8-K
SHENANDOAH TELECOMMUNICATIONS CO/VA/ (SHEN)
UNITED STATESSECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________________
FORM 8-K
______________________________
CURRENT REPORTPursuant to Section 13 or 15(d)of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 5, 2025
______________________________
Shenandoah Telecommunications Company
(Exact name of registrant as specified in its charter)
______________________________
| Virginia | 0-9881 | 54-1162807 |
|---|---|---|
| (State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
500 Shentel Way
P.O. Box 459
Edinburg, VA 22824
(Address of principal executive offices) (Zip Code)
(540) 984-4141
(Registrant’s 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 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
|---|---|---|
| Common Stock (No Par Value) | SHEN | NASDAQ Global Select Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
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. ☐
| Item 1.01 | Entry into a Material Definitive Agreement. |
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Closing of Securitization Offering
On December 5, 2025, Shentel Issuer, LLC (the “Issuer”), a limited-purpose, bankruptcy remote subsidiary of Shenandoah Telecommunications Company (“Shentel”), closed its previously announced inaugural offering of $567,405,000 aggregate principal amount of secured fiber network revenue term notes, consisting of $489,142,000 5.64% Series 2025-1, Class A-2 term notes and $78,263,000 6.03% Series 2025-1, Class B term notes (collectively, the “Term Notes”), each with an anticipated repayment date in December 2030 (the “Term Notes ARD”).
The Term Notes were issued pursuant to an indenture, dated as of December 5, 2025 (the “Base Indenture”), as supplemented by the Series 2025-1 Supplement thereto, dated as of December 5, 2025 (the “Series 2025-1 Supplement”), in each case entered into by and among the Issuer, Shentel Asset Entity I LLC and Shentel Asset Entity II LLC (the “Asset Entities” and, together with the Issuer, the “Obligors”) and Citibank, N.A., as the indenture trustee.
In connection with the issuance of the Term Notes, the Base Indenture, as supplemented by the Series 2025-1 Supplement, also permits up to $175,000,000 of Series 2025-1, Class A-1 variable funding notes (the “Class A-1 VFN” and, together with the Term Notes, collectively, the “Series 2025-1 Notes”) issued by the Issuer. Drawings and the other terms related to the Class A-1 Variable Funding Notes are governed by the Base Indenture, as supplemented by the Series 2025-1 Supplement, and a Class A-1-V Note Purchase Agreement, dated as of December 5, 2025 (the “VFN Purchase Agreement”), among the Obligors, Shentel Broadband Operations LLC, as manager of the securitization program, certain committed note purchasers, conduit investors and funding agents, and Bank of America, N.A., as the letter of credit provider and the administrative agent. Subject to the future satisfaction of certain conditions described in the VFN Purchase Agreement, the committed note purchasers party thereto will provide commitments to fund the Class A-1 VFN from time to time (and issue certain letters of credit) on a revolving basis until the final anticipated repayment date for the Class A-1 VFN (or, if earlier, the date on which the commitments thereunder are automatically terminated or permanently reduced to $0). The initial anticipated repayment date for the Class A-1 VFN is December 2029 (the “VFN ARD” and together with the Term ARD, collectively, the “ARD”) and may be extended, at the option of the Issuer, to the Term Note ARD, subject to the satisfaction of certain conditions described in the VFN Purchase Agreement. The Issuer expects to satisfy the availability conditions to establish the commitments under, and to thereafter fund, the Class A-1 VFN, however, there can be no assurance that the Issuer will ever be able to satisfy such conditions or that the Class A-1 VFN will ever be drawn even if so satisfied.
The issuance of the Series 2025-1 Notes represents the first issuance of fiber network revenue term notes and fiber network revenue variable funding notes, each issued under the Shentel’s inaugural securitization program. The securitization program involves certain of Shentel’s fiber network assets and related customer contracts primarily in the states of Virginia, Ohio, Pennsylvania, Indiana, and Maryland. As of the closing of the transactions on December 5, 2025, the Issuer has $567,405,000 aggregate principal amount of revenue term notes outstanding and $0 principal amount of variable funding notes outstanding.
The Base Indenture allows the Issuer to issue additional series of notes subject to certain conditions set forth therein, and the Base Indenture, together with the Series 2025-1 Supplement, and any other series supplements to the Base Indenture from time to time, is referred to herein as the “Indenture.”
Terms of the Series 2025-1 Notes
While the Series 2025-1 Notes are outstanding, scheduled payments of interest are required to be made on the 20^th^ day of each calendar month, commencing on February 20, 2026. No principal payments will be due on the Series 2025-1 Notes prior to the applicable ARD unless certain rapid amortization or acceleration triggers are activated (and/or, in the case of the Series 2025-1 VFN, the occurrence and continuance of an event of default).
The legal final maturity date of each class of the Series 2025-1 Notes is in December 2055. If the Issuer has not repaid or refinanced any Series 2025-1 Notes prior to the relevant ARD, additional interest will accrue thereon in an amount equal to (1) in the case of the Class A-1 VFN, 5.0% per annum and (y) in the case of the Term Notes, the rate determined by the manager to be the greater of (i) 5.0% per annum and (ii) the amount, if any, by which the sum of the following exceeds the interest rate for such Term Note: (A) the yield to maturity (adjusted to a “mortgage equivalent basis” pursuant to the standards and practices of the Securities Industry and Financial Markets Association) on Term ARD of the United States treasury security having a remaining term closest to 10 years plus (B) 5.0%, plus (C) the post-ARD note spread applicable to such Term Note.
The applicable interest rate for Class A-1 VFN advances will generally be either a base rate or SOFR rate, determined at the option of the Issuer in accordance with the VFN Purchase Agreement (or an alternative rate determined in the manner provided in the VFN Purchase Agreement), plus 1.75% per annum. To the extent that a draw is funded or maintained by a conduit investor through the issuance of commercial paper, such draw shall bear interest at the CP funding rate (i.e., the cost of funds) to the conduit investor plus 1.75% per annum in the manner provided in the VFN Purchase Agreement.
Collateral and Guarantee
The Series 2025-1 Notes are obligations only of the Obligors pursuant to the Indenture. Pursuant to the Indenture and the related transaction documents, the Series 2025-1 Notes are guaranteed by each Asset Entity and the Issuer’s parent, Shentel Guarantor LLC (each, a “Notes Guarantor”), and such guarantees and the Notes are secured by security interests in the equity interests the Issuer and substantially all of the assets of the Issuer and the other Obligors, which assets are primarily the fiber network assets and related customer contracts in the states of Virginia, Ohio, Pennsylvania, Indiana, and Maryland that have been contributed to the Asset Entities by the non-securitization subsidiaries of Shentel and the revenue collections and other proceeds thereof. Neither Shentel nor any of its subsidiaries, other than the Obligors and the Notes Guarantor, will guarantee or in any way be liable for the obligations of the Obligors under the Indenture or the Series 2025-1 Notes, and neither the Notes Guarantor, the Issuer nor any of the other Obligors shall guarantee or in any way be liable for the obligations of Shentel or its subsidiaries under Shentel’s other debt agreements.
Covenants and Restrictions
The Series 2025-1 Notes are subject to a series of customary covenants and restrictions. These covenants and restrictions include (i) that the Issuer maintains a liquidity reserve account to be used to make required payments in respect of the Series 2025-1 Notes, (ii) provisions relating to optional and mandatory prepayments, including specified make-whole payments in the case of certain optional prepayments of the Term Notes prior to the payment date in December 2028, and (iii) covenants relating to recordkeeping, access to information and similar matters. As provided in the Indenture, the Series 2025-1 Notes are also subject to rapid amortization in the event of a failure to maintain a stated debt service coverage ratio. A rapid amortization may be cured if the debt service coverage ratio exceeds a certain threshold for a certain period of time, upon which cure, regular amortization, if any, will resume. The Series 2025-1 Notes are also subject to certain customary events of default, including events relating to non-payment of required interest, principal or other amounts due on or with respect to the Notes, failure to comply with covenants within certain time frames, certain bankruptcy events, breaches of specified representations and warranties, failure of security interests to be effective and certain judgments.
Use of Proceeds
Shentel used the net proceeds from the offering of the Series 2025-1 Notes and borrowings under the RCF (as defined below) to, among other things repay an aggregate of $585.4 million of outstanding term loan and revolving credit borrowings under its Existing Credit Agreement (as defined below), with any remaining net proceeds to be used to fund financing transaction expenses, additional capital expenditure requirements, working capital, and for general corporate purposes
The foregoing summaries of the Indenture, the Series 2025-1 Notes and the VFN Purchase Agreement do not purport to be complete and are subject to, and qualified in their entirety by reference to, the full text of the Base Indenture, the Series 2025-1 Supplement and the VFN Purchase Agreement, copies of which are filed as Exhibits 4.1, 4.2 and 10.1 hereto, respectively, and incorporated herein by reference.
Refinancing of Credit Facilities
Concurrently, Shentel Broadband Operations LLC (the “Borrower”), a wholly-owned indirect subsidiary of Shentel, entered into a Credit Agreement, dated December 5, 2025 (the “Credit Agreement”), with Shentel Broadband Holding Inc. (“Holdco”), certain subsidiaries of Holdco as guarantors (together with the Borrower and Holdco, the “Loan Parties”), the various financial institutions party thereto (the “Lenders”) and Bank of America, N.A., as administrative agent for the Lenders (in such capacity, the “Administrative Agent”). The Credit Agreement provides for a revolving credit facility up to an aggregate principal amount of $175 million (the “RCF”) which matures on December 5, 2030. The Credit Agreement replaces the Borrower’s existing credit agreement, dated as of July 1, 2021 and as amended through the date hereof (the “Existing Credit Agreement”), which was terminated after all outstanding borrowings thereunder were repaid with the net proceeds from the offering of the Series 2025-1 Notes, as discussed above.
Borrowings under the Credit Agreement, including the RCF, are secured by substantially all of the assets of Holdco and by substantially all of the assets and equity interests of the subsidiaries of Holdco, excluding the Obligors and Notes Guarantors (each as defined above). Borrowings under the Credit Agreement will bear interest at term SOFR plus a margin ranging from 2.50% to 3.00%, depending on the Total Net Leverage Ratio (as defined in the Credit Agreement). The Borrower borrowed $75 million under the RCF upon signing the Credit Agreement.
The Credit Agreement contains representations and warranties, and affirmative and negative financial covenants usual and customary for similar secured credit facilities, each of which are applicable to the Loan Parties, including covenants governing the ability of the Loan Parties, subject to negotiated exceptions, to incur additional indebtedness and additional liens on their assets, engage in mergers or acquisitions or dispose of assets, pay dividends or make other distributions, enter into transactions with affiliated persons, make investments or change the nature of the Loan Parties’ businesses. The Loan Parties must also maintain a Total Net Leverage Ratio less than or equal to 3.00 to 1.00. Indebtedness outstanding under the Credit Agreement may be accelerated upon the occurrence of an Event of Default (as defined in the Credit Agreement).
The Administrative Agent and many of the Lenders and their affiliates have in the past performed, and may in the future from time to time perform, investment banking, financial advisory, lending or commercial banking services, or other services for Shentel and its subsidiaries, for which they have received, and may in the future receive, customary compensation and expense reimbursement.
The foregoing description of the Credit Agreement does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of the Credit Agreement, a copy of which is attached hereto as Exhibit 10.2 and incorporated herein by reference.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
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The information set forth in Item 1.01 is incorporated by reference into Item 2.03.
| Item 7.01. | Regulation FD. |
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A copy of the press release related to the transactions described above is attached as Exhibit 99.1 hereto and incorporated herein by reference.
| Item 9.01. | Financial Statements and Exhibits. |
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(d) Exhibits.
SIGNATURES
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 thereunto duly authorized.
| SHENANDOAH TELECOMMUNICATIONS COMPANY | |
|---|---|
| Dated: December 10, 2025 | /s/ James J. Volk |
| James J. Volk | |
| Senior Vice President – Chief Financial Officer |
Exhibit 4.1
BASE INDENTURE^,^
among
SHENTEL Issuer LLC
and
THE ASSET ENTITIES PARTY HERETO,
as the Obligors
and
CITIBANK, N.A.,
as the Indenture Trustee
dated as of December 5, 2025
Secured Fiber Network Revenue Notes
Table of Contents
| Page | ||
|---|---|---|
| ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE | 1 | |
| Section 1.01. | Definitions | 1 |
| Section 1.02. | Rules of Construction | 41 |
| ARTICLE II THE NOTES | 42 | |
| Section 2.01. | The Notes. | 42 |
| Section 2.02. | Registration of Transfer and Exchange of Notes. | 46 |
| Section 2.03. | Book-Entry Notes. | 53 |
| Section 2.04. | Mutilated, Destroyed, Lost or Stolen Notes | 54 |
| Section 2.05. | Persons Deemed Owners | 54 |
| Section 2.06. | Certification by Note Owners. | 55 |
| Section 2.07. | Notes Issuable in Series. | 55 |
| Section 2.08. | Principal Amortization | 57 |
| Section 2.09. | Prepayments. | 57 |
| Section 2.10. | Post-ARD Additional Interest | 59 |
| Section 2.11. | Defeasance. | 60 |
| Section 2.12. | New Fiber Networks; Retained Collections Contributions; Additional Notes. | 61 |
| Section 2.13. | Appointment of Verification Agent. | 63 |
| ARTICLE III ACCOUNTS | 64 | |
| Section 3.01. | Establishment of Collection Account, Prefunding Accounts, Reserve Accounts and Retained Collections Contribution Account. | 64 |
| Section 3.02. | Deposits to the Control Accounts and to the Collection Account; Excluded Amounts. | 65 |
| Section 3.03. | Withdrawals from the Collection Account | 66 |
| Section 3.04. | Application of Funds in the Collection Account | 66 |
| Section 3.05. | Application of Funds after Event of Default | 66 |
| ARTICLE IV RESERVES | 67 | |
| Section 4.01. | Security Interest in Reserves; Other Matters Pertaining to Reserves. | 67 |
| Section 4.02. | Funds Deposited with Indenture Trustee. | 68 |
| Section 4.03. | Content Cost, Network Expense and Insurance Reserve | 69 |
| Section 4.04. | Advance Fee Reserve | 69 |
| Section 4.05. | Yield Maintenance Reserve Accounts | 70 |
| i |
| --- | | Section 4.06. | Cash Trap Reserve | 70 | | --- | --- | --- | | Section 4.07. | Liquidity Reserve; Liquidity Reserve Letters of Credit | 71 | | ARTICLE V ALLOCATION OF COLLECTIONS; PAYMENTS TO NOTEHOLDERS | | 72 | | Section 5.01. | Allocations and Payments | 72 | | Section 5.02. | Payments of Principal. | 79 | | Section 5.03. | Payments of Interest | 80 | | Section 5.04. | No Gross Up | 80 | | ARTICLE VI REPRESENTATIONS AND WARRANTIES | | 80 | | Section 6.01. | Organization, Powers, Capitalization, Good Standing, Business. | 80 | | Section 6.02. | Authorization of Borrowing, Authority, etc. | 81 | | Section 6.03. | Financial Statements | 81 | | Section 6.04. | Indebtedness and Contingent Obligations | 81 | | Section 6.05. | Fiber Network Assets. | 81 | | Section 6.06. | Customer Agreements; Agreements. | 82 | | Section 6.07. | Litigation; Adverse Facts | 83 | | Section 6.08. | Payment of Taxes | 83 | | Section 6.09. | Performance of Agreements | 83 | | Section 6.10. | Governmental Regulation | 83 | | Section 6.11. | Employee Benefit Plans | 83 | | Section 6.12. | Solvency | 83 | | Section 6.13. | Use of Proceeds and Margin Security | 84 | | Section 6.14. | Insurance | 84 | | Section 6.15. | Investments; Ownership of the Obligors | 84 | | Section 6.16. | Environmental Compliance | 84 | | ARTICLE VII COVENANTS | | 84 | | Section 7.01. | Payment of Principal and Interest | 85 | | Section 7.02. | Financial Statements and Other Reports. | 85 | | Section 7.03. | Existence; Qualification | 88 | | Section 7.04. | Payment of Impositions and Claims. | 88 | | Section 7.05. | Maintenance of Insurance | 89 | | Section 7.06. | Operation and Maintenance of the Fiber Networks. | 91 | | Section 7.07. | Inspection; Investigation | 93 | | Section 7.08. | Compliance with Laws and Obligations | 93 | | Section 7.09. | Further Assurances | 94 |
| ii |
| --- | | Section 7.10. | Performance of Agreements | 94 | | --- | --- | --- | | Section 7.11. | Advance Fees; New Customer Agreements | 94 | | Section 7.12. | Management Agreement. | 94 | | Section 7.13. | Maintenance of Office or Agency by Issuer. | 95 | | Section 7.14. | Deposits; Application of Deposits | 96 | | Section 7.15. | Estoppel Certificates. | 96 | | Section 7.16. | Indebtedness | 97 | | Section 7.17. | No Liens | 97 | | Section 7.18. | Contingent Obligations | 97 | | Section 7.19. | Restriction on Fundamental Changes | 97 | | Section 7.20. | Bankruptcy, Receivers, Similar Matters | 97 | | Section 7.21. | ERISA. | 98 | | Section 7.22. | Money for Payments to be Held in Trust. | 98 | | Section 7.23. | Fiber Network Underlying Rights Agreements. | 99 | | Section 7.24. | Rule 144A Information | 100 | | Section 7.25. | Notice of Events of Default | 101 | | Section 7.26. | Maintenance of Books and Records | 101 | | Section 7.27. | Continuation of Ratings | 101 | | Section 7.28. | The Indenture Trustee’s, Back-Up Manager’s and Servicer’s Expenses | 101 | | Section 7.29. | Disposition of Fiber Networks and Fiber Network Assets. | 101 | | Section 7.30. | Environmental Remediation | 103 | | Section 7.31. | Limitation on Certain Issuances and Transfers | 103 | | Section 7.32. | Tax Status | 103 | | Section 7.33. | Disposition of Fiber Network Assets in Connection with the Prepayment of a Series of Notes | 103 | | Section 7.34. | Substitution of Fiber Networks. | 104 | | Section 7.35. | Sub-Servicers. | 105 | | ARTICLE VIII SINGLE-PURPOSE, BANKRUPTCY-REMOTE REPRESENTATIONS, WARRANTIES AND COVENANTS | | 105 | | Section 8.01. | Applicable to the Issuer and the Asset Entities | 105 | | Section 8.02. | Applicable to the Issuer | 108 | | ARTICLE IX SATISFACTION AND DISCHARGE | | 108 | | Section 9.01. | Satisfaction and Discharge of Base Indenture | 108 | | Section 9.02. | Application of Trust Money | 109 | | Section 9.03. | Repayment of Monies Held by Paying Agent | 109 |
| iii |
| --- | | ARTICLE X EVENTS OF DEFAULT; REMEDIES | | 110 | | --- | --- | --- | | Section 10.01. | Events of Default | 110 | | Section 10.02. | Acceleration and Remedies | 113 | | Section 10.03. | Performance by the Indenture Trustee and the Servicer | 114 | | Section 10.04. | Evidence of Compliance | 115 | | Section 10.05. | Controlling Class Representative. | 115 | | Section 10.06. | Certain Rights and Powers of the Controlling Class Representative. | 117 | | Section 10.07. | Collection of Indebtedness and Suits for Enforcement by Indenture Trustee. | 119 | | Section 10.08. | Remedies | 121 | | Section 10.09. | Optional Preservation of the Trust Estate | 122 | | Section 10.10. | Limitation of Suits | 122 | | Section 10.11. | Unconditional Rights of Noteholders to Receive Principal and Interest | 123 | | Section 10.12. | Restoration of Rights and Remedies | 123 | | Section 10.13. | Rights and Remedies Cumulative | 123 | | Section 10.14. | Delay or Omission Not a Waiver | 124 | | Section 10.15. | Waiver of Past Defaults | 124 | | Section 10.16. | Undertaking for Costs | 124 | | Section 10.17. | Waiver of Stay or Extension Laws | 124 | | Section 10.18. | Action on Notes | 125 | | Section 10.19. | Waiver | 125 | | ARTICLE XI THE INDENTURE TRUSTEE | | 125 | | Section 11.01. | Duties of Indenture Trustee. | 125 | | Section 11.02. | Certain Matters Affecting the Indenture Trustee | 129 | | Section 11.03. | Indenture Trustee’s Disclaimer | 135 | | Section 11.04. | Indenture Trustee May Own Notes | 135 | | Section 11.05. | Fees and Expenses of Indenture Trustee and Verification Agent; Indemnification of the Indenture Trustee and Verification Agent. | 135 | | Section 11.06. | Eligibility Requirements for Indenture Trustee | 136 | | Section 11.07. | Resignation and Removal of Indenture Trustee. | 137 | | Section 11.08. | Successor Indenture Trustee. | 138 | | Section 11.09. | Merger or Consolidation of Indenture Trustee | 139 | | Section 11.10. | Appointment of Co-Indenture Trustee or Separate Indenture Trustee. | 139 | | Section 11.11. | Access to Certain Information. | 140 | | Section 11.12. | Servicer to Act for Indenture Trustee | 142 |
| iv |
| --- | | ARTICLE XII NOTEHOLDERS’ LISTS, REPORTS AND MEETINGS | | 142 | | --- | --- | --- | | Section 12.01. | Issuer to Furnish Indenture Trustee Names and Addresses of Noteholders | 142 | | Section 12.02. | Preservation of Information | 142 | | Section 12.03. | Fiscal Year | 142 | | Section 12.04. | Voting by Noteholders. | 142 | | Section 12.05. | Communication by Noteholders with other Noteholders | 143 | | ARTICLE XIII INDENTURE SUPPLEMENTS | | 143 | | Section 13.01. | Indenture Supplements without Consent of Noteholders | 143 | | Section 13.02. | Indenture Supplements with Consent of Noteholders | 145 | | Section 13.03. | Execution of Indenture Supplements | 147 | | Section 13.04. | Effect of Indenture Supplement | 147 | | Section 13.05. | Reference in Notes to Indenture Supplements | 147 | | ARTICLE XIV PLEDGE OF OTHER OBLIGOR COLLATERAL | | 148 | | Section 14.01. | Grant of Security Interest/UCC Collateral. | 148 | | Section 14.02. | Equity Interest Pledges. | 151 | | ARTICLE XV MISCELLANEOUS | | 152 | | Section 15.01. | Compliance Certificates and Opinions, etc | 152 | | Section 15.02. | Form of Documents Delivered to Indenture Trustee. | 153 | | Section 15.03. | Acts of Noteholders. | 154 | | Section 15.04. | Notices; Copies of Notices and Other Information. | 155 | | Section 15.05. | Notices to Noteholders; Waiver. | 156 | | Section 15.06. | Payment and Notice Dates | 156 | | Section 15.07. | Effect of Headings and Table of Contents | 157 | | Section 15.08. | Successors and Assigns | 157 | | Section 15.09. | Severability | 157 | | Section 15.10. | Benefits of Base Indenture | 157 | | Section 15.11. | Legal Holiday | 157 | | Section 15.12. | Governing Law | 157 | | Section 15.13. | Waiver of Jury Trial | 158 | | Section 15.14. | Counterparts | 158 | | Section 15.15. | Recording of Base Indenture | 159 | | Section 15.16. | Corporate Obligation | 159 | | Section 15.17. | No Petition | 159 | | Section 15.18. | Extinguishment of Obligations | 160 |
| v |
| --- | | Section 15.19. | Survival of Representations and Warranties | 160 | | --- | --- | --- | | Section 15.20. | Waiver of Immunities | 160 | | Section 15.21. | Non-Recourse | 160 | | Section 15.22. | Indenture Trustee’s Duties and Obligations Limited | 161 | | Section 15.23. | Appointment of Servicer | 161 | | Section 15.24. | Agreed Upon Tax Treatment | 161 | | Section 15.25. | Tax Forms | 161 | | ARTICLE XVI GUARANTEES | | 161 | | Section 16.01. | Guarantees | 161 | | Section 16.02. | Limitation on Liability | 163 | | Section 16.03. | Successors and Assigns | 163 | | Section 16.04. | No Waiver | 163 | | Section 16.05. | Modification | 164 | | Section 16.06. | Release of Asset Entity | 164 |
| vi |
| --- | |
|---|---|
| --- | |
| Exhibit A-1 | FORM OF RULE 144A GLOBAL NOTE |
| --- | --- |
| Exhibit A-2 | FORM OF REGULATION S GLOBAL NOTE |
| --- | --- |
| Exhibit A-3 | FORM OF IAI GLOBAL NOTE |
| --- | --- |
| Exhibit A-4 | FORM OF DEFINITIVE NOTE |
| --- | --- |
| Exhibit B-1 | FORM OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF BENEFICIAL INTERESTS IN REGULATION S GLOBAL NOTES |
| --- | --- |
| Exhibit B-2 | FORM OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF DEFINITIVE NOTES TO QUALIFIED INSTITUTIONAL BUYERS |
| --- | --- |
| Exhibit B-3 | FORM OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF DEFINITIVE NOTES TO INSTITUTIONAL ACCREDITED INVESTORS |
| --- | --- |
| Exhibit B-4 | FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF DEFINITIVE NOTES TO QUALIFIED INSTITUTIONAL BUYERS |
| --- | --- |
| Exhibit B-5 | FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF DEFINITIVE NOTES TO INSTITUTIONAL ACCREDITED INVESTORS |
| --- | --- |
| Exhibit B-6 | FORM OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF TAX RESTRICTED NOTES |
| --- | --- |
| Exhibit C | FORM OF FEE ROLL |
| --- | --- |
| Exhibit D-1 | FORM OF INFORMATION REQUEST FROM NOTEHOLDER TO NOTE OWNER |
| --- | --- |
| Exhibit D-2 | FORM OF INFORMATION REQUEST FROM PROSPECTIVE INVESTOR |
| --- | --- |
| Exhibit E | FORM OF CONFIDENTIALITY LETTER FOR THE CONTROLLING CLASS REPRESENTATIVE |
| --- | --- |
| Exhibit F | FORM OF JOINDER AGREEMENT |
| --- | --- |
| Exhibit G | FORM OF CONFIRMATION OF REGISTRATION OF UNCERTIFICATED NOTES |
| --- | --- |
| Exhibit H | FORM OF NOTICE AND ACKNOWLEDGMENT OF PROPOSED VERIFICATION AGENT |
| --- | --- |
| Exhibit I | FORM OF ACKNOWLEDGMENT OF PROPOSED VERIFICATION AGENT |
| --- | --- |
| vii |
| --- |
ANNEXES AND SCHEDULES
| Annex I | Closing Date Asset Entities |
|---|---|
| Schedule 6.14 | Insurance |
| --- | --- |
| Schedule 6.15 | Investments; Ownership of the Obligors |
| --- | --- |
| viii |
| --- |
THIS BASE INDENTURE, dated as of December 5, 2025 (as amended, supplemented or otherwise modified and in effect from time to time, this “Base Indenture”), is entered into by and among (i) Shentel Issuer LLC, a Delaware limited liability company (the “Issuer”), (ii) each wholly-owned subsidiary of the Issuer party hereto and listed on Annex I hereto (the “Closing Date Asset Entities” and, together with any additional direct or indirect subsidiary of the Issuer that is acquired following the Initial Closing Date, the “Asset Entities” and, together with the Issuer, the “Obligors”) and (iii) Citibank, N.A., as Indenture Trustee and not in its individual capacity and any successor thereto (in such capacity, the “Indenture Trustee”).
RECITALS
WHEREAS, the Issuer has duly authorized the execution and delivery of this Base Indenture to provide for the joint and several issuance of one or more series of Secured Fiber Network Revenue Notes as provided herein;
WHEREAS, all covenants and agreements made by the Obligors herein are for the benefit and security of the Indenture Trustee, acting for the benefit of the Secured Parties;
WHEREAS, the Obligors are entering into this Base Indenture, and the Indenture Trustee is accepting the Notes issued hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged;
WHEREAS, each Series of Notes will be constituted by this Base Indenture and the related Series Supplement thereto; and
WHEREAS, Notes of any Series issued pursuant to this Base Indenture will be divided into classes and type of note (i.e., Variable Funding Note, Liquidity Funding Note or Term Note) as provided in this Base Indenture and a Series Supplement.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the Obligors and the Indenture Trustee agree as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions. Except as otherwise specified in this Base Indenture or as the context may otherwise require, the following terms have the respective meanings set forth below for all purposes of this Base Indenture and each Series Supplement (including in the recitals hereto). In the event of a definitional conflict between this Base Indenture and a Series Supplement, the definition contained in the Series Supplement shall control.
“30/360 Basis” shall mean the accrual of interest calculated on the basis of a 360-day year consisting of twelve 30-day months.
“Acceptable Managers” shall mean Shentel Broadband Operations LLC, or, in the event of a termination of the Management Agreement with Shentel Broadband Operations LLC, the Back-Up Manager or a Successor Manager selected by the Servicer (acting at the direction of the Controlling Class Representative or, if there is no Controlling Class Representative, the Majority Controlling Class) and in consultation with the Back-Up Manager in accordance with the Back-Up Management Agreement or, if the Back-Up Manager or an appointed Successor Manager is not acting as the Manager, upon receipt of a Rating Agency Confirmation, another reputable management company reasonably acceptable to the Servicer in consultation with the Back-Up Manager with experience managing data centers similar to the Fiber Networks, which shall be selected by the Issuer, so long as no Event of Default has occurred and is continuing. After the occurrence and during the continuance of an Event of Default, such selection shall be performed by the Servicer (acting at the direction of the Controlling Class Representative or, if there is no Controlling Class Representative, the Majority Controlling Class), subject to Rating Agency Confirmation.
“Account Collateral” shall mean all of the Obligors’ right, title and interest in and to the Accounts (other than any Prefunding Account), the Reserves, all monies and amounts which may from time to time be on deposit therein, all monies, checks, notes, instruments, documents, deposits, and credits from time to time in the possession of the Indenture Trustee (or the Servicer on its behalf) representing or evidencing such Accounts and Reserves and all earnings and investments held therein and proceeds thereof.
“Account Control Agreement” shall have the meaning ascribed to it in the Cash Management Agreement.
“Accounts” shall mean, collectively, the Control Accounts, the Collection Account, the Retained Collections Contribution Account, each Prefunding Account, the Reserve Accounts and any other accounts pledged to the Indenture Trustee pursuant to this Base Indenture or any other Transaction Document.
“Accrued Note Interest” shall mean the interest accrued on each Note during each Interest Accrual Period at the applicable Note Rate (x) with respect to any Class A-1 Notes, on the daily average Note Principal Balance of the Class A-1 Notes during such Interest Accrual Period and (y) with respect to any Class of Term Notes, on the Note Principal Balance of such Term Notes immediately prior to the related Payment Date. Accrued Note Interest for any Term Note of any Class of any Series shall be calculated on a 30/360 Basis such that each Interest Accrual Period shall be treated as 30 days in length unless otherwise specified in the Series Supplement for such Series. Accrued Note Interest for any Class A-1-V Note or Class A-1-L Note of any Class of any Series for each Payment Date shall be calculated on an Actual/360 Basis unless otherwise specified in the Series Supplement for such Series; provided that the Accrued Note Interest with respect to any Class A-1-V Notes or Class A-1-L Notes shall be deemed to include any commitment fees and administrative expenses payable in respect thereof. Any Accrued Note Interest that is not paid when due shall accrue interest at the applicable Note Rate.
“Act” shall have the meaning ascribed to it in Section 15.03(a).
“Actual/360 Basis” shall mean the accrual of interest calculated on the basis of the actual number of days elapsed during the relevant Interest Accrual Period in a year consisting of 360 days.
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“Additional Asset Entity” shall mean a limited liability company, partnership or other entity that (i) owns one or more Fiber Networks and (ii) 100% of the Equity Interests in which are, directly or indirectly, contributed to or acquired by the Issuer after the Initial Closing Date as provided in, and meeting the requirements of, Section 2.12(a).
“Additional Fiber Network” shall mean a Fiber Network not previously included in the Collateral and to which Additional Fiber Network Assets relate.
“Additional Fiber Network Assets” shall mean additional Fiber Network Assets that the Asset Entities may construct or acquire from time to time after the Initial Closing Date, together with all other related licenses, permits and rights of the Asset Entities in respect of the applicable Fiber Network.
“Additional Notes” shall have the meaning ascribed to it in Section 2.12(d).
