consent, certificate or other instrument or writing (which writing may be a fax, any electronic message, Internet or intranet website posting or other distribution) or any statement made to it orally or by telephone and believed by it to be genuine and signed or sent or otherwise authenticated by the proper party or parties (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the maker thereof).
-152-
(d) For purposes of clarity, and without limiting any rights, protections, immunities or indemnities afforded to either the Administrative Agent or Collateral Agent hereunder (including without limitation this Article VIII), phrases such as “satisfactory to the Administrative Agent (or Collateral Agent),” “approved by the Administrative Agent (or Collateral Agent),” “acceptable to the Administrative Agent (or Collateral Agent),” “as determined by the Administrative Agent (or Collateral Agent,” “in the Administrative Agent’s (or Collateral Agent’s) discretion,” “selected by the Administrative Agent (or Collateral Agent),” “elected by the Administrative Agent (or Collateral Agent),” “requested by the Administrative Agent (or Collateral Agent,” and phrases of similar import that authorize and permit either the Administrative Agent or Collateral Agent to approve, disapprove, determine, act or decline to act in its discretion shall be subject to the Administrative Agent or Collateral Agent, as applicable, receiving written direction from the Required Lenders (or such other number or percentage of the Lenders as expressly required hereunder or under the Loan Documents) to take such action or to exercise such rights.
SECTION 8.03 Posting of Communications.
(a) ~~. (a)~~The Borrower agrees that the Administrative Agent may, but shall not be obligated to, make any Communications available to the Lenders and the Issuing Banks by posting the Communications on IntraLinks™, DebtDomain, SyndTrak, ClearPar or any other electronic platform chosen by the Administrative Agent to be its electronic transmission system (the “Approved Electronic Platform”).
(b) Although the Approved Electronic Platform 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 Effective Date, a user ID/password authorization system) and the Approved Electronic Platform is secured through a per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, 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 any Lender that are added to the Approved Electronic Platform, 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 the Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution.
(c) THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE APPLICABLE PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE APPROVED ELECTRONIC PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF ~~THIRDPARTY~~THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE APPLICABLE PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, ANY LEAD ARRANGER, ANY BOOKRUNNER 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 ANY LOAN PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR THE APPROVED ELECTRONIC PLATFORM.
“Communications” means, collectively, any 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 Administrative Agent, any Lender or any Issuing Bank by means of electronic communications pursuant to this Section, including through an Approved Electronic Platform.
-153-
(d) Each Lender and each Issuing Bank agrees that notice to it (as provided in the next sentence) specifying that Communications have been posted to the Approved Electronic Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender and Issuing Bank agrees (i) to notify the Administrative Agent in writing (which could be in the form of electronic communication) from time to time of such Lender’s or Issuing Bank’s (as applicable) email address to which the foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such email address.
(e) 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 Communications on the Approved Electronic Platform in accordance with the Administrative Agent’s generally applicable document retention procedures and policies.
(f) Nothing herein shall prejudice the right of the Administrative Agent, any Lender or any Issuing Bank to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.
SECTION 8.04 The Administrative Agent Individually. With respect to its Commitment, Loans (including Swingline Loans), Letter of Credit Commitments and Letters of Credit, if any, the Person serving as the Administrative Agent shall have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein for any other Lender or Issuing Bank, as the case may be. The terms “Issuing Banks”, “Lenders”, “Required Lenders” and any similar terms shall, unless the context clearly otherwise indicates, include the Administrative Agent in its individual capacity as a Lender, Issuing Bank or as one of the Required Lenders, if and as applicable. The Person serving as the Administrative Agent 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 banking, trust or other business with, the Borrower, any Subsidiary or any Affiliate of any of the foregoing as if such Person was not acting as the Administrative Agent and without any duty to account therefor to the Lenders or the Issuing Banks.
SECTION 8.05 Successor Administrative Agent. ~~(a)~~(a) The Administrative Agent may resign at any time by giving 30 days’ prior written notice thereof to the Lenders, the Issuing Banks and the Borrower, whether or not a successor Administrative Agent has been appointed. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent’s giving of notice of resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in New York, New York or an Affiliate of any such bank. In either case, such appointment shall be subject to the prior written approval of the Borrower (which approval shall not be required while an Event of Default has occurred and is continuing). Upon the acceptance of any appointment as Administrative Agent by a successor Administrative Agent, such successor Administrative Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the retiring Administrative Agent. Upon the acceptance of appointment as Administrative Agent by a successor Administrative Agent, the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement and the other Loan Documents. Prior to any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the retiring Administrative Agent shall take such action as may be reasonably necessary to assign to the successor Administrative Agent its rights as Administrative Agent under the Loan Documents.
(b) Notwithstanding paragraph ~~(a)~~(a) of this Section 8.05, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (i) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents; provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Security Document for the benefit
-154-
of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties, and continue to be entitled to the rights set forth in such Security Document and Loan Document, and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this Section (it being understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action under any Security Document, including any action required to maintain the perfection of any such security interest), and (ii) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent; provided that (A) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article and Section 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring 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 Administrative Agent was acting as Administrative Agent and in respect of the matters referred to in the proviso under clause (i) above.
SECTION 8.06 Acknowledgments of Lenders and Issuing Banks.
(a) Each Lender represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and that it has, independently and without reliance upon the Administrative Agent, any Lead Arranger or any other Lender, 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, and to make, acquire or hold Loans hereunder. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, any Lead Arranger or any other Lender, 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, by delivering its signature page to this Agreement on the Effective Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender 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 or the Lenders on the Effective Date.
(c) [Reserved].
~~(c) On and after the Third Amendment to Credit Agreement Effective Date (in respect of the Term B-3 Facility) and on and after the Fourth Amendment Effective Date (inrespect of the Term B-4 Facility), this Section 8.06(c) shall apply solely with respect to the Term B-3 Facility and the Term B-4 Facility:~~
~~(i) Each Term B-3 Lender and each Term B-4Lender hereby agrees that (x) if the Administrative Agent notifies such Lender that the Administrative Agent has determined in its sole discretion that any funds received by such Lender from the Administrative Agent or any of its Affiliateswere erroneously transmitted (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) to such Lender (whether or not known to such Lender), and demands the returnof such Payment (or a portion thereof), such Lender shall promptly, but in any event no later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was madein same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of theNYFRB 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 shall not assert, andhereby 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, includingwithout limitation any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to any Lender under this Section 8.06(c) shall be conclusive, absent manifest error.~~
-155-
~~(ii) Each Term B-3 Lender and each Term B-4Lender 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 theAdministrative 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 madewith respect to such Payment. Each Lender 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 shall promptly notify the Administrative Agent of such occurrence and,upon demand from the Administrative Agent, it shall promptly, but in any event no later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made insame day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRBRate 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 Partyhereby agrees that (x) in the event an erroneous Payment (or portion thereof) are not recovered from any Lender that has received such Payment (or portion thereof), the Administrative Agent shall be subrogated to all the rights of such Lenderwith respect to such amount and (y) an erroneous Payment shall not 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 Payment is, and solelywith respect to the amount of such Payment that is, comprised of funds of the Borrower, any other Loan Party or their respective Subsidiaries (including, for the avoidance of doubt, the~~ ~~proceeds of any financing or contribution incurred or obtained by the Borrower, any Loan Party or their respective Subsidiaries).~~
~~(iv) Each applicable party’s obligationsunder this Section 8.06(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, the termination of the Commitments or the repayment, satisfactionor discharge of all Obligations under any Loan Document.~~
SECTION 8.07 Collateral Matters. ~~(a)~~(a) Except with respect to the exercise of setoff rights in accordance with Section 9.08 or with respect to a Secured Party’s right to file a proof of claim in an insolvency proceeding, no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Secured Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms thereof.
(b) In furtherance of the foregoing and not in limitation thereof, no arrangements in respect of Cash Management Services the obligations under which constitute Secured Cash Management Obligations and no Swap Agreement the obligations under which constitute Secured Swap Obligations, will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under any Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such arrangement in respect of Cash Management Services or Swap Agreement, as applicable, shall be deemed to have appointed the Administrative Agent to serve as administrative agent and collateral agent under the Loan Documents and agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph.
-156-
(c) The Secured Parties irrevocably authorize the Administrative Agent, at its option and in its discretion, to subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property ~~that is permitted by Section 6.02(a)~~. 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, the payment of taxes with respect to any of the Collateral, providing, maintaining, monitoring or preserving insurance on (including any flood insurance policies or for determining whether any flood insurance policies are or should be obtained in resect of the Collateral), nor shall the Administrative Agent be responsible or liable to the Lenders or any other Secured Party for any failure to monitor or maintain any portion of the Collateral.
SECTION 8.08 Credit Bidding.
(a) The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Secured Obligations (including by accepting some or all of the Collateral in satisfaction of some or all of the Secured Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Loan Party is subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Secured Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid by the Administrative Agent at the direction of the Required Lenders on a ratable basis (with Secured Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase). In connection with any such bid, (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles, (ii) each of the Secured Parties’ ratable interests in the Secured Obligations which were credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (iii) the Administrative Agent shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or equity interests thereof, shall be governed, directly or indirectly, by, and the governing documents shall provide for, control by the vote of the Required Lenders or their permitted assignees under the terms of this Agreement or the governing documents of the applicable acquisition vehicle or vehicles, as the case may be, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in Section 9.02 of this Agreement), (iv) the Administrative Agent on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably on account of the relevant Secured Obligations which were credit bid, interests, whether as equity, partnership interests, limited partnership interests or membership interests, in any such acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the need for any Secured Party or acquisition vehicle to take any further action, and (v) to the extent that Secured Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Secured Obligations assigned to the acquisition vehicle exceeds the amount of Secured Obligations credit bid by the acquisition vehicle or otherwise), such Secured Obligations ~~shallautomatically~~may, by action of the Administrative Agent (acting at the Direction of the Required Lenders), be reassigned to the Secured Parties pro rata with their original interest in such Secured Obligations and the equity interests and/or debt instruments issued by any acquisition vehicle on account of such Secured Obligations ~~shallautomatically~~may, by action of the Administrative Agent (acting at the Direction of the Required Lenders), be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Secured Obligations of each Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall execute such documents and provide such information regarding the Secured Party (and/or any designee of the Secured Party which will receive interests in or debt instruments issued by such acquisition vehicle) as the Administrative Agent may reasonably request in connection with the formation of any acquisition vehicle, the formulation or submission of any credit bid or the consummation of the transactions contemplated by such credit bid.
-157-
SECTION 8.09 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 the Plan Asset Regulations 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, and all conditions for exemptive relief thereunder 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,
(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 sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), 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).
(c) The Administrative Agent and each Lead Arranger hereby informs the Lenders that each such Person is not undertaking to provide investment advice or to give advice in a fiduciary capacity in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments, this Agreement and any other Loan Documents, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
-158-
SECTION 8.10 Erroneous Payments.
(a) If the Administrative Agent notifies a Lender, or any Person who has received funds on behalf of a Lender (any such Lender or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof) (provided that, without limiting any other rights or remedies (whether at law or in equity), the Administrative Agent may not make any such demand under this clause (a)(i) with respect to an Erroneous Payment unless such demand is made within 90 days of the date of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including such second Business Day until the date such amount is repaid to the Administrative Agent in same day funds 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. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender, or any Person who has received funds on behalf of such Lender, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) 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, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) (A) in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 8.10(b).
(c) Each Lender hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement.
-159-
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time, (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant tranche with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any promissory notes evidencing such Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment in accordance with Section 9.04 and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender under the Loan Documents with respect to each Erroneous Payment Return Deficiency (the “Erroneous Payment Subrogation Rights”).
(e) The parties hereto agree that an Erroneous Payment shall not 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 received by the Administrative Agent from or on behalf of the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, 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 Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 8.10 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, and the termination of the Commitments.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Notices. Except in the case of notices and other communications expressly permitted to be given by telephone, all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by fax, e-mail or other electronic transmission, as follows:
(a) If to Parent, to Sinclair Broadcast Group, ~~Inc.~~LLC, 10706 Beaver Dam Road, Hunt Valley, Maryland 21030, Attention: Lucy Rutishauser, Email: *****;
-160-
(b) If to the Borrower, to Sinclair Television Group, Inc., 10706 Beaver Dam Road, Hunt Valley, Maryland 21030, Attention: Lucy Rutishauser, Email: *****;
(c) If to the Administrative Agent, to ~~JPMorganChase Bank, N.A., 500 Stanton Christiana Road, NCC 5, 1st Floor, Newark, DE 19713-2107; Attention: Mary Crews; Telephone: (302) 634-5758, Email: mary.crews@jpmorgan.com;~~CSC Delaware Trust Company, 251 Little Falls Drive, Wilmington Delaware 19808; Attention: Loan Agency – Sinclair; Email: sean.foronjy@cscgfm.com, adam.berman@cscgfm.com and loanagent@delawaretrustcompany.com, with a copy (which shall not constitute notice) to: ArentFox Schiff LLP, 1301 Avenue of the Americas, 42nd Floor, New York, New York 10019; Attention: Jeffrey Gleit; Email: *****;
(d) If to any Issuing Bank, to it at its address (or fax number or email address) most recently specified by it in a notice delivered to the Administrative Agent, Parent and the Borrower (or, in the absence of any such notice, to the address (or fax number or email address) set forth in the Administrative Questionnaire of the Lender that is serving as such Issuing Bank or is an Affiliate thereof);
(e) If to any Swingline Lenders, to it at its address (or fax number or email address) most recently specified by it in a notice delivered to the Administrative Agent, Parent and the Borrower (or, in the absence of any such notice, to the address (or fax number or email address) set forth in the Administrative Questionnaire of the Lender that is serving as such Swingline Lender or is an Affiliate thereof); and
(f) If to any other Lender, to it at its address (or fax number or email address) set forth in its Administrative Questionnaire.
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by fax or other electronic transmission shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient).