“Additional Obligor Expenses” shall mean (i) Other Servicing Fees payable to the Servicer; (ii) expenses, reimbursements of expenses and indemnification payments to the Indenture Trustee, the Verification Agent, the Back-Up Manager and certain related persons as described under the Transaction Documents; (iii) expenses, reimbursements and indemnification payments payable to the Servicer and certain persons related to it as described under the Servicing Agreement and other Transaction Documents; (iv) all costs and expenses incurred by a Successor Manager, interim Successor Manager or Back-Up Manager in connection with the termination, removal and/or replacement of the Manager under the Management Agreement and; (v) any other costs, expenses or liabilities not specifically enumerated in Section 5.01(a) that are required to be borne by any of the Obligors or paid from amounts in the Collection Account pursuant to the Transaction Documents. Additional Obligor Expenses shall not include reimbursements in respect of Management Fees or, except as provided in the Management Agreement, other amounts payable to the Manager.
“Additional Obligor Fiber Network” shall mean a Fiber Network to which Additional Obligor Fiber Network Assets relate.
“Additional Obligor Fiber Network Assets” shall mean Fiber Network Assets owned by an Additional Asset Entity.
“Additional Principal Payment Amount” shall mean, with respect to each Payment Date when none of an Amortization Period, a Cash Sweep Condition or an ARD Period is in effect and no acceleration of the maturity of the Notes has occurred following the occurrence and continuation of an Event of Default, the amount (excluding the Monthly Amortization Amount for the Notes of any Series) required to be applied pursuant hereto as a mandatory prepayment of principal of the Notes on such date, including (i) from funds received in connection with certain casualty events in accordance with Section 7.05, and (ii) in connection with Fiber Network Asset dispositions in accordance with Section 7.29 and, in the case of any applicable Additional Notes, any scheduled payment of principal.
“Advance Fee Reserve” shall have the meaning ascribed to it in Section 4.04.
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“Advance Fee Reserve Account” shall mean the Reserve Account designated to reserve for the Advance Fee Reserve Deposit for application in the manner set forth in Section 4.04.
“Advance Fee Reserve Deposit” shall have the meaning ascribed to it in the Cash Management Agreement.
“Affiliate” shall mean, with respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person shall mean the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” shall have meanings correlative to the foregoing.
“Affirmative Direction” shall mean, with respect to any Series, a written direction of Noteholders of such Series representing more than 25% of the aggregate Outstanding Class Principal Balance of all Classes of Notes of such Series.
“Aggregate Annualized Net Operating Income” shall mean, as of the last day of any calendar month, the sum of (i) the aggregate Annualized Net Operating Income for all Contributed Markets and (ii) any Retained Collections Contributions that (x) were deposited into the Retained Collections Contribution Account during the period starting four Business Days prior to the Payment Date occurring in the calendar month that is 11 months prior to such day and ending four Business Days prior to the Payment Date occurring in the immediately succeeding calendar month (y) remain on deposit in the Retained Collections Contribution Account as of the Payment Date in the immediately succeeding calendar month and (z) are designated to be included as part of Aggregate Annualized Net Operating Income as set forth in Section 2.12(c).
“Allocated Note Amount” shall mean, with respect to any Fiber Network Assets being disposed, the product of (a) the percentage equivalent of a fraction, (i) the numerator of which is the excess, if any, of (x) the aggregate Annualized Net Operating Income of all Contributed Markets prior to giving effect to such disposition over (y) the pro forma aggregate Annualized Net Operating Income of all Contributed Markets after giving effect to such disposition and (ii) the denominator of which is the aggregate Annualized Net Operating Income of all Contributed Markets prior to giving effect to such disposition and (b) the aggregate Note Principal Balance of the Notes on such date of such disposition.
“Amortization Period” shall mean the period that shall (x) commence as of any Determination Date if the average of the Senior DSCR as of such Determination Date and the Senior DSCR as of the two immediately preceding Determination Dates is less than the Minimum DSCR and (y) continue to exist until the Senior DSCR has exceeded the Minimum DSCR as of three consecutive Determination Dates.
“Annualized Net Operating Income” shall mean, for any Contributed Market as of the last day of any calendar month, the excess of (x) the Annualized Revenue for such Contributed Market as of such day over (y) the sum, without duplication, of (i) insurance expenses, local or other property and similar taxes (including payments in lieu of taxes) paid by an Asset Entity with respect to such Contributed Market over the preceding 12 month-period; (ii) the LTM Fiber Network Operating Expenses for such Contributed Market as of such day; (iii) the Management Fee for the related Collection Period attributable to such Contributed Market multiplied by 12; (iv) the sum of the Commercial Churn Replacement Capital Expenditures, Retail Churn Replacement Capital Expenditures, Commercial Maintenance Capital Expenditures and Retail Maintenance Capital Expenditures, in each case, for the related Collection Period and the eleven immediately preceding Collection Periods, in each case attributable to such Contributed Market; and (v) any provision for bad debt taken with respect to such Contributed Market during the related Collection Period and the eleven immediately preceding Collection Periods; provided that (i) total Commercial Churn Replacement Capital Expenditures, Retail Churn Replacement Capital Expenditures, Commercial Maintenance Capital Expenditures, Retail Maintenance Capital Expenditures and provision for bad debt for such 12-month period relating to any Fiber Network with respect to a Contributed Market that has not been operational for such entire 12-month period shall be estimated as if such Fiber Network had been operational for such entire 12-month period, based on the Manager’s expectations and (ii) amounts paid to the Asset Entities constituting “Expense Fees” pursuant to any Non-Securitization Entity Access Agreement shall be excluded from the calculation of clause (y) above.
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“Annualized Revenue” shall mean, for any Contributed Market, as of the last day of any calendar month, an amount equal to the sum of (i) all monthly fees payable during such calendar month with respect to such Contributed Market multiplied by 12, (ii) all advertising revenue received with respect to such Contributed Market during such calendar month and the eleven immediately preceding calendar months, (iii) all other monthly recurring revenue due and payable as of such day (or that became due and payable during such calendar month) by any Customer with respect to such Contributed Market and the Fiber Network Assets related thereto for services provided via the applicable Fiber Network and Fiber Network Assets (excluding any Revenue Sharing Payments) multiplied by 12, and (iv) the portion of the funds on deposit in the Advance Fee Reserve Account to be deposited into the Collection Account on the following Payment Date, multiplied by 12; provided that no amounts payable under any Non-Securitization Entity Access Agreement shall constitute Annualized Revenue.
“Anticipated Repayment Date” shall, with respect to each Series, have the meaning ascribed to it in the Series Supplement for such Series.
“Applicable Procedures” shall mean, with respect to any transfer or transaction involving a Regulation S Global Note or beneficial interest therein, the rules and procedures of the Depositary, Euroclear and Clearstream, as the case may be, for such Global Note, in each case to the extent applicable to such transaction and as in effect from time to time.
“Applicable Rating Agency” shall mean, with respect to any Liquidity Reserve Letter of Credit, (i) KBRA, for so long as KBRA is a Rating Agency with respect to any Outstanding Notes, (ii) Fitch, for so long as Fitch is a Rating Agency with respect to any Outstanding Notes, and (iii) any Rating Agency then rating the Series of Class A-1-V Notes with respect to which such Liquidity Reserve Letter of Credit was issued.
“ARD Period” shall mean, with respect to any Class of Notes in a Series, the period (x) commencing on the applicable Anticipated Repayment Date for such Class (if the Notes of such Class have not been paid in full on or prior to the applicable Anticipated Repayment Date for such Class of Notes) and (y) ending on the Payment Date on which all principal of, and interest (including Post-ARD Additional Interest) on, such Notes is paid in full.
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“ARD Prepayment Date” shall, with respect to each Series, have the meaning ascribed to it in the Series Supplement for such Series.
“Asset Entities” shall have the meaning ascribed to it in the preamble hereto.
“Asset Entity Interests” shall have the meaning ascribed to it in Section 8.01(a).
“Assets” shall mean the assets of the Asset Entities.
“Authorized Officer” shall mean (i) any director, Member, manager or Executive Officer of the Issuer who is authorized to act for or on behalf of the Issuer in matters relating to the Issuer and (ii) for so long as the Management Agreement is in full force and effect, any officer of the Manager who is authorized to act for the Manager in matters relating to the Issuer and to be acted upon by the Manager pursuant to the Management Agreement, and who is identified on the list of Authorized Officers delivered by the Issuer to the Indenture Trustee and the Servicer on the Initial Closing Date (as such list may be modified or supplemented from time to time thereafter).
“Available Funds” shall have the meaning ascribed to it in Section 3.04.
“Average Passings” shall mean, with respect to any Collection Period, the quotient of (a) the sum of (i) the number of Passings as of the first day of such Collection Period and (ii) the number of Passings as of the last day of such Collection Period divided by (b) 2.
“Back-Up Management Agreement” shall mean the Back-Up Management Agreement, dated as of December 5, 2025, by and among the Manager, Back-Up Manager the Indenture Trustee and the Obligors, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Back-Up Manager” shall have the meaning set forth in the Back-Up Management Agreement.
“Back-Up Manager Fees” shall have the meaning set forth in the Back-Up Management Agreement.
“Bankruptcy Code” shall mean Title 11 of the United States Code, as amended from time to time, and all rules and regulations promulgated thereunder.
“Base Indenture” shall have the meaning ascribed to it in the preamble hereto.
“Beneficial Owner” shall mean, with respect to any Series of Term Notes, the owner of a beneficial interest in a Global Note of such Series of Term Notes.
“Benefit Plan Investor” shall mean a “benefit plan investor,” within the meaning of the Plan Asset Regulation.
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“Book-Entry Notes” shall mean any Note registered in the name of the Depositary or its nominee.
“Business Day” shall mean any day other than a Saturday, a Sunday or any day that is a legal holiday in the State of New York, the State of Virginia, the State where the primary servicing office of the Servicer is located, or any day on which banking institutions or trust companies are authorized or obligated by law, regulation or executive order to remain closed.
“Cable Intertwined Backbone Assets” shall mean the fiber strands intertwined within certain “backbone” or “middle-mile” fiber-optic cables owned by Shenandoah Cable and used to provide services to customers (including customers of Non-Securitization Entities).
“Cable Last Mile Assets” shall mean certain “last mile” network infrastructure owned by Shenandoah Cable and used to provide services to customers (including customers of Non-Securitization Entities).
“Cable PoP Assets” shall mean certain PoPs owned by Shenandoah Cable, consisting of the physical location of each such point of presence and the utilities serving such PoP owned or leased by Shenandoah Cable and used to provide services to customers (including customers of Non-Securitization Entities).
“Capital Expenditures” shall mean expenditures for capital improvements that, in conformity with GAAP, would not be included in the Obligors’ annual financial statements as a Fiber Network Operating Expense for a Contributed Market.
“Cash Management Agreement” shall mean the Cash Management Agreement, dated as of December 5, 2025, by and among the Obligors, the Indenture Trustee and the Manager, as amended, amended and restated or otherwise modified from time to time.
“Cash Sweep Condition” shall mean a condition that exists as of any Determination Date if (x) a Cash Trap Condition continues to exist for a period of more than six consecutive months, (y) the Leverage Ratio as of such Determination Date is greater than the Cash Sweep Trigger Leverage Ratio as of such date or (z) (i) the Pennsylvania Public Utility Commission denies the permanent approval of Shentel Asset Entity I as a Competitive Access Provider (a “CAP”) and (A) all possible appeals thereto by Shentel Asset Entity I have been exhausted and (B) the provisional approval of Shentel Asset Entity I as a CAP has been revoked or terminated such that Shentel Asset Entity I does not have authority to act as a CAP in the state of Pennsylvania and (ii) the Senior Leverage Ratio as of such Determination Date is greater than the Senior Leverage Ratio as of the Initial Closing Date and shall continue to exist until (1) in the case of a Cash Sweep Condition pursuant to clause (x) of this definition, the Senior DSCR as of any Determination Date is greater than the Senior Cash Trap DSCR, (2) in the case of a Cash Sweep Condition pursuant to clause (y) of this definition, the Leverage Ratio as of any Determination Date is less than the Cash Sweep Trigger Leverage Ratio as of such date, and (3) in the case of a Cash Sweep Condition pursuant to clause (z) of this definition, the Senior Leverage Ratio as of such Determination Date is less than or equal to the Senior Leverage Ratio as of the Initial Closing Date; provided that, for the purposes of clause (z)(ii) and clause (3) above, the Senior Leverage Ratio will not take into account the Annualized Net Operating Income attributable to the State of Pennsylvania.
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“Cash Sweep Percentage” shall mean, with respect to any Payment Date on which (1) a Cash Sweep Condition is in effect pursuant to clause (x) of the definition thereof, 50%, or (2) a Cash Sweep Condition is in effect pursuant to clause (y) or clause (z) of the definition thereof, 100%; provided that, in the event a Cash Sweep Condition has occurred pursuant to more than one prong of the definition thereof, the highest applicable Cash Sweep Percentage shall apply.
“Cash Sweep Trigger Leverage Ratio” shall mean the greater of (A) 9.25x and (B) the sum of the Leverage Ratio as of the most recent Closing Date and 1.50x.
“Cash Trap Condition” shall mean a condition that exists as of any Determination Date if the Senior DSCR as of such Determination Date is less than or equal to the Senior Cash Trap DSCR and shall continue to exist until the earlier of (i) the Senior DSCR as of any Determination Date is greater than the Senior Cash Trap DSCR or (ii) a Cash Sweep Condition occurs.
“Cash Trap Percentage” shall mean, with respect to any Payment Date on which a Cash Trap Condition is in effect, 50%.
“Cash Trap Reserve Account” shall mean the Reserve Account designated to accumulate cash that would otherwise have been payable to the Obligors while any Cash Trap Condition has occurred and is continuing in accordance with Section 4.06.
“Chillicothe Telephone” shall mean The Chillicothe Telephone Company.
“Chillicothe Telephone Intertwined Backbone Assets” shall mean the fiber strands intertwined within certain “backbone” or “middle-mile” fiber-optic cables owned by Chillicothe Telephone and used to provide services to customers (including customers of Non-Securitization Entities).
“Chillicothe Telephone Last Mile Assets” shall mean the “last mile” network infrastructure owned by Chillicothe Telephone and used to provide services to customers (including customers of Non-Securitization Entities).
“Chillicothe Telephone PoP Assets” shall mean the PoPs owned by Chillicothe Telephone, consisting of the physical location of each such point of presence, certain related equipment within such PoP, and the utilities serving such PoP owned or leased by Chillicothe Telephone and used to provide services to customers (including customers of Non-Securitization Entities).
“Claims” shall have the meaning ascribed to it in Section 7.04(a).
“Class” shall mean, collectively, all of the Notes bearing the same alphabetical and, if applicable, numerical class designation and having the same payment terms (other than the interest rate, the Anticipated Repayment Date and the Rated Final Payment Date). The respective Classes of Notes are designated under Series Supplements.
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“Class A Leverage Ratio” shall mean, with respect to any date of determination, the ratio of (i) the excess of (x) the aggregate outstanding principal balance of all Class A Notes (other than any Class A-1-L Notes) over (y) all amounts remaining on deposit in a Prefunding Account with respect to any Class A Notes, in each case on such date to (ii) the Aggregate Annualized Net Operating Income as of the last day of the most recently ended calendar month.
“Class A Notes” shall mean all Notes issued under this Base Indenture and any related Series Supplement for which the alphabetical designation is “Class A.”
“Class A-1 Note Purchase Agreement” shall mean a Class A-1-V Note Purchase Agreements or a Class A-1-L Note Purchase Agreement.
“Class A-1 Notes” shall mean the Class A-1-L Notes and the Class A-1-V Notes.
“Class A-1-L Administrative Agent” shall have the meaning ascribed to it in any Class A-1-L Note Purchase Agreement.
“Class A-1-L Advance” shall have the meaning ascribed to it in any Class A-1-L Note Purchase Agreement.
“Class A-1-L Noteholder” shall mean a Noteholder of Class A-1-L Notes.
“Class A-1-L Note Purchase Agreement” shall mean, for any Series of Class A-1-L Notes, the note purchase agreement pursuant to which the Issuer sells Notes designated at the time of issuance thereof as “Liquidity Funding Notes” or “Class A-1-L Notes” to the note purchasers identified therein.
“Class A-1-L Notes” or “Liquidity Funding Notes” shall mean Notes of a Series designated at the time of issuance thereof as “Liquidity Funding Notes” or “Class A-1-L Notes” and pursuant to which the Note Principal Balance thereof may increase or decrease from time to time in connection with draws thereunder for the purpose of funding Class A-1-L Advances, in the manner set forth in the related note purchase agreement for such Class A-1-L Notes.
“Class A-1-V Note Purchase Agreement” shall mean, for any Class of any Series of Class A-1-V Notes, the note purchase agreement pursuant to which the Issuer sells Notes designated at the time of issuance thereof as “Variable Funding Notes” or “Class A-1-V Notes” to the note purchasers identified therein.
“Class A-1-V Notes” or “Variable Funding Notes” shall mean Notes designated at the time of issuance thereof as “Variable Funding Notes” or “Class A-1-V Notes” and pursuant to which the Note Principal Balance thereof may increase and decrease from time to time in the manner set forth in the note purchase agreement for such Class A-1-V Notes.
“Class B Notes” shall mean all Notes issued under this Base Indenture and any related Series Supplement for which the alphabetical designation is “Class B.”
“Class C Notes” shall mean all Notes issued under this Base Indenture and any related Series Supplement for which the alphabetical designation is “Class C.”
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“Class Principal Balance” shall mean, as of any date of determination, the aggregate outstanding principal balance (or, for purposes of determining voting and consent rights with respect to a Class of Class A-1 Notes, the maximum committed principal amount of such Class) of all Outstanding Notes of such Class on such date. The Class Principal Balance of each Class of Notes may be increased by the issuance of Additional Notes of such Class (or (i) in the case of the Class A-1-V Notes, also by draws on their commitment, including a draw on a Liquidity Reserve Letter of Credit and (ii) in the case of the Class A-1-L Notes, by draws on the Class A-1-L Notes). The Class Principal Balance of each Class of Notes shall be reduced by the amount of any principal payments made to the Holders of the Notes of such Class.
“Clearstream” shall mean Clearstream Banking, société anonyme, Luxembourg.
“Clearstream Participants” shall mean the participating organizations of Clearstream.
“Closing Date” with respect to a Series, shall have the meaning set forth in the Series Supplement for such Series.
“Closing Date Asset Entities” shall have the meaning set forth in the preamble hereto.
“Closing Date Leverage Ratio” shall have the meaning ascribed to it in the Series Supplement for such Series.
“Code” shall mean the United States Internal Revenue Code of 1986, as amended.
“Collateral” shall mean any property which is the subject of a Grant in favor of the Indenture Trustee for the benefit of the Secured Parties pursuant to any Transaction Document.
“Collection Account” shall have the meaning ascribed to it in Section 3.01(a).
“Collection Account Bank” shall have the meaning ascribed to it in Section 3.01(a).
“Collection Account Control Agreement” shall mean the agreement, dated as of the Initial Closing Date, among the Issuer, the Collection Account Bank, as securities intermediary, and the Indenture Trustee relating to the Collection Account, as amended, amended and restated or otherwise modified from time to time.
“Collection Period” shall mean, with respect to any Payment Date, the calendar month immediately preceding the calendar month in which such Payment Date occurs (or, with respect to the first Payment Date following the Initial Closing Date, the period from and including the Initial Closing Date to and including the last day of the calendar month immediately preceding the calendar month in which such Payment Date occurs).
“Collections” shall mean all collections with respect to the Fiber Network Assets, the Customer Agreements and related Customer Accounts Receivable and any other Collateral.
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“Commercial Agreement” shall mean any current or future agreement between the Asset Entities and a Commercial Customer relating to providing Services to such Commercial Customer and related amounts receivable in connection therewith.
“Commercial Churn Replacement Capital Expenditures” shall mean, with respect to any Collection Period, an amount equal to the product of (i) $17.39 and (ii) the Commercial Gross Churn with respect to such Collection Period.
“Commercial Customer” shall mean commercial enterprises (i.e., business customers and government institutions) within a Contributed Market that are party to a Customer Agreement.
“Commercial Gross Churn” shall mean, with respect to any Collection Period, the reduction in Collections (if any) attributable to any modification (including discontinuation) of the Services by Commercial Customers during such Collection Period.
“Commercial Maintenance Capital Expenditures” shall mean, with respect to any Collection Period, an amount equal to the sum of (a) $73,162 and (b) the product of (i) Commercial Monthly Revenue and (ii) 3.87%; provided that the dollar amount in clause (a) will be increased by a percentage equal to the Core Personal Consumption Price Index on March 1^st^ of each calendar year beginning in 2026.
“Commercial Monthly Revenue” means Monthly Revenue attributable to Commercial Agreements.
“Compliance Certificate” shall have the meaning ascribed to it in Section 7.02(a)(viii).
“Confirmation of Registration” shall mean, with respect to an Uncertificated Note, a confirmation of registration, substantially in the form of Exhibit G attached hereto, provided to the owner thereof promptly after the registration of the Uncertificated Note in the Note Register by the Note Registrar.
“Content Cost” shall mean all direct costs payable to acquire the content and other services delivered under the Customer Agreements.
“Content Cost, Network Expense and Insurance Reserve Account” shall mean the Reserve Account designated to reserve funds for the payment of Content Costs, Network Expenses, Impositions and Insurance Premiums with respect to the Fiber Network Assets.
“Contingent Obligation” as applied to any Person, shall mean any direct or indirect liability, contingent or otherwise, of that Person: (A) with respect to any indebtedness, lease, dividend or other obligation of another if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability shall be paid or discharged, or that any agreements relating thereto shall be complied with, or that the holders of such liability shall be protected (in whole or in part) against loss with respect thereto; (B) with respect to any letter of credit issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings; (C) under any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement or other similar agreement or arrangement designed to protect against fluctuations in interest rates; or (D) under any foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect that Person against fluctuations in currency values. Contingent Obligations shall include (i) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making (other than the Notes), discounting with recourse or sale with recourse by such Person of the obligation of another, (ii) the obligation to make take-or-pay or similar payments if required regardless of nonperformance by any other party or parties to an agreement, and (iii) any liability of such Person for the obligations of another through any agreement to purchase, repurchase or otherwise acquire such obligation or any property constituting security therefor, to provide funds for the payment or discharge of such obligation or to maintain the solvency, financial condition or any balance sheet item or level of income of another. The amount of any Contingent Obligation shall be equal to the amount of the obligation so guaranteed or otherwise supported or, if not a fixed and determined amount, the maximum amount so guaranteed. For the avoidance of doubt, obligations of the Asset Entities under Revenue Sharing Payments and Customer Advances are not “Contingent Obligations.”
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“Continuing Notes” shall have the meaning ascribed to it in Section 2.12(d).
“Contractual Obligation” as applied to any Person, shall mean any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject, other than the Transaction Documents.
“Contributed Market” means a specific geographic area in which a Fiber Network is located.
“Contribution Agreement” shall mean each assignment agreement, contribution agreement or other similar agreement whereby an Asset Entity is assigned and/or contributed to the Issuer or Fiber Network Assets and/or other assets are assigned and/or contributed to and/or from an Asset Entity.
“Control Accounts” shall mean those certain accounts maintained in the name of the Obligors that are subject to Account Control Agreements and to the lien of the Indenture Trustee for the benefit of the Secured Parties under this Indenture pursuant to Section 7.14 for the purposes set forth in Section 3.02(a) of this Base Indenture.
“Controlling Class” shall mean, as of any date of determination, the Class of Notes with the lowest alphanumerical designation, without regard to allocation to a particular Series, having a Class Principal Balance, disregarding any Notes held by Affiliates of the Obligors, which is at least 25% of the aggregate Initial Class Principal Balance of such Class; provided that if no Class of Notes has a Class Principal Balance that satisfies such condition, then the Controlling Class shall be the Class of Notes then Outstanding with the lowest alphanumerical designation.
“Controlling Class Representative” shall have the meaning ascribed in Section 10.05(a).
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“Corporate Trust Office” shall mean the corporate trust office of the Indenture Trustee (a) for Note transfer purposes and presentment of the Notes for final payment thereon, Citibank, N.A., 480 Washington Boulevard, 16th Floor, Jersey City, New Jersey 07310, Attention: Securities Window, Shentel Issuer LLC and (b) for all other purposes, Citibank, N.A., 388 Greenwich Street, New York, New York 10013, Attention: Agency & Trust – Shentel Issuer LLC, email: esotericabs@citi.com, call: (888) 855-9695 to obtain Citibank, N.A. account manager’s email address, or such other address as the Indenture Trustee may designate from time to time by notice to the Holders, each Rating Agency and the Issuer or the principal corporate trust office of any successor Indenture Trustee.
“CP Rate” shall have the meaning, with respect to any Series of Class A-1-V Notes, ascribed to it in the applicable Class A-1-V Note Purchase Agreement.
“Customer” shall mean any customer that is a Retail Customer or Commercial Customer.
“Customer Accounts Receivables” shall mean all amounts receivable in connection with the Customer Agreements.
“Customer Advances” shall mean the non-recurring charges paid by the Customers or any government grant entity to the Asset Entities or the Manager on behalf of the Asset Entities that constitute payments for expected Capital Expenditures to be made on the Fiber Network Assets or for equipment purchased by Customers.
“Customer Agreement” shall mean any Retail Agreement or Commercial Agreement.
“Cut-Off Date” with respect to a Series, shall have the meaning set forth in the Series Supplement for such Series.
“Debt Service Coverage Ratio” or “DSCR” shall mean, as of any Determination Date is the ratio of (a) the Aggregate Annualized Net Operating Income as of such date to (b) the sum of (i) the amount of interest that the Issuer will be required to pay over the succeeding twelve (12) Payment Dates on the aggregate principal balance of the Class A Notes and the Class B Notes Outstanding as of such Determination Date plus the Note Rate for the Class C Notes multiplied by the Class Principal Balance of the Class C Notes Outstanding as of such Determination Date plus (ii) with respect to any Class A-1 Notes, the Manager’s good faith estimate of any commitment fees, Letter of Credit Fees and administrative expenses that the Issuer will be required to pay over the succeeding twelve (12) Payment Dates plus (iii), without duplication, the annualized Indenture Trustee Fee, Verification Agent Fee, Back-Up Manager Fees and Servicing Fees; provided that, as of any date during the Prefunding Period for a Series (if any), interest payable with respect to the Classes of Notes of that Series for which a portion of the net proceeds are reserved in a Prefunding Account will be calculated net of the aggregate Yield Maintenance Amounts with respect to that Series for each Payment Date during such twelve (12) Payment Date period that occurs during such Prefunding Period. For the purposes of calculating the DSCR, it is assumed that the base rate, SOFR rate or CP Rate for the related Interest Accrual Periods with respect to any Class A-1 Notes will be equal to the then-current base rate, SOFR rate or CP Rate, as applicable.
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“Default” shall mean any event, occurrence or circumstance that is, or with notice or the lapse of time or both would become, an Event of Default.
“Defeasance Date” shall have the meaning ascribed to it in Section 2.11(a).
“Defeasance Payment Date” shall have the meaning ascribed to it in Section 2.11(a).
“Deferred Post-ARD Additional Interest” shall have the meaning ascribed to it in Section 2.10.
“Definitive Class A-1-L Notes” shall have the meaning ascribed to it in Section 2.01(c)(i).
“Definitive Class A-1-V Notes” shall have the meaning ascribed to it in Section 2.01(a)(i).
“Definitive Notes” shall have the meaning ascribed to it in Section 2.01(b)(i).
“Definitive Term Notes” shall have the meaning ascribed to it in Section 2.01(b)(i).
“Depositary” and “DTC” shall mean The Depository Trust Company, or any successor Depositary hereafter named as contemplated by Section 2.03(c).
“Determination Date” shall mean the last day of any Collection Period if and for so long as any Series of Notes is Outstanding; provided that the initial Determination Date shall be January 31, 2026.
“Discretionary Capital Expenditures” shall mean (i) one-time Capital Expenditures made to obtain a long-term extension of a Customer Agreement, (ii) non-recurring Capital Expenditures made to enhance the operating revenues of Fiber Networks or related Fiber Network Assets, such as to accommodate expansion for Additional Fiber Network Assets, (iii) one-time Capital Expenditures made to refurbish Fiber Network Assets and (iv) other non-recurring Capital Expenditures made to decrease the Fiber Network Operating Expenses of any Fiber Network or the related Fiber Network Assets.
“Disposition Conditions” shall have the meaning ascribed to it in Section 7.33.
“DTC Custodian” shall mean the Indenture Trustee, in its capacity as custodian of any Series or Class of Global Notes for DTC.
“DTC Participant” shall mean a broker, dealer, bank or other financial institution or other Person for whom from time to time DTC effects book-entry transfers and pledges of securities deposited with DTC.
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“Electric Transmission” shall have the meaning ascribed to it in Section 15.14.
“Eligible Account” shall mean a separate and identifiable account from all other funds held by the holding institution, which account is either (i) an account maintained with an Eligible Bank or (ii) a segregated trust account maintained by a corporate trust department of a federal depositary institution or a state chartered depositary institution subject to regulations regarding fiduciary funds on deposit similar to Title 12 of the Code of Federal Regulations §9.10(b), which institution, in either case, has a combined capital and surplus of at least $100,000,000 and either has corporate trust powers and is acting in its fiduciary capacity or for which a Rating Agency Confirmation has been received and which institution’s long-term debt obligations are rated at least “BBB-” by Fitch (or its equivalent from at least one NRSRO if Fitch is not a Rating Agency for any Series of Notes) or short-term debt obligations are rated at least “F3” by Fitch (or its equivalent from at least one NRSRO if Fitch is not a Rating Agency for any Series of Notes); provided that, if any Account ceases to be an Eligible Account, the Issuer shall establish a new Account that is an Eligible Account in accordance with the requirements of the Cash Management Agreement.
“Eligible Bank” shall mean a bank that satisfies the Rating Criteria.
“Employee Benefit Plan” shall mean any employee pension benefit plan within the meaning of Section 3(3) of ERISA (excluding any Multiemployer Plan) which is subject to Title IV of ERISA or to Section 412 of the Code.
“Environmental Laws” shall mean all present and future statutes, ordinances, codes, orders, decrees, laws, rules or regulations of any Governmental Authority pertaining to or imposing liability or standards of conduct concerning environmental protection (including regulations concerning health and safety to the extent relating to human exposure to Hazardous Materials), contamination or clean-up or the handling, generation, release or storage of Hazardous Material affecting the Fiber Networks including the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, the Resource Conservation and Recovery Act, as amended, the Emergency Planning and Community Right-to-Know Act of 1986, as amended, the Hazardous Substances Transportation Act, as amended, the Solid Waste Disposal Act, as amended, the Clean Water Act, as amended, the Clean Air Act, as amended, the Toxic Substances Control Act, as amended, the Safe Drinking Water Act, as amended, the Occupational Safety and Health Act, as amended (to the extent relating to human exposure to Hazardous Materials), any statutes allowing the imposition of an environmental “superlien” to recover costs incurred by federal, state, provincial or territorial agencies for remediation of property contaminated by Hazardous Materials and other applicable environmental clean-up statutes and all regulations adopted in respect of the foregoing laws whether now or hereafter in effect, but excluding any historic preservation or similar laws of any Governmental Authority relating to historical resources and historic preservation not related to (i) protection of the environment or (ii) Hazardous Materials.
“Equity Interests” shall mean, with respect to any Person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents, including membership interests (however designated, whether voting or non-voting) of the equity of such Person, including, if such person is a partnership, partnership interests (whether general or limited), if such Person is a limited liability company, membership interests, and, if such Person is a trust, all beneficial interests therein, and shall also include 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 property of, such corporation, partnership, limited liability company or trust (in each case, other than noneconomic special membership interests or shares granted or issued to independent directors).
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“ERISA” shall mean the United States Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” shall mean, in relation to any Person, any other Person treated as a single employer with the first Person, within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“Euroclear” shall mean the Euroclear System.
“Euroclear Participants” shall mean participants of Euroclear.
“Event of Default” shall have the meaning ascribed to it in Section 10.01.
“Excluded Amounts” shall mean (a) Customer Advances, (b) Revenue Sharing Payments, (c) Service Revenues, (d) any amounts paid by Customers with respect to networks that are not included in the Collateral, (e) cash capital contributions made by or on behalf of the Manager to any of the Obligors designated by the Manager as “Excluded Amounts” for application in the manner designated by the Manager, which shall not be treated as Retained Collections Contributions for inclusion as part of Aggregate Annualized Net Operating Income, (f) amounts paid to the Asset Entities by the applicable Shentel Cable and Telephone Company pursuant to the Non-Securitization Entity Access Agreements constituting “Access Fees” thereunder and (g) all pass-through taxes, franchise fees, government impositions, federal or state universal service fund contributions, and other taxes or fees that are, or will become, due and payable to, or in respect of obligations to or imposed by, any governmental agency or instrumentality paid by Customers to an Asset Entity.
“Excluded Fiber Networks” shall have the meaning ascribed to it in Section 2.12(b).