Parent and the Borrower may change their address, email or fax number for notices and other communications hereunder by notice to the Administrative Agent, the Administrative Agent may change its address, email or fax number for notices and other communications hereunder by notice to Parent and the Borrower and the Lenders may change their address, email or fax number for notices and other communications hereunder by notice to the Administrative Agent. Notices and other communications to the Lenders and the Issuing Banks hereunder may also be delivered or furnished by electronic transmission (including email and Internet or intranet websites) pursuant to procedures reasonably approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or Issuing Bank pursuant to Article II if such Lender or Issuing Bank, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic transmission.
SECTION 9.02 Waivers; Amendments.
(a) [Reserved].
(b) No failure or delay by the Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender in exercising any right or power under any Loan Document 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 a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Collateral Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would
-161-
otherwise have. No waiver of any provision of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (c) of this Section, 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, amendment, renewal or extension of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, the Collateral Agent, or any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time. No notice or demand on the Borrower or Parent in any case shall entitle the Borrower or Parent to any other or further notice or demand in similar or other circumstances.
(c) Except as expressly provided herein, neither any Loan Document nor any provision thereof may be waived, amended or modified except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Parent, the Borrower, the Administrative Agent (~~to the extent that suchwaiver, amendment or modification does not affect the rights, duties, privileges or obligations of the Administrative Agent under this Agreement, the Administrative Agent shall execute such waiver, amendment or other modification to the extentapproved by the~~acting at the Direction of the Required Lenders) and the Required Lenders or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent (acting at the Direction of the Required Lenders) and the Loan Party or Loan Parties that are parties thereto, in each case with the consent of the Required Lenders, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of such Lender (it being understood that a waiver of any condition precedent set forth in ~~Section 4.02~~Section 4.02 or the waiver of any Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute an extension or increase of any Commitment of any Lender), (ii) reduce the principal amount of any Loan or LC Disbursement (it being understood that a waiver of any Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute a reduction or forgiveness in principal) or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly and adversely affected thereby (it being understood that any change to the definition of “First Lien Leverage Ratio” or in the component definitions thereof shall not constitute a reduction of interest or fees); provided that only the consent of the Required Lenders shall be necessary to waive any obligation of the Borrower to pay default interest pursuant to ~~Section 2.13(c)~~Section 2.13(c), (iii) postpone the maturity of any Loan (it being understood that a waiver of any Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute an extension of any maturity date), or the date of any scheduled amortization payment of the principal amount of any Loan under ~~Section 2.10~~Section 2.10 or the applicable Refinancing Amendment or Loan Modification Agreement, or the reimbursement date with respect to any LC Disbursement, or any date for the payment of any interest or fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly and adversely affected thereby), (iv) change any of the provisions of this Section without the written consent of each Lender directly and adversely affected thereby, provided that any such change which is in favor of a Class of Lenders holding Loans maturing after the maturity of other Classes of Lenders (and only takes effect after the maturity of such other Classes of Loans or Commitments) will require the written consent of the Required Lenders with respect to each Class directly and adversely affected thereby, (v) lower the percentage set forth in the definition of “Required Lenders” or any other provision of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder, without the written consent of each Lender (or each Lender of such Class, as the case may be), (vi) release all or substantially all the value of the Guarantees under the Guarantee Agreement (except as permitted or provided for in the Loan Documents) without the written consent of each Lender (other than a Defaulting Lender), (vii) release all or substantially all the Collateral from the Liens of the Security Documents, without the written consent of each Lender (other than a Defaulting Lender) (except as permitted or provided for in the Loan Documents), (viii) change any provision of Section 2.18(c) or Section 4.02 of the Collateral Agreement, in each case in any manner that would alter the pro rata sharing of payments or other amounts required thereby, without the written consent of each Lender directly and adversely affected thereby; provided that modifications to Section 2.18(c) in connection with ~~(x)~~any buy back of Term Loans by any Purchasing Borrower Party (including the Borrower or any of its Restricted Subsidiaries) pursuant to Section 9.04~~, (y) any Incremental Facility Amendment or (z)~~ or any Refinancing Amendment, in each case, shall only require approval (to the extent any such approval is otherwise required by such provisions) of the Required Lenders, or (ix) change the currency in which any Loan is denominated, without the written consent of each Lender directly affected thereby; provided, further, that (A) no such agreement shall amend,
-162-
modify or otherwise affect the rights or duties of the Administrative Agent, the Collateral Agent, any Issuing Bank or any Swingline Lender without the prior written consent of the Administrative Agent, Collateral Agent, Issuing Bank or Swingline Lender, as the case may be, including, without limitation, any amendment of this Section, (B) any provision of this Agreement or any other Loan Document may be amended by an agreement in writing entered into by Parent, the Borrower and the Administrative Agent to cure any ambiguity, omission, mistake, error, defect or inconsistency and (C) any waiver, amendment 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 solely by Parent, the Borrower, the Administrative Agent (acting at the Direction of the Required Lenders) and the requisite percentage in interest of the affected Class of Lenders stating that would be required to consent thereto under this Section if such Class of Lenders were the only Class of Lenders hereunder at the time. Notwithstanding the foregoing, (a) this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent (acting at the Direction of the Required Lenders), Parent and the Borrower (i) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders on substantially the same basis as the Lenders prior to such inclusion; (b) this Agreement and other Loan Documents may be amended or supplemented by an agreement or agreements in writing entered into by the Administrative Agent (acting at the Direction of the Required Lenders) and Parent, the Borrower or any Loan Party as to which such agreement or agreements is to apply, without the need to obtain the consent of any Lender, to include “parallel debt” or similar provisions, and any authorizations or granting of powers by the Lenders and the other Secured Parties in favor of the Collateral Agent, in each case required to create in favor of the Collateral Agent any security interest contemplated to be created under this Agreement, or to perfect any such security interest, where the Administrative Agent shall have been advised by its counsel that such provisions are necessary or advisable under local law for such purpose (with Parent and the Borrower hereby agreeing to, and to cause their subsidiaries to, enter into any such agreement or agreements upon reasonable request of the Administrative Agent promptly upon such request); and (c) upon notice thereof by the Borrower to the Administrative Agent with respect to the inclusion of any previously absent financial maintenance covenant, this Agreement shall be amended by an agreement in writing entered into by the Borrower and the Administrative Agent without the need to obtain the consent of any Lender to include such covenant on the date of the incurrence of the applicable Indebtedness to the extent required by the terms of such definition or section.
(d) In connection with any proposed amendment, modification, waiver or termination (a “Proposed Change”) requiring the consent of all Lenders or all directly and adversely affected Lenders, if the consent of the Required Lenders to such Proposed Change is obtained, but the consent to such Proposed Change of other Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained as described in paragraph (c) of this Section being referred to as a “Non-Consenting Lender”), then, the Borrower may, at its sole expense and effort, upon notice to such Non-Consenting Lender and the Administrative Agent, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in ~~Section 9.04~~Section 9.04), all its interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which Eligible Assignee may be another Lender, if a Lender accepts such assignment), provided that (a) such Non-Consenting Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other amounts (including any amounts under ~~Section 2.11(a)(i)~~Section 2.11(a), payable to it hereunder from the Eligible Assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and (b) unless waived, such Eligible Assignee shall have paid to the Administrative Agent the processing and recordation fee specified in ~~Section 9.04(b)~~Section 9.04(b).
(e) Notwithstanding anything in this Agreement or the other Loan Documents to the contrary, Revolving Commitments, Revolving Exposure and Term Loans of any Lender that is at the time a Defaulting Lender shall not have any voting or approval rights under the Loan Documents and shall be excluded in determining whether all Lenders (or all Lenders of a Class), all affected Lenders (or all affected Lenders of a Class) or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to this ~~Section 9.02~~Section 9.02); provided that (i) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (ii) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender.
-163-
(f) Notwithstanding anything in this Agreement or the other Loan Documents to the contrary, each Affiliated Lender (other than an Affiliated Debt Fund) hereby agrees that, if a proceeding under the United States Bankruptcy Code or any other Federal, state or foreign bankruptcy, insolvency, receivership or similar law shall be commenced by or against the Borrower or any other Loan Party at a time when such Lender is an Affiliated Lender, such Affiliated Lender irrevocably authorizes and empowers the Administrative Agent to vote on behalf of such Affiliated Lender with respect to the Loans held by such Affiliated Lender in any manner in the Administrative Agent’s sole discretion, unless the Administrative Agent instructs such Affiliated Lender to vote, in which case such Affiliated Lender shall vote with respect to the Loans held by it as the Administrative Agent directs; provided that such Affiliated Lender shall be entitled to vote in accordance with its sole discretion (and not in accordance with the direction of the Administrative Agent) in connection with any plan of reorganization to the extent any such plan of reorganization proposes to treat any Secured Obligations held by such Affiliated Lender in a manner that is less favorable in any material respect to such Affiliated Lender than the proposed treatment of similar Secured Obligations held by Lenders that are not Affiliates of the Borrower.
(g) Without any further consent of the Lenders, the Administrative Agent and the Collateral Agent shall be authorized to negotiate, execute and deliver on behalf of the Secured Parties any Intercreditor Agreement in a form substantially consistent with ~~Exhibit E or Exhibit Fhereto~~the First/Second/Third Lien Intercreditor Agreement and the Third Lien Pari Passu Intercreditor Agreement (if any).
(h) Notwithstanding the foregoing, only the Required Revolving Lenders shall have the ability to waive, amend, supplement or modify ~~the covenant set forth in (x) Section 6.10, Article VII (solely as it relatesto Section 6.10) or any component definition of the covenant set forth in Section 6.10 (solely as it relates to Section 6.10), (y) Section 6.12 only to the extent such amendment, supplement or modification does not directlyor indirectly affect Lenders (in their capacity as such) holding Loans other than Revolving Commitments and~~ ~~Revolving Loans or(z)~~Section 4.02 to the extent such amendment, supplement or modification relates to the borrowing of Revolving Loans, Swingline Loans or Letters of Credit.
SECTION 9.03 Expenses; Indemnity; Damage Waiver.
(a) The Borrower shall pay, if the Effective Date occurs, (i) all reasonable and documented or invoiced out of pocket expenses incurred by the Administrative Agent, the Collateral Agent and their Affiliates (without duplication), including the reasonable fees, charges and disbursements of Simpson Thacher & Bartlett LLP and ArentFox Schiff LLP and to the extent reasonably determined by the Administrative Agent to be necessary one regulatory counsel or otherwise retained with the Borrower’s consent, in each case for the Administrative Agent and the Collateral Agent, and to the extent retained with the Borrower’s consent, consultants, in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Loan Documents or any amendments, modifications or waivers of the provisions thereof; provided that such charges, fees and disbursement of regulatory counsel, together with any fees, charges and disbursement of regulatory counsel for credit facilities to be obtained on the Effective Date by RSN, shall not exceed $75,000 and (ii) all reasonable and documented or invoiced out-of-pocket expenses incurred by the Administrative Agent and the Collateral Agent, and each Issuing Bank ~~or any Lender~~, including the fees, charges and disbursements of counsel for the Administrative Agent and the Collateral Agent, and the Issuing Banks ~~and the Lenders~~, in connection with the enforcement ~~or protection of their respective rights in connection with~~of this Agreement and the Loan Documents, including their respective rights under this Section, or in connection with the Loans made or 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; provided that such counsel shall be limited to one lead counsel and one local counsel in each applicable jurisdiction and, in the case of a conflict of interest, one additional counsel per affected party.
(b) The Borrower shall indemnify each Agent, each Issuing Bank~~, each Lender~~ 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 and reasonable and documented or invoiced out-of-pocket fees and expenses of one counsel and one local counsel in each applicable jurisdiction (and,
-164-
in the case of a conflict of interest, where the Indemnitee affected by such conflict notifies the Borrower of the existence of such conflict and thereafter retains its own counsel, one additional counsel) for all Indemnitees (which may include a single special counsel acting in multiple jurisdictions), incurred by or asserted against any Indemnitee by any third party or by Parent, the Borrower or any Subsidiary arising out of, in connection with, or as a result of (i) the execution or delivery of any Loan Document or any other agreement or instrument contemplated thereby, the performance by the parties to the Loan Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated thereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by the 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) to the extent in any way arising from or relating to any of the foregoing, any actual or alleged presence or Release of Hazardous Materials on, at or from any property currently or formerly owned or operated by Parent, the Borrower or any of its Restricted Subsidiaries, or any other Environmental Liability, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by Parent, the Borrower or any Subsidiary 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 (i) are determined by a court of competent jurisdiction by final, non-appealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of, or a material breach of the Loan Documents by, such Indemnitee or its Related Parties or (ii) any dispute between and among indemnified persons that does not involve an act or omission by Parent, the Borrower or any of its Restricted Subsidiaries except that each Agent, the Lead Arrangers, the ~~Joint~~ Bookrunners and the Issuing Banks shall be indemnified in their capacities as such to the extent that none of the exceptions set forth in clause (i) applies to such Person at such time.
(c) To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent, the Collateral Agent, any Swingline Lender or any Issuing Bank under paragraph (a) or (b) of this Section, and without limiting the Borrower’s obligation to do so, each Lender severally agrees to pay to the Administrative Agent, Collateral Agent, Swingline Lender or Issuing Bank, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent, Collateral Agent, Swingline Lender or Issuing Bank, in its capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its share of the aggregate Revolving Exposure, outstanding Loans and unused Commitments at the time. ~~The obligations of the Lenders under this paragraph (c) are subject to the last sentence of Section 2.02 (which shall apply mutatismutandis to the Lenders’ obligations under this paragraph (c)).~~
(d) To the full extent permitted by applicable law, none of Parent or the Borrower shall assert, and each hereby waives, any claim against any Indemnitee (i) for any damages arising from the use by others of information or other materials obtained through telecommunications, electronic or other information transmission systems (including the Internet), provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such damages are determined by a court of competent jurisdiction by final, non-appealable judgment to have resulted from the gross negligence or willful misconduct of, or a breach of the Loan Documents by, such Indemnitee or its Related Parties, or (ii) on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, any Loan Document or any agreement or instrument contemplated thereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later than 10 Business Days after written demand therefor; provided, however, that any Indemnitee shall promptly refund an indemnification payment received hereunder to the extent that there is a final judicial determination that such Indemnitee was not entitled to indemnification with respect to such payment pursuant to this ~~Section 9.03~~Section 9.03.