“Executive Officer” shall mean, with respect to any corporation or limited liability company, the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer, President, any Executive Vice President, any Senior Vice President, the Chief Accounting Officer, any Vice President, General Counsel, Secretary or Treasurer of such corporation or limited liability company and, with respect to any partnership, any individual general partner thereof or, with respect to any other general partner, any officer of such general partner.
“FATCA” shall mean Sections 1471 through 1474 of the Code (or any regulations or agreements thereunder or official interpretations thereof) or any intergovernmental agreement between the United States and another jurisdiction entered into in connection with the implementation thereof (or any law implementing such an intergovernmental agreement).
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“FATCA Withholding Tax” shall mean any withholding or deduction required pursuant to FATCA.
“Fee Roll” shall mean, collectively, a list of the Fees with respect to each of the Fiber Networks certified by the Issuer and substantially in the form of Exhibit C.
“Fees” shall mean the monies owed to the Asset Entities by the Customers pursuant to the Customer Agreements. For the avoidance of doubt, Fees include Revenue Sharing Payments but do not include Customer Advances, Service Revenues or amounts paid directly to the Manager by a Customer as reimbursement.
“Fiber Network” shall mean each discrete collection of Fiber Network Assets within a Contributed Market contributed or otherwise assigned to, or accessible by, the Asset Entities.
“Fiber Network Acquisition Fee” shall have the meaning ascribed to it in the Servicing Agreement.
“Fiber Network Assets” shall mean, collectively, (i) fiber-to-the-premises and commercial fiber infrastructure consisting of fiber-optic cables, conduit, duct banks, fiber-optic splicing and distribution enclosures, fiber vaults and handholes, PoPs and regeneration locations, demarcation points, certain fiber backbone equipment, pole attachments solely containing fiber strands and certain optical and networking equipment within each Contributed Market to deliver the Services, (ii) Fiber Network Underlying Rights Agreements and (iii) the Obligor Access Agreements.
“Fiber Network Operating Expenses” shall mean, for any Contributed Market for any period, without duplication, all direct costs and expenses of operating and maintaining the related Fiber Network and related Fiber Network Assets (including Content Costs and utilities, but excluding the Management Fee), but excluding (x) the cost of portfolio support personnel provided by the Manager, (y) any amounts included in clauses (y)(i) and (y)(v) of the definition of Annualized Net Operating Income and (z) an amount equal to the portion of Commercial Maintenance Capital Expenditures and Retail Maintenance Capital Expenditures with respect to the Passings in such Contributed Market. Fiber Network Operating Expenses do not include Discretionary Capital Expenditures, Commercial Churn Replacement Capital Expenditures or Retail Churn Replacement Capital Expenditures.
“Fiber Network Release Fee” shall have the meaning ascribed to it in the Servicing Agreement.
“Fiber Network Underlying Rights Agreement” shall mean any agreement entered into with the relevant property owners, utilities or municipal authorities in order to acquire access to locations where Fiber Network Assets may be placed.
“Fiber Network Underlying Rights Default” shall mean any default or event of default under any Fiber Network Underlying Rights Agreement.
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“Financial Statements” shall mean in relationship to any Person, its consolidated statements of operations and members’ equity, statements of cash flow and balance sheets.
“Fitch” shall mean Fitch Ratings, Inc. or any successor rating agency thereof.
“foreclosure” and “foreclose” when used in this Base Indenture in respect of personal or real property, refers to all means by which the holder of a security interest in or mortgage on such personal or real property, as applicable, can enforce such security interest or mortgage under applicable law, including legal foreclosure, private power of sale, and statutory sale.
“GAAP” shall mean United States generally accepted accounting principles as in effect from time to time.
“Global Notes” shall mean Rule 144A Global Notes, IAI Global Notes and Regulation S Global Notes.
“Governmental Authority” shall mean with respect to any Person, any federal, state, territorial, provincial or local government or other political subdivision thereof and any entity, including any regulatory or administrative authority or court, exercising executive, legislative, judicial, regulatory or administrative or quasi-administrative functions of or pertaining to government, and any arbitration board or tribunal in each case having jurisdiction over such applicable Person or such Person’s property, and any stock exchange on which shares of capital stock of such Person are listed or admitted for trading.
“Grant” shall mean to create a security interest in any property now owned or at any time hereafter acquired or any right, title or interest that may be acquired in the future.
“Guaranteed Obligation” shall have the meaning ascribed to it in Section 16.01.
“Guarantor” shall mean Shentel Guarantor LLC, a Delaware limited liability company.
“Hazardous Material” shall mean all or any of the following: (A) substances, materials, compounds, wastes, products, emissions and vapors that are defined or listed in, regulated by, or otherwise classified pursuant to, any applicable Environmental Laws because of their deleterious, harmful or dangerous properties, including any so defined, listed, regulated or classified as “hazardous substances”, “hazardous materials”, “hazardous wastes”, “toxic substances”, “pollutants”, “contaminants”, or any other formulation intended to regulate, define, list or classify substances by reason of deleterious, harmful or dangerous properties; (B) waste oil, oil, petroleum or petroleum derived substances, natural gas, natural gas liquids or synthetic gas and drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas or geothermal resources; (C) any flammable substances or explosives or any radioactive materials; (D) asbestos in any form; (E) electrical or hydraulic equipment which contains any oil or dielectric fluid containing polychlorinated biphenyls; (F) radon; (G) toxic mold; or (H) urea formaldehyde; provided that such definition shall not include (i) batteries, fuel, cleaning materials and other substances commonly used in the ordinary course of the Asset Entities’ businesses, which materials exist in reasonable quantities and are stored, contained, transported, used, released, and disposed of in accordance with all applicable Environmental Laws, or (ii) batteries, fuel, cleaning materials and other substances commonly used in the ordinary course of the Customers’, the real property owners’, the real property owners’ tenants or any of their respective agent’s, business, which materials exist in reasonable quantities and are stored, contained, transported, used, released, and disposed of in accordance with all applicable Environmental Laws.
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“Holdco Guaranty” shall mean the Guarantee and Security Agreement, dated as of the Initial Closing Date, by the Guarantor in favor of the Indenture Trustee, as amended, amended and restated or otherwise modified from time to time.
“Holder” and “Noteholder” shall mean a Person in whose name a particular Note is registered in the Note Register.
“IAI Global Note” shall mean, with respect to any Series and Class of Notes, a single global Note representing such Series and Class, in definitive, fully registered form without interest coupons, which Note does not bear a Regulation S Legend, offered and sold to Institutional Accredited Investors.
“Impositions” shall mean all Content Costs, all Network Expenses and all local or other property taxes (net of abatements, reductions and refunds) and other impositions payable by the Asset Entities, vault charges, sales taxes, other taxes, levies, assessments and similar charges of every kind and nature whatsoever (including any payments in lieu of taxes), which at any time prior to, at or after the execution hereof may be assessed, levied or imposed by, in each case, a Governmental Authority (other than any such amounts that are Excluded Amounts) upon any of the Fiber Network Assets or the fees relating thereto or upon the ownership, use, occupancy or enjoyment thereof, and any interest, cost or penalties imposed by such Governmental Authority with respect to any of the foregoing. Impositions shall not include (w) any Revenue Sharing Payments, (x) any sales or use taxes payable by the Issuer or the Asset Entities, (y) any of the foregoing items payable by Customers occupying any portions of the Fiber Networks or (z) taxes or other charges payable by the Manager unless such taxes are being paid on behalf of the Issuer or an Asset Entity.
“Improvements” shall mean all buildings, structures, fixtures, additions, enlargements, extensions, modifications, repairs, replacements and improvements of every kind and nature now or hereafter located within the Fiber Networks and owned by any of the Asset Entities.
“Indebtedness” shall mean, for any Person, without duplication: (i) all indebtedness of such Person for borrowed money, for amounts drawn under a letter of credit, or for the deferred purchase price of property for which such Person or its assets is liable, (ii) all unfunded amounts under a loan agreement, letter of credit (unless secured in full by cash), or other credit facility for which such Person would be liable if such amounts were advanced thereunder, (iii) all amounts required to be paid by such Person as a guaranteed payment to partners or a preferred or special dividend, including any mandatory redemption of shares or interests but not any preferred return or special dividend paid solely from, and to the extent of, excess cash flow after the payment of all operating expenses, capital improvements and debt service on all Indebtedness, (iv) all obligations under leases that constitute capital leases for which such Person is liable, and (v) all obligations of such Person under interest rate swaps, caps, floors, collars and other interest hedge agreements, in each case whether such Person is liable contingently or otherwise, as obligor, guarantor or otherwise, or in respect of which obligations such Person otherwise assures a creditor against loss; provided that reimbursement or indemnity obligations related to surety bonds or letters of credit incurred in the ordinary course of business and fully secured by cash collateral shall not be considered “Indebtedness” hereunder.
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“Indenture Supplement” shall mean an indenture supplemental to this Base Indenture, any Series Supplement or any Notes.
“Indenture Trustee” shall have the meaning ascribed to it in the preamble hereto.
“Indenture Trustee Fee” shall mean the fee to be paid in arrears on each Payment Date to the Indenture Trustee as compensation for services rendered by it in its capacity as Indenture Trustee.
“Independent” shall mean, when used with respect to any specified Person, that such Person (a) is in fact independent of the Obligors, any other obligor on the Notes and any Affiliate of any of the foregoing Persons, (b) does not have any direct financial interest or any material indirect financial interest in the Obligors, any such other obligor or any Affiliate of any of the foregoing Persons and (c) is not connected with the Obligors, any such other obligor or any Affiliate of any of the foregoing Persons as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
“Independent Certificate” shall mean a certificate or opinion to be delivered to the Indenture Trustee or the Servicer, as applicable, and upon which each may conclusively rely under the circumstances described in, and otherwise complying with the applicable requirements of, Section 15.01 made by an Independent certified public accountant or other expert appointed by an Issuer Order, and such opinion or certificate shall state that the signer has read the definition of “Independent” in this Base Indenture and that the signer is Independent within the meaning thereof.
“Ineligible Liquidity Reserve Letter of Credit” shall mean a Liquidity Reserve Letter of Credit with respect to which (i) the short-term debt credit rating of the Letter of Credit Provider with respect to such Liquidity Reserve Letter of Credit is withdrawn or downgraded below “F2” (or the then equivalent grade) by any Applicable Rating Agency or (ii) the long-term debt credit rating of such Letter of Credit Provider is withdrawn or downgraded below “BBB” (or the then equivalent grade) by any Applicable Rating Agency; provided that for determining whether a Liquidity Reserve Letter of Credit is eligible under this definition, a Letter of Credit Provider shall be deemed to have the short-term debt credit rating or the long-term debt credit rating, as applicable, of such Letter of Credit Provider or any guarantor of (or confirming bank for) such Letter of Credit Provider; provided, further, that the Class A-1-L Administrative Agent shall notify the Indenture Trustee and the Servicer of whether Liquidity Reserve Letters of Credit fall into this definition and the Indenture Trustee and the Servicer shall have no such obligation by itself.
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“Initial Class Principal Balance” shall mean, with respect to any Class of Notes, as of any date of determination, the aggregate initial Note Principal Balance of all Notes of such Class of Notes Outstanding on the date of issuance of such Class of Notes on the related Closing Date, as the same may be increased by the issuance of Additional Notes of such Class of Notes (or, in the case of a Class of Variable Funding Notes, the initial maximum committed principal amount of such Class); provided that upon the payment in full of all Notes of a particular Series, such Notes shall no longer be included in the Initial Class Principal Balance of the relevant Class.
“Initial Closing Date” shall mean December 5, 2025.
“Initial Purchaser” or “Initial Purchasers” with respect to a particular Series, shall have the meaning ascribed to it in the applicable Series Supplement.
“Institutional Accredited Investor” shall mean an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act or an entity owned entirely by other entities that fall within such definition.
“Insurance Policies” shall have the meaning ascribed to it in Section 7.05.
“Insurance Premiums” shall mean the annual insurance premiums for the Insurance Policies required to be maintained by the Asset Entities with respect to the Fiber Networks under Section 7.05*.*
“Insurance Proceeds” shall mean all of the proceeds received under the Insurance Policies.
“Interest Accrual Period” shall mean, for each Payment Date, the period from and including the preceding Payment Date (or, with respect to the initial such period for a Series, the Closing Date for such Series) to but excluding such Payment Date.
“Intertwined Backbone Assets” shall mean, collectively, the Cable Intertwined Backbone Assets, the Chillicothe Telephone Intertwined Backbone Assets and the Shenandoah Telephone Intertwined Backbone Assets.
“Investment Company Act” shall mean the United States Investment Company Act of 1940, as amended.
“Involuntary Bankruptcy” shall mean, in respect of any Person, any involuntary case under the Bankruptcy Code or any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, in which any of the Guarantor, the Manager, the Issuer or any of the direct or indirect subsidiaries of the Issuer is a debtor or any asset of any such entity is property of the estate therein.
“Involuntary Obligor Bankruptcy” shall have the meaning ascribed to it in Section 7.20.
“Issuer” shall have the meaning ascribed to it in the preamble hereto.
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“Issuer Order” and “Issuer Request” shall mean a written order or request signed in the name of the Issuer by any one of its Authorized Officers and delivered to the Indenture Trustee and the Servicer upon which the Indenture Trustee and the Servicer, as applicable, may conclusively rely.
“Joinder Agreement” shall mean a Joinder Agreement, executed by an Additional Asset Entity and delivered to the Indenture Trustee pursuant to Section 2.12(a), substantially in the form of Exhibit F.
“KBRA” shall mean Kroll Bond Rating Agency, LLC or any successor rating agency thereof.
“Knowledge” whenever used in this Base Indenture or any of the other Transaction Documents, or in any document or certificate executed pursuant to this Base Indenture or any of the other Transaction Documents (whether by use of the words “knowledge” or “known”, or other words of similar meaning, and whether or not the same are capitalized), shall mean actual knowledge (without independent investigation unless otherwise specified) (i) of the individuals who have significant responsibility for any policy making, major decisions or financial affairs of the applicable entity (or, in the case of the Indenture Trustee or the Servicer, any Responsible Officer); and (ii) also to the knowledge of the person signing such document or certificate.
“Last Mile Assets” shall mean, collectively, the Cable Last Mile Assets, the Chillicothe Telephone Last Mile Assets and the Shenandoah Telephone Last Mile Assets.
“Letter of Credit Fees” shall mean, with respect to any Liquidity Reserve Letter of Credit, the fees set forth in the applicable Class A-1-V Note Purchase Agreement or any fee letter related thereto.
“Letter of Credit Provider” shall mean, with respect to any Series of Class A-l Notes, the party identified as the “Letter of Credit Provider” or the “Letter of Credit Issuing Bank,” as the context requires, in the applicable Class A-1-V Note Purchase Agreement.
“Leverage Ratio” shall mean, as of any Determination Date, the ratio of (a) the excess of (i) the Note Principal Balance of all Notes (other than any Class A-1-L Notes) as of such Determination Date over (ii) all amounts remaining on deposit in any Prefunding Account, to (b) Aggregate Annualized Net Operating Income as of such Determination Date.
“Lien” shall mean, with respect to any property or assets, any lien, hypothecation, encumbrance, assignment for security, charge, mortgage, pledge, security interest, conditional sale or other title retention agreement or similar lien.
“Liquidation Fee” shall have the meaning ascribed to it in the Servicing Agreement.
“Liquidity Reserve Account” shall mean the Reserve Account designated to reserve funds in an amount at least equal to the Required Cash Liquidity Amount in accordance with Section 4.07.
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“Liquidity Reserve Draw Amount” shall mean, on any Payment Date, an amount equal to the excess, if any, of (a) the amounts due pursuant to Sections 5.01(a)(ii), 5.01(a)(iii) (other than any interest on, and principal of, any Class A-1-L Notes), 5.01(a)(iv), 5.01(a)(vi), 5.01(a)(vii) and 5.01(a)(viii) over (b) the sum of (x) the aggregate amount of funds on deposit in the Collection Account that are attributable to the preceding Collection Period available to pay such amounts on such Payment Date and (y) any Yield Maintenance Amounts to be withdrawn on such Payment Date from a Yield Maintenance Reserve Account if one is established for a Series of Notes, and in each case available to pay such amounts on such Payment Date.
“Liquidity Reserve Letter of Credit” shall mean a letter of credit, naming the Indenture Trustee, for the benefit of the Secured Parties, and the Servicer as beneficiaries thereof, from a portion of the commitment with respect to any Class A-1-V Note Purchase Agreement in an amount up to the Required Liquidity Amount.
“LTM Fiber Network Operating Expenses” shall mean, for any Contributed Market as of the last day of any calendar month, the Fiber Network Operating Expenses for such Contributed Market for the 12-month period ending on such day; provided that total expenses for such 12-month period relating to any Fiber Network with respect to a Contributed Market that has not been operational for such entire 12-month period shall be estimated as if such Fiber Network had been operational for such entire 12-month period, based on the Manager’s expectations.
“Majority Controlling Class” shall mean, as of any date of determination, Noteholders (or in the case of the Global Notes, the Note Owners) holding more than 50% of the Voting Rights of all Notes of the Controlling Class Outstanding as of such date of determination.
“Majority of Noteholders” shall mean, as of any date of determination, Noteholders holding more than 50% of the Voting Rights of all Classes of Notes Outstanding as of such date of determination.
“Management Agreement” shall mean the Management Agreement, dated as of December 5, 2025, by and among the Manager and the Obligors, as amended, amended and restated or otherwise modified from time to time.
“Management Fee” shall mean a fee payable to the Manager, equal to with respect to any Collection Period, the sum of:
(a) the sum of (i)(a) $0.08 multiplied by the average number of Average Passings with respect to such Collection Period and (b) 0.88% of the Retail Monthly Revenue as of the last day of such Collection Period, (ii) $47.43 multiplied by the Retail Gross Churn with respect to such Collection Period, (iii) $4.22 multiplied by the average number of Retail Customers receiving data services during such Collection Period and (iv) $0.48 multiplied by the Average Passings with respect to such Collection Period (collectively, the “Retail Management Fee Component”);
(b) the product of (i) Commercial Monthly Revenue as of the last day of such Collection Period multiplied by (ii) 3.67% (the “Commercial Management Fee Component”); and
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(c) $413,342; provided that such fixed dollar amount will be increased by a percentage equal to the Core Personal Consumption Price Index, on March 1^st^ of each calendar year beginning in 2026 (the “Fixed Direct Costs Component”).
“Manager” shall mean the manager described in the Management Agreement or one or more Acceptable Managers as may hereafter be charged with management of the Asset Entities in accordance with the terms and conditions hereof.
“Manager Report” shall have the meaning ascribed to it in the Management Agreement.
“Manager Termination Event” shall have the meaning ascribed thereto in the Management Agreement.
“Material Adverse Effect” shall mean, (i) a material adverse effect upon the business, operations, or condition (financial or otherwise) of the Obligors and the Guarantor (taken as a whole), (ii) the material impairment of the ability of the Obligors and the Guarantor (taken as a whole) to perform their obligations under the Transaction Documents (taken as a whole), or (iii) a material adverse effect on the use, value or operation of the Fiber Networks (taken as a whole), provided, however that if the aggregate Annualized Revenue of all Contributed Markets is reduced such that it is at least 5% lower than the actual revenue earned by the Obligors during the immediately preceding 12 months (or, with respect to any period occurring prior to the Initial Closing Date, the amount of revenue earned by the Parent with respect to the Fiber Networks owned by the Obligors on the Initial Closing Date) (unless such decrease is a result of a one-time event that will be reversed in the following month) as a result of an action, then a Material Adverse Effect shall be deemed to exist as a result of such action.
“Material Agreement” shall mean any contract or agreement, or series of related agreements, by any Asset Entity or the Issuer relating to the ownership, management, development, use, operation, leasing, maintenance, repair or improvement of the Fiber Networks under which there is an obligation of an Obligor, in the aggregate, to pay, or under which any Obligor receives in compensation, more than $5,000,000 per annum, excluding (i) the Transaction Documents, (ii) the Management Agreement, (iii) the Servicing Agreement, (iv) any agreement which is terminable by an Obligor on not more than 60 days’ prior written notice without any fee or penalty, (v) any Customer Agreement and (vi) any Fiber Network Underlying Rights Agreement.
“Material Customer Agreement” shall mean any Customer Agreement by any Customer at a Fiber Network Asset which (a) provides for annual Fees or other payments in an amount equal to or greater than $5,000,000, and (b) may not be cancelled by the applicable Customer (or related Affiliate) while it is under term on 30 days’ notice without payment of a termination fee, penalty or other cancellation fee.
“Member” shall mean, individually or collectively, any entity which is now or hereafter becomes the managing member or shareholder of any of the Issuer, the Guarantor or the Asset Entities under such Person’s Organizational Documents.
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“Minimum Cash Liquidity Amount” shall mean, as of any Payment Date, the excess, if any, of the product of (x) the sum of (i) the amount of interest on the Class A Notes (other than any Class A-1-L Notes) and the Class B Notes due and payable on such Payment Date in respect of the related Interest Accrual Period with respect to such Payment Date and (ii) the Note Rate for the Class C Notes multiplied by the Class Principal Balance of the Class C Notes as of such Determination Date and (y) three, over the aggregate available amount of each Liquidity Reserve Letter of Credit that has been issued and is outstanding and undrawn as of such Payment Date.
“Minimum DSCR” shall mean 1.50x.
“Monthly Amortization Amount” shall mean, on each Payment Date with respect to any Class of Notes that provides for a Monthly Amortization Amount, the sum of (i) the Targeted Amortization Amount for such Notes, if any, on such Payment Date and (ii) the Unpaid Monthly Amortization Amount for such Notes as of such Payment Date.
“Monthly Fiber Network Operating Expense Amount” shall mean, for any calendar month, the aggregate of the budgeted Fiber Network Operating Expenses of each Asset Entity for such calendar month pursuant to the Operating Budget for such month, solely to the extent not related to amounts deposited in the Content Cost, Network Expense and Insurance Reserve Account on the immediately preceding Payment Date. For each calendar year, the budgeted Fiber Network Operating Expenses in respect of (i) audit fees related to the Asset Entities shall be increased in accordance with the terms of the applicable audit engagement agreement and (ii) all other budgeted Fiber Network Operating Expenses for the Asset Entities will be based on (A) in the case of Fiber Network Operating Expenses related to providing Services to Retail Customers, a cost per unit basis (such cost per unit determination to be made based on cost drivers) times the number of budgeted units, where such cost per unit is (x) not less than the average of such expenses on a cost per unit basis over the prior 12-month period and (y) not greater than 103.00% of the budgeted cost per unit under the prior budget, and (B) in the case of Fiber Network Operating Expenses related to providing Services to Commercial Customers, an amount that is (x) not less than the aggregate amount of such expenses over the prior 12-month period and (y) not greater than 103.00% of the aggregate amount of such expenses included in the prior budget; provided that the budgeted Fiber Network Operating Expenses may be adjusted monthly during the fiscal years as new Customer Agreements are added on previously unutilized or newly built Fiber Network Assets in the Fiber Networks, Additional Fiber Networks or Additional Obligor Fiber Networks are acquired to reflect the expected Fiber Network Operating Expenses for those Fiber Networks.
“Monthly Payment Amount” shall mean, for any Payment Date, the amount of accrued interest on the Notes due and payable on such Payment Date in respect of the related Interest Accrual Period (other than, if on such Payment Date an Amortization Period or an ARD Period with respect to any Outstanding Class of Notes is in effect, interest on the Class C Notes) at the applicable Note Rate. The Monthly Payment Amount shall not include Prepayment Consideration, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest.
“Monthly Revenue” shall mean, for any Contributed Market, as of the last day of any calendar month, an amount equal to the sum of (i) all monthly fees payable during such calendar month with respect to such Contributed Market, (ii) all advertising revenue received with respect to such Contributed Market during such calendar month, (iii) all other monthly recurring revenue due and payable as of such day by any Customer with respect to such Contributed Market and the Fiber Network Assets related thereto for services provided via the applicable Fiber Network and Fiber Network Assets (excluding any Revenue Sharing Payments); provided that no amounts payable under any Non-Securitization Entity Access Agreement will constitute Monthly Revenue.
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“Multiemployer Plan” shall mean a “multiemployer plan” as defined in Section 3(37) or Section 4001(a)(3) of ERISA.
“Network Expenses” shall mean the electricity expenses payable by the Asset Entities with respect to the Fiber Networks.
“Non-Securitization Entities” shall mean the Parent and each of its affiliates and subsidiaries other than the Obligors and the Guarantor.
“Non-Securitization Entity Access Agreement” shall mean any current or future agreement between one or more Asset Entities and the Parent, whereby such Asset Entities grant one or more Non-Securitization Entities access to the Fiber Network Assets.
“Note Owner” shall mean, with respect to any Book-Entry Note, the Person who is the beneficial owner of such Note as reflected on the books of the Depositary or on the books of a DTC Participant or on the books of an indirect participating brokerage firm for which a DTC Participant acts as agent.
“Note Principal Balance” shall mean, for any Note, as of any date of determination, the initial principal balance of such Note on the related Closing Date, as set forth on the face thereof, less any payments of principal made in respect of such Note up to and including such date of determination.
“Note Rate” with respect to any Class of Notes, shall mean the interest rate applicable thereto as set forth in the Series Supplement pursuant to which such Notes of that Class was issued.
“Note Register” and “Note Registrar” shall mean the register maintained and the registrar appointed or otherwise acting pursuant to Section 2.02(a).
“Noteholder” shall have the meaning ascribed to it in the definition of “Holder”.
“Noteholder Tax Identification Information” shall mean information and/or properly completed and signed tax certifications provided by a recipient of payments that is sufficient (i) to eliminate the imposition of or determine the amount of any withholding of tax, including FATCA Withholding Tax with respect to payments made to such recipient, (ii) to determine that such recipient of payments has complied with such recipient’s obligations under FATCA or (iii) to otherwise allow the Issuer, Paying Agent and Indenture Trustee to comply with their respective obligations under FATCA.
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“Notes” shall mean the notes issued by the Issuer pursuant to this Base Indenture and the Series Supplements.
“NRSRO” shall mean a nationally recognized statistical ratings organization.
“Obligations” shall mean the unpaid principal amount of the Outstanding Notes, accrued interest thereon and all other obligations, liabilities and indebtedness of every nature to be paid or performed by the Guarantor or any of the Obligors under the Transaction Documents, including fees, costs and expenses, and other sums now or hereafter owing, due or payable and whether before or after the filing of a proceeding under the Bankruptcy Code or any other applicable bankruptcy, insolvency or other similar law now or hereafter in effect by or against any of the Guarantor or any of the Obligors, and the performance of all other terms, conditions and covenants under the Transaction Documents.
“Obligor Access Agreement (Chillicothe Telephone)” shall mean the Access Agreement between Chillicothe Telephone and the Asset Entities, dated as of the Closing Date, pursuant to which Chillicothe Telephone grants to the Asset Entities an irrevocable right of access to the Chillicothe Telephone Intertwined Backbone Assets, the Chillicothe Telephone Last Mile Assets, and the Chillicothe Telephone PoP Assets, in each case to the extent required to provide the Services to Customers.
“Obligor Access Agreement (Shenandoah Cable)” shall mean the Access Agreement between Shenandoah Cable and the Asset Entities, dated as of the Closing Date, pursuant to which Shenandoah Cable grants to the Asset Entities an irrevocable right of access to the Cable Intertwined Backbone Assets, the Cable Last Mile Assets, and the Cable PoP Assets, in each case to the extent required to provide the Services to Customers.
“Obligor Access Agreement (Shenandoah Telephone)” shall mean the Access Agreement between Shenandoah Telephone and the Asset Entities, dated as of the Closing Date, pursuant to which Shenandoah Telephone grants to the Asset Entities an irrevocable right of access to the Shenandoah Telephone Intertwined Backbone Assets, the Shenandoah Telephone Last Mile Assets, and the Shenandoah Telephone PoP Assets, in each case to the extent required to provide the Services to Customers.
“Obligor Access Agreements” shall mean, collectively, the Obligor Access Agreement (Shenandoah Telephone), the Obligor Access Agreement (Chillicothe Telephone) and the Obligor Access Agreement (Shenandoah Cable).
“Obligors” shall have the meaning ascribed to it in the preamble hereto.
“Offering Memorandum” with respect to a Series, shall have the meaning ascribed to it in the Series Supplement for such Series.
“Officer’s Certificate” shall mean a certificate signed by any Authorized Officer of the Issuer or the Manager, under the circumstances described in, and otherwise complying with, the applicable requirements of Section 15.01, and delivered to the Indenture Trustee or the Servicer, as applicable.
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“Operating Budget” shall mean, for any period, the budget for the Asset Entities taken as a whole setting forth an estimate of all Fiber Network Operating Expenses of the Asset Entities and any other expenses payable by the Asset Entities for the Fiber Networks for such period provided by the Manager pursuant to the Management Agreement, as the same may be amended pursuant to Section 7.02(b).
“Opinion of Counsel” shall mean one or more written opinions of counsel which shall be reasonably acceptable to and delivered to the addressee(s) thereof and shall comply with any applicable requirements of Section 15.01.
“Organizational Documents” shall mean, to the extent applicable to any of the Obligors, the Guarantor, the Manager, the Indenture Trustee and the Servicer, the certificate of formation, certificate or articles of incorporation, limited liability company agreement, operating agreement, memorandum of association or articles of association applicable to such Obligor, Guarantor, Manager, Indenture Trustee or Servicer.
“Other Obligor Collateral” shall have the meaning ascribed to it in Section 14.01(a).
“Other Plan Laws” shall mean any U.S. or non-U.S. federal, state, local or other laws or regulations that are similar to the fiduciary responsibility or prohibited transaction provisions of Title I of ERISA or Section 4975 of the Code.
“Other Servicing Fees” shall mean the Special Servicing Fee, the Liquidation Fee, the Workout Fee, the Fiber Network Acquisition Fee and the Fiber Network Release Fee.
“Outstanding” shall mean, as of the date of determination, all Notes theretofore authenticated and delivered (or registered in the case of Uncertificated Notes) under this Base Indenture, except:
(a) Notes theretofore cancelled (or de-registered in the case of Uncertificated Notes) by the Indenture Trustee or delivered to the Indenture Trustee for cancellation;
(b) Notes for the payment of which money in the necessary amount has been theretofore deposited with the Indenture Trustee or any Paying Agent (other than the Issuer) in trust for the Holders of such Notes; provided that if such Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Base Indenture or provision for such notice has been made, satisfactory to the Indenture Trustee; or
(c) Notes in exchange for or in lieu of which other Notes have been authenticated and delivered (or de-registered and/or registered in the case of Uncertificated Notes) pursuant to this Base Indenture unless proof satisfactory to the Indenture Trustee is presented that any such first-mentioned Notes are held by a protected purchaser;
provided that in determining whether the Holders of the requisite Outstanding Note Principal Balance of any Class or Series of Notes have given any request, demand, authorization, direction, notice, consent, or waiver hereunder or under any other Transaction Document, Notes owned by the Issuer, any other obligor upon the Notes or any Affiliate of the foregoing Persons shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Indenture Trustee or the Servicer shall be protected in relying on any such request, demand, authorization, direction, notice, consent, or waiver, only Notes that a Responsible Officer of the Indenture Trustee or the Servicer, as applicable, has actual knowledge that such Notes are so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Indenture Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not an Obligor, any other obligor upon the Notes or any Affiliate of any of the foregoing Persons.
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“Ownership Interest” shall mean, in the case of any Note, any ownership or security interest in such Note as the Holder thereof and any other interest therein, whether direct or indirect, legal or beneficial, as owner or as pledgee.
“Par Call Amount” shall mean an amount of up to 35% of the initial outstanding principal amount of such Series of Notes on the applicable Closing Date.
“Parent” shall mean Shentel Broadband Operations LLC, a Delaware limited liability company.
“Participants” shall mean Clearstream Participants, DTC Participants or Euroclear Participants, as applicable.
“Passing” shall mean any residential home, commercial-building for small or medium-sized businesses, multi-dwelling unit or other physical structure that is capable of receiving Services through Fiber Networks owned by the Asset Entities without further extending the distribution system.
“Paying Agent” shall be (x) initially, the Indenture Trustee, who is hereby authorized by the Issuer to make payments as agent of the Issuer to and from the Collection Account including payment of principal of or interest (and premium, if any) on the Notes on behalf of the Issuer, or (y) any successor appointed by the Issuer who (i) meets the eligibility standards for the Indenture Trustee specified in Section 11.06 and (ii) is authorized to make payments to and from the Collection Account including payment of principal of or interest (and premium, if any) on the Notes.
“Payment Date” shall mean the 20th day of each calendar month or, if any such day is not a Business Day, the next succeeding Business Day; provided that the initial Payment Date for any Series may be specified in the Series Supplement for such Series.