(f) Notwithstanding anything in this Agreement to the contrary, each party to this Agreement agrees that the Administrative Agent, each Lead Arranger, each Joint Bookrunner, the Swingline Lender, each Issuing Bank and each Lender (each as defined in this Agreement as in effect immediately prior to the Seventh Amendment) prior to the Seventh Amendment Effective Date shall continue to receive the benefit of Section 2.15 (Increased Costs), Section 2.16 (Break Funding Payments), Section 2.17 (Taxes), Article VIII (the Agents), Section 9.02(c)
-165-
(Waivers; Amendment) and Section 9.03 (Expenses; Indemnity; Damage Waiver) of the Existing Credit Agreement (in each case, as such provisions were in effect immediately prior to the Seventh Amendment Effective Date, collectively, the “Protective Provisions”), which Protective Provisions shall continue in effect for the benefit of the each such party in respect of any actions taken or omitted to be taken by it under the Loan Documents, and any actions taken or omitted to be taken by it under or in connection with this Agreement, whether prior to or after the date hereof and notwithstanding the effectiveness of the Seventh Amendment. In furtherance of the foregoing, the Loan Parties hereby acknowledge and agree that (i) any action taken or omitted to be taken by the Administrative Agent, each Lead Arranger and each Joint Bookrunner prior to the Seventh Amendment Effective Date and their Related Parties under or in connection with this Agreement, and any costs and expenses incurred by the any such party and their Related Parties in connection therewith, shall be entitled to all the benefits of the Protective Provisions and (ii) the Administrative Agent, each Lead Arranger and each Joint Bookrunner party to this Agreement prior to the Seventh Amendment Effective Date, and their Related Parties, will continue to constitute Indemnitees for all purposes of the Loan Documents, including the Protective Provisions.
SECTION 9.04 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 (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) other than in connection with a transaction that would have been permitted pursuant to Section 9.04(a) of this Agreement in effect prior to the Seventh Amendment Effective Date, a Loan Party may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void), (ii) no assignment shall be made to any Defaulting Lender or any of its Subsidiaries, or any Persons who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (ii) and (iii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. 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 (including any Affiliate of the Issuing Bank that issued any Letter of Credit), Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)~~(i)~~ Subject to the conditions set forth in paragraphs (b)(ii) and (g) below, any Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent of (A) the Borrower (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld, delayed or conditioned), provided that no consent of the Borrower shall be required for an assignment (1) by a Term Lender to any Lender or an Affiliate of any Lender, (2) by a Term Lender to an Approved Fund, or (3) by a Revolving Lender to a Revolving Lender or an Affiliate or an Approved Fund of a Revolving Lender, ~~or(4) if an Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is continuing, by a Term Lender or a Revolving Lender~~ and provided, further, that the Borrower shall have the right to withhold its consent to any assignment if, in order for such assignment to comply with applicable law, the Borrower would be required to obtain the consent of, or make any filing or registration with, any Governmental Authority, (B) the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned), and (C) solely in the case of Revolving Loans and Revolving Commitments, each Issuing Bank and Swingline Lender (such consent not to be unreasonably withheld, delayed or conditioned), provided that no consent of any Issuing Bank or Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or Term Commitment. Notwithstanding anything in this ~~Section 9.04~~Section 9.04 to the contrary, if any Person (other than the Administrative Agent) whose consent is required by this paragraph with respect to any assignment has not given the Administrative Agent written notice of its objection to such assignment within 10 Business Days after written notice to such Person, such Person shall be deemed in each case to have consented to such assignment.
-166-
(i) ~~(ii)~~Assignments shall be subject to the following additional conditions: (A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined ~~as of the trade date specified in the Assignment and Assumption with respect to such assignment or,if no trade date is so specified,~~ as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than, in the case of a Revolving Loan or Revolving Commitment, $1,000,000 or, in the case of a Term Loan, $1,000,000, unless the Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Borrower shall be required if an Event of Default under, ~~Section 7.01(a), (b), (h) or (i)~~Section 7.01(a), (b), (h) or (i) has occurred and is continuing, (B) 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, provided that this subclause (B) shall not be construed to prohibit assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans, (C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption (which shall include a representation by the assignee that it meets all the requirements to be an Eligible Assignee), together (unless waived by the Administrative Agent in its sole discretion) with a processing and recordation fee of $3,500, provided that assignments made pursuant to ~~Section 2.19(b) or Section 9.02(c)~~Section 2.19(b) or Section 9.02(c) shall not require the signature of the assigning Lender to become effective and (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent any tax forms required by ~~Section 2.17(e)~~Section 2.17(e) and an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower, the Loan Parties and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws.
Assignments of all or any portion of the Revolving Commitment of a Lender that is also an Issuing Bank may be made; provided that the assignee (or any Lender with a Revolving Commitment who agrees to act in such capacity) shall be or become an Issuing Bank and assume a ratable portion of such assignor’s Letter of Credit Commitment and its rights and obligations in its capacity as Issuing Bank.
(ii) ~~(iii)~~Subject to acceptance and recording thereof pursuant to paragraph (b)(v) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the 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 Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption 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 (and subject to the obligations and limitations of) Sections ~~2.15, 2.16,2.17~~2.15, 2.16, 2.17 and ~~9.03~~9.03 and to any fees payable hereunder that have accrued for such Lender’s account but have not yet been paid). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 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 ~~(c)(i)~~(c)(i) of this Section.
(iii)~~(iv)~~ The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it, each Affiliated Lender Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal and interest amounts of the Loans and LC Disbursements 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 Parent, 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 notice to the contrary. In addition, the Administrative Agent shall maintain on the Register information regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender. The Register shall be available for inspection by the Borrower at any reasonable time and from time to time upon reasonable prior notice. Notwithstanding the foregoing, in no event shall the Administrative Agent be obligated to ascertain, monitor or inquire as to whether any Lender is an Affiliated Lender, nor shall the Administrative Agent be obligated to monitor the aggregate amount of the Loans ~~or Incremental Term Loans~~ held by Affiliated Lenders.
-167-
(iv) ~~(v)~~Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire and any tax forms required by ~~Section 2.17(e)~~Section 2.17(e) (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph ~~(b)~~(b) of this Section and any written consent to such assignment required by paragraph ~~(b)~~(b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph ~~(b)~~(b).
(v) ~~(vi)~~The words “execution,” “signed,” “signature” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act or any other similar state laws based on the Uniform Electronic Transactions Act.
(c)~~(i)~~ Any Lender may, without the consent of the Borrower or the Administrative Agent, sell participations to one or more banks or other Persons (other than to a Person that is not an Eligible Assignee) (a “Participant”), provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) Parent, the Borrower, the Administrative Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. 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 the Loan Documents and to approve any amendment, modification or waiver of any provision of the Loan Documents, 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 described in the first proviso to ~~Section 9.02(c)~~Section 9.02(c) that directly and adversely affects such Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of (and subject to the obligations and limitations of) Sections ~~2.15, 2.16~~2.15, 2.16 and ~~2.17~~2.17 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of ~~Section 9.08~~Section 9.08 as though it were a Lender~~,~~; provided that such Participant agrees to be subject to ~~Section 2.18(b)~~Section 2.18(b) as though it were a Lender.
(i) ~~(ii)~~A Participant shall not be entitled to receive any greater payment under ~~Section 2.15 orSection 2.17~~Section 2.15 or Section 2.17 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior consent (not to be unreasonably withheld or delayed).
(ii) ~~(iii)~~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”), provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary in connection with a Tax audit or other proceeding to establish that such Commitment, Loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive (absent manifest error), and each Person whose name is recorded in the Participant Register pursuant to the terms hereof shall be treated as a Participant for all purposes of this Agreement, notwithstanding notice to the contrary
-168-
(d) Any Lender may, without the consent of the Borrower or the Administrative Agent, 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 any pledge or assignment to secure obligations to a Federal Reserve Bank or other central bank, and this Section shall not apply to any such pledge or assignment of a security interest, provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(e) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPV”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPV to make any Loan and (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPV shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, such party will not institute against, or join any other person in instituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this ~~Section 9.04~~Section 9.04, any SPV may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by the Borrower and Administrative Agent) providing liquidity or credit support to or for the account of such SPV to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPV.
(f) Any Lender may, at any time, assign all or a portion of its rights and obligations under this Agreement to the Affiliated Lenders, subject to the following ~~limitations~~limitation :
~~(1) Affiliated Lenders will not receive information provided solely to Lenders by the Administrative Agent or any Lender and will not be permitted to attend or participatein meetings attended solely by the Lenders and the Administrative Agent, other than the right to receive notices of Borrowings, notices of prepayments and other administrative notices in respect of its Loans or Commitments required to be deliveredto Lenders pursuant to Article II; provided, however, that the foregoing provisions of this clause will not apply to the Affiliated Debt Funds;~~
~~(2) for purposes of any amendment, waiver ormodification of any Loan Document (including such modifications pursuant to Section 9.02), or, subject to Section 9.02(e), any plan of reorganization pursuant to the U.S. Bankruptcy Code, that in either case does not require the consent ofeach Lender or each affected Lender or does not adversely affect such Affiliated Lender in any material respect as compared to other Lenders, Affiliated Lenders will be deemed to have voted in the same proportion as the Lenders that are notAffiliated Lenders voting on such matter; and each Affiliated Lender hereby acknowledges, agrees and consents that if, for any reason, its vote to accept or reject any plan pursuant to the U.S. Bankruptcy Code is not deemed to have been so voted,then such vote will be (x) deemed not to be in good faith and (y) “designated” pursuant to Section 1126(e) of the U.S. Bankruptcy Code such that the vote is not counted in determining whether the applicable class hasaccepted or rejected such plan in accordance with Section 1126(c) of the U.S. Bankruptcy Code; provided that Affiliated Debt Funds will not be subject to such voting limitations and will be entitled to vote as any other Lender;~~
-169-
~~(3) the aggregate principal amount of Loanspurchased by assignment pursuant to this Section 9.04 and held at any one time by Affiliated Lenders (other than Affiliated Debt Funds) may not exceed 30% of the outstanding principal amount of all Loans plus the outstanding principal amount ofall term loans made pursuant to any Incremental Term Loan calculated at the time such Loans are purchased (such percentage, the “Affiliated Lender Cap”); provided that to the extent any assignment to an Affiliated Lender would result inthe aggregate principal amount of all Loans held by Affiliated Lenders exceeding the Affiliated Lender Cap, the assignment of such excess amount will be void ab initio;~~
~~(4) Affiliated Lenders may not purchaseRevolving Loans; and~~
~~(5)~~ the assigning Lender and the Affiliated Lender purchasing such Lender’s Loans shall execute and deliver to the Administrative Agent an assignment agreement substantially in the form of Exhibit B hereto (an “Affiliated Lender Assignment and Assumption”); provided that each Affiliated Lender agrees to notify the Administrative Agent and the Borrower promptly (and in any event within 10 Business Days) if it acquires any Person who is also a Lender, and each Lender agrees to notify the Administrative Agent and the Borrower promptly (and in any event within 10 Business Days) if it becomes an Affiliated Lender.
Notwithstanding anything in ~~Section 9.02~~Section 9.02 or the definition of “Required Lenders” to the contrary, for purposes of determining whether the Required Lenders have (i) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom, (ii) otherwise acted on any matter related to any Loan Document, or (iii) directed or required the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, the aggregate amount of Loans held by any Affiliated Debt Funds shall be deemed to be not outstanding to the extent in excess of 49.9% of the amount required for all purposes of calculating whether the Required Lenders have taken any actions.
Each Affiliated Lender by its acquisition of any Loans outstanding hereunder will be deemed to have waived any right it may otherwise have had to bring any action in connection with such Loans against the Administrative Agent, in its capacity as such, and will be deemed to have acknowledged and agreed that the Administrative Agent shall not have any liability for any losses suffered by any Person as a result of any purported assignment to or from an Affiliated Lender.
(g) Assignments of Term Loans to any Purchasing Borrower Party shall be permitted through open market purchases and/or “Dutch auctions”~~,~~ (including pursuant to any privately negotiated or other open-market transactions at, below or above par for cash, securities, or any other consideration with one or more Lenders that are not made available for participation to all Lenders of all Lenders of a particular Class) so long as any offer to purchase or take by assignment (other than through open market purchases) by such Purchasing Borrower Party shall have been made to all Term Lenders, so long as (i) no Event of Default has occurred and is continuing, (ii) the Term Loans purchased are immediately cancelled and (iii) no proceeds from any loan under the Revolving Credit Facility shall be used to fund such assignments. Purchasing Borrower Parties may not purchase Revolving Loans.
(h) Upon any contribution of Loans to the Borrower or any of its Restricted Subsidiaries and upon any purchase of Loans by a Purchasing Borrower Party, (A) the aggregate principal amount (calculated on the face amount thereof) of such Loans shall automatically be cancelled and retired by the Borrower on the date of such contribution or purchase (and, if requested by the Administrative Agent, with respect to a contribution of Loans, any applicable contributing Lender shall execute and deliver to the Administrative Agent an Assignment and Assumption, or such other form as may be reasonably requested by the Administrative Agent, in respect thereof pursuant to which the respective Lender assigns its interest in such Loans to the Borrower for immediate cancellation) and (B) the Administrative Agent shall record such cancellation or retirement in the Register.
SECTION 9.05 Survival. All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to any Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans and issuance of any Letter of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, Issuing Bank, or Lender may have had notice or knowledge of any Default or incorrect
-170-
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 Commitments have not expired or terminated. The provisions of Sections ~~2.15, 2.16, 2.17~~2.15, 2.16, 2.17 and ~~9.03~~9.03 and Article VIII 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. Notwithstanding the foregoing or anything else to the contrary set forth in this Agreement, in the event that, in connection with the refinancing or repayment in full of the credit facilities provided for herein, an Issuing Bank shall have provided to the Administrative Agent a written consent to the release of the Revolving Lenders from their obligations hereunder with respect to any Letter of Credit issued by such Issuing Bank (whether as a result of the obligations of the Borrower (and any other account party) in respect of such Letter of Credit having been collateralized in full by a deposit of cash with such Issuing Bank or being supported by a letter of credit that names such Issuing Bank as the beneficiary thereunder, or otherwise), then from and after such time such Letter of Credit shall cease to be a “Letter of Credit” outstanding hereunder for all purposes of this Agreement and the other Loan Documents, and the Revolving Lenders shall be deemed to have no participations in such Letter of Credit, and no obligations with respect thereto, under ~~Section 2.05(e) orSection 2.05(f)~~Section 2.05(e) or Section 2.05(f).