“Percentage Interest” shall mean, with respect to any Note, as of any date of determination, a fraction, expressed as a percentage, the numerator of which is the Note Principal Balance of such Note on such date, and the denominator of which is (i) in relation to the Class to which such Note belongs, the Class Principal Balance of the Class to which such Note belongs on such date and (ii) in relation to the Series to which such Note belongs, the aggregate principal balance on such date of all Notes within the Series belonging to the same Class as such Note.
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“Permitted Encumbrances” shall mean, collectively, (i) Liens created pursuant to the Transaction Documents; (ii) Liens for taxes, assessments, governmental charges, levies or claims not yet due or which are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted and as to which adequate reserves have been maintained in accordance with GAAP with respect to such Liens; (iii) zoning, subdivision and building laws and regulations of general application to the Fiber Networks; (iv) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, construction or other like Liens (1) arising in the ordinary course of business which are not overdue for a period of more than 60 days or which are being contested in good faith by appropriate proceedings or (2) for which the Asset Entities are adequately indemnified by another party (other than an Affiliate); (v) with respect to a Fiber Network, the interests of the owner of the real property through which such Fiber Network runs; (vi) easements, rights-of-way, licenses, restrictions, encroachments and other similar encumbrances incurred in the ordinary course of the business of the Asset Entities or, with respect to any Fiber Network, existing on the date of the acquisition of such Fiber Network, which, in the aggregate, do not materially (1) interfere with the ordinary conduct of the business of the Asset Entities, taken as a whole, or (2) impair the use or operations of the interest of the Asset Entity in such Fiber Network; (vii) Liens arising in connection with any Remedial Work (as to the Asset Entities) not in excess of $1,000,000 in an aggregate amount at any time outstanding (excluding any portion thereof for which such Asset Entity has been indemnified by another party other than an Affiliate), with respect to which a cash reserve in an amount equal to the remediation costs has been provided for and funded; (viii) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements; (ix) Liens created by lease agreements, statute or common law to secure the payments of rental amounts or other sums not yet delinquent thereunder; (x) Liens on real property that is leased, licensed or occupied by an Asset Entity pursuant to an easement, license or other Fiber Network Underlying Rights Agreement created or caused by an owner or lessor thereof or arising out of the fee interest therein; (xi) Customer Agreements and other licenses, sublicenses, leases or subleases granted by the Asset Entities in the ordinary course of their businesses and not materially interfering with the conduct of the business of the Asset Entities; (xii) Liens incurred or created in the ordinary course of business on cash and cash equivalents to secure performance of statutory obligations, surety or appeal bonds, performance bonds, bids or tenders; (xiii) Liens securing the payment of judgments which do not result in an Event of Default and which are being appealed and contested in good faith, have been adequately bonded pending such appeal and with respect to which enforcement has been stayed; and (xiv) Liens arising as a consequence of liens imposed as a result of the failure of the real property owner to pay taxes, assessments or similar charges.
“Permitted Indebtedness” shall have the meaning ascribed to it in Section 7.16.
“Permitted Investments” shall have the meaning ascribed to it in the Cash Management Agreement.
“Person” shall mean any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust (including any beneficiary thereof), unincorporated organization, or government or any agency or political subdivision thereof.
“Plan Asset Regulation” shall mean the U.S. Department of Labor regulation codified at 29 C.F.R. Section 2510.3-101 as modified by Section 3(42) of ERISA.
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“Plan Investor” shall mean (i) a Benefit Plan Investor or (ii) a plan, individual retirement account or other arrangement which is subject to the provisions of Other Plan Laws or an entity whose underlying assets are deemed to constitute the assets of any of the foregoing described in this clause (ii) pursuant to applicable law.
“Pledged Equity Interests” shall mean all Equity Interests in the Asset Entities owned by the Issuer.
“PoP Assets” shall mean, collectively, the Cable PoP Assets, the Chillicothe Telephone PoP Assets and the Shenandoah Telephone PoP Assets.
“PoPs” shall mean network points of presence.
“Post-ARD Additional Interest” shall have the meaning ascribed to it in Section 2.10.
“Post-ARD Additional Interest Rate” shall have the meaning ascribed to it in Section 2.10.
“Post-ARD Note Spread” for each Class and Series of Notes, shall have the meaning ascribed to it in the Series Supplement for such Series.
“Pre-Existing Condition” shall have the meaning ascribed to it in Section 7.06(c).
“Prefunding Account” shall mean each non-interest bearing segregated trust account, established as an Eligible Account in the name of the Indenture Trustee for the benefit of the Secured Parties in connection with the issuance of a Series of Notes, the purpose of which is to reserve all or a portion of the proceeds of the issuance of a Series of Notes, to be released to the Issuer in accordance with the terms of the Series Supplement for such Series. The amount to be deposited into a Prefunding Account for a Series of Notes on the Closing Date of such Series will be the amount specified in the Series Supplement for such Series.
“Prefunding Account Bank” shall have the meaning ascribed to it in Section 3.01(b).
“Prefunding Period” shall mean with respect to any Series that has funded a Prefunding Account, the period commencing on the Closing Date of such Series and ending on the date specified in the Series Supplement for such Series.
“Prepayment Consideration” shall mean, (i) with respect to any prepayment of the principal balance of a Note (other than with funds on deposit in any Prefunding Account), an amount that is equal to the excess, if any, of (x) the present value on the date of such prepayment (by acceleration or otherwise) of the sum of the principal payment allocable to such Note and interest that the Issuer would otherwise be required to pay on the prepaid portion of such Note from the date of such prepayment to and including the ARD Prepayment Date with respect to such Series of Notes absent such prepayment (and assuming payment of any Monthly Amortization Amounts), with such present value determined by the use of a discount rate equal to the sum of (a) the yield to maturity (adjusted to a “mortgage equivalent basis” pursuant to the standards and practices of the Securities Industry and Financial Markets Association), five Business Days prior to such prepayment of the United States Treasury Security having the maturity closest to such ARD Prepayment Date, plus (b) 0.50% over (y) the principal amount of such Note being prepaid on the date of such prepayment; provided that, with respect to a prepayment in full of a Series of Notes in connection with a Wholesale Transition, the amount set forth in this clause (i) shall be multiplied by a fraction not less than zero, the numerator of which is (I) the outstanding principal amount of such Series of Notes being prepaid minus (II) the Par Call Amount, and the denominator of which is the outstanding principal amount of such Series of Notes being prepaid and (ii) with respect to any prepayment of the principal balance of a Note made from funds on deposit in any Prefunding Account, the amount (if any) set forth in the applicable Series Supplement. Any Prepayment Consideration for any Notes of a Class and Series that have been prepaid will be paid pro rata to the Holders of such Notes of such Class in proportion to the principal balance of such Notes of such Class being so prepaid. With respect to a Note that has a Targeted Amortization Amount, the Prepayment Consideration shall be determined assuming that (i) monthly payments of principal on such Note is made based upon the Targeted Amortization Amount for such Note (and with interest calculated based on the principal balance of such Note as reduced by each such principal payment) and (ii) the remaining principal balance of such Note (after taking into account all payments of Targeted Amortization Amount for such Note, if applicable) is paid on the ARD Prepayment Date applicable to such Note.
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“Proceeding” shall mean any suit in equity, action at law or other judicial or administrative proceeding.
“PTE” shall have the meaning ascribed to it in Section 11.06.
“Qualified Institutional Buyer” shall mean a qualified institutional buyer within the meaning of Rule 144A. “Rated Final Payment Date” with respect to each Series, shall have the meaning ascribed to it in the Series Supplement for such Series.
“Rating Agency” or “Rating Agencies” shall mean, with respect to any action or event in regards to a Series of Notes, the rating agency or rating agencies appointed by the Issuer to rate such Series of Notes specified as such in the Series Supplement for such Series.
“Rating Agency Confirmation” with respect to any Series or Class of Notes, shall have the meaning ascribed to it in the applicable Series Supplement with respect to any transaction or matter in regards to such Series or Class of Notes, or, if not ascribed a meaning therein, shall mean, with respect to any transaction or matter in question concerning such Series or Class of Notes, (i) 30 calendar days’ prior written notice by the Issuer to the Rating Agency or Rating Agencies then-appointed by the Issuer to rate such Series or Class of Notes (or such shorter period as may be agreed upon by such Rating Agency or Rating Agencies at its or their election) and (ii) confirmation from such Rating Agency or Rating Agencies that such transaction or matter will not result in a downgrade, qualification or withdrawal of the then-current ratings of such Series or then-current rating of such Class of Notes (or the placing of such Series or Class of Notes on negative credit watch or ratings outlook in contemplation of any such action with respect thereto); provided that, other than with respect to (i) any issuance of Additional Notes, (ii) any Specified Amendment, or (iii) any amendment effected pursuant to Section 13.01(xiv), no Rating Agency Confirmation will be required from such Rating Agency or Rating Agencies with respect to any matter or transaction to the extent that such Rating Agency or Rating Agencies (x) no longer maintains a rating on the Notes or (y) has made a public statement or has otherwise communicated to the Issuer that it will not review such transaction or matter or that it will no longer review transactions or matters of such type for purposes of evaluating whether to confirm the then-current ratings of obligations rated by such Rating Agency or Rating Agencies; provided, further, that, other than with respect to (i) any issuance of Additional Notes, (ii) any Specified Amendment, or (iii) any amendment effected pursuant to Section 13.01(xiv), that if a Rating Agency refuses to respond or otherwise does not respond to a request for Rating Agency Confirmation made in accordance with this Base Indenture within 15 Business Days of such request being made (but otherwise confirms recognition of receipt of such request), the requirement to receive Rating Agency Confirmation from such Rating Agency shall be waived; provided, further, that, notwithstanding the foregoing, Rating Agency Confirmation shall not be required to be provided in respect of KBRA (except in connection with any issuance of Additional Notes) if the Manager provides an officer’s certificate (along with copies of all written notices for such Rating Agency Confirmation) to the Issuer, the Servicer and the Indenture Trustee certifying that the Manager has notified KBRA at least ten (10) Business Days prior to taking such event or action to be taken or proposed to be taken.
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“Rating Criteria” with respect to any Person, shall mean that (i) the short-term unsecured debt obligations of such Person are rated at least “F2” by Fitch (or its equivalent from at least one NRSRO if Fitch is not a Rating Agency for any Series of Notes), or (ii) the long-term unsecured debt obligations of such Person are rated at least “BBB” by Fitch (or its equivalent from at least one NRSRO if Fitch is not a Rating Agency for any Series of Notes).
“Receipts” shall mean all revenues, payments of Fees, receipts and other payments to the Asset Entities of every kind arising from their ownership, operation or management of the Fiber Networks, but excluding (i) any amounts received by or on behalf of such Asset Entities that constitute the property of a Person other than an Asset Entity (including all revenues, receipts and other payments arising from the ownership, operation or management of properties by Affiliates of such Asset Entities). For the avoidance of doubt, Receipts do not include Revenue Sharing Payments, Customer Advances or amounts paid directly to the Manager by a Customer as reimbursement.
“Receiver” shall mean a receiver, a manager or a receiver and manager.
“Record Date” shall mean, (a) with respect to payments made on any Payment Date, the close of business on the last Business Day of the Collection Period with respect to which such Payment Date occurs and (b) with respect to payments made on any other date, the Business Day prior to such date.
“Regulation S” shall mean Regulation S promulgated under the Securities Act.
“Regulation S Global Note” shall mean with respect to any Series and Class of Notes, a single global Note representing such Series and Class offered and sold outside the United States in reliance on Regulation S, in definitive, fully registered form without interest coupons, which Note bears a Regulation S Legend. It being understood that, unless otherwise specified in the related Series Supplement, at no time may Tax Restricted Notes be offered or sold in reliance on Regulation S.
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“Regulation S Legend” shall mean, with respect to any Series and Class of Notes, a legend generally to the effect that such Series and Class of Notes may not be offered, sold, pledged or otherwise transferred in the United States or to a U.S. Person (as defined under Regulation S) prior to the date that is 40 days following the later of the commencement of the initial offering of such Series of Notes and the Closing Date for such Series of Notes except pursuant to an exemption from the registration requirements of the Securities Act.
“Related Party” shall mean, with respect to any Obligor, any partner, member, shareholder, principal or Affiliate of such Obligor or of another Obligor, except that the term does not include any other Obligor.
“Related Property” shall mean:
(a) with respect to an Asset Entity, assets that it owns that are related to its ownership of Fiber Network Assets and other property interests or its ownership of Additional Asset Entities, if any, or that are necessary or incidental to the such ownership or the discharge of the obligations of such Asset Entity under the Transaction Documents and under any Fiber Network Underlying Rights Agreements, including the rights of such Asset Entity (i) under the Transaction Documents, (ii) under the Customer Agreements, (iii) under the insurance policies contemplated or required by the Transaction Documents, (iv) in the Accounts established and maintained in the name of such Asset Entity, (v) in the Reserves and (vi) in all proceeds of all such Fiber Network Assets and other real property interests, Additional Asset Entities, if any, and other rights and assets;
(b) with respect to the Issuer, assets that it owns that are related to its ownership of the Asset Entities or that are necessary or incidental to the discharge of the obligations of the Issuer under the Transaction Documents, including the rights of the Issuer (i) under the Transaction Documents, (ii) under the insurance policies contemplated or required by the Transaction Documents, (iii) in the Accounts established and maintained in the name of the Issuer, (iv) in the Reserves and (v) in all proceeds of all such Asset Entities and other rights and assets; and
(c) with respect to the Guarantor, assets that it owns that are related to its ownership of the Issuer or that are necessary or incidental to the discharge of the obligations of the Guarantor under the Transaction Documents, including the rights of the Guarantor (i) under the Transaction Documents, (ii) under the insurance policies contemplated or required by the Transaction Documents and (iii) in all proceeds of all such rights and assets.
“Release Date” shall mean with respect to any Series and Class of Notes (other than any Series and Class of Notes that are designated as Tax Restricted Notes), the date that is 40 days following the later of (i) the Closing Date for such Series of Notes and (ii) the commencement of the initial offering of such Series of Notes in reliance on Regulation S.
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“Release Price” shall mean, in relation to the disposition of a Fiber Network Asset, an amount equal the product of (i) the Allocated Note Amount of such Fiber Network Asset and (ii) 125%.
“Remedial Work” shall mean any investigation, site monitoring, cleanup or other remedial work of any kind required under applicable Environmental Laws because of or in connection with any presence or release of any Hazardous Materials on, under or from any Fiber Network.
“Requesting Party” shall have the meaning ascribed to it in Section 11.11(c).
“Required Cash Liquidity Amount” shall mean, as of any Payment Date, the greater of (1) the excess, if any, of (a) the Required Liquidity Amount as of such Payment Date over (b) the sum of (i) the aggregate available amount of each Liquidity Reserve Letter of Credit that has been issued and is outstanding and undrawn as of such Payment Date and (ii) the aggregate outstanding commitments with respect to any Class A-1-L Notes; and (2) Minimum Cash Liquidity Amount.
“Required Letter of Credit Deposit Amount” shall have the meaning ascribed to it in Section 4.07(b).
“Required Liquidity Amount” shall mean, as of any Payment Date, an amount equal to (1) the sum of (a) the product of (i) the sum of (A) the amount of interest on the Class A Notes (other than any Class A-1-L Notes) and the Class B Notes due and payable on such Payment Date in respect of the related Interest Accrual Period with respect to such Payment Date, (B) any commitment fees and Letter of Credit Fees due and payable on such Payment Date to holders of the Class A-1 Notes, (C) the Indenture Trustee Fee, the Verification Agent Fee, the Servicing Fee, the Back-Up Manager Fees and the fees payable to any administrative agent for the Class A-1 Notes payable on such Payment Date, (D) expected Reserved Fixed Costs payable during the following Collection Period and (E) and any provision for bad debt taken with respect to the prior Collection Period and (ii) six and (b) the product of (i) the amount of interest on the Class C Notes due and payable on such Payment Date in respect of the related Interest Accrual Period with respect to such Payment Date and (ii) three less (2) the amount on deposit in the Content Cost, Network Expense and Insurance Reserve Account.
“Reserve Account” shall mean the non-interest bearing segregated trust accounts established by the Issuer for the purpose of holding funds in the Reserves including: (a) the Content Cost, Network Expense and Insurance Reserve Account, (b) the Cash Trap Reserve Account, (c) the Advance Fees Reserve Account, (d) any Yield Maintenance Reserve Account and (e) the Liquidity Reserve Account.
“Reserved Fixed Costs” shall mean any portion of (a) any Content Costs and Network Expenses with respect to the Fiber Networks, (b) any insurance premiums with respect to the Fiber Network Assets and (c) any Impositions, in each case which are fixed recurring direct costs or expenses.
“Reserves” shall mean the reserve funds held by or on behalf of the Indenture Trustee pursuant to this Base Indenture or the other Transaction Documents, including the funds held in the Reserve Accounts. For the avoidance of doubt, Reserves does not include amounts held in any Prefunding Account.
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“Responsible Officer” shall mean, (a) when used with respect to the Indenture Trustee, any officer within the corporate trust department of the Indenture Trustee, including any trust officer or any other officer of the Indenture Trustee, as applicable, 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, in each case, who shall have direct responsibility for the administration of this Base Indenture, (b) when used with respect to an Obligor, shall mean an Executive Officer of the Issuer and (c) when used with respect to the Servicer, any officer within the primary servicing office of the Servicer, including any officer or any other officer of the Servicer, as applicable, who customarily performs functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any matter is referred because of such person’s knowledge of and familiarity with the particular subject and, in each case, who shall have direct responsibility for the administration of this Servicing Agreement and the other Transaction Documents.
“Restoration” shall have the meaning ascribed to it in Section 7.06(b).
“Retail Agreement” shall mean any current or future agreement between any Asset Entity and a Retail Customer relating to providing Services to such Retail Customer and related amounts receivable in connection therewith.
“Retail Churn Replacement Capital Expenditures” shall mean, with respect to any Collection Period, an amount equal to the product of (i)$669.50 and (ii) the Retail Gross Churn with respect to such Collection Period.
“Retail Customers” shall mean individual residents, residence owners or small-and-medium businesses within a Contributed Market that are party to a Customer Agreement.
“Retail Gross Churn” shall mean, with respect to any Collection Period, the number of Retail Customers as of the related Determination Date with respect to which the related Retail Customers have either (a) disconnected Services during such Collection Period or (b) failed to pay their fees during the prior three (3) consecutive Collection Periods, as of the last day of such Collection Period.
“Retail Maintenance Capital Expenditures” shall mean, with respect to any Collection Period, an amount equal to $0.21 multiplied by the number of Average Passings with respect to such Collection Period.
“Retail Monthly Revenue” means Monthly Revenue attributable to Retail Agreements.
“Retained Collections Contribution” shall have the meaning ascribed to it in Section 2.12(c).
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“Retained Collections Contribution Account” shall have the meaning ascribed to it in Section 3.01(d).
“Revenue Sharing Payments” shall mean, with respect to any Collection Period and any Fiber Network Assets, the portion of the amounts paid by the Customers to the Asset Entities or the Manager on behalf of the Asset Entities that the Asset Entities have agreed under the applicable Customer Agreement to pay to a third party.
“Rule 144A” shall mean Rule 144A promulgated under the Securities Act and any successor provision thereto.
“Rule 144A Global Note” shall mean, with respect to any Series and Class of Notes, a single global Note representing such Series and Class, in definitive, fully registered form without interest coupons, which Note does not bear a Regulation S Legend, offered and sold to Qualified Institutional Buyers in the United States of America in reliance on Rule 144A.
“Rule 144A Information” shall mean the information required to be delivered pursuant to Rule 144(A)(d)(4) under the Securities Act to permit compliance with Rule 144A in connection with resales of the Notes pursuant to Rule 144A.
“Scheduled Defeasance Payments” shall mean with respect to a particular Series, payments on or prior to, but as close as possible to (i) each Payment Date after the Defeasance Date and through and including the first Payment Date that is six months prior to the Anticipated Repayment Date for such Series in amounts equal to the scheduled payments of interest on the Notes and payments of the Indenture Trustee Fee and any other amounts due and owing to the Indenture Trustee, the Verification Agent Fee and any other amounts due and owing to the Verification Agent, Servicing Fees, Workout Fees, Other Servicing Fees and any other amounts due and owing to the Servicer, the Back-Up Manager Fees and any other amounts due and owing to the Back-Up Manager and (ii) the first Payment Date that is six months prior to the Anticipated Repayment Date for such Series in an amount equal to the Outstanding principal balance of each Class of Notes of such Series.
“Secured Parties” shall mean the Indenture Trustee, the Noteholders, the Back-Up Manager and the Servicer.
“Securities Act” shall mean the United States Securities Act of 1933, as amended.
“Senior Cash Trap DSCR” shall mean 1.70x.
“Senior Debt Service Coverage Ratio” or “Senior DSCR” shall mean, as of any Determination Date is the ratio of (a) the Aggregate Annualized Net Operating Income as of such date to (b) the sum of (i) the amount of interest that the Issuer will be required to pay over the succeeding twelve (12) Payment Dates on the aggregate principal balance of the Class A Notes and the Class B Notes Outstanding as of such Determination Date plus (ii) with respect to any Class A-1 Notes, the Manager’s good faith estimate of any commitment fees, Letter of Credit Fees and administrative expenses that the Issuer will be required to pay over the succeeding twelve (12) Payment Dates plus (iii) without duplication, the annualized Indenture Trustee Fee, Verification Agent Fee, Back-Up Manager Fees and Servicing Fees; provided that, as of any date during the Prefunding Period for a Series (if any), interest payable with respect to the Classes of Notes of that Series for which a portion of the net proceeds are reserved in a Prefunding Account will be calculated net of the aggregate Yield Maintenance Amounts with respect to that Series for each Payment Date during such twelve (12) Payment Date period that occurs during such Prefunding Period. For the purposes of calculating the Senior DSCR, it is assumed that the base rate, SOFR rate or CP Rate for the related Interest Accrual Periods with respect to any Class A-1 Notes will be equal to the then-current base rate, SOFR rate or CP Rate, as applicable.
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“Senior Leverage Ratio” shall mean, with respect to any date of determination, the ratio of (i) the excess of (x) the Note Principal Balance of all Class A Notes (other than any Class A-1-L Notes) and all Class B Notes over (y) all amounts remaining on deposit in a Prefunding Account with respect to any Class A Notes or Class B Notes, in each case on such date to (ii) the Aggregate Annualized Net Operating Income as of the last day of the most recently ended calendar month.
“Series” shall mean a series of Notes issued pursuant to this Base Indenture and a related Series Supplement.
“Series Supplement” shall mean a Series Supplement entered into by and among the Issuer and the Asset Entities party thereto, as the Obligors thereunder, and the Indenture Trustee, that authorizes the issuance of a particular Series of Notes pursuant to this Base Indenture and such Series Supplement pursuant to Section 2.07 hereof.
“Service Revenues” shall mean non-recurring charges paid by Customers to the Asset Entities or the Manager on behalf of the Asset Entities for Services such as network construction, engineering design, right-of-way acquisition, fiber splicing, installation services, professional services and similar services provided to the Customers on the Fiber Network Assets.
“Servicer” shall have the meaning set forth in the Servicing Agreement.
“Servicer Termination Event” shall have the meaning ascribed to it in the Servicing Agreement.
“Services” shall mean, collectively, fiber optic systems for the delivery of communication services (including broadband internet, video and voice solutions, high-speed Ethernet and other services and equipment).
“Servicing Agreement” shall mean the Servicing Agreement, dated as of December 5, 2025, between the Servicer and the Indenture Trustee, as amended, amended and restated or otherwise modified from time to time.
“Servicing Fee” shall have the meaning set forth in the Servicing Agreement.
“Servicing Standard” shall have the meaning set forth in the Servicing Agreement.
“Shenandoah Cable” shall mean Shenandoah Cable Television LLC.
“Shenandoah Telephone” shall mean Shenandoah Telephone Company.
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“Shenandoah Telephone Intertwined Backbone Assets” shall mean the fiber strands intertwined within certain “backbone” or “middle-mile” fiber-optic cables owned by Shenandoah Telephone and used to provide services to customers (including customers of Non-Securitization Entities).
“Shenandoah Telephone Last Mile Assets” shall mean certain “last mile” network infrastructure owned by Shenandoah Telephone and used to provide services to customers (including customers of Non-Securitization Entities).
“Shenandoah Telephone PoP Assets” shall mean certain PoPs owned by Shenandoah Telephone, consisting of the physical location of each such point of presence, certain related equipment within such PoP, and the utilities serving such PoP owned or leased by Shenandoah Telephone and used to provide services to customers (including customers of Non-Securitization Entities).
“Shentel Cable and Telephone Companies” shall mean, collectively, Shenandoah Cable, Chillicothe Telephone and Shenandoah Telephone.
“Special Servicing Fee” shall have the meaning ascribed to it in the Servicing Agreement.
“Special Servicing Period” shall mean any period of time during which any of the Notes constitute Specially Serviced Notes (as such term is defined in the Servicing Agreement).
“Specified Amendment” shall mean any amendment to the Transaction Documents in order to (i) allow for the addition of new types of Collateral, (ii) amend the Required Liquidity Amount or (iii) amend the definition of “Senior DSCR” or “DSCR”.
“Successor Manager” shall have the meaning set forth in the Management Agreement.
“Targeted Amortization Amount” shall mean, on each Payment Date with respect to any Class of Notes that provides for a Monthly Amortization Amount, the amount, if any, set forth in the Series Supplement for the Notes for such Payment Date.
“Tax Restricted Notes” shall mean any Series and Class of Notes for which the Issuer does not receive an opinion from nationally-recognized tax counsel that such Series and Class of Notes will be properly characterized as debt for U.S. federal income tax purposes (it being understood that such Series and Class of Notes will be designated as “Tax Restricted Notes” in the Series Supplement for such Series and Class).
“Term Notes” shall mean Notes of a Series designated at the time of issuance thereof as “Term Notes” and pursuant to which the Note Principal Balance thereof permanently decreases with any principal payment on such Notes.
“Transaction Documents” shall mean the Notes, this Base Indenture, each Indenture Supplement, the Holdco Guaranty, the Management Agreement, the Back-Up Management Agreement, the Servicing Agreement, the Cash Management Agreement, the Obligor Access Agreements, the Non-Securitization Entity Access Agreements, the Account Control Agreements, the contribution agreements and/or assignment and assumption agreements (and any similar transfer agreements entered into in connection with Additional Asset Entities or additional Fiber Network Assets), each joinder agreement to this Base Indenture executed by an Additional Asset Entity, and all other documents executed by the Guarantor or any Obligor in connection with the issuance of the Notes.
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“Transfer” shall mean any direct or indirect transfer, sale, pledge, hypothecation, or other form of assignment of any Ownership Interest in a Note.
“Transferee” shall mean any Person who is acquiring by Transfer any Ownership Interest in a Note.
“Transferor” shall mean any Person who is disposing by Transfer any Ownership Interest in a Note.
“Trust Estate” shall mean all money, instruments, rights and other property that are subject or intended to be subject to the Lien created by this Base Indenture for the benefit of the Noteholders and the other Secured Parties (including all property and interests Granted to the Indenture Trustee for the benefit of the Secured Parties), including all proceeds thereof.
“UCC” shall mean the Uniform Commercial Code in effect in the State of New York.
“Uncertificated Note” shall have the meaning ascribed to it in Section 2.01(a)(i).
“Underlying Interests” shall have the meaning ascribed to it in Section 8.01(a).
“United States” shall mean any State, Puerto Rico, Guam, American Samoa, the U.S. Virgin Islands and other territories or possessions of the United States of America, except with respect to U.S. federal income tax matters in which case it shall have the meaning given to it in the Code.
“Unpaid Monthly Amortization Amount” as of any date of determination shall mean, with respect to any Class of Notes that provides for a Monthly Amortization Amount, the amount, if any, of the Monthly Amortization Amount for such Notes on the Payment Date immediately preceding such date that was not paid on such preceding Payment Date.
“Verification Agent” shall initially mean the Indenture Trustee.
“Verification Agent Fee” shall mean the fee to be paid in arrears on each Payment Date to the Verification Agent as compensation for services rendered by it in its capacity as Verification Agent.
“Voting Rights” shall mean the voting rights evidenced by the respective Notes as determined in accordance with Section 12.04.
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“Wholesale Transition” shall mean a transaction in which the Issuer alters its business model by entering into a wholesale arrangement whereby it sells servicing of the residential customers to a third party.
“Workout Fee” shall have the meaning ascribed to it in the Servicing Agreement.
“Yield Maintenance Amount” shall mean, on each Payment Date, in accordance with the Manager’s written direction, an amount equal to interest that would accrue during the Interest Accrual Period preceding such Payment Date on the amount on deposit in the related Prefunding Account on the first day of such Interest Accrual Period at a rate per annum equal to the weighted average of the Note Rates for the Term Notes of the applicable Series as of the first day of such Interest Accrual Period.
“Yield Maintenance Reserve Account” shall mean each Reserve Account established in connection with the issuance of a Series of Term Notes, the purpose of which is to reserve funds equal to the amount of interest that will accrue during the period commencing on the Closing Date for such Series of Notes and ending on the first Payment Date following the scheduled date on which the related Prefunding Period ends on a portion of such Term Notes equal to the amount then on deposit in the applicable Prefunding Account at a rate per annum equal to the weighted average of the Note Rates for such Term Notes.
Section 1.02. Rules of Construction. Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) accounting terms not otherwise defined herein and accounting terms partly defined herein, to the extent not defined, shall have the respective meanings given to them under GAAP as in effect from time to time;
(c) “or” is not exclusive;
(d) “including” means including without limitation;
(e) words in the singular include the plural and words in the plural include the singular;
(f) all references to “$” or “USD” are to United States dollars;
(g) any agreement, instrument, regulation, directive or statute defined or referred to in this Base Indenture or in any instrument or certificate delivered in connection herewith means such agreement, instrument, regulation, directive or statute as from time to time amended, supplement or otherwise modified in accordance with the terms thereof and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein;
(h) references to a Person are also to its permitted successors and assigns;
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(i) the words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Base Indenture, shall refer to this Base Indenture as a whole and not to any particular provision of this Base Indenture, and Section, Schedule and Exhibit references are to this Base Indenture unless otherwise specified; and
(j) whenever the phrase “in direct order of alphabetical designation” or “highest alphabetical designation” or a similar phrase is used herein, it shall be construed to mean beginning with the letter “A” and ending with the letter “Z”; if any Series or Class is also given a numerical designation (e.g., “A1” or “A2”) the significance thereof shall be set forth in the related Series Supplement. Liquidity Funding Notes, which are required to be designated as “Class A-1-L Notes” shall be construed as having a higher “alphanumerical designation” (i.e., higher priority) than Variable Funding Notes, which are required to be designated as “Class A-1-V Notes”.
ARTICLE II
THE NOTES
Section 2.01. The Notes.
(a) Class A-1-V Notes.
(i) All Class A-1-V Notes shall be issued and delivered in fully registered, certificated form (the “Definitive Class A-1-V Notes”) or, at the request of a Holder or transferee, in uncertificated, fully registered form evidenced by entry in the Note Registrar (the “Uncertificated Notes”) if provided for in its Series Supplement. Any Definitive Class A-1-V Notes shall be substantially in the form or forms provided for in the Series Supplement for such Series; provided that any of the Class A-1-V Notes may be issued with appropriate insertions, omissions, substitutions and variations, and may have imprinted or otherwise reproduced thereon such legend or legends, not inconsistent with the provisions of this Base Indenture, as may be required to comply with any law or with rules or regulations pursuant thereto, or with the rules of any securities market in which the Class A-1-V Notes may be admitted to trading, or to conform to general usage. Unless otherwise specified in the related Series Supplement, the Class A-1-V Notes shall be issued in minimum denominations of $25,000 and in any whole dollar denomination in excess thereof. With respect to any Uncertificated Note, the Indenture Trustee shall provide to the applicable Holder, upon request of such Holder, after registration of the Uncertificated Note in the Note Register by the Note Registrar a Confirmation of Registration, the form of which shall be set forth in Exhibit G attached hereto.
(ii) The Class A-1-V Notes (other than Uncertificated Notes) shall be executed by manual or electronic (including portable document format (.pdf), DocuSign, “tif” or other similar technologies) signature by an Authorized Officer of the Issuer. Class A-1-V Notes bearing the manual or electronic (including portable document format (.pdf), DocuSign, “tif” or other similar technologies) signatures of individuals who were at any time the Authorized Officers of the Issuer shall be entitled to all benefits under this Base Indenture, subject to the following sentence, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Class A-1-V Notes or did not hold such offices at the date of such Class A-1-V Notes. No Class A-1-V Note (other than Uncertificated Notes) shall be entitled to any benefit under this Base Indenture, or be valid for any purpose unless there appears on such Class A-1-V Note a certificate of authentication substantially in the form provided for herein executed by the Indenture Trustee by manual or electronic (including portable document format (.pdf), DocuSign, “tif” or other similar technologies) signature, and such certificate of authentication upon any Class A-1-V Note shall be conclusive evidence, and the only evidence, that such Class A-1-V Note has been duly authenticated and delivered hereunder. The Indenture Trustee shall, upon receipt of an Issuer Order, authenticate and deliver (or register in the case of Uncertificated Notes) any Class A-1-V Notes executed by the Issuer for issuance pursuant to this Base Indenture. All Class A-1-V Notes shall be dated the date of their authentication (or registration, in the case of Uncertificated Notes).
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(iii) Except as otherwise expressly provided herein:
(A) Uncertificated Notes registered in the name of a Person shall be considered “held” by such Person for all purposes of this Indenture and its applicable Series Supplement; and
(B) with respect to any Uncertificated Note, (a) references herein to authentication and delivery shall be deemed to refer to creation of an entry for such Uncertificated Note in the Note Register and registration of such Uncertificated Note the name of the owner, (b) references herein to cancellation of a Uncertificated Note shall be deemed to refer to de-registration of such Uncertificated Note and (c) references herein to the date of authentication of a Uncertificated Note shall refer to the date of registration of such Uncertificated Note in the Note Register in the name of the owner thereof.
(iv) For the avoidance of doubt, no Confirmation of Registration shall be required to be surrendered (x) in connection with a transfer of the related Uncertificated Note or (y) in connection with the final payment of the related Uncertificated Note. In connection with (x) and (y) in the preceding sentence, the Indenture Trustee shall require a written request for registration or de-registration, as applicable, to be signed by the Holder and medallion guaranteed.
(v) The Note Register shall be conclusive evidence of the ownership of an Uncertificated Note.
(vi) Each Definitive Class A-1-V Note may also be exchanged in its entirety for an Uncertificated Note and, upon complete exchange thereof, such Note shall be cancelled and de-registered by the Note Registrar. Each of the Uncertificated Notes may be exchanged in its entirety for a Definitive Class A-1-V Note and, upon complete exchange thereof, such Uncertificated Note shall be de-registered by the Note Registrar. In connection with such exchanges, the applicable Holder shall request such exchange in writing to the Issuer and Indenture Trustee, provide the Indenture Trustee with such documents as it may require to effect such exchange and provide customary documentation as may be required by the Indenture Trustee and the Note Registrar.
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(vii) Any Variable Funding Notes must be designated as “Class A-1-V Notes” and no Notes that are not Variable Funding Notes may be designated as “Class A-1-V Notes.”
(viii) Subject to satisfaction of the conditions precedent set forth in the applicable Class A-1-V Note Purchase Agreement, the Issuer may increase the Outstanding Note Principal Balance in the manner provided in the Class A-1-V Note Purchase Agreement. Upon each such increase, the Indenture Trustee shall, or shall cause the Note Registrar to, indicate in the Note Register such increase.
(b) Term Notes.
(i) The Term Notes shall be substantially in the form attached as Exhibit A-1, A-2, A-3 or A-4, as applicable; provided that any of the Term Notes may be issued with appropriate insertions, omissions, substitutions and variations, and may have imprinted or otherwise reproduced thereon such legend or legends, not inconsistent with the provisions of this Base Indenture, as may be required to comply with any law or with rules or regulations pursuant thereto, or with the rules of any securities market in which the Notes may be admitted to trading, or to conform to general usage; provided, further, that, if specified in the applicable Series Supplement, all or a portion of any Class or Series of Term Notes may be initially issued in fully registered, certificated form (the “Definitive Term Notes” and together with the Definitive Class A-1-V Notes and Definitive Class A-1-L Notes, the “Definitive Notes”). The Term Notes shall be issuable in book-entry form and in accordance with Section 2.03 beneficial ownership interests in the Book-Entry Notes shall initially be held and transferred through the book-entry facilities of the Depositary. The Notes shall be issued in minimum denominations of $25,000 and in any whole dollar denomination in excess thereof; provided that unless set forth in the applicable Series Supplement, Tax Restricted Notes shall be issued in minimum denominations of $1,000,000 and in integral multiples of $1.00 in excess thereof.
(ii) The Term Notes shall be executed by manual or electronic (including portable document format (.pdf), DocuSign, “tif” or other similar technologies) signature by an Authorized Officer of the Issuer. The Term Notes bearing the manual or electronic (including portable document format (.pdf), DocuSign, “tif” or other similar technologies) signatures of individuals who were at any time the Authorized Officers of the Issuer shall be entitled to all benefits under this Base Indenture, subject to the following sentence, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Term Notes or did not hold such offices at the date of such Term Notes. No Term Note shall be entitled to any benefit under this Base Indenture, or be valid for any purpose unless there appears on such Term Note a certificate of authentication substantially in the form provided for herein executed by the Indenture Trustee by manual or electronic (including portable document format (.pdf), DocuSign, “tif” or other similar technologies) signature, and such certificate of authentication upon any Term Note shall be conclusive evidence, and the only evidence, that such Term Note has been duly authenticated and delivered hereunder. The Indenture Trustee shall, upon receipt of an Issuer Order, authenticate and deliver any Term Notes executed by the Issuer for issuance pursuant to this Base Indenture. All Term Notes shall be dated the date of their authentication.
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(iii) The aggregate principal amount of the Term Notes which may be authenticated and delivered under this Base Indenture shall be unlimited.
(c) Class A-1-L Notes.
(i) All Class A-1-L Notes shall be issued and delivered in fully registered, certificated form (the “Definitive Class A-1-L Notes”) or, at the request of a Holder or transferee, in uncertificated, fully registered form evidenced by entry in the Note Registrar (the “Uncertificated Notes”) if provided for in its Series Supplement. Any Definitive Class A-1-L Notes shall be substantially in the form or forms provided for in the Series Supplement for such Series; provided that any of the Class A-1-L Notes may be issued with appropriate insertions, omissions, substitutions and variations, and may have imprinted or otherwise reproduced thereon such legend or legends, not inconsistent with the provisions of this Base Indenture, as may be required to comply with any law or with rules or regulations pursuant thereto, or with the rules of any securities market in which the Class A-1-L Notes may be admitted to trading, or to conform to general usage. Unless otherwise specified in the related Series Supplement, the Class A-1-L Notes shall be issued in minimum denominations of $25,000 and in any whole dollar denomination in excess thereof. With respect to any Uncertificated Note, the Indenture Trustee shall provide to the applicable Holder, upon request of such Holder, after registration of the Uncertificated Note in the Note Register by the Note Registrar a Confirmation of Registration, the form of which shall be set forth in Exhibit G attached hereto.
(ii) The Class A-1-L Notes (other than Uncertificated Notes) shall be executed by manual or electronic (including portable document format (.pdf), DocuSign, “tif” or other similar technologies) signature by an Authorized Officer of the Issuer. Class A-1-L Notes bearing the manual or electronic (including portable document format (.pdf), DocuSign, “tif” or other similar technologies) signatures of individuals who were at any time the Authorized Officers of the Issuer shall be entitled to all benefits under this Base Indenture, subject to the following sentence, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Class A-1-L Notes or did not hold such offices at the date of such Class A-1-L Notes. No Class A-1-L Note (other than Uncertificated Notes) shall be entitled to any benefit under this Base Indenture, or be valid for any purpose unless there appears on such Class A-1-L Note a certificate of authentication substantially in the form provided for herein executed by the Indenture Trustee by manual or electronic (including portable document format (.pdf), DocuSign, “tif” or other similar technologies) signature, and such certificate of authentication upon any Class A-1-L Note shall be conclusive evidence, and the only evidence, that such Class A-1-L Note has been duly authenticated and delivered hereunder. The Indenture Trustee shall, upon receipt of an Issuer Order, authenticate and deliver (or register in the case of Uncertificated Notes) any Class A-1-L Notes executed by the Issuer for issuance pursuant to this Base Indenture. All Class A-1-L Notes shall be dated the date of their authentication (or registration, in the case of Uncertificated Notes).
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(iii) Except as otherwise expressly provided herein:
(A) Uncertificated Notes registered in the name of a Person shall be considered “held” by such Person for all purposes of this Base Indenture and its applicable Series Supplement; and
(B) with respect to any Uncertificated Note, (a) references herein to authentication and delivery shall be deemed to refer to creation of an entry for such Uncertificated Note in the Note Register and registration of such Uncertificated Note the name of the owner, (b) references herein to cancellation of a Uncertificated Note shall be deemed to refer to de-registration of such Uncertificated Note and (c) references herein to the date of authentication of a Uncertificated Note shall refer to the date of registration of such Uncertificated Note in the Note Register in the name of the owner thereof.
(iv) For the avoidance of doubt, no Confirmation of Registration shall be required to be surrendered (x) in connection with a transfer of the related Uncertificated Note or (y) in connection with the final payment of the related Uncertificated Note. In connection with (x) and (y) in the preceding sentence, the Indenture Trustee shall require a written request for registration or de-registration, as applicable, to be signed by the Holder and medallion guaranteed.
(v) The Note Register shall be conclusive evidence of the ownership of an Uncertificated Note.
(vi) Each Definitive Class A-1-L Note may also be exchanged in its entirety for an Uncertificated Note and, upon complete exchange thereof, such Note shall be cancelled and de-registered by the Note Registrar. Each of the Uncertificated Notes may be exchanged in its entirety for a Definitive Class A-1-L Note and, upon complete exchange thereof, such Uncertificated Note shall be de-registered by the Note Registrar. In connection with such exchanges, the applicable Holder shall request such exchange in writing to the Issuer and Indenture Trustee, provide the Indenture Trustee with such documents as it may require to effect such exchange and provide customary documentation as may be required by the Indenture Trustee and the Note Registrar.
(vii) Any Liquidity Funding Notes must be designated as “Class A-1-L Notes” and no Notes that are not Liquidity Funding Notes may be designated as “Class A-1-L Notes.”
(viii) Subject to satisfaction of the conditions precedent set forth in the applicable Class A-1-L Note Purchase Agreement, the Issuer may increase or decrease the Outstanding Note Principal Balance in the manner provided in the Class A-1-L Note Purchase Agreement. Upon each such increase, the Indenture Trustee shall, or shall cause the Note Registrar to, indicate in the Note Register such increase.
Section 2.02. Registration of Transfer and Exchange of Notes.
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(a) The Issuer may, at its own expense, appoint any Person with appropriate experience as a securities registrar to act as Note Registrar hereunder; provided that in the absence of any other Person appointed in accordance herewith acting as Note Registrar, the Indenture Trustee agrees to act in such capacity in accordance with the terms hereof. The Note Registrar shall be subject to the same standards of care, limitations on liability and rights to indemnity as the Indenture Trustee, and the provisions of Sections 11.01, 11.02, 11.03, 11.04, 11.05(b), and 11.05(c) shall apply to the Note Registrar to the same extent that they apply to the Indenture Trustee and with the same rights of recovery. Any Note Registrar appointed in accordance with this Section 2.02(a) may at any time resign by giving at least 90 days’ advance written notice of resignation to the Indenture Trustee, the Servicer, the Back-Up Manager and the Issuer. The Issuer may at any time terminate the agency of any Note Registrar appointed in accordance with this Section 2.02(a) by giving written notice of termination to such Note Registrar, with a copy to the Indenture Trustee and the Servicer. If a successor Note Registrar does not take office within 30 days after the outgoing Note Registrar resigns or is removed, the outgoing Note Registrar may petition any court of competent jurisdiction for the appointment of a successor Note Registrar.
At all times during the term of this Base Indenture, there shall be maintained at the office of the Note Registrar a Note Register in which, subject to such reasonable regulations as the Note Registrar may prescribe, the Note Registrar shall provide for the registration of Notes and of transfers and exchanges of Notes as herein provided (or as set forth in any Series Supplement with respect to the transfer and registration or de-registration of any Uncertificated Note). The Issuer, the Servicer and the Indenture Trustee shall have the right to inspect the Note Register or to obtain a copy thereof at all reasonable times, and to rely conclusively upon a certificate of the Note Registrar as to the information set forth in the Note Register.
Upon written request of any Noteholder of record made for purposes of communicating with other Noteholders with respect to their rights under this Base Indenture (which request must be accompanied by a copy of the communication that the Noteholder proposes to transmit), the Note Registrar, within 30 days after the receipt of such request, must afford the requesting Noteholder access during normal business hours to, or deliver to the requesting Noteholder a copy of, the most recent list of Noteholders held by the Note Registrar. Every Noteholder, by receiving such access, agrees with the Note Registrar and the Indenture Trustee that neither the Note Registrar nor the Indenture Trustee will be held accountable in any way by reason of the disclosure of any information as to the names and addresses of any Noteholder, regardless of the source from which such information was derived.
(b) No transfer, sale, pledge or other disposition of any Note or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws. No transfer, sale, pledge or other disposition of any Tax Restricted Note or interest therein shall be made unless such transfer, sale, pledge or other disposition is otherwise made in accordance with Section 2.02(k).
Except as otherwise provided in a Series Supplement for a Series of Class A-1 Notes, if a transfer of any Note that constitutes a Definitive Note is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Notes or a transfer of a Book-Entry Note to a successor Depositary as contemplated by Section 2.03(c)), the Note Registrar shall refuse to register such transfer unless it receives (and, upon receipt, may conclusively rely upon with no duty to confirm, verify or otherwise review and with no liability therefor) either: (i) a certificate from the Noteholder desiring to effect such transfer substantially in the form attached hereto as Exhibit B-4 or Exhibit B-5, as applicable, and a certificate from the prospective Transferee substantially in the form attached hereto as Exhibit B-2 or Exhibit B-3, as applicable; or (ii) an Opinion of Counsel satisfactory to the Note Registrar to the effect that such transfer may be made without registration under the Securities Act (which Opinion of Counsel shall not be an expense of the Issuer, the Servicer, the Indenture Trustee, the Manager, or the Note Registrar in their respective capacities as such), together with the written certification(s) as to the facts surrounding such transfer from the Noteholder desiring to effect such transfer or such Noteholder’s prospective Transferee on which such Opinion of Counsel is based. Notwithstanding any of the foregoing to the contrary, if a Definitive Term Note is transferred to a Holder who changes its form of interest therein to the form of a Global Note, such Holder shall not be obligated to provide any additional documentation.
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The transfer, sale, pledge or other disposition of any Class of a Series of Class A-1 Notes shall be subject to the terms of the Series Supplement for such Series and the applicable Class A-1-V Note Purchase Agreement or Class A-1-L Note Purchase Agreement, as applicable.
If a transfer of any interest in a Rule 144A Global Note is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Book-Entry Notes), then the Holder is deemed to represent to the Issuer and the Indenture Trustee that it is a Qualified Institutional Buyer and is acquiring a Rule 144A Global Note (or interest therein) for its own account (and not for the account of others) or as a fiduciary or agent for others (which others are Qualified Institutional Buyers). Except as provided in the following two paragraphs, no interest in a Rule 144A Global Note for any Class of Book-Entry Notes shall be transferred to any Person who takes delivery other than in the form of an interest in such Rule 144A Global Note.
Notwithstanding the preceding paragraph, any interest in a Rule 144A Global Note for a Class of Book-Entry Notes (other than a Rule 144A Global Note that is a Tax Restricted Note) may be transferred to any Person who takes delivery in the form of a beneficial interest in a Regulation S Global Note for such Class of Notes upon delivery to the Note Registrar of such written orders and instructions as are required under the Applicable Procedures of the Depositary, Clearstream and Euroclear to direct the Indenture Trustee in writing to debit the account of a DTC Participant by a denomination of interests in such Rule 144A Global Note, and credit the account of a DTC Participant by a denomination of interests in such Regulation S Global Note, that is equal to the denomination of beneficial interests in the Class of Notes to be transferred. Upon delivery to the Note Registrar of such orders and instructions, the Indenture Trustee, subject to and in accordance with the Applicable Procedures of the Depositary, shall reduce the denomination of the Rule 144A Global Note in respect of the applicable Class of Notes and increase the denomination of the Regulation S Global Note for such Class by the denomination of the beneficial interest in such Class specified in such orders and instructions.
Also notwithstanding the foregoing, any interest in a Rule 144A Global Note with respect to any Class of Book-Entry Notes may be transferred by any Note Owner holding such interest to any Institutional Accredited Investor (other than a Qualified Institutional Buyer) that takes delivery in the form of an IAI Global Note of the same Class as such Rule 144A Global Note upon delivery to the Note Registrar and the Indenture Trustee of (i) an Opinion of Counsel, certifications and/or other information satisfactory to the Issuer and (ii) such written orders and instructions as are required under the Applicable Procedures of the Depositary to direct the Indenture Trustee in writing to debit the account of a DTC Participant by the denomination of the transferred interests in such Rule 144A Global Note. Upon delivery to the Note Registrar of an Opinion of Counsel, certifications and/or other information satisfactory to the Issuer, the Indenture Trustee, subject to and in accordance with the Applicable Procedures of the Depositary, shall reduce the denomination of the subject Rule 144A Global Note by the denomination of the transferred interests in such Rule 144A Global Note and increase the denomination of the IAI Global Note for such Class by the denomination of the beneficial interest in such Class specified in such orders and instructions.
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If a transfer of any interest in a Definitive Term Note is to be made to a Rule 144A Global Note without registration under the Securities Act, then the new Holder is deemed to represent to the Issuer and the Indenture Trustee that it is a Qualified Institutional Buyer and is acquiring a Rule 144A Global Note (or interest therein) for its own account (and not for the account of others) or as a fiduciary or agent for others (which others are Qualified Institutional Buyers).
Any interest in a Definitive Term Note with respect to any Class (other than a Definitive Term Note that is a Tax Restricted Note) may be transferred to any Person who takes delivery in the form of a beneficial interest in a Regulation S Global Note for such Class of Notes upon delivery to the Note Registrar of such written orders and instructions as are required under the Applicable Procedures of the Depositary, Clearstream and Euroclear to direct the Indenture Trustee in writing to credit the account of a DTC Participant by a denomination of interests in such Regulation S Global Note, that is equal to the denomination of beneficial interests in the Class of Definitive Term Notes to be transferred. Upon delivery to the Note Registrar of such orders and instructions, the Indenture Trustee, subject to and in accordance with the Applicable Procedures of the Depositary, shall increase the denomination of the Regulation S Global Note for such Class by the denomination of the beneficial interest in such Class specified in such orders and instructions.
Any interest in a Definitive Term Note with respect to any Class may be transferred to any Institutional Accredited Investor (other than a Qualified Institutional Buyer) that takes delivery in the form of a beneficial interest in an IAI Global Note of the same Class upon delivery to the Note Registrar and the Indenture Trustee of (i) an Opinion of Counsel, certifications and/or other information satisfactory to the Issuer and (ii) such written orders and instructions as are required under the Applicable Procedures of the Depositary to direct the Indenture Trustee in writing. Upon delivery to the Note Registrar of an Opinion of Counsel, certifications and/or other information satisfactory to the Issuer, the Indenture Trustee, subject to and in accordance with the Applicable Procedures of the Depositary, shall increase the denomination of the IAI Global Note for such Class by the denomination of the beneficial interest in such Class specified in such orders and instructions.
In the event of (and as a condition to) any transfer of a Definitive Term Note in accordance with the prior three paragraphs, such Definitive Term Note shall be surrendered to the Indenture Trustee for cancellation.
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Except as provided in the next paragraph, no beneficial interest in a Regulation S Global Note for any Class of Book-Entry Notes shall be transferred to any Person who takes delivery other than in the form of a beneficial interest in such Regulation S Global Note. On or prior to the Release Date, a Note Owner desiring to effect any such Transfer shall be required to obtain from such Note Owner’s prospective Transferee a written certification substantially in the form set forth in Exhibit B-1 certifying that such Transferee is not a U.S. Person (as defined under Regulation S). On or prior to the Release Date, beneficial interests in the Regulation S Global Note for each Class of Book-Entry Notes may be held only through Euroclear or Clearstream. The Regulation S Global Note for each Class of Book-Entry Notes shall be deposited with the Indenture Trustee as custodian for the Depositary and registered in the name of Cede & Co. as nominee of the Depositary.
Notwithstanding the preceding paragraph, after the Release Date, any interest in a Regulation S Global Note for a Class of Book-Entry Notes may be transferred to any Person who takes delivery in the form of a beneficial interest in the Rule 144A Global Note or an IAI Global Note for such Class of Notes upon delivery to the Note Registrar of such written orders and instructions as are required under the Applicable Procedures of the Depositary, Clearstream and Euroclear to direct the Indenture Trustee in writing to debit the account of a DTC Participant by a denomination of interests in such Regulation S Global Note, and credit the account of a DTC Participant by a denomination of interests in such Rule 144A Global Note or IAI Global Note, that is equal to the denomination of beneficial interests in the Class of Notes to be transferred. Upon delivery to the Note Registrar of such orders and instructions, the Indenture Trustee, subject to and in accordance with the Applicable Procedures of the Depositary, shall reduce the denomination of the Regulation S Global Note in respect of the applicable Class of Notes and increase the denomination of the Rule 144A Global Notes or IAI Global Notes, as applicable, for such Class by the denomination of the beneficial interest in such Class specified in such orders and instructions.
None of the Issuer, the Indenture Trustee nor the Note Registrar shall be obligated to register or qualify any Class of Notes under the Securities Act or any other securities law or to take any action not otherwise required under this Base Indenture to permit the transfer of any Note or interest therein without registration or qualification. Any Noteholder or Note Owner desiring to effect a transfer, sale, pledge or other disposition of any Note or interest therein shall, and does hereby agree to, indemnify the Obligors, the Guarantor, any Initial Purchaser, the Indenture Trustee, the Verification Agent, the Manager, the Servicer, the Back-Up Manager and the Note Registrar against any liability that may result if such transfer, sale, pledge or other disposition is not exempt from the registration or qualification requirements of the Securities Act and any applicable state securities laws or is not made in accordance with such federal and state laws.
(c) No transfer of any Note or any interest therein shall be made to any Plan Investor or to any Person who is acquiring such Note on behalf of a Plan Investor, except in each such case, in accordance with the following provisions of this Section 2.02(c). Any attempted or purported transfer of a Note in violation of this Section 2.02(c) will be null and void and vest no rights in any purported Transferee.
The Note Registrar shall not register the transfer of a Note that constitutes a Definitive Note or the transfer of an interest in a Book-Entry Note that following such purported transfer will constitute a Definitive Note unless the Note Registrar has received from the prospective Transferee a certification that (I) in the case of the Class A-1 Notes and Class B Notes, either (i) such prospective Transferee is not a Plan Investor or any person who is acquiring or holding such Note or any interest therein on behalf of, any Plan Investor, or (ii) such acquisition and holding by such Transferee of such Note or any interest therein will not result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or a similar violation of any applicable Other Plan Laws and (II) in the case of Tax Restricted Notes, (A) it is not, and it is not investing on behalf of, a Benefit Plan Investor, or other Plan Investor that could result in the assets of the Issuer being deemed to constitute the assets of any such Plan Investor and (B) if it is, or is investing on behalf of, a Plan Investor subject to Other Plan Laws, its purchase and holding of such Note or any interest therein will not result in a violation of any applicable Other Plan Laws.
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It is hereby acknowledged that either of the forms of certification attached hereto as Exhibits B-2 and B-3 is acceptable for purposes of the preceding sentence. If a transfer of any interest in a Note is to be made and is permitted without delivering to the Note Registrar a certification as provided in this Section 2.02(c), the prospective Transferee of such Note, by its acquisition of such Note (or an interest therein), shall be deemed to have represented and warranted that (I) in the case of Class A-1 Notes and Class B Notes either (i) it is not, and it is not investing on behalf of, a Plan Investor or (ii) its acquisition and holding of such Note or any interest therein by such Transferee of such Note or any interest therein will not result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or a similar violation of any applicable Other Plan Laws and (II) in the case of Tax Restricted Notes, (A) it is not, and it is not investing on behalf of, a Benefit Plan Investor, or other Plan Investor that could result in the assets of the Issuer being deemed to constitute the assets of any such Plan Investor and (B) if it is, or is investing on behalf of, a Plan Investor subject to Other Plan Laws, its purchase and holding of such Note or any interest therein will not result in a violation of any applicable Other Plan Laws.
(d) If a Person is acquiring a Note as a fiduciary or agent for one or more accounts, such Person shall be required to deliver to the Note Registrar a certification to the effect that, and such other evidence as may be reasonably required by the Note Registrar to confirm that, it has (i) sole investment discretion with respect to each such account and (ii) full power to make the applicable foregoing acknowledgments, representations, warranties, certifications or agreements with respect to each such account as set forth in subsections (b), (c), (d) or (k), as appropriate, of this Section 2.02.
(e) Subject to the preceding provisions of this Section 2.02, upon surrender for registration of transfer of any Note at the offices of the Note Registrar maintained for such purpose (or as set forth in any Series Supplement with respect to the transfer and registration or de-registration of any Uncertificated Note), one or more new Notes of authorized denominations of the same Class and Series evidencing a like aggregate Percentage Interest (except in the case of Uncertificated Notes) shall be executed, authenticated and delivered, in the name of the designated transferee or transferees, in accordance with Section 2.01(b)(ii).
(f) At the option of any Noteholder, its Notes may be exchanged for other Notes of authorized denominations of the same Class and Series evidencing a like aggregate Percentage Interest, upon surrender (or de-registration) of the Notes to be exchanged at the offices of the Note Registrar maintained for such purpose. Whenever any Notes are so surrendered for exchange (or de-registration), the Notes which the Noteholder making the exchange is entitled to receive shall be executed, authenticated and delivered (or registered in the case of Uncertificated Notes) in accordance with Section 2.01(b)(ii).
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(g) Every Note (other than Uncertificated Notes) presented or surrendered for transfer or exchange (or de-registration) shall (if so required by the Note Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in form satisfactory to, the Note Registrar duly executed by the Noteholder thereof or its attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange (or de-registration) of Notes, but the Indenture Trustee or the Note Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange (or de-registration) of Notes.
(i) All Notes surrendered for transfer and exchange (other than Uncertificated Notes) shall be physically canceled by the Note Registrar, and the Note Registrar shall dispose of such canceled Notes in accordance with its standard procedures.
(j) The Note Registrar shall provide to each of the other parties hereto, upon reasonable written request and at the expense of the requesting party, an updated copy of the Note Register.
(k) Notwithstanding anything herein to the contrary, any beneficial interest in any Tax Restricted Note may be transferred (directly or indirectly) only if (i) the Transferor of such beneficial interest notifies the Note Registrar in writing of its intention to Transfer such beneficial interest and (ii) such notice (1) identifies the Transferee, (2) contains a transfer certificate executed by the Transferee substantially in the form of Exhibit B-6, (3) contains any other information reasonably requested by the Note Registrar and (4) is delivered to the Issuer, the Note Registrar and the independent public accountants of the Issuer. The Note Registrar may conclusively rely on (i) any such notice, certificate and information and shall have no duty to make further inquiry, including any duty to inquire whether a holder holds for the account of one or more other persons and (ii) information provided to it by the Initial Purchasers on the applicable Closing Date with respect to the Holders and Beneficial Owners on the applicable Closing Date. Notwithstanding anything herein to the contrary, no transfer of any beneficial interest in any Tax Restricted Note of a Series shall be permitted if such transfer would (i) result in there being collectively more than the number of Persons specified in the applicable Series Supplement that may be Holders and Beneficial Owners of Tax Restricted Notes or (ii) cause the Issuer’s underlying assets to be deemed to be “plan assets” of Benefit Plan Investors. Any purported sales or Transfers of any beneficial interest in a Tax Restricted Note to a Transferee which does not comply with the requirements of this paragraph shall be null and void ab initio.
(l) Neither the Indenture Trustee nor the Note Registrar shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Base Indenture or under applicable law with respect to the transfer of any Note (and registration or de-registration of any Uncertificated Note) or the transfer of any interest in any Book-Entry Note other than to require delivery of the 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 Base Indenture, and to examine the same to determine substantial compliance on their face to the express requirements of this Base Indenture. In connection with the transfer of any Note or the transfer of any interest in any Book-Entry Note pursuant to this Base Indenture, the Indenture Trustee and the Note Registrar shall be under no duty to inquire into the validity, legality and due authorization of such transfer pursuant to this Base Indenture.
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Section 2.03. Book-Entry Notes.
(a) Each Class and Series of Term Notes shall initially be issued as one or more Notes registered in the name of the Depositary or its nominee and, except as provided in Section 2.03(c), transfer of such Notes may not be registered by the Note Registrar unless such transfer is to a successor Depositary that agrees to hold such Notes for the respective Note Owners with Ownership Interests therein. Such Note Owners shall hold and, subject to Sections 2.02(b), 2.02(c) and 2.02(k), transfer their respective ownership interests in and to such Notes through the book-entry facilities of the Depositary and, except as provided in Section 2.03(c), shall not be entitled to Definitive Term Notes in respect of such ownership interests. Term Notes of each Class and Series of Notes initially sold in reliance on Rule 144A shall be represented by the Rule 144A Global Note for such Class and Series, which shall be deposited with the DTC Custodian for the Depositary and registered in the name of Cede & Co. as nominee of the Depositary. Term Notes of each Class and Series of Notes initially sold in offshore transactions in reliance on Regulation S shall be represented by the Regulation S Global Note for such Class and Series, which shall be deposited with the Indenture Trustee as custodian for the Depositary. All transfers by Note Owners of their respective ownership interests in the Book-Entry Notes shall be made in accordance with the procedures established by the DTC Participant or brokerage firm representing each such Note Owner. Each DTC Participant shall only transfer the ownership interests in the Book-Entry Notes of Note Owners it represents or of brokerage firms for which it acts as agent in accordance with the Depositary’s normal procedures.
(b) The Issuer, the Servicer, the Indenture Trustee and the Note Registrar shall for all purposes, including the making of payments due on the Book-Entry Notes, deal with the Depositary as the authorized representative of the Note Owners with respect to such Notes for the purposes of exercising the rights of Noteholders hereunder. The rights of Note Owners with respect to the Book-Entry Notes shall be limited to those established by law and agreements between such Note Owners and the DTC Participants and indirect participating brokerage firms representing such Note Owners. Multiple requests and directions from, and votes of, the Depositary as holder of the Book-Entry Notes with respect to any particular matter shall not be deemed inconsistent if they are made with respect to different Note Owners. The Indenture Trustee may establish a reasonable record date in connection with solicitations of consents from or voting by Noteholders and shall give notice to the Depositary of such record date.
(c) Notes initially issued in the form of Book-Entry Notes will thereafter be issued as Definitive Notes or Uncertificated Notes to applicable Note Owners or their nominees, rather than to DTC or its nominee, only if the Issuer advises the Indenture Trustee in writing that DTC is no longer willing or able to properly discharge its responsibilities as Depositary with respect to such Notes and the Issuer is unable to locate a qualified successor. Upon the occurrence of the event described in the preceding sentence, the Indenture Trustee will be required to notify, in accordance with DTC’s procedures, all DTC Participants (as identified in a listing of DTC Participant accounts to which each Class and Series of Book-Entry Notes is credited) through DTC of the availability of such Definitive Notes. Upon surrender to the Note Registrar of any Class of Book-Entry Notes (or any portion of any Class thereof) by the Depositary, accompanied by re-registration instructions from the Depositary for registration of transfer, the Indenture Trustee or other designated party shall be required to cause the issuance of Definitive Notes in respect of such Class (or portion thereof) and Series to be executed and authenticated in accordance with Section 2.01(b)(ii) and delivered to the Note Owners identified in such instructions. None of the Issuer, the Servicer, the Indenture Trustee or the Note Registrar shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Notes for purposes of evidencing ownership of any Book-Entry Notes, the registered holders of such Definitive Notes shall be recognized as Noteholders hereunder and, accordingly, shall be entitled directly to receive payments on, to exercise Voting Rights with respect to, and to transfer and exchange such Definitive Notes, subject to the conditions and restrictions contained in Section 2.02.
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(d) None of the Obligors, the Guarantor, the Manager, the Indenture Trustee, the Servicer, the Back-Up Manager, the Note Registrar or the Initial Purchasers will have any responsibility for the performance by DTC, Euroclear or Clearstream or their respective direct or indirect Participants of their respective obligations under the rules and procedures governing their operations.
Section 2.04. Mutilated, Destroyed, Lost or Stolen Notes. If (i) any mutilated Note is surrendered to the Note Registrar, or the Note Registrar receives evidence to its satisfaction of the destruction, loss or theft of any Note, and (ii) there is delivered to the Indenture Trustee and the Note Registrar such security or indemnity as may be reasonably required by them to hold each of them harmless, then, in the absence of written notice to the Indenture Trustee or the Note Registrar that such Note has been acquired by a bona fide purchaser, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a new Note of the same Class and Series and of like Percentage Interest shall be executed, authenticated and delivered in accordance with Section 2.01(b)(ii) (or registered in accordance with Section 2.01(a), in the case of an Uncertificated Note). Upon the issuance of any new Note under this Section 2.04, the Indenture Trustee and the Note Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the reasonable fees and expenses of the Indenture Trustee and the Note Registrar) connected therewith. Any replacement Note issued (or registered in the case of Uncertificated Notes) pursuant to this Section 2.04 shall constitute complete and indefeasible evidence of ownership of such Note, as if originally issued, whether or not the lost, stolen or destroyed Note shall be found at any time.
Section 2.05. Persons Deemed Owners. Prior to due presentment for registration of transfer, the Issuer, the Servicer, the Indenture Trustee, the Note Registrar and any agent of any of them may treat the Person in whose name any Note (or any other transfer and de-registration of Uncertificated Notes) is registered as the owner of such Note for the purpose of receiving payments pursuant to Article V and for all other purposes whatsoever, and neither the Issuer, the Servicer, the Indenture Trustee, the Note Registrar or any agent of any of them shall be affected by notice to the contrary.
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Section 2.06. Certification by Note Owners.
(a) Each Note Owner is hereby deemed, by virtue of its acquisition of an ownership interest in the Book-Entry Notes, to agree to comply with the transfer requirements of Section 2.02(c) and, if applicable, Section 2.02(k).
(b) To the extent that under the terms of this Base Indenture it is necessary to determine whether any Person is a Note Owner, the Indenture Trustee and the Servicer may conclusively rely on a certificate of such Person in such form as shall be reasonably acceptable to the Indenture Trustee or the Servicer, as applicable, which specifies the Class, Series and Note Principal Balance of the Book-Entry Note beneficially owned; provided that none of the Indenture Trustee, the Servicer or the Note Registrar shall knowingly recognize such Person as a Note Owner if such Person, to the Knowledge of a Responsible Officer of the Indenture Trustee, the Servicer or the Note Registrar, as the case may be, acquired its ownership interest in a Book-Entry Note in violation of Section 2.02(c) or Section 2.02(k), or if such Person’s certification that it is a Note Owner is in direct conflict with information actually known by, or made known in writing to, a Responsible Officer of the Indenture Trustee, the Servicer or the Note Registrar, with respect to the identity of a Note Owner. The Indenture Trustee and the Note Registrar shall afford any Person providing information with respect to its Note ownership of any Book-Entry Note an opportunity to resolve any discrepancies between the information provided and any other information available to the Indenture Trustee or the Note Registrar, as the case may be. If any request would require the Indenture Trustee or the Servicer to determine the beneficial owner of any Note, the Indenture Trustee or the Servicer, as applicable, may condition its making such a determination on the payment by the applicable Person of any and all costs and expenses incurred or anticipated to be incurred by the Indenture Trustee or the Servicer, as applicable, in connection with such request or determination.
Section 2.07. Notes Issuable in Series.
The Notes of the Issuer may be issued in one or more Series. Any series of Class A-1 Notes may be uncertificated if provided for in its Series Supplement. Each Series shall be issued pursuant to a Series Supplement (it being understood that a single Series Supplement may provide for more than one Series). There shall be established in one or more Series Supplements, prior to the issuance of Notes of any Series:
(i) the title of the Notes of such Series (which shall distinguish the Notes of such Series from Notes of other Series) and whether such Notes will be Class A-1-V Notes, Class A-1-L Notes or Term Notes;
(ii) any limit upon the aggregate principal balance of the Notes of such Series that may be authenticated and delivered (other than with respect to Uncertificated Notes, which may be registered) under this Base Indenture (except for Notes authenticated and delivered (or with respect to Uncertificated Notes, registered) upon registration of transfer of, or in exchange for, or in lieu of, other Notes of such Series pursuant to Section 2.02 or Section 2.04);
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(iii) the Targeted Amortization Amounts, if any, for Notes of such Series and the date or dates on which the principal of the Notes of such Series is payable;
(iv) the rate or rates at which the Notes of such Series shall bear interest, if any, or the method by which such rate shall be determined, the date or dates from which such interest shall accrue, the interest payment dates on which such interest shall be payable and the record dates for the determination of Holders to whom interest is payable (in each case to the extent such items are not specified herein or if specified herein to the extent such items are modified by such Series Supplement);
(v) whether such Series has a Prefunding Period, and, if so, the funded amount of the related Prefunding Account, the applicable Classes of such Series that the Prefunding Account relates to, the expiration date of the related Prefunding Period, and the funded amount of the related Yield Maintenance Reserve Account applicable to such Series for purposes of Section 4.05.
(vi) what action by the Issuer is necessary to satisfy the condition of obtaining or delivering a Rating Agency Confirmation hereunder from the applicable Rating Agencies (including, if applicable, any notice related information for such Rating Agencies);
(vii) whether such Series contains one or more Classes of Class A-1-V Notes;
(viii) whether such Series contains one or more Classes of Class A-1-L Notes;
(ix) whether the Notes of such Series are Uncertificated Notes, Book-Entry notes or Definitive Notes;
(x) if such Series includes the issuance of Tax Restricted Notes, the maximum number of Holders and Beneficial Owners of Tax Restricted Notes of such Series for purposes of Section 2.02(k); and
(xi) any other terms of such Series (which terms shall not be inconsistent with the provisions of this Base Indenture except to the extent that such Series Supplement also constitutes an amendment of this Base Indenture pursuant to Article XIII).
The Notes of a Series may have more than one settlement or issue date. The Notes of each Series will be assigned to one or more Classes and, with respect to any Series of Notes issued after the Initial Closing Date, shall satisfy the requirements of Section 2.12(d) as of the date of issuance.
The Issuer agrees that it will not designate, for any Series and Class of Notes that are Tax Restricted Notes, a maximum number of Holders and Beneficial Owners for such Series and Class of Tax Restricted Notes that would cause the aggregate maximum number of Holders and Beneficial Owners for all Series and Classes of Tax Restricted Notes then Outstanding, collectively with the aggregate number of holders and beneficial owners of any other interests in the Issuer that are or may be treated as equity of the Issuer for U.S. federal income purposes, as determined for purposes of Treasury regulation 1.7704-1(h), to exceed 90.
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Section 2.08. Principal Amortization. Other than with respect to any Series of Class A-1-L Notes, prior to the Anticipated Repayment Date for a Series, unless prior thereto (i) an Amortization Period commences and is continuing, (ii) any funds remain on deposit in a Prefunding Account at the end of the related Prefunding Period, (iii) the maturity of the Notes is accelerated following the occurrence and continuation of an Event of Default, (iv) a Cash Sweep Condition occurs or (v) as otherwise provided in Section 2.09, Section 7.06, Section 7.29 or the Series Supplement for such Series, no principal shall be required to be paid with respect to such Series. Any Outstanding principal of any Class A-1-L Notes will be paid on each Payment Date in accordance with Section 5.01(a), to the extent of the available funds. The Class Principal Balance of each Class of Notes, to the extent not earlier paid, shall be due and payable in its entirety on the Rated Final Payment Date for such Class.
Section 2.09. Prepayments.
(a) The Issuer may, at its option, prepay the Notes of any Series in whole or in part on any date; provided that
(i) the Issuer shall have provided written notice of such prepayment to the Indenture Trustee, the Back-Up Manager and Servicer no later than ten (10) Business Days prior to the date of such prepayment and payment of all accrued and unpaid interest on the principal amount of the Notes being prepaid up to and including the date of such prepayment (including any applicable Prepayment Consideration);
(ii) in connection with any such optional prepayment in full or in part of the Notes, the Servicer, the Indenture Trustee and the Back-Up Manager (including in its capacity as Interim Successor Manager) shall be paid all unpaid Additional Obligor Expenses and all other unpaid fees, expenses and indemnities to the extent then due and payable to the Servicer, the Back-Up Manager (including in its capacity as Interim Successor Manager) and the Indenture Trustee, as applicable, under the Transaction Documents (in the case of a partial prepayment, only to the extent sufficient funds for payment in full of such amounts will not be available in the Collection Account for distribution on the following Payment Date);
provided, further, that any such prepayment shall be subject in all respects to the applicable requirements of the Depositary in connection with any prepayment and the Indenture Trustee shall have no responsibility or liability for the failure or delay of any such prepayments due to lack of compliance (other than, subject to timely receipt of any information or documents required for its compliance, by the Indenture Trustee or the Paying Agent) with the applicable requirements of or any other policies and procedures of the Depositary or any other act or omission of the Depositary.
(b) In connection with each disposition of a Fiber Network Asset pursuant to Section 7.29, if and to the extent required thereunder, the Issuer shall prepay the Notes in an amount equal to the Release Price for such disposed Fiber Network Asset (and pay all amounts then due and payable to the Indenture Trustee, Verification Agent, the Servicer and the Back-Up Manager, including the Indenture Trustee Fee, Verification Agent Fee, Servicing Fee, Other Servicing Fees and Back-Up Manager Fees, in each case to the extent sufficient funds have not been deposited in the Collection Account for distribution on the applicable Payment Date) together with any applicable Prepayment Consideration, subject to Section 7.29(b).
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(c) On the first Payment Date following the end of the Prefunding Period for a Series of Notes, if any funds remain in the Prefunding Account for such Series of Notes, the Indenture Trustee, at the written direction of the Manager acting on behalf of the Issuer, will use any amounts remaining on deposit in the Prefunding Account for such Series of Notes at the end of the Prefunding Period for such Series of Notes to the Collection Account to prepay the Term Notes of such Series of Notes in an amount equal to the amount of such funds. The amount to be prepaid will be allocated to each Term Note of the applicable Class of such Series of Notes pro rata based on the initial Note Principal Balance of such Term Note of such Class of such Series (without consideration of Class). Prepayment Consideration will be payable in connection with any prepayment of such Series of Notes from funds on deposit in the Yield Maintenance Reserve Account for such Series of Notes.
(d) Optional partial prepayments made in conformity with the provisions of this Section 2.09 shall be applied to the Classes of all Notes in direct order of alphanumerical designation; provided that optional partial prepayments (other than to the extent made with funds on deposit in the Cash Trap Reserve Account) (i) may be directed in writing by the Issuer to be applied to the Class A-1-V Notes, the Class A-1-L Notes or to be applied to other Class A Notes, with any such application to other Class A Notes being in direct order of numerical designation and (ii) may be directed by the Issuer to be applied solely to Notes of a particular Series and shall be applied to the Classes of such selected Series of Notes in direct order of alphanumerical designation, except that no prepayment is required to be applied to any Class A-1-V Notes, unless (x) the commitment with respect to such Notes has been terminated or (y) such Notes are in an ARD Period; provided, further, that the application of any funds remaining in the Prefunding Account for a Series of Notes on the first Payment Date following the end of the Prefunding Period for such Series of Notes will be applied to each Term Note of such Series of Notes pro rata based on initial Note Principal balance of such Term Notes pursuant to Section 2.09(c); provided, further, that, if on such date a Cash Sweep Condition or Amortization Period is then in effect, such funds will be used to prepay such Notes in direct order of alphanumeric designation.
(e) Except as otherwise provided in this Section 2.09(e) or in a Series Supplement for any Series of Term Notes, Prepayment Consideration shall be payable in connection with any prepayment of any Series of Term Notes prior to the ARD Prepayment Date applicable to such Term Notes, including in connection with, prepayments made in connection with dispositions of Fiber Network Assets pursuant to Section 7.29 that are made prior to the ARD Prepayment Date applicable to such Term Notes. On the date of any prepayment in connection with which Prepayment Consideration is payable, the Indenture Trustee or the Paying Agent, at the written direction of the Manager (or, at any time that the Notes are Specially Serviced Notes, the Servicer), shall pay such Prepayment Consideration received in respect of any Class or Series of Notes to the Holders of the corresponding Class or Series of Notes pro rata based on the amount prepaid on each such Note.
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Except as provided in the Series Supplement with respect to a Series of Notes, Prepayment Consideration is not payable in connection with (i) monthly payments based upon the Monthly Amortization Amount for such Series of Notes; (ii) any prepayments made pursuant to Sections 5.01(a)(xiv), 5.01(a)(xvi) and 5.01(a)(xvii) during an Amortization Period or pursuant to Section 5.01(a)(xii) while a Cash Sweep Condition is in effect; (iii) any prepayments made pursuant to Section 5.01(a)(xiii) following an acceleration of the maturity of the Notes following the occurrence and during the continuation of an Event of Default; (iv) any prepayments made from unreinvested proceeds of a casualty or other loss of Fiber Networks pursuant to Section 7.06; (v) any prepayments made from funds on deposit in the Cash Trap Reserve Account; (vi) except as otherwise provided in a Series Supplement for a Series of Notes, any prepayment of any Series of Term Notes on or after the ARD Prepayment Date applicable to such Term Notes or (vii) prepayments of principal in full made in connection a Wholesale Transition in an aggregate amount up to the Par Call Amount. Any Prepayment Consideration due shall be paid in accordance with the priorities set forth in Section 5.01(a). Prepayment Consideration that is not paid when due if funds are not available to make such payment pursuant to Section 5.01(a) shall not bear interest. No Prepayment Consideration shall be payable in connection with prepayments of any Series of Class A-1-V Notes or Class A-1-L Notes.
(f) Commencing on the Payment Date specified in a Series Supplement for any Series of Notes, and subject to the availability of funds for such purpose, a portion of the principal of the Notes of such Series will be payable on each Payment Date in an amount equal to the Monthly Amortization Amount for such Notes and such Payment Date if the Series Supplement for such Series specifies that the Monthly Amortization Amount shall apply to such Notes. Failure on the part of the Issuer to pay the entire Monthly Amortization Amount for such Notes on any Payment Date, other than the Rated Final Payment Date, will not constitute an Event of Default or otherwise provide to the Noteholders (or the Indenture Trustee for the benefit of the Secured Parties) any additional rights or remedies.
Section 2.10. Post-ARD Additional Interest. Additional interest (“Post-ARD Additional Interest”) shall accrue in respect of each Class of Notes (other than any Class A-1-L Notes) during the ARD Period for such Class of Notes on the Note Principal Balance of each Note of such Class at a per annum rate (each, a “Post-ARD Additional Interest Rate”) equal to (x) in the case of any Series of Class A-1-V Notes, 5.0% per annum and (y) in the case of a Series of Term Notes, the rate determined by the Manager to be the greater of (i) 5.0% per annum and (ii) the amount, if any, by which the sum of the following exceeds the Note Rate for such Note: (A) the yield to maturity (adjusted to a “mortgage equivalent basis” pursuant to the standards and practices of the Securities Industry and Financial Markets Association) on the Anticipated Repayment Date for such Note of the United States Treasury Security having a remaining term closest to ten (10) years plus (B) 5.0%, plus (C) the Post-ARD Note Spread applicable to such Note. The Manager shall provide written notice to the Indenture Trustee of the Post-ARD Additional Interest Rate. In no event shall the Indenture Trustee be obligated to recalculate or verify the Post-ARD Additional Interest Rate. Post-ARD Additional Interest accrued for any Note shall not be payable until the aggregate Note Principal Balance of (x) all Notes with respect to which an ARD Period has commenced and is continuing and (y) all Class A-1-V Notes of any Series has been reduced to zero. Prior to such time, Post-ARD Additional Interest shall be deferred and added to any Post-ARD Additional Interest previously deferred and remaining unpaid (the “Deferred Post-ARD Additional Interest”). Deferred Post-ARD Additional Interest shall not bear interest. Payments in respect of the Post-ARD Additional Interest shall be allocated among the Classes of Notes in direct order of alphanumerical designation and shall be allocated within a Class to the Holder of each Note of that Class pro rata based on the amount of Post-ARD Additional Interest accrued on such Note.
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Section 2.11. Defeasance.
(a) At any time prior to the ARD Prepayment Date for any Outstanding Series of Term Notes with the latest Anticipated Repayment Date (such Payment Date, the “Defeasance Payment Date”), the Issuer may obtain the release from all covenants of this Base Indenture relating to ownership and operation of the Fiber Network Assets by delivering United States government securities that provide for payments on each Payment Date which replicate the required payments and scheduled Targeted Amortization Amounts, if any, due under the Transaction Documents with respect to all of the Notes then Outstanding, including the Indenture Trustee Fee and any other amounts due and owing to the Indenture Trustee, the Verification Agent Fee and any other amounts due and owing to the Verification Agent, Servicing Fees, Workout Fees, Other Servicing Fees and any other amounts due and owing to the Servicer, the Back-Up Manager Fees and any other amounts due and owing to the Back-Up Manager, if any, through the Defeasance Payment Date for each Series of Notes (including payment in full of the principal of the Notes on the related Defeasance Payment Date); provided that (i) no Event of Default has occurred and is continuing; (ii) the Issuer shall pay or deliver on the date of such defeasance (the “Defeasance Date”) (a) all interest accrued and unpaid on the Outstanding Class Principal Balance of each Class of Notes to but not including the Defeasance Date (and, if the Defeasance Date is not a Payment Date, the interest that would have accrued to but not including the next Payment Date), (b) all other sums then due under each Class of Notes and all other Transaction Documents executed in connection therewith, including any costs incurred in connection with such defeasance, and (c) U.S. government securities providing for payments equal to the Scheduled Defeasance Payments; and (iii) a notice shall have been delivered to the Rating Agencies. In addition, the Issuer shall deliver to the Indenture Trustee (1) a security agreement granting the Indenture Trustee for the benefit of the Secured Parties a first priority perfected security interest in the U.S. government securities so delivered by the Issuer, (2) an Opinion of Counsel as to the enforceability and perfection of such security interest and (3) a confirmation by an Independent certified public accounting firm that the U.S. government securities so delivered are sufficient to pay the Scheduled Defeasance Payments. The Issuer, pursuant to the security agreement described above, shall authorize and direct that the payments received from the U.S. government securities shall be made directly to the Indenture Trustee and applied to satisfy the obligations of the Issuer under the Notes and the other Transaction Documents.
(b) If the Asset Entities will continue to own any material assets other than the U.S. government securities delivered in connection with the defeasance, the Issuer shall establish or designate a special-purpose bankruptcy-remote successor entity acceptable to the Indenture Trustee (acting at the written direction of the Servicer), with respect to which a substantive non-consolidation Opinion of Counsel reasonably satisfactory to the Indenture Trustee (consistent with the prior non-consolidation Opinion of Counsel most recently delivered to the Indenture Trustee) has been delivered to the Indenture Trustee and to transfer to that entity the pledged U.S. government securities. The new entity shall assume the obligations of the Issuer under the Notes being defeased and the security agreement and the Obligors and the Guarantor shall be relieved of their obligations in respect thereof under the Transaction Documents. The Issuer shall pay $10.00 to such new entity as consideration for assuming such obligations.
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(c) If the Issuer satisfies the requirements of Section 2.11(a) to defease the Notes and delivers to the Indenture Trustee an Officer’s Certificate of the Issuer and an Opinion of Counsel in compliance with Section 15.01, the Indenture Trustee shall promptly execute, acknowledge and deliver to the Obligors a release of the Collateral under the applicable Transaction Documents in recordable form to the extent applicable for such release; provided that the Obligors shall, at their sole expense, prepare any and all documents and instruments necessary to effect such release, all of which shall be subject to the reasonable approval of the Indenture Trustee, and the Obligors shall pay all costs reasonably incurred by the Indenture Trustee (including reasonable attorneys’ fees and disbursements) in connection with the review, execution and delivery of the documents and instruments necessary to effect such release.
Section 2.12. New Fiber Networks; Retained Collections Contributions; Additional Notes.
(a) From time to time the Issuer may add one or more Additional Fiber Networks or Additional Obligor Fiber Networks acquired by an Asset Entity or the Issuer, as applicable, and the related Customer Agreements and Customer Accounts Receivable, as additional collateral for the Notes; provided that in connection with each such addition the following conditions, as certified to the Servicer and the Indenture Trustee by the Manager in accordance with Section 2.12(e), are satisfied immediately after giving effect to the addition: (i) with respect to any Additional Obligor Fiber Networks, Rating Agency Confirmation is received with respect thereto, (ii) the Indenture Trustee and the Servicer have received Opinions of Counsel (consistent with the Opinions of Counsel delivered on the most recently occurring Closing Date) as they may reasonably request, (iii) during a Special Servicing Period, the Servicer consents thereto, (iv) if such Fiber Network is an Additional Obligor Fiber Network, the Additional Asset Entity executes and delivers to the Indenture Trustee a Joinder Agreement; provided that the Indenture Trustee and the Servicer have no obligation to review such agreement and (v) the Manager delivers an updated schedule reflecting such Additional Fiber Networks to the Indenture Trustee, each Rating Agency, the Back-Up Manager and the Servicer. For the avoidance of doubt, Additional Fiber Network Assets may be contributed as additional collateral for the Notes at any time without satisfying the conditions set forth in this Section 2.12(a).
(b) Notwithstanding anything in this Base Indenture to the contrary, Parent and any of its Affiliates (other than the Guarantor or an Obligor) shall be permitted to own and manage fiber networks that are not included as part of the Collateral (such sites, “Excluded Fiber Networks”). If Excluded Fiber Networks are owned prior to, or acquired after, the Closing Date for any Series of Notes by Parent or any of its Affiliates that is not an Asset Entity and Parent or such other Affiliate thereby owns or acquires a customer agreement, or proposes to enter into a customer agreement, with respect to the related fiber network with a party that is also a Customer under a Customer Agreement, such new customer agreement will be separate from and independent of any Customer Agreement between such party and an Asset Entity.
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(c) Any Obligor may designate cash capital contributions made to such Obligor at any time by the Parent or an affiliate of the Parent (each such cash capital contribution so designated by such Obligor, a “Retained Collections Contribution”) for deposit into the Retained Collections Contribution Account. Any Retained Collections Contribution deposited into the Retained Collections Contribution Account may be designated by the Obligors, acting at the direction of the Manager, as part of Aggregate Annualized Net Operating Income for up to one (1) year, so long as such amounts are held in the Retained Collections Contribution Account in an amount not to exceed the amount set forth in the Series Supplement for any Series of Notes Outstanding; provided that any Retained Collections Contributions shall be excluded from the amount of Aggregate Annualized Net Operating Income for purposes of calculations to determine whether the Issuer may issue Additional Notes or make any draws on any Class A-1-V Notes. The Obligors (or the Manager on their behalf) may (and to the extent of any shortfalls in amounts due pursuant to priorities (i) through (x) of the priorities set forth in Section 5.01(a), shall) direct the Indenture Trustee in writing to release any Retained Collections Contributions from the Retained Collections Contribution Account for deposit into the Collection Account on any Payment Date for application in accordance with the priorities set forth in Section 5.01(a) pursuant to the Manager Report. For the avoidance of doubt, Retained Collections Contributions will not be annualized. Further, any Obligor may designate cash capital contributions made to such Obligor for the purpose of purchasing of Additional Fiber Network Assets or Additional Obligor Fiber Network Assets, and any Obligor may also accept the contribution of Additional Fiber Network Assets and Additional Obligor Fiber Network Assets, and the related Customer Agreements and Customer Accounts Receivable, to such Obligor as capital contributions to such Obligor.
(d) Except during the Prefunding Period of a Series of Notes, the Issuer may at any time and from time to time issue additional Notes (“Additional Notes”) pursuant to a Series Supplement in one or more Classes each of which will rank pari passu with, and be rated the same as, each Class of Notes Outstanding bearing the same alphanumerical Class designation (regardless of Series or date of issuance), if any, and may have other characteristics different than the other Outstanding Notes, in each case, to the extent that any Notes (other than Additional Notes) will remain outstanding after the issuance of such Additional Notes (such Notes, “Continuing Notes”), in each case, subject to the satisfaction of the following conditions: (A) the Senior DSCR after giving effect to such issuance (and any concurrent acquisition of any Additional Fiber Network Assets or Additional Obligor Fiber Network Assets and any concurrent repayment of Notes) is equal to or greater than 1.85x, (B) Rating Agency Confirmation with respect to each Class of Continuing Notes is obtained from each Rating Agency then rating such Continuing Notes, and (C) the Issuer receives an Opinion of Counsel (which opinion may contain similar assumptions and qualifications as are contained in the Opinion of Counsel delivered on the Initial Closing Date) to the effect that the issuance of such Additional Notes will not, for U.S. federal income tax purposes, (x) cause any of the Continuing Notes to be deemed to have been exchanged for a new debt instrument, (y) cause the Issuer to be taxable as other than a disregarded entity or a partnership or (z) cause any of the Continuing Notes that are characterized as indebtedness to be characterized as other than indebtedness. Further, the Issuer may, but is not obligated to, issue Additional Notes of an existing Series or Class if such Notes are fungible with the applicable Series or Class of Notes for U.S. federal income tax purposes, or issued pursuant to a separate CUSIP number, subject to the other provisions for the issuance of Additional Notes set forth in this Section 2.12(d). Such Additional Notes may rank senior to, pari passu with or subordinate to the existing Notes and shall be pari passu with and rated the same as the Class of Notes bearing the same alphabetical Class designation, as applicable. Class A-1-V Notes of a Series of Notes may have an Anticipated Repayment Date that is earlier than the Anticipated Repayment Date for any other Notes in the same Series. In the event that the Outstanding principal balance of such Class A-1-V Notes is not paid in full, extended or otherwise refinanced in full (including pursuant to a renewal of the commitments of such Class A-1-V Notes) on or prior to the Anticipated Repayment Date for such Class A-1-V Notes, no Amortization Period shall commence and no Event of Default shall occur, but the Issuer’s ability to borrow any additional amounts under such Class A-1-V Notes shall be terminated as described in the related Series Supplement.
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(e) In connection with the addition of any Additional Fiber Network or Additional Obligor Fiber Network pursuant to Section 2.12(a), the Manager shall deliver to the Indenture Trustee and the Servicer an Officer’s Certificate that includes a certification that the applicable conditions of Section 2.12(a) have been satisfied; and in connection with the issuance of any Series of Additional Notes pursuant to Section 2.12(d), the Manager shall deliver to the Indenture Trustee and the Servicer an Officer’s Certificate that includes a certification that the applicable conditions of Section 2.12(d) have been satisfied.
Section 2.13. Appointment of Verification Agent.
(a) The Issuer shall appoint a verification agent (the “Verification Agent”) who will review, recalculate and confirm the arithmetic accuracy of certain calculations contained in the Manager Report based solely on the information set forth in such Manager Report. The Issuer may appoint one or more additional verification agents. The term “Verification Agent” shall include any additional verification agent. The Issuer may change the Verification Agent without prior notice to any Noteholder. The Issuer shall notify the Indenture Trustee in writing of the name and address of any Verification Agent not a party to this Base Indenture. The Indenture Trustee is hereby initially appointed as the Verification Agent and shall be entitled to all rights, protections, privileges and immunities afforded to the Indenture Trustee under the Transaction Documents.
(b) The Controlling Class Representative may replace any existing Verification Agent that has resigned or otherwise ceased to serve as Verification Agent, with a successor verification agent that is reasonably acceptable to the Indenture Trustee (acting at the written direction of the Noteholders). The Controlling Class Representative shall so designate a Person (the “Designated Verification Agent”) to serve as successor verification agent by the delivery to the Indenture Trustee, the proposed successor verification agent and the existing Verification Agent of a written notice stating such designation. The Indenture Trustee shall, promptly after receiving any such notice, deliver to the Rating Agencies an executed Notice and Acknowledgment in the form of Exhibit H. The Designated Verification Agent shall become the Verification Agent on the date as of which the Indenture Trustee shall have received: (i) Rating Agency Confirmation with respect to each Series; (ii) an Acknowledgment of Proposed Verification Agent in the form of Exhibit I, executed by the Designated Verification Agent; and (iii) an Opinion of Counsel (which shall not be an expense of the Indenture Trustee) substantially to the effect that (A) the designation of the Designated Verification Agent to serve as Verification Agent is in compliance with this Section 2.13, (B) the Designated Verification Agent is validly existing and in good standing under the laws of the jurisdiction of its organization, (C) the Acknowledgment of Proposed Verification Agent has been duly authorized, executed and delivered by the Designated Verification Agent and (D) upon the execution and delivery of the Acknowledgment of Proposed Verification Agent, the Designated Verification Agent shall be bound by the terms of this Base Indenture and, subject to customary bankruptcy and insolvency exceptions and customary equity exceptions, that this Base Indenture shall be enforceable against the Designated Verification Agent in accordance with its terms. Any existing Verification Agent shall be deemed to have been terminated simultaneously with the Designated Verification Agent’s becoming the Verification Agent hereunder; provided that the terminated Verification Agent shall be entitled to receive, in connection with, and upon the effective date of, its termination, payment out of the Collection Account of all of its accrued and unpaid Verification Agent Fee earned pursuant to Section 11.05 and reimbursement of any outstanding Additional Obligor Expenses previously made or incurred by the terminated Verification Agent and any other amounts which the terminated Verification Agent is entitled to receive and which remain unpaid or unreimbursed; and provided, further that the terminated Verification Agent shall continue to be entitled to receive all other amounts accrued or owing to it under this Base Indenture or under any of the other Transaction Documents on or prior to the effective date of such termination. Such terminated Verification Agent shall reasonably cooperate with the Indenture Trustee and the replacement Verification Agent in effecting the transfer of the terminated Verification Agent’s responsibilities and rights hereunder to its successor. The reasonable out-of-pocket costs and expenses of any such transfer shall in no event be paid by the Indenture Trustee or the Verification Agent, and instead shall be paid by the Controlling Class Representative or the holders (or, if applicable, the Note Owners) of the Class of Notes that directed the Controlling Class Representative to remove the terminated Verification Agent, as such parties may agree, provided that no such transfer shall become effective until such reasonable out-of-pocket costs and expenses have been paid in full by the Controlling Class Representative or the holders (or, if applicable, the Note Owners) of the Class of Notes that directed the Controlling Class Representative to remove the terminated Verification Agent.
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ARTICLE III
ACCOUNTS
Section 3.01. Establishment of Collection Account, Prefunding Accounts, Reserve Accounts and Retained Collections Contribution Account.
(a) On or prior to the Initial Closing Date, an Eligible Account shall be established by the Issuer, in the name of the Issuer subject to the Lien of the Indenture Trustee for the benefit of the Secured Parties to serve as the collection account (such account, and any account replacing the same in accordance with this Base Indenture and the Cash Management Agreement, the “Collection Account”; and the depositary institution in which the Collection Account is maintained, the “Collection Account Bank”). The Collection Account Bank shall initially be the Indenture Trustee and shall be entitled to all rights, protections, privileges and immunities afforded to the Indenture Trustee under the Transaction Documents as if they were each expressly set forth herein for the benefit of the Collection Account Bank, mutatis mutandis.
(b) On or before the Initial Closing Date for any Series of Notes for which a Prefunding Account is established, an Eligible Account shall be established by the Issuer, in the name of the Issuer subject to the Lien of the Indenture Trustee for the benefit of the Holders of such Series of Notes and the other Secured Parties, to serve as the Prefunding Account for such Series of Notes (the depositary institution in which such Prefunding Account is maintained, the “Prefunding Account Bank”). The Prefunding Account Bank shall initially be the Indenture Trustee and shall be entitled to all rights, protections, privileges and immunities afforded to the Indenture Trustee under the Transaction Documents as if they were each expressly set forth herein for the benefit of the Collection Account Bank, mutatismutandis.
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(c) The Issuer shall also establish the Reserve Accounts, which accounts are established and maintained pursuant to this Section 3.01(c) and more particularly described in the Cash Management Agreement, as Eligible Accounts, in the name of the Issuer subject to the Lien of the Indenture Trustee for the benefit of the Secured Parties. The Collection Account, the Prefunding Account, the Reserve Accounts and the Retained Collections Contribution Account shall be non-interest bearing segregated trust accounts under the sole dominion and control of the Indenture Trustee (which dominion and control may be exercised by the Servicer as provided by the express terms of this Base Indenture or any other Transaction Document or other designee of the Indenture Trustee); and except as expressly provided hereunder or in the Collection Account Control Agreement or the Cash Management Agreement, the Obligors shall not have the right to control or direct the investment or payment of funds therein. The Obligors may elect to change any financial institution in which any Account shall be maintained if such institution is no longer an Eligible Bank, subject to the immediately preceding sentence.
(d) On or prior to the Initial Closing Date, an Eligible Account shall be established by the Issuer, in the name of the Issuer subject to the Lien of Indenture Trustee for the benefit of the Secured Parties to serve as the collection account for Retained Collections Contributions (such account, and any account replacing the same in accordance with this Base Indenture and the Cash Management Agreement, “Retained Collections Contribution Account”).
(e) The Issuer shall pay all reasonable out-of-pocket costs and expenses incurred by the Indenture Trustee in connection with the transactions and other matters contemplated by this Section 3.01, including the Indenture Trustee’s reasonable attorneys’ fees and expenses, and all reasonable fees and expenses of the Collection Account Bank and Prefunding Account Bank, including their reasonable attorneys’ fees and expenses.
Section 3.02. Deposits to the Control Accounts and to the Collection Account; Excluded Amounts.
(a) Deposits to Control Accounts. On and after the Initial Closing Date, the Obligors shall direct each Customer to pay all Fees and other amounts due to the Asset Entities pursuant to Customer Agreements (other than Excluded Amounts) into accounts that the Asset Entities agree to use commercially reasonable efforts to ensure are Control Accounts, and the Obligors agree to deposit all other Receipts due to the Asset Entities in respect of the Fiber Network Assets that have not been identified as Excluded Amounts within two (2) Business Days following identification by the Manager or the Obligors, to the applicable Control Accounts.
(b) Deposits to the Collection Account. On or prior to the second Business Day following identification thereof, the Manager, acting on behalf of the Obligors, shall withdraw any amount on deposit in the Control Accounts that constitutes Collections from the Control Accounts and deposit such amounts into the Collection Account. All Collections on deposit in the Collection Account with respect to such Collection Period shall be applied or allocated on the immediately following Payment Date in accordance with the priority of payments for the application of funds set forth in Section 5.01 except to the extent otherwise set forth herein. All amounts on deposit in the Collection Account that the Manager, acting on behalf of the Obligors, has identified as deposited to the Collection Account in error may be withdrawn by the Indenture Trustee acting pursuant to the written direction of the Manager, acting on behalf of the Issuer, from the Collection Account for application in the manner directed by the Manager, acting on behalf of the Obligors. The Indenture Trustee shall not be responsible for monitoring the Control Accounts or Collection Account and all fees, expenses and indemnity amounts payable to any entity that is holding such Control Account or the Collection Account shall, with respect to such account, be treated as costs and expenses borne by the Obligors and paid as Additional Obligor Expenses.
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(c) Excluded Amounts. The Manager, acting on behalf of the Obligors, may at any time withdraw amounts on deposit in the Control Accounts, the Collection Account or the Cash Trap Reserve Account that are identified as Excluded Amounts and may otherwise direct the release of amounts held by or on behalf of the Obligors that are identified as Excluded Amounts or that are otherwise not allocable to the Obligors.
Section 3.03. Withdrawals from the Collection Account. The Indenture Trustee shall, from time to time and in accordance with the written direction of the Manager (or, when the Notes become Specially Serviced Notes, with the written direction of the Servicer), without regard to the limitations described under Section 5.01, make withdrawals from the Collection Account (i) to pay to the Persons entitled thereto any amounts deposited in error, (ii) to pay to itself, the Servicer, the Back-Up Manager and the Verification Agent the Indenture Trustee Fee, the Servicing Fee, the Other Servicing Fees, the Back-Up Manager Fees and the Verification Agent Fee and accrued and unpaid expenses and indemnities payable to it, the Servicer, the Back-Up Manager and the Verification Agent, as applicable, and (iii) to clear and terminate the Collection Account on the date the Notes are no longer Outstanding. During an Amortization Period or if an Event of Default has occurred and is continuing, the Indenture Trustee shall, from time to time and in accordance with the written direction of the Manager, without regard to the limitations described under Section 5.01, make withdrawals from the Collection Account to pay or reimburse the Servicer, the Verification Agent, the Back-Up Manager and the Indenture Trustee for any amounts then due to the Servicer, the Verification Agent, the Back-Up Manager and the Indenture Trustee under the Transaction Documents. To the extent that the Indenture Trustee makes withdrawals in the manner described in clauses (i) through (iii) of the preceding sentence, such amounts shall not be paid on any Payment Date pursuant to the priority of payments for the application of funds set forth under Section 5.01.
Section 3.04. Application of Funds in the Collection Account. Funds in the Collection Account shall be allocated to the Reserve Accounts in accordance with Section 5.01(a) of this Base Indenture and Section 3.03 of the Cash Management Agreement; provided that amounts on deposit in the Collection Account on any Payment Date which were received in the preceding Collection Period but are attributable to amounts due from a Customer in a succeeding Collection Period shall remain in the Collection Account and not be deemed to be available for distribution until the Payment Date following the Collection Period in which such amounts were due from such Customer. The amount available on each Payment Date to be so distributed is referred to as the “Available Funds” with respect to such Payment Date.
Section 3.05. Application of Funds after Event of Default. If the maturity of the Notes has been accelerated following the occurrence and continuation of an Event of Default, then notwithstanding anything to the contrary in this Article III, the Servicer (acting on behalf of the Indenture Trustee) shall have all of the rights and remedies of the Indenture Trustee on behalf of the Secured Parties available under applicable law and under the Transaction Documents. Without limitation of the foregoing, for so long as the maturity of the Notes has been accelerated following the occurrence and continuation of an Event of Default, the Indenture Trustee (at the written request of the Servicer) may use funds on deposit in the Collection Account on the last day of the immediately preceding Collection Period or the Reserve Accounts (or any portion thereof) and all other cash reserves held or controlled by or on behalf of the Indenture Trustee for the payment of all or any portion of any of the Obligations; provided that such application of funds shall not cure or be deemed to cure any default; provided, further, that any such payments with regard to any application of any such amounts shall be made in accordance with the priorities set forth in Article V. If the maturity of the Notes has been accelerated following the occurrence and continuation of an Event of Default, the Indenture Trustee shall use funds in each Prefunding Account to repay the Notes of the related Series, prior to the allocation of any other funds to the repayment of such Notes. The provisions of this Section are subject to the provisions of Section 10.01 and Section 11.01(a).
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ARTICLE IV
RESERVES
Section 4.01. Security Interest in Reserves; Other Matters Pertaining to Reserves.
(a) The Obligors hereby grant to the Indenture Trustee for the benefit of the Secured Parties a security interest in and to all of the Obligors’ right, title and interest in and to the Account Collateral, including the Reserves, as security for payment and performance of all of the Obligations hereunder and under the other Transaction Documents. The Reserves constitute Account Collateral and are subject to the security interest in favor of the Indenture Trustee created herein and all provisions of this Base Indenture and the other Transaction Documents pertaining to Account Collateral. Income realized from the investment of funds in any Prefunding Account shall be paid to the Issuer on each Payment Date if written direction of the Manager has been timely received by the Indenture Trustee. All Permitted Investments shall mature no later than one Business Day prior to each Payment Date or otherwise when such funds are required to be distributed pursuant to Section 5.01(a).
(b) In addition to the rights and remedies provided in Article III and elsewhere herein, following an acceleration of the maturity of the Notes following the occurrence and the continuation of an Event of Default, the Indenture Trustee and the Servicer (acting on behalf of the Indenture Trustee) shall have all rights and remedies pertaining to the Reserves as are provided for in any of the Transaction Documents or under any applicable law. Without limiting the foregoing, upon and at all times following an acceleration of the maturity of the Notes following the occurrence and the continuation of an Event of Default, the Indenture Trustee, at the written direction of the Servicer, may use funds on deposit in the Reserve Accounts (other than the Prefunding Account) (or any portion thereof) and all other cash reserves held by or on behalf of the Indenture Trustee for any purpose, including those that are then due and owing in any combination of the following: (i) the payment of any of the Obligations of any of the Obligors under the Notes, including any Prepayment Consideration applicable upon such payment in such order as directed in writing and the performance of all other terms, conditions and covenants under the Transaction Documents; provided that such application of funds shall not cure or be deemed to cure any default; provided, further, that any payments with regard to any application of any such amounts shall be made in accordance with the priorities set forth in Section 5.01; (ii) reimbursement of the Indenture Trustee and the Servicer for any actual losses, expenses and outstanding fees (including reasonable legal fees); (iii) payment for the obligations for which such Accounts were created or the funds therein were required to be reserved; and (iv) application of such funds in connection with the exercise of any and all rights and remedies available to the Indenture Trustee or Servicer at law or in equity or under this Base Indenture or pursuant to any of the other Transaction Documents. Nothing contained in this Base Indenture shall obligate the Indenture Trustee or the Servicer to apply all or any portion of the funds in the Reserve Accounts during the continuation of an Event of Default to payment of the Notes or in any specific order of priority except as set forth in the proviso in the immediately preceding sentence.
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Section 4.02. Funds Deposited with Indenture Trustee.
(a) Permitted Investments; Return of Reserves to Obligors. Unless otherwise expressly provided herein, all funds of the Obligors which are deposited with the Collection Account Bank as Reserves, into the Retained Collections Contribution Account, or with the Prefunding Account Bank hereunder shall be invested by such institution in one or more Permitted Investments if so directed by the Manager in writing (which may be standing instructions) in accordance with the Cash Management Agreement. Absent any such direction, the funds deposited with the Collection Account Bank, in the Retained Collections Contribution Account or with the Prefunding Account Bank shall remain uninvested. Any investment income with respect thereto shall be credited to the Account in which such income was earned. After repayment of all of the Obligations, all funds held as Reserves shall be promptly returned to, or as directed by, the Issuer on behalf of the Obligors. All Permitted Investments shall mature or be liquidated no later than one Business Day prior to each Payment Date or otherwise when such funds are required to be distributed pursuant to Section 5.01. Each of the Collection Account Bank and the Prefunding Account Bank shall not in any way be held liable by reason of any insufficiency in any of the Accounts (other than the Control Accounts) resulting from any loss on any Permitted Investment included therein, except for losses attributable to the Collection Account Bank’s or the Prefunding Account Bank’s failure to make payments on such Permitted Investments issued by the Collection Account Bank or the Prefunding Account Bank, as applicable, in its commercial capacity as principal obligor and not as trustee, in accordance with their terms.
(b) Funding at Closing. The Obligors shall deposit with the Indenture Trustee the amounts necessary to fund each of the Reserves and each Prefunding Account as set forth below. Deposits into the Reserves or Prefunding Account, as the case may be, on any Closing Date may occur by deduction from the amount of proceeds of the issuance of the Notes on such Closing Date that otherwise would be disbursed to the Issuer, followed by deposit of the same into the applicable Reserve Account in accordance with the Cash Management Agreement or the applicable Series Supplement on such Closing Date. Notwithstanding such deductions, such Notes shall be deemed for all purposes to be issued in full on the applicable Closing Date.
(c) Funding upon any Addition of Additional Fiber Networks or Additional Obligor Fiber Networks. The Obligors shall deposit, upon the addition of any Additional Fiber Networks or Additional Obligor Fiber Networks, any amounts necessary to fully fund the Reserves described in Section 4.03 and Section 4.04 after giving effect to any increase in the Reserves made to reflect the addition of such Additional Fiber Networks or Additional Obligor Fiber Networks.
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Section 4.03. Content Cost, Network Expense and Insurance Reserve(a). On the Closing Date for a Series of Notes, the Issuer shall deposit into the Content Cost, Network Expense and Insurance Reserve Account the amount specified in the Cash Management Agreement or the related Series Supplement. Pursuant to this Base Indenture and the Cash Management Agreement, the Indenture Trustee shall, upon written direction from the Manager pursuant to the Manager Report, deposit from Collections available for such purpose under Article V on each Payment Date into the Content Cost, Network Expense and Insurance Reserve Account, an amount such that the amount on deposit in the Content Cost, Network Expense and Insurance Reserve Account on such Payment Date is equal to the sum, without duplication, of (w) the aggregate Content Costs payable by the Asset Entities during the immediately succeeding Collection Period, (x) the amount of electricity expenses that the Manager reasonably estimates will be payable with respect to the Fiber Networks during the immediately succeeding Collection Period, (y) the amount of Impositions that the Manager reasonably estimates will be payable with respect to the Fiber Network Assets during the immediately succeeding Collection Period and (z) one-twelfth (1/12) of the estimated annual Insurance Premiums with respect to (or if covered by blanket insurance policies, allocated to) the Obligors and the Fiber Network Assets over the immediately following twelve-month period. With respect to any Imposition that is payable less frequently than on a monthly basis, the Issuer, or the Manager on behalf of the Issuer, may elect deposit funds into the Content Cost, Network Expense and Insurance Reserve Account equal to the applicable monthly portion of the applicable Imposition as set forth in the Manager Report. So long as (i) no Event of Default has occurred and is continuing, and (ii) the Obligors have provided the Indenture Trustee and the Servicer with the foregoing information, the Indenture Trustee shall, at the Manager’s election and written direction, with written notice simultaneously delivered to the Servicer, from funds available in the Content Cost, Network Expense and Insurance Reserve Account (x) pay the Content Costs, Network Expenses, Impositions and Insurance Premiums directly, (y) disburse to the Obligors an amount sufficient to pay such Content Costs, Network Expenses, Impositions and Insurance Premiums or (z) reimburse the Obligors for Content Costs, Network Expenses, Impositions and Insurance Premiums previously paid by the Obligors.
Section 4.04. Advance Fee Reserve. On the Closing Date for a Series of Notes, the Issuer shall deposit into the Advance Fee Reserve Account the amount specified in the Cash Management Agreement or the related Series Supplement. On each Payment Date, the Indenture Trustee shall, upon written direction from the Manager pursuant to the Manager Report, withdraw from the Available Funds on deposit in the Collection Account with respect to such Payment Date, the amount required to be deposited to the Advance Fee Reserve Account pursuant to Section 5.01(a)(i) for deposit to the Advance Fee Reserve Account (said funds, the “Advance Fee Reserve”). The Advance Fee Reserve shall be held, allocated and disbursed in accordance with the terms and conditions of the Cash Management Agreement. Any remaining amounts on deposit in the Advance Fee Reserve Account that are not required to be on deposit pursuant to the definition of Advance Fee Reserve Deposit shall be released for deposit to the Collection Account for treatment as Collections with respect to such calendar month.
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Section 4.05. Yield Maintenance Reserve Accounts. On any Closing Date for a Series of Notes for which a Prefunding Account is established, the Issuer shall deposit with the Collection Account Bank for credit to the Yield Maintenance Reserve Account for such Series of Notes established and maintained by the Indenture Trustee pursuant to the Series Supplement for such Series of Notes the amount specified in the relevant Series Supplement to reserve for such Series of Notes funds equal to the amount of interest that shall accrue on such Series of Notes for the period commencing on such Closing Date to and including the end of the Prefunding Period for such Series of Notes on a portion of the Notes of such Series equal to the amount then on deposit in the Prefunding Account for such Series of Notes based on the weighted average of the Note Rates for such Series of Notes on such Closing Date, as such amount may thereafter be reduced from time to time when funds are released from the Prefunding Account for a Series of Notes in accordance with Section 5.01(b). On each Payment Date, in accordance with the Manager’s written direction, the Indenture Trustee shall withdraw an amount equal to the Yield Maintenance Amount for each Series of Notes from the Yield Maintenance Reserve Account for such Series of Notes in accordance with Section 5.01(b).
Section 4.06. Cash Trap Reserve. If a Cash Trap Condition occurs and none of a Cash Sweep Condition, an Amortization Period or an ARD Period is then in effect and no acceleration of the maturity of the Notes has occurred following the occurrence and continuation of an Event of Default, then, from and after the date that it is determined that a Cash Trap Condition has occurred (as set forth in the Manager Report) and for so long as such Cash Trap Condition continues to exist (and no Amortization Period or ARD Period has commenced and no acceleration of the maturity of the Notes has occurred following the occurrence and continuation of an Event of Default), an amount equal to the product of the Cash Trap Percentage as of the applicable Payment Date and the Available Funds to be paid pursuant to Section 5.01(a)(xi) shall be deposited into the Cash Trap Reserve Account. Prior to an Amortization Period, an ARD Period or the acceleration of the maturity of the Notes occurring following the occurrence and continuation of an Event of Default, (x) if such Cash Trap Condition ceases to exist pursuant to clause (i) of the definition thereof, any funds then on deposit in the Cash Trap Reserve Account shall be released to the Issuer and (y) if such Cash Trap Condition ceases to exist pursuant to clause (ii) of the definition thereof, then the product of the Cash Sweep Percentage as of such Payment Date and the amount of funds on deposit in the Cash Trap Reserve Account shall be paid to the Holders of each Class of Notes (other than any Class A-1-L Notes) in direct order of alphanumerical designation in respect of principal pro rata based on the Note Principal Balance of each such Note of such Class. On the first Payment Date to occur after (x) the commencement of an Amortization Period, (y) the acceleration of the maturity of the Notes has occurred following the occurrence and continuation of an Event of Default or (z) written direction from the Issuer, at its option, the Indenture Trustee shall apply all funds on deposit in the Cash Trap Reserve Account on such Payment Date pursuant to written direction of the Manager, acting on behalf of the Issuer, (i) to reimburse the Indenture Trustee, the Verification Agent, the Back-Up Manager and the Servicer for any amounts then due to the Servicer, the Back-Up Manager, the Verification Agent and the Indenture Trustee hereunder or under the other Transaction Documents (including unpaid Additional Obligor Expenses, and all unpaid fees, expenses, and indemnification due to the Servicer, the Back-Up Manager, the Verification Agent and the Indenture Trustee hereunder and under the other Transaction Documents), and then (ii) (A) with respect to an event specified in clause (x) or (y) above, to pay to the Holders of each Class of Notes in direct order of alphabetical designation, the amounts due in respect of such Notes as provided pursuant to Sections 5.01(a)(xiii), 5.01(a)(xiv) and 5.01(a)(xvii), as applicable, and (B) with respect to an event specified in clause (z) above, to pay holders of each Class of Notes in direct order of alphanumerical designation in respect of principal, pro rata among holders of Notes within each Class of the same alphanumerical designation. On the first Payment Date to occur on or after the commencement of an ARD Period (in circumstances where there is no Amortization Period and no acceleration of the maturity of the Notes following the occurrence and continuation of an Event of Default), the Indenture Trustee shall apply all funds on deposit in the Cash Trap Reserve Account on such Payment Date pursuant to written direction of the Manager, acting on behalf of the Issuer, (i) to reimburse the Indenture Trustee, the Verification Agent, the Back-Up Manager and the Servicer for any amounts then due to the Servicer, the Back-Up Manager, the Verification Agent and the Indenture Trustee hereunder or under the other Transaction Documents (including unpaid Additional Obligor Expenses, and all unpaid fees, expenses, and indemnification due to the Servicer, the Back-Up Manager, the Verification Agent and the Indenture Trustee hereunder and under the other Transaction Documents), and then (ii) to pay to the Holders of each Class of Notes subject to an ARD Period (and, if any such Notes are Class A-1 Notes, all Classes of Notes, regardless of Series, that have the same or a higher alphabetical designation as such Class A-1 Notes) the amounts provided pursuant to Sections 5.01(a)(xv), 5.01(a)(xviii) and 5.01(a)(xix).
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Section 4.07. Liquidity Reserve; Liquidity Reserve Letters of Credit.
(a) The Indenture Trustee, at the written request of the Manager, shall deposit from Available Funds available for such purpose under Section 5.01(a) on each Payment Date into the Liquidity Reserve Account any amounts necessary to make the amount on deposit therein equal to the Required Cash Liquidity Amount. If on any Payment Date the amounts on deposit in the Liquidity Reserve Account for a Series exceed the Required Cash Liquidity Amount, the excess amount then on deposit in the Liquidity Reserve Account shall be released to, or at the direction of, the Issuer.
(b) If, on the date that is five (5) Business Days prior to the expiration of any Liquidity Reserve Letter of Credit, such Liquidity Reserve Letter of Credit has not been replaced or renewed and is not scheduled to renew automatically pursuant to its terms, and the Issuer has not otherwise deposited funds into the Liquidity Reserve Account in an amount equal to the amount by which the Required Cash Liquidity Amount exceeds the sum of (i) the amounts on deposit in the Liquidity Reserve Account on such date and (ii) the amount available to be drawn under any other Liquidity Reserve Letters of Credit (that are not subject to expire within such five (5) Business Day period) on such date (such excess amount, the “Required Letter of Credit Deposit Amount”), the Indenture Trustee, upon written direction from the Issuer, shall (i) submit a notice of drawing under such Liquidity Reserve Letter of Credit, with a copy to the Servicer, and (ii) use the proceeds thereof to fund a deposit into the Liquidity Reserve Account in an amount equal to the Required Letter of Credit Deposit Amount.
(c) If, on any day a Liquidity Reserve Letter of Credit is outstanding, an Amortization Period or an Event of Default occurs and is continuing, then, no later than the Business Day following the occurrence of such Amortization Period or Event of Default, the Indenture Trustee, upon written direction from the Issuer, shall (i) submit a notice of drawing under such Liquidity Reserve Letter(s) of Credit, with a copy to the Servicer and the Issuer, and (ii) use the proceeds of such drawing to fund the Liquidity Reserve Account in an amount equal to the amount by which the Required Cash Liquidity Amount exceeds the amounts on deposit in the Liquidity Reserve Account on such date (calculated as if such Liquidity Reserve Letter(s) of Credit had not been issued).
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(d) If, on any day a Liquidity Reserve Letter of Credit is outstanding, such Liquidity Reserve Letter of Credit becomes an Ineligible Liquidity Reserve Letter of Credit, then (a) on the fifth (5th) Business Day after such day, (i) the Issuer shall make a deposit into the Liquidity Reserve Account or (ii) the Indenture Trustee, upon written direction from the Issuer, shall (1) submit a notice of drawing under such Liquidity Reserve Letter of Credit(s), with a copy to the Servicer, and (2) use the proceeds of such drawing to fund the Liquidity Reserve Account, in either case in an amount equal to the amount by which the Required Cash Liquidity Amount exceeds the amounts on deposit in the Liquidity Reserve Account on such date (calculated as if such Liquidity Reserve Letter(s) of Credit had not been issued) or (b) prior to the fifth (5th) Business Day after such day, the Issuer shall obtain one or more replacement Liquidity Reserve Letter(s) of Credit (that is not an Ineligible Liquidity Reserve Letter of Credit) on substantially the same terms as each such Liquidity Reserve Letter(s) of Credit being replaced to the Indenture Trustee (with a copy to the Servicer).
(e) Each Liquidity Reserve Letter of Credit shall name each of the Indenture Trustee, for the benefit of the Secured Parties, and the Servicer as the beneficiaries thereof and shall allow the Indenture Trustee or the Servicer on the Indenture Trustee’s behalf to submit a notice of drawing in respect of such Liquidity Reserve Letter of Credit whenever amounts would otherwise be required to be drawn pursuant to this Section 4.07 or otherwise used to pay Required Cash Liquidity Amounts in accordance with Section 5.01(c).
(f) The Indenture Trustee (at the written request of the Issuer) may submit a notice of drawing under a Liquidity Reserve Letter of Credit issued by the applicable Letter of Credit Provider and the proceeds of any such draw shall be deposited into the Liquidity Reserve Account or otherwise used to pay Liquidity Reserve Draw Amounts in accordance with Section 5.01(c).
ARTICLE V
ALLOCATION OF COLLECTIONS; PAYMENTS TO NOTEHOLDERS
Section 5.01. Allocations and Payments.
(a) On each Payment Date, (w) funds available in the Collection Account that are attributable to the preceding Collection Period, (x) any applicable Yield Maintenance Amounts withdrawn from a Yield Maintenance Reserve Account, (y) any applicable Liquidity Reserve Draw Amounts withdrawn from the Liquidity Reserve Account (to the extent applicable to such priority set forth below) and (z) applicable amounts withdrawn from the Retained Collections Contribution Account shall be applied by the Indenture Trustee in accordance with the Manager Report in the following order of priority (in each case to the extent of Available Funds in the Collection Account on such day after taking into account allocations and payments of a higher priority) (the “Priority of Payments”):
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(i) to the Advance Fee Reserve Account, an amount equal to the Advance Fee Reserve Deposit for such Payment Date;
(ii) to the Content Cost, Network Expense and Insurance Reserve Account, until the Content Cost, Network Expense and Insurance Reserve Account has on deposit therein the amount required (or permitted) pursuant to Section 4.03 to be on deposit in such account on such Payment Date;
(iii) in the following order, (A) first, (x) to the Indenture Trustee, the Verification Agent, the Servicer and the Back-Up Manager in an amount equal to the Indenture Trustee Fee, the Verification Agent Fee, the Servicing Fee, the Other Servicing Fees and the Back-Up Manager Fees, as applicable, due on such Payment Date (or that remain unpaid from prior Payment Dates) and then (y) pro rata to the Class A-1-L Noteholders, in an amount equal to any outstanding principal on the Class A-1-L Notes and interest thereon, together with any such fees previously accrued and unpaid, then (B) second, to the Indenture Trustee, the Servicer and the Back-Up Manager for any Additional Obligor Expenses (and all other unpaid fees, expenses and indemnities) due to the Indenture Trustee, the Servicer and the Back-Up Manager on such Payment Date (or that remain unpaid from prior Payment Dates); and then (C) third, the payment of other Additional Obligor Expenses due on such Payment Date (or that remain unpaid from prior Payment Dates);
(iv) to the Obligors, in the following order, (A) first, an amount equal to the Monthly Fiber Network Operating Expense Amount for the current Collection Period and, to the extent not previously paid, for all prior Collection Periods and then (B) second, the Commercial Churn Replacement Capital Expenditures, Retail Churn Replacement Capital Expenditures, Commercial Maintenance Capital Expenditures and Retail Maintenance Capital Expenditures with respect to the immediately preceding Collection Period;
(v) to the Manager, the Management Fee for the preceding Collection Period, and to the extent not previously paid, such amounts for all prior Collection Periods;
(vi) if either (x) an Amortization Period is not then in effect and there is outstanding any Class of Notes that has an Anticipated Repayment Date for which an ARD Period is not then in effect or (y) the maturity of the Notes has been accelerated following the occurrence and continuation of an Event of Default (regardless of whether an Amortization Period or an ARD Period with respect to any Class of Notes is then in effect), to the Holders of each Class of Notes, in direct order of alphanumerical designation, (A) the Accrued Note Interest of each such Note of such Class on such Payment Date (or that remains unpaid from prior Payment Dates) (including any amounts expected to accrue on any anticipated draws on the Class A-1-V Notes prior to the end of the related Interest Accrual Period, as reasonably determined by the Manager) and (B) any accrued and unpaid commitment fees, Letter of Credit Fees and any other fees, expenses and other amounts due on or prior to such Payment Date to Holders of the Class A-1-V Notes under the applicable Class A-1-V Note Purchase Agreement with respect to such Class A-1-V Notes;
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(vii) if (x) an Amortization Period is then in effect or an ARD Period is then in effect with respect to each Outstanding Class of Notes that has an Anticipated Repayment Date and (y) no acceleration of the maturity of the Notes has occurred following the occurrence and continuation of an Event of Default, to the Holders of the Class A Notes and Class B Notes, in direct order of alphanumerical designation, (A) the Accrued Note Interest of each such Note of such Class on such Payment Date (or that remains unpaid from prior Payment Dates) (including any amounts expected to accrue on any anticipated draws on the Class A-1-V Notes prior to the end of the related Interest Accrual Period, as reasonably determined by the Manager) and (B) any accrued and unpaid commitment fees, Letter of Credit Fees and any other fees, expenses and other amounts due on or prior to such Payment Date to Holders of the Class A-1 Notes under the applicable Class A-1 Note Purchase Agreement with respect to such Class A-1 Notes;
(viii) to the Obligors, an amount equal to the excess, if any, of (x) the Fiber Network Operating Expenses of the Asset Entities for the current Collection Period over (y) the sum of (1) the Monthly Fiber Network Operating Expense Amount for such Collection Period and (2) the amount deposited into the Content Costs, Network Expenses and Insurance Reserve Account on the immediately preceding Payment Date in respect of Content Costs and Network Expenses;
(ix) if neither an Amortization Period nor an ARD Period is then in effect and no acceleration of the maturity of the Notes has occurred following the occurrence and continuation of an Event of Default, first, to the Holders of any Notes for which a Monthly Amortization Amount is due on such Payment Date, pro rata, based on the Monthly Amortization Amount with respect to each such Note on such Payment Date, the Monthly Amortization Amount applicable thereto and second, if an Additional Principal Payment Amount is due on such Payment Date to one or more Series, to the Holders of Notes in such Series in direct order of alphanumerical designation of the Classes in such Series, in respect of principal pro rata based on the Note Principal Balance of each such Note of such Class and Series on such Payment Date, such Additional Principal Payment Amount together with any applicable Prepayment Consideration;
(x) to the Liquidity Reserve Account, until the amount on deposit therein is equal to the Required Cash Liquidity Amount as of such Payment Date;
(xi) if a Cash Trap Condition is continuing and neither an Amortization Period nor an ARD Period is then in effect and no acceleration of the maturity of the Notes has occurred following the occurrence and continuation of an Event of Default, an amount equal to the product of the Cash Trap Percentage as of such Payment Date and the amount of funds on deposit in the Collection Account that are attributable to the preceding Collection Period available after the payments made pursuant to priorities (i) through (x) above to be deposited in the Cash Trap Reserve Account;
(xii) if a Cash Sweep Condition is continuing and neither an Amortization Period nor an ARD Period is then in effect and no acceleration of the maturity of the Notes has occurred following the occurrence and continuation of an Event of Default, the product of the Cash Sweep Percentage as of such Payment Date and the amount of funds on deposit in the Collection Account that are attributable to the preceding Collection Period available after the payments made pursuant to priorities (i) through (xi) above to the Holders of each Class of Notes (other than any Class A-1-L Notes) in direct order of alphanumerical designation in respect of principal pro rata based on the Note Principal Balance of each such Note of such Class;
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(xiii) following an acceleration of the maturity of the Notes following the occurrence and continuation of an Event of Default, to the Holders of each Class of Notes (other than any Class A-1-L Notes) in direct order of alphabetical designation in respect of principal, pro rata based on the Note Principal Balance of each such Note of such Class, the then-unpaid Class Principal Balance of the Outstanding Notes of such Class;
(xiv) during an Amortization Period if no acceleration of the maturity of the Notes has occurred following the occurrence and continuation of an Event of Default, to the Holders of each Class of Class A Notes (other than any Class A-1-L Notes) and Class B Notes in direct order of alphanumerical designation in respect of principal pro rata based on the Note Principal Balance of each such Note of such Class, the then-unpaid Class Principal Balance of the Outstanding Notes of such Class;
(xv) during an ARD Period with respect to any Outstanding Class A Notes or Class B Notes of a Series, first, pro rata to all Class A-1-V Notes, regardless of Series, and then, second, to the Holders of all such Classes of Term Notes that are Class A Notes and Class B Notes of such Series that are then in an ARD Period in direct order of alphanumerical designation, in respect of principal pro rata based on the Note Principal Balance of each such Note of such Class of such Series on such Payment Date, up to the aggregate Class Principal Balance of such Class of Notes of such Series;
(xvi) if (x) an Amortization Period is then in effect or an ARD Period is in effect with respect to each Outstanding Class of Notes that has an Anticipated Repayment Date and (y) no acceleration of the maturity of the Notes has occurred following the occurrence and continuation of an Event of Default, to the holders of the Class C Notes, the Accrued Note Interest of each such Class C Note on such Payment Date (or that remains unpaid from prior Payment Dates);
(xvii) during an Amortization Period if no acceleration of the maturity of the Notes has occurred following the occurrence and continuation of an Event of Default, to the Holders of the Class C Notes in respect of principal pro rata based on the Note Principal Balance of each such Class C Note, the then-unpaid Class Principal Balance of the Outstanding Class C Notes;
(xviii) during an ARD Period with respect to any Outstanding Class C Notes of a Series, to the Holders of all such Class C Notes of such Series that are then in an ARD Period, in respect of principal pro rata based on the Note Principal Balance of each such Class C Note of such Series on such Payment Date, up to the aggregate Class Principal Balance of such Class C Notes of such Series;
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(xix) during an ARD Period with respect to any Class of Notes, to the Holders of all such Classes of Notes (other than any Class A-1-L Notes) in direct order of alphanumerical designation, first, pro rata based upon the amount of Post-ARD Additional Interest due with respect to the Interest Accrual Period just ended, to the payment of such Post-ARD Additional Interest due on Notes of such Class and then second, pro rata based on the amount of Deferred Post-ARD Additional Interest due with respect to all prior Interest Accrual Periods, to the payment of such Deferred Post-ARD Additional Interest due on Notes of such Class;
(xx) to the Holders of each Class of Notes in direct order of alphanumerical designation, any unpaid Prepayment Consideration, prorata based on the amount of Prepayment Consideration then due in respect of the Notes of such Class;
(xxi) to the Holders of each Class of Class A-1-V Notes for which the Issuer has determined to make an optional prepayment in accordance with the applicable Series Supplement, an amount equal to the optional prepayment amount so designated by the Issuer;
(xxii) to the Manager, for reimbursement for any advance made by the Manager, along with the interest payable thereon; and
(xxiii) any remaining amounts to, or at the direction of, the Issuer, including to the Holders of the Equity Interests in the Issuer.
Any required cash collateralization of any outstanding Liquidity Reserve Letter of Credit in accordance with the terms of the related Class A-1-V Note Purchase Agreement shall be deemed to be a required payment of Class Principal Balance of the Class A-1-V Notes and Note Principal Balance of the applicable Class A-1-V Notes, and shall be paid accordingly pursuant to the above priority of payments.
All such allocations by the Indenture Trustee shall be based solely on the information set forth in the Manager Report. In no event shall the Indenture Trustee have any obligation to recalculate or verify the information contained in the Manager Report nor shall the Indenture Trustee have any liability therefor. For the avoidance of doubt, funds that have been deposited in a Control Account during a Collection Period that are transferred to the Collection Account after the end of such Collection Period shall be deemed to be attributable to the Collection Period in which such funds were deposited into such Control Account.
(b) On each Payment Date, in accordance with the Manager Report, an amount equal to the Yield Maintenance Amount for each applicable Series of Notes for such Payment Date shall be withdrawn from the Yield Maintenance Reserve Account for such Series and shall be used, in addition to amounts allocated in accordance with Sections 5.01(a)(iv), (vi) and (xvii) above, for payment to such Series of Notes and allocated to the Holders of each applicable Class of Notes in direct order of alphabetical designation, in respect of interest pro rata based on the amount of Accrued Note Interest of each such Term Note of such Class remaining unpaid on such Payment Date, up to an amount equal to the Accrued Note Interest of such Class of Notes for such Payment Date (or that remains unpaid from prior Payment Dates). On each Payment Date, other than any Payment Date after an acceleration of the maturity of the Notes following the occurrence and continuation of an Event of Default, after giving effect to any withdrawal in accordance with the preceding sentence, to the extent the remaining amount in the Yield Maintenance Reserve Account for a Series of Notes exceeds the amount necessary to fund that Yield Maintenance Amount for the remaining portion of the Prefunding Period for that Series of Notes, such excess shall be distributed to or at the direction of the Issuer. On the Payment Date following the end of the Prefunding Period for a Series of Notes and after giving effect to any withdrawal in accordance with the preceding sentences, any remaining balance in the Yield Maintenance Reserve Account for the related Series of Notes shall be applied to pay any applicable Prepayment Consideration in connection with prepayments in connection with the end of the Prefunding Period for such Series of Notes and the balance paid to or at the direction of the Issuer.
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(c) On each Payment Date on which the Liquidity Reserve Draw Amount is greater than zero, the Indenture Trustee shall, in accordance with the Manager Report, withdraw from the Liquidity Reserve Account and/or, at the written direction of the Issuer, shall draw on any Liquidity Reserve Letters of Credit in an aggregate amount equal to the lesser of (x) the Liquidity Reserve Draw Amount as of such Payment Date and (y) the sum of (i) the amount on deposit in the Liquidity Reserve Account on such Payment Date, if any, and (ii) the amount available to be drawn under any Liquidity Reserve Letters of Credit on such Payment Date, and use such funds to make the applicable payments in accordance with Sections 5.01(a)(ii) (solely to the extent related to Reserved Fixed Costs), 5.01(a)(iii) (other than any interest on, and principal of, any Class A-1-L Notes), 5.01(a)(iv), 5.01(a)(vi) (other than any interest on any Class C Notes), 5.01(a)(vii) and 5.01(a)(viii).
(d) Except as otherwise provided below, all such payments made with respect to each Class of Notes on each Payment Date shall be made to the Holders of such Notes of record at the close of business on the related Record Date and, in the case of each such Holder, shall be made by wire transfer of immediately available funds to the account specified by such Holder at a bank or other entity having appropriate facilities therefor, if such Holder shall have provided the Indenture Trustee with wiring instructions no later than five Business Days prior to the related Record Date (which wiring instructions may be in the form of a standing order applicable to all subsequent Payment Dates), or otherwise by a check mailed to such Holder if such Holder shall have provided the Indenture Trustee with such mailing address no later than five Business Days prior to the related Record Date (which mailing address may be in the form of a standing order applicable to all subsequent Payment Dates). The final payment on any certificated Definitive Note shall be made in like manner, but only upon presentation and surrender of such Note (or de-registration, in the case of Uncertificated Notes) at the offices of the Note Registrar or such other location specified in the notice to Noteholders of such final payment.
(e) Each payment with respect to a Book-Entry Note shall be paid by the Indenture Trustee pursuant to written direction to the Depositary, as Holder thereof, and the Depositary shall be responsible for crediting the amount of such payment to the accounts of its DTC Participants in accordance with its normal procedures. Each DTC Participant shall be responsible for making such payment to the related Note Owners that it represents and to each indirect participating brokerage firm for which it acts as agent. Each such indirect participating brokerage firm shall be responsible for disbursing funds to the related Note Owners that it represents. None of the parties hereto shall have any responsibility therefor except as otherwise provided by this Base Indenture or applicable law. The Issuer shall perform its obligations under the letters of representations among the Issuer and the initial Depositary.
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(f) The rights of the Noteholders to receive payments from the proceeds of the Collateral in respect of their Notes, and all rights and interests of the Noteholders in and to such payments, shall be as set forth in this Base Indenture. Neither the Holders of any Class of Notes nor any party hereto shall in any way be responsible or liable to the Holders of any other Class of Notes in respect of amounts previously paid on the Notes in accordance with this Base Indenture.
(g) Except as otherwise provided herein, if a Responsible Officer of the Indenture Trustee receives written notice that the final payment with respect to any Class of Notes shall be made on the next Payment Date, the Indenture Trustee shall, as promptly as possible thereafter, make available to each Holder of such Class of Notes of record on such date a notice to the effect that:
(i) the Indenture Trustee expects that the final payment with respect to such Class of Notes shall be made on such Payment Date but only upon presentation and surrender of such Notes at the office of the Note Registrar or at such other location therein specified, and
(ii) no interest shall accrue on such Notes from and after the end of the Interest Accrual Period for such Payment Date.
Any funds not paid to any Holder or Holders of Notes of such Class on such Payment Date because of the failure of such Holder or Holders to tender their Notes shall, on such date, be set aside and credited to, and shall be held uninvested in trust for, the account or accounts of the appropriate non-tendering Holder or Holders. If any Notes as to which notice has been given pursuant to this Section 5.01(g) shall not have been surrendered for cancellation within six months after the time specified in such notice, the Indenture Trustee shall mail a second notice to the remaining non-tendering Noteholders to surrender their Notes for cancellation in order to receive the final payment with respect thereto. If within one (1) year after the second notice all such Notes shall not have been surrendered for cancellation, then the remaining amount due shall be discharged from the trust under this Base Indenture and the Indenture Trustee shall return the remaining amount due and payable on such Notes to, or at the direction of, the Issuer upon receipt of an Issuer Request, and the Holder of the Notes due such remaining amount, as an unsecured general creditor, shall look only to the Issuer for payment thereof (but only to the extent of the amounts so paid to the Issuer), and all liability of the Indenture Trustee or such Paying Agent with respect to such trust money shall thereupon cease. The costs and expenses of holding such funds in trust and of contacting such Noteholders following the first anniversary of the delivery of such second notice to the non-tendering Noteholders shall be paid out of such funds. No interest shall accrue or be payable to any former Holder on any amount held in trust pursuant to this paragraph. If any Notes as to which notice has been given pursuant to this Section 5.01(g), shall not have been surrendered for cancellation by the second anniversary of the delivery of the second notice, then, subject to applicable escheat laws, the Indenture Trustee shall distribute to the Issuer all unclaimed funds and all liability of the Indenture Trustee with respect to such trust money shall thereupon cease.
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(h) Notwithstanding any other provision of this Base Indenture, the Indenture Trustee shall comply with all withholding requirements respecting payments to Noteholders of interest or original issue discount that the Indenture Trustee reasonably believes are applicable under the Code or any similar provision of state, local or foreign law. The consent of Noteholders shall not be required for such withholding. If the Indenture Trustee does withhold any amount from payments or advances of interest or original issue discount to any Noteholder pursuant to any applicable withholding requirements, the Indenture Trustee shall indicate the amount withheld to such Noteholder. Any amounts so withheld shall be deemed to have been paid to such Noteholder for all purposes of this Base Indenture.
(i) If Additional Notes of a Class are issued that bear interest at a floating rate, for the purposes of all of the allocations provided for in this Section 5.01, such Notes shall be treated as having the same alphabetical designation as the fixed rate Notes of such Class.
Section 5.02. Payments of Principal.
(a) Any Monthly Amortization Amount for a Series of Notes shall be payable as provided in the related Series Supplement.
(b) Commencing on the first Payment Date to occur on or after an acceleration of the maturity of the Notes following the occurrence and during the continuance of an Event of Default, all the funds available pursuant to Section 5.01(a)(xiii) shall be applied to repay the aggregate unpaid Note Principal Balance of the Notes (other than any Class A-1-L Notes) as provided therein. On the first Payment Date to occur after the occurrence of a Cash Sweep Condition, the Cash Sweep Percentage as of such Payment Date of any funds on deposit in the Cash Trap Reserve Account shall be applied to repay the aggregate unpaid Note Principal Balance of the Notes. Commencing on the first Payment Date to occur on or after the occurrence and during the continuance of a Cash Sweep Condition, the Cash Sweep Percentage as of such Payment Date of funds available pursuant to Section 5.01(a)(xii) shall be applied to repay the aggregate unpaid Note Principal Balance of the Notes (other than any Class A-1-L Notes) as provided therein. Commencing on the first Payment Date to occur on or after the occurrence and during the continuance of an Amortization Period, the funds available pursuant to Sections 5.01(a)(xiv) or 5.01(a)(xvi), as applicable, shall be applied to repay the aggregate unpaid Note Principal Balance of the Notes (other than any Class A-1-L Notes) as provided therein. Commencing on the first Payment Date to occur on or after the occurrence and during the continuance of an ARD Period with respect to any with respect to any Classes of Notes in a Series, (x) the funds available pursuant to Section 5.01(a)(xv) shall be applied to pay (i) first, the aggregate unpaid principal amount of all Class A-1-V Notes regardless of Series, and (ii) second, the aggregate unpaid principal amount of the Class A Notes (other than any Class A-1-L Notes) and Class B Notes of any Series with respect to which the ARD Period has commenced in order of alphanumeric designation and (y) the funds available pursuant to Section 5.01(a)(xviii) shall be applied to pay the aggregate unpaid principal amount of the Class C Notes of any Series with respect to which the ARD Period has commenced. If any funds remain on deposit in a Prefunding Account at the end of the applicable Prefunding Period, the amount of such funds shall be withdrawn and applied to prepay the applicable Series of Notes on the next Payment Date pursuant to Section 2.09(c). At all other times, on each Payment Date, payments of principal on the Notes shall be made from amounts on deposit in the Collection Account only to the extent that the Additional Principal Payment Amount for such Payment Date is greater than zero. The Additional Principal Payment Amount on each Payment Date shall be allocated as provided pursuant to Section 5.01(a)(ix). The outstanding principal amount of the Class A-1-L Notes, if any, shall be paid on each Payment Date to the extent of available funds pursuant to Section 5.01(a)(iii).
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Section 5.03. Payments of Interest. On each Payment Date, Accrued Note Interest (other than Post-ARD Additional Interest) then due on all Classes of Notes shall be paid from amounts on deposit in the Collection Account in accordance with Sections 5.01(a)(vi), 5.01(a)(vii), 5.01(a)(xvi) and 5.01(xix), respectively. Payments in respect of these amounts shall be allocated among the Classes of Notes in direct order of alphanumerical designation and shall be allocated within a Class to the Holder of each Note of that Class pro rata based on the amount of Accrued Note Interest accrued on such Note.
Section 5.04. No Gross Up. The Issuer shall not be obligated to pay any additional amounts to the Holders or the holders of beneficial interests in the Notes as a result of any withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges. The Indenture Trustee shall be entitled to deduct FATCA Withholding Tax, and shall have no obligation to gross-up any payment hereunder or to pay any additional amount as a result of such FATCA Withholding Tax. Nothing in the immediately preceding sentence shall be construed as obligating the Obligors to make any “gross up” payment or similar reimbursement in connection with a payment in respect of which amounts are so withheld or deducted. Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, agrees to provide and, upon request, shall provide to the Indenture Trustee, Paying Agent and/or the Issuer (or other person responsible for withholding of taxes) the Noteholder Tax Identification Information. Further, each Noteholder and Note Owner is deemed to understand, acknowledge and agree that the Indenture Trustee, Paying Agent and Issuer have the right to withhold on payments with respect to a Note (without any corresponding gross-up) where an applicable party fails to comply with the requirements set forth in the preceding sentence or the Indenture Trustee, Paying Agent or Issuer is otherwise required to so withhold under applicable law. Notwithstanding any other provisions herein, the term ‘applicable law’ for purposes of this Section 5.04 includes U.S. federal tax law and FATCA.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Each of the Obligors, jointly and severally, represent and warrant to the Indenture Trustee that the statements set forth in this Article VI shall be, true, correct and complete in all material respects as of each Closing Date, and each Additional Asset Entity, jointly and severally, represents and warrants to the Indenture Trustee that the statements set forth in this Article VI shall be, true, correct and complete in all material respects as of the date on which it becomes an Additional Asset Entity and each Closing Date thereafter.
Section 6.01. Organization, Powers, Capitalization, Good Standing, Business.
(a) Organization and Powers. It is duly organized, validly existing and in good standing under the law of the jurisdiction in which such entity was organized and has the power and authority to execute, deliver and perform its obligations under each Transaction Document that it has entered into.
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(b) Qualification. It is duly qualified and in good standing in each jurisdiction where necessary to carry on its present businesses and operations, except in jurisdictions in which the failure to be qualified and in good standing has not had and could not reasonably be expected to have a Material Adverse Effect.
Section 6.02. Authorization of Borrowing, Authority, etc. It has the power and authority to incur or guarantee the Indebtedness evidenced by the Notes and this Base Indenture. The execution, delivery and performance by it of the Transaction Documents to which it is a party and the consummation of the transactions contemplated thereby have been duly authorized by all necessary limited liability company, corporate or other action, as the case may be.
(a) No Conflict. The execution, delivery and performance by it of the Transaction Documents to which each is a party and the consummation of the transactions contemplated thereby do not and shall not: (1) contravene (x) any provision of its applicable Organizational Documents, (y) any provision of law applicable to it (except where such violation will not cause a Material Adverse Effect) or (z) any order, judgment or decree of any Governmental Authority binding on it or any of its property (except where such violation will not cause a Material Adverse Effect); (2) result in a breach of or constitute (with due notice or lapse of time or both) a default under any Contractual Obligation binding upon it or its property (except where such breach or default will not cause a Material Adverse Effect); or (3) result in or require the creation or imposition of any material Lien (other than the Lien of the Transaction Documents) upon its assets.
(b) Consents. The execution and delivery by it of the Transaction Documents to which it is a party, and the consummation of the transactions contemplated thereby do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any Governmental Authority or any other Person which has not been obtained or made and is in full force and effect, other than any of the foregoing the failure to have made or obtained which will not cause a Material Adverse Effect.
(c) Binding Obligations. This Base Indenture is, and each of the other Transaction Documents to which such Obligor is a party, when executed and delivered by such Obligor will be, the legally valid and binding obligation of such Obligor, enforceable against it in accordance with its respective terms, subject to bankruptcy, insolvency, moratorium, reorganization and other similar laws affecting creditors’ rights.
Section 6.03. Financial Statements. All Financial Statements which have been furnished by or on behalf of the Obligors to the Indenture Trustee pursuant to this Base Indenture present fairly in all material respects the financial condition of the Persons covered thereby.
Section 6.04. Indebtedness and Contingent Obligations. As of the applicable Closing Date, the Obligors shall have no outstanding Indebtedness or Contingent Obligations other than the Obligations and the Permitted Indebtedness.
Section 6.05. Fiber Network Assets.
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Each of the Asset Entities is the owner of the Fiber Network Assets and the access rights granted pursuant to the Fiber Network Underlying Rights Agreements, owned by it, free and clear of all Liens except for Permitted Encumbrances. The financing statements under the UCC will, upon filing (i) create perfected first priority security interests in and to, and perfected collateral assignments of, all personal property in connection therewith (including the Fees and the Customer Agreements), and (ii) create perfected security interests in all fixtures, in each case to the extent that such liens and security interests may be perfected by filing a financing statement under the UCC, subject only to Permitted Encumbrances. There are (i) no proceedings in condemnation or eminent domain affecting any of the Fiber Network Assets, and to the Knowledge of the Asset Entities, none is threatened, that in either case would individually or in the aggregate cause a Material Adverse Effect, and (ii) no mechanic’s, materialman’s or other similar liens or claims which have been filed for work, labor or materials affecting the Fiber Network Assets the effect of which is reasonably likely to have a Material Adverse Effect. The Permitted Encumbrances, in the aggregate, do not (w) materially interfere with the benefits of the security intended to be provided by the UCC financing statements and this Base Indenture, (x) materially and adversely affect the value of the Fiber Networks taken as a whole, (y) materially impair the use or operations of the Fiber Networks or (z) materially impair the Obligors’ ability to pay their respective obligations in a timely manner.
Section 6.06. Customer Agreements; Agreements.
(a) Customer Agreements; Agreements. The Obligors have delivered to the Indenture Trustee (i) true and complete copies (in all material respects) of all Material Customer Agreements as in effect on the applicable Closing Date and (ii) a list of all Material Agreements affecting the operation and management of the Fiber Networks as in effect on the applicable Closing Date, and such Material Customer Agreements and Material Agreements have not been modified or amended, except pursuant to amendments or modifications made available to the Indenture Trustee. Except for the rights of the Manager pursuant to the Management Agreement, no Person has any right or obligation to manage any of the Fiber Networks on behalf of the Asset Entities or to receive compensation in connection with such management. Except for the parties to any leasing brokerage agreement that has been delivered to the Indenture Trustee, no Person (other than the Manager pursuant to the Management Agreement) has any right or obligation to enter into customer agreements, or solicit customers, for the Fiber Networks, or (except for cooperating outside brokers) to receive compensation in connection with such contracts.
(b) Fee Roll, Disclosure. The Obligors have, if so requested, delivered to the Indenture Trustee a true and correct copy of the Fee Roll. Except as specified in the Fee Roll delivered pursuant to the preceding sentence, to the Issuer’s and the Asset Entities’ Knowledge, (i) the Customer Agreements are in full force and effect; (ii) the Asset Entities have not given any notice of default to any Customer under any Customer Agreement which remains uncured; (iii) other than pursuant to customary terms, no Customer has any set off, claim or defense to the enforcement of any Customer Agreement; (iv) no Customer is materially in default in the performance of any other obligation under its Customer Agreement; and (v) there are no fee concessions (whether in form of cash contributions, work agreements, assumption of an existing Customer’s other obligations, or otherwise) or extensions of time whatsoever not reflected in such Fee Roll, except to the extent that the failure of the representations set forth in items (i) through (v) to be true with respect to Customer Agreements is not reasonably likely to have a Material Adverse Effect.
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(c) Management Agreement. The Issuer has delivered to the Indenture Trustee a true and complete copy of the Management Agreement as in effect on the applicable Closing Date, and such Management Agreement has not been modified or amended, except pursuant to amendments or modifications delivered to the Indenture Trustee. The Management Agreement is in full force and effect and no default by any of the parties thereto exists thereunder.
Section 6.07. Litigation; Adverse Facts. There are no judgments outstanding against the Obligors, or affecting any of the Fiber Networks or any property of the Obligors, nor to the Obligors’ Knowledge is there any action, charge, claim, demand, suit, proceeding, petition, governmental investigation or arbitration now pending or threatened against the Obligors, respectively, or any of the Fiber Networks that could, in the aggregate, reasonably be expected to result in a Material Adverse Effect.
Section 6.08. Payment of Taxes. All material federal, state, provincial, territorial and local tax returns and reports of the Issuer and each Asset Entity required to be filed have been timely filed (or each such Person has timely filed for an extension and the applicable extension has not expired), and all taxes, assessments, fees and other governmental charges (including any payments in lieu of taxes) upon such Persons and upon their respective properties, assets, income, profits, businesses and franchises which are due and payable have been timely paid except to the extent the same are being contested in accordance with Section 7.04(b) or except to the extent the effect of the failure to file such tax returns and reports or to pay such taxes, assessments, fees and other governmental charges would not reasonably be expected to result in a Material Adverse Effect.
Section 6.09. Performance of Agreements. To the Issuer’s Knowledge, neither the Issuer nor the Asset Entities are in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any Contractual Obligation of any such Persons which could, in the aggregate, reasonably be expected to have a Material Adverse Effect, and no condition exists that, with the giving of notice or the lapse of time or both, would constitute such a default which could, in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 6.10. Governmental Regulation. The Obligors are not subject to regulation under the Investment Company Act.
Section 6.11. Employee Benefit Plans. The Obligors do not maintain or contribute to, or have any obligation (including any Contingent Obligation) under, any Employee Benefit Plans which could reasonably be expected to result in a Material Adverse Effect.
Section 6.12. Solvency. The Obligors (a) have not entered into any Transaction Document with the actual intent to hinder, delay, or defraud any creditor and (b) received reasonably equivalent value in exchange for their obligations under the Transaction Documents. After giving effect to the issuance of the Notes (and the use of proceeds thereof), the fair saleable value of the Obligors’ assets taken as a whole exceed and will, immediately following the issuance of any Notes, exceed the Obligors’ total liabilities, including subordinated, unliquidated, disputed or Contingent Obligations. The fair saleable value of the Obligors’ assets taken as a whole is and will, immediately following the issuance of any Notes (and the use of proceeds thereof), be greater than the Obligors’ probable liabilities, including the maximum amount of their Contingent Obligations on their debts as such debts become absolute and matured. The Obligors’ assets taken as a whole do not and, immediately following the issuance of any Notes (and the use of proceeds thereof) shall not, constitute unreasonably small capital to carry out their businesses as conducted or as proposed to be conducted. The Obligors do not intend to, and do not believe that they will, incur Indebtedness and liabilities (including Contingent Obligations and other commitments) beyond their ability to pay such Indebtedness and liabilities as they mature (taking into account the timing and amounts of cash to be received by the Obligors and the amounts to be payable on or in respect of obligations of the Obligors).
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Section 6.13. Use of Proceeds and Margin Security. No portion of the proceeds from the issuance of the Notes shall be used by the Issuer or any Person in any manner that might cause the borrowing or the application of such proceeds to violate Regulation T, Regulation U or Regulation X or any other regulation of the Board of Governors of the Federal Reserve System.
Section 6.14. Insurance. Set forth on Schedule 6.14 is a description of all Insurance Policies for the Asset Entities that are in effect as of the applicable Closing Date. Such Insurance Policies conform to the requirements of Section 7.05. No notice of cancellation has been received with respect to such policies, and, to each Asset Entity’s Knowledge, the Asset Entities are in compliance with all material conditions contained in such policies.
Section 6.15. Investments; Ownership of the Obligors. The Obligors have no (i) direct or indirect Equity Interest in any other Person (other than in the case of the Issuer, in the Asset Entities), or (ii) direct or indirect loan, advance or capital contribution to any other Person, including all indebtedness from that other Person (other than in the case of the Issuer, in the Asset Entities). Schedule 6.15 correctly sets forth the ownership interest of the Issuer and each of the Asset Entities and each of their respective subsidiaries as of the applicable Closing Date.
Section 6.16. Environmental Compliance. Except to the extent the effect of the following representations not being true would not reasonably be expected to have a Material Adverse Effect: the Fiber Networks are in compliance with all applicable Environmental Laws; no notice of violation of such Environmental Laws has been issued by any Governmental Authority which has not been resolved; no action has been taken by the Asset Entities that would cause the Fiber Networks not to be in compliance with all applicable Environmental Laws pertaining to Hazardous Materials; and no Hazardous Materials are present at the Fiber Networks, except in quantities that do not violate applicable Environmental Laws.
ARTICLE VII
COVENANTS
Each of the Obligors, jointly and severally, covenants and agrees that until payment in full of the Obligations, it shall, and in the case of the Issuer shall cause the Asset Entities to, perform and comply with all covenants in this Article VII applicable to such Person.
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Section 7.01. Payment of Principal and Interest. Subject to Section 15.18 and Section 15.21, the Issuer shall duly and timely pay the principal and interest on the Notes of each Series in accordance with the terms of the Notes and this Base Indenture and the related Series Supplement. Amounts properly withheld under the Code by any Person from a payment to any Noteholder of interest or principal shall be considered as having been paid by the Issuer to such Noteholder for all purposes of this Base Indenture and the related Series Supplement.
Section 7.02. Financial Statements and Other Reports.
(a) Financial Statements.
(i) Quarterly Reporting on the Manager. Within 60 days after the end of each of the first three fiscal quarters in each fiscal year of the Manager, beginning with fiscal quarter ending March 31, 2026, the Issuer shall furnish to the Indenture Trustee, the Back-Up Manager, the Servicer, KBRA at abssurveillance@kbra.com (so long as it is a Rating Agency for any Series of Notes) and Fitch at globalcrosssectorsf@fitchratings.com (so long as it is a Rating Agency for any Series of Notes) a copy of the unaudited quarterly consolidated financial statements of the parent of the Manager for such fiscal quarter, without notes, prepared in accordance with GAAP, together with a certification executed by an Executive Officer of the Manager to the effect set forth in Section 7.02(a)(viii) and a Compliance Certificate.
(ii) Annual Reporting on the Manager. Within 150 days after the end of each fiscal year of the Manager, beginning with fiscal year ending December 31, 2026, the Issuer shall furnish to the Indenture Trustee, the Servicer, the Back-Up Manager, KBRA at abssurveillance@kbra.com (so long as it is a Rating Agency for any Series of Notes) and Fitch at globalcrosssectorsf@fitchratings.com (so long as it is a Rating Agency for any Series of Notes) the audited annual consolidated financial statements of the parent of the Manager for such fiscal year, prepared in accordance with GAAP, accompanied by an unqualified report by an independent certified public accounting firm of national standing, together with a certification executed by an Executive Officer of the Issuer to the effect set forth in Section 7.02(a)(viii) and a Compliance Certificate.
(iii) Annual Reporting on the Issuer. Within 150 days after the end of each fiscal year of the Issuer, beginning with fiscal year ending December 31, 2026, the Issuer shall furnish to the Indenture Trustee, the Servicer, the Back-Up Manager, KBRA at abssurveillance@kbra.com (so long as it is a Rating Agency for any Series of Notes) and Fitch at globalcrosssectorsf@fitchratings.com (so long as it is a Rating Agency for any Series of Notes) the unaudited consolidated financial statements of the Issuer for such fiscal year, without notes; provided that following the occurrence and during the continuation of an Amortization Period or an Event of Default, such financial statements shall be audited; and
(iv) Manager Report. No later than two (2) Business Days prior to each Payment Date, the Issuer shall furnish, or cause the Manager to furnish, to the Indenture Trustee, the Servicer, the Back-Up Manager, KBRA at abssurveillance@kbra.com (so long as it is a Rating Agency for any Series of Notes) and Fitch at globalcrosssectorsf@fitchratings.com (so long as it is a Rating Agency for any Series of Notes) a Manager Report.
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(v) Fee Roll. Within 60 days after the end of each fiscal quarter, the Issuer shall provide to the Indenture Trustee or the Servicer, if so requested, a certified copy of the Fee Roll as of the end of such fiscal quarter.
(vi) Additional Reporting. In addition to the foregoing, the Issuer shall promptly provide to the Indenture Trustee, the Servicer, the Back-Up Manager and the Rating Agencies such further documents and information concerning its operation of a Fiber Network and the financial affairs of the Obligors as the Indenture Trustee, the Servicer and Rating Agencies shall from time to time reasonably request upon prior written notice to the Issuer.
(vii) GAAP. The Issuer shall maintain systems of accounting established and administered in accordance with sound business practices and sufficient in all respects to permit preparation of Financial Statements in conformity with GAAP.
(viii) Certifications of Financial Statements and Other Documents, Compliance Certificate. Together with the financial statements provided to the Indenture Trustee and the Servicer pursuant to Sections 7.02(a)(i) and (ii), the Issuer shall also furnish to the Indenture Trustee, the Back-Up Manager and the Servicer, a certification upon which the Indenture Trustee, the Back-Up Manager and the Servicer may conclusively rely with no obligation to verify or confirm and with no liability therefor, executed by an Executive Officer of the Issuer, stating that to such officer’s Knowledge after due inquiry such financial statements are complete and correct in all material respects. In addition, where this Base Indenture requires a “Compliance Certificate”, the Person required to submit the same shall deliver a certificate duly executed on behalf of such Person by an Executive Officer of the applicable Obligor, upon which the Indenture Trustee and the Servicer may conclusively rely with no obligation to verify or confirm and with no liability therefor, stating that, to such Executive Officer’s Knowledge after due inquiry, there does not exist any Default or Event of Default, or if any of the foregoing exists, specifying the same in detail.
(ix) Fiscal Year. Neither of the Issuer nor any Obligor shall change its fiscal year from December 31 of each calendar year.
(b) Annual Operating Budget. On or before March 31 of each calendar year, commencing with March 31, 2026, the Issuer shall furnish to the Indenture Trustee, the Back-Up Manager and the Servicer the Operating Budget (presented on a monthly and annual basis) for such calendar year. Subject to the limitations set forth in the Management Agreement, the Issuer may make changes to the Operating Budget from time to time as it deems necessary. Notice of any material modifications to the Operating Budget shall be delivered to the Indenture Trustee, the Back-Up Manager and the Servicer on or prior to the last day of each calendar month. The Operating Budget shall be delivered to the Indenture Trustee, the Back-Up Manager and the Servicer for the Indenture Trustee’s, the Back-Up Manager’s and Servicer’s information only and shall not be subject to the Indenture Trustee’s, the Back-Up Manager’s or Servicer’s approval; provided that the Issuer shall cause each such Operating Budget to be delivered in a form consistent with the initial Operating Budget delivered to the Indenture Trustee, the Back-Up Manager and the Servicer on or about the Initial Closing Date.
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(c) Material Notices.
(i) The Issuer shall promptly deliver, or cause to be delivered, to the Servicer, the Indenture Trustee, the Back-Up Manager and the Rating Agencies, copies of all notices given or received with respect to a default under any term or condition related to any Permitted Indebtedness of any Obligor which default is reasonably likely to result in a Material Adverse Effect, and shall notify the Indenture Trustee, the Back-Up Manager and the Servicer in writing within five (5) Business Days after it obtains Knowledge of any material event of default with respect to any such Permitted Indebtedness.
(ii) The Issuer shall promptly deliver to the Indenture Trustee, the Back-Up Manager, the Servicer and the Rating Agencies copies of any and all notices of a material default or breach which is reasonably expected to result in a termination of any Material Agreement or any Material Customer Agreement; provided that after and during the continuance of an Amortization Period or an Event of Default the Issuer shall promptly deliver to the Indenture Trustee, the Back-Up Manager and the Servicer copies of any and all notices of a material default or breach which is reasonably expected to result in a termination of any material contract or agreement.
(d) Events of Default, etc. Promptly upon the Issuer obtaining Knowledge of any of the following events or conditions, the Issuer shall deliver to the Servicer, the Back-Up Manager and the Indenture Trustee (upon which each may conclusively rely with no obligation to verify or confirm and with no liability therefor) a certificate executed on its behalf by an Executive Officer specifying the nature and period of existence of such condition or event and what action the Issuer or the affected Asset Entity or any Affiliate thereof has taken, is taking and proposes to take with respect thereto: (i) any condition or event that constitutes a Default or an Event of Default; (ii) the occurrence of any event that is reasonably likely to have a Material Adverse Effect; or (iii) any actual or alleged material breach or default or assertion of (or written threat to assert) remedies under the Management Agreement or any Material Customer Agreement.
(e) Litigation. Promptly upon the Issuer obtaining Knowledge of (1) the institution of any action, suit, proceeding, governmental investigation or arbitration against an Obligor or any of the Fiber Networks not previously disclosed in writing to the Indenture Trustee and the Servicer which would be reasonably likely to have a Material Adverse Effect and which is not covered by insurance or (2) any material development in any action, suit, proceeding, governmental investigation or arbitration at any time pending against or affecting an Obligor or any of the Fiber Networks not covered by insurance which, in each case, could reasonably be expected to have a Material Adverse Effect, the Issuer shall give notice thereof to the Indenture Trustee, the Back-Up Manager and the Servicer and, upon request from the Servicer, shall provide such other information as may be reasonably available to them to enable the Servicer and its counsel to evaluate such matter.
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(f) Insurance. Prior to the end of the policy period for each Insurance Policy of the Obligors, the Issuer shall deliver to the Servicer and the Back-Up Manager