SECTION 9.06 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the Administrative Agent and the Collateral Agent or the syndication of the Loans and Commitments constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in ~~Section 4.01~~Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic means shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07 Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.08 Right of Setoff. If an Event of Default under ~~Section 7.01(a), (b), (h) or(i)~~Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing, each Lender and each Issuing Bank is hereby authorized at any time and from time to time, to the full extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender or such Issuing Bank to or for the credit or the account of the Borrower against any of and all the obligations of the Borrower then due and owing under this Agreement held by such Lender or Issuing Bank, irrespective of whether or not such Lender or Issuing Bank shall have made any demand under this Agreement and although such obligations are owed to a branch or office of such Lender or Issuing Bank different from the branch or office holding such deposit or obligated on such Indebtedness. The applicable Lender and applicable Issuing Bank shall notify the Borrower and the Administrative Agent of such setoff and application, provided that any failure to give or any delay in giving such notice shall not affect the validity of any such setoff and application under this Section. The rights of each Lender and each Issuing Bank under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender or such Issuing Bank may have. Notwithstanding the foregoing, no amount set off from any Guarantor shall be applied to any Excluded Swap Obligation of such Guarantor.
-171-
SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by the law of the State of New York.
(b) Each of parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County, Borough of Manhattan and of the United States District Court of the Southern District of New York sitting in New York County, Borough of Manhattan and any appellate court from any thereof, in any action or proceeding arising out of or relating to any Loan Document, 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 or, to the extent permitted by law, in 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 any Loan Document shall affect any right that any Agent or any Lender may otherwise have to bring any action or proceeding relating to any Loan Document against Parent, the Borrower or their respective properties in the courts of any jurisdiction.
(c) Each of parties hereto hereby irrevocably and unconditionally waives, to the full extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to any Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by 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 service of process in the manner provided for notices in ~~Section 9.01~~Section 9.01. Nothing in any Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULL 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 OR RELATING TO ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED 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 BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11 Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 9.12 Confidentiality.
(a) Each of the Administrative Agent, the Collateral Agent, the Issuing Banks and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to their and their Affiliates’ directors, officers, employees, trustees and agents, including accountants, legal counsel and other agents and advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential and any failure of such Persons to comply with this ~~Section 9.12~~Section 9.12 shall constitute a breach of this ~~Section 9.12~~Section 9.12 by the Administrative Agent, the Collateral Agent, the relevant Issuing Bank, or the relevant Lender, as applicable), (b) (x) to the extent requested by any regulatory authority, required by applicable law or by any subpoena or similar legal process or (y) necessary in connection with the exercise of remedies; provided that, (i) in each case, unless specifically prohibited by applicable law or court order, each Lender and the Administrative Agent shall notify the Borrower of any request by any governmental agency or representative thereof (other than any such request in connection with an examination of the financial condition of such Lender by such governmental agency or other routine examinations of such Lender by such governmental agency) for disclosure of any such non-public
-172-
information prior to disclosure of such information and (ii) in the case of clause (y) only, each Lender and the Administrative Agent shall use its reasonable best efforts to ensure that such Information is kept confidential in connection with the exercise of such remedies, and provided, further, that in no event shall any Lender or the Administrative Agent be obligated or required to return any materials furnished by Parent, the Borrower or any of their Subsidiaries, (c) to any other party to this Agreement, (d) subject to an agreement containing confidentiality undertakings substantially similar to those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any Swap Agreement relating to any Loan Party or their Subsidiaries and its obligations under the Loan Documents, (e) with the consent of the Borrower, in the case of Information provided by Parent, the Borrower or any other Subsidiary, (f) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender on a non-confidential basis from a source other than Parent or the Borrower or (g) to any ratings agency or the CUSIP Service Bureau on a confidential basis. In addition, each of the Administrative Agent, the Collateral Agent and the Lenders may disclose the existence of this Agreement and publicly available information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to the Agents and the Lenders in connection with the administration and management of this Agreement, the other Loan Documents, the Commitments and the Borrowings hereunder. For the purposes of this Section, “Information” means all information received from Parent or the Borrower relating to Parent, the Borrower, any Subsidiary or their business, other than any such information that is available to the Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender on a non-confidential basis prior to disclosure by Parent or the Borrower. Notwithstanding the foregoing, (i) any Lender may provide the list of Disqualified Lenders to any potential assignee or participant on a confidential basis in connection with a bona fide sale for the purpose of verifying whether such Person is a Disqualified Lender and (ii) the Administrative Agent is authorized to share the Disqualified Lender list (and related updates thereto on a confidential basis) with all Lenders (and the Borrower hereby acknowledges that such Disqualified Lender list is suitable for distribution to both Public Lenders and non-Public Lenders). Any Person required to maintain the confidentiality of Information as provided in this Section 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 to its own confidential information.
(b) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION ~~9.12(a)~~9.12(a) FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING HOLDINGS, THE BORROWER, THE LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
(c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT, WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT PARENT, THE BORROWER, THE LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
SECTION 9.13 USA Patriot Act. Each Lender and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies each Loan Party that pursuant to the requirements of Title III of the USA Patriot Act, 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 each Loan Party in accordance with the Title III of the USA Patriot Act.
-173-
SECTION 9.14 Release of Liens and Guarantees. A Loan Party shall automatically be released from its obligations under the Loan Documents, and all security interests created by the Security Documents in Collateral owned by (and, in the case of clause (1) and, upon the request of the Borrower, clause (2) below, the Equity Interests of) such Subsidiary Loan Party shall be automatically released, (1) upon the consummation of any transaction permitted by this Agreement as a result of which such Subsidiary Loan Party ceases to be a Restricted Subsidiary (including pursuant to a merger with a Subsidiary that is not a Loan Party or a designation as an Unrestricted Subsidiary) or (2) upon the request of the Borrower, in connection with a transaction permitted under this Agreement, as a result of which such Subsidiary Loan party ceases to be a wholly-owned Subsidiary. Upon (i) any sale or other transfer by any Loan Party (other than to Parent, the Borrower or any other Loan Party) of any Collateral in a transaction permitted under this Agreement or (ii) the effectiveness of any written consent to the release of the security interest created under any Security Document in any Collateral or the release of any Loan Party from its Guarantee under the Guarantee Agreement pursuant to ~~Section 9.02~~Section 9.02, the security interests in such Collateral created by the Security Documents or such guarantee shall be automatically released. Upon the occurrence of the Termination Date, all obligations under the Loan Documents and all security interests created by the Security Documents shall be automatically released. In connection with any termination or release pursuant to this Section, the Administrative Agent shall execute and deliver to any Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this Section shall be without recourse to or warranty by the Administrative Agent. The Lenders irrevocably authorize the Administrative Agent to release or subordinate any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under any Loan Document to the holder of any Lien on such property ~~that is permitted by Section 6.02(a)(iv), (viii) or(xxii)~~(x) to the extent required by the terms of the obligations secured by such Liens pursuant to documents reasonably acceptable to the Administrative Agent~~)~~ or (y) to the extent released pursuant to the First/Second/Third Lien Intercreditor Agreement. If at any time Parent ceases to guarantee each of (i) the Existing Senior Unsecured Notes and (ii) any other material Indebtedness of the Borrower (other than the Loan Document Obligations) (the foregoing clauses (i) through (ii), the “Applicable Borrower Indebtedness”), upon request by the Borrower, (x) Parent’s Guarantee of the Loan Document Obligations, and the security interest granted in respect thereof, shall be released (the date on which such release occurs, the “Guarantee Release Date”)~~,~~ and (y~~) Section 6.07 shall not apply to Parent and (z~~) Article VII shall not apply to Parent; provided that, if at any time after the Guarantee Release Date Parent shall guarantee any Applicable
Borrower Indebtedness, the obligations of Parent under the Guarantee Agreement ~~and under Section 6.07~~ shall be automatically reinstated. Parent shall take all actions reasonably necessary in order to provide the same Guarantee and security interest as would be required had the Guarantee Release Date never occurred.
SECTION 9.15 No Fiduciary Relationship. Each of Parent and the Borrower, on behalf of itself and its Subsidiaries, agrees that in connection with all aspects of the transactions contemplated hereby and any communications in connection therewith, Parent, the Borrower, the other Subsidiaries and their Affiliates, on the one hand, and the Agents, the Lenders and their respective Affiliates, on the other hand, will have a business relationship that does not create, by implication or otherwise, any fiduciary duty on the part of the Agents, the Lenders or their respective Affiliates, and no such duty will be deemed to have arisen in connection with any such transactions or communications.
SECTION 9.16 Effect of Amendment and Restatement; No Novation; Reaffirmation. Upon the Effective Date, this Agreement shall amend, and restate as amended, the Existing Credit Agreement, but shall not constitute a novation thereof or in any way impair or otherwise affect the rights or obligations of the parties thereunder (including with respect to Loans and representations and warranties made thereunder) except as such rights or obligations are amended or modified hereby. The Existing Credit Agreement as amended and restated hereby shall be deemed to be a continuing agreement among the parties, and all documents, instruments and agreements delivered pursuant to or in connection with the Existing Credit Agreement not amended and restated in connection with the entry of the parties into this Agreement shall remain in full force and effect, each in accordance with its terms, as of the date of delivery or such other date as contemplated by such document, instrument or agreement to the same extent as if the modifications to the Existing Credit Agreement contained herein were set forth in an amendment to the Existing Credit Agreement in a customary form, unless such document, instrument or agreement has otherwise been terminated or has expired in accordance with or pursuant to the terms of this Agreement, the Existing Credit Agreement or such document, instrument or agreement or as otherwise agreed by the required parties hereto or thereto. The Borrower hereby (a) affirms and confirms its guarantees, pledges, grants and other undertakings under the Existing Credit Agreement and the Loan Documents to which it is a party, (b) agrees
-174-
that (i) each document executed in connection with the Existing Credit Agreement to which it is a party and not modified in connection with this Agreement shall continue to be in full force and effect and (ii) all guarantees, pledges, grants and other undertakings under the Existing Credit Agreement not modified herein shall continue to be in full force and effect and shall accrue to the benefit of the Lender, and (c) acknowledges that from and after the date hereof, all Loans, LC Disbursements and other Loan Document Obligations from time to time outstanding hereunder shall be deemed to be Loan Document Obligations of the Borrower.
SECTION 9.17 Acknowledgement and Consent to Bail-In of EEA 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 ~~EEA~~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 an EEA~~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 ~~an EEA~~the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an ~~EEA~~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 ~~EEA~~Affected Financial Institution, its parent ~~undertaking~~entity, 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
(iii) the variation of the terms of such liability in connection with the exercise of the ~~write-down and conversion powers of anyEEA~~Write-Down and Conversion Powers of the applicable Resolution Authority.
SECTION 9.18 Acknowledgment Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Swap 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):
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 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.
-175-
SECTION 9.19 First/Second/Third Lien Intercreditor Agreement; Third Lien Pari Passu Intercreditor Agreement. Each of the Secured Parties, by accepting the benefits of the terms hereof and the Collateral that secures their respective Secured Obligations, (i) consents (or is deemed to consent) to the subordination of Liens provided for in or effected by the First/Second/Third Lien Intercreditor Agreement, (ii) agrees (or is deemed to agree) that it will be bound by, and will take no actions contrary to, the provisions of the First/Second/Third Lien Intercreditor Agreement, and instructs the Collateral Agent to execute and deliver the First/Second/Third Lien Intercreditor Agreement, and (iii) acknowledges (or is deemed to acknowledge) that a copy of the First/Second/Third Lien Intercreditor Agreement was delivered, or made available, to such Person. Notwithstanding any other provision contained herein, this Agreement, the Liens created by the Security Documents (the “3L Security Documents”) to secure the Secured Obligations of such Person and the rights, remedies, duties and obligations provided for therein and herein are subject in all respects to the provisions of the First/Second/Third Lien Intercreditor Agreement and, to the extent provided therein, the applicable Collateral Documents (as defined in the First/Second/Third Lien Intercreditor Agreement). In the event of any conflict or inconsistency between the provisions of this Agreement or any such 3L Security Document, on the one hand, and the First/Second/Third Lien Intercreditor Agreement, on the other, the provisions of the First/Second/Third Lien Intercreditor Agreement shall control. Each of the Secured Parties, by accepting the benefits of the terms hereof and the Collateral that secures their respective Secured Obligations, (i) consents to and instructs the Collateral Agent to execute and deliver a Third Lien Pari Passu Intercreditor Agreement, if applicable, (ii) agrees (or is deemed to agree) that it will be bound by, and will take no actions contrary to, the provisions of such Third Lien Pari Passu Intercreditor Agreement, and (iii) acknowledges (or is deemed to acknowledge) that a copy of such Third Lien Pari Passu Intercreditor Agreement was delivered, or made available, to such Person. Notwithstanding any other provision contained herein, this Agreement, the Liens created by the 3L Security Documents to secure the Secured Obligations of such Person and the rights, remedies, duties and obligations provided for therein and herein are subject in all respects to the provisions of a Third Lien Pari Passu Intercreditor Agreement. So long as not in conflict or inconsistent with the First/Second/Third Lien Intercreditor Agreement, in the event of any conflict or inconsistency between the provisions of this Agreement or any such 3L Security Document, on the one hand, and such Third Lien Pari Passu Intercreditor Agreement, on the other, the provisions of such Third Lien Pari Passu Intercreditor Agreement shall control.
[Signature Pages Intentionally Omitted]
-176-
Exhibit B
*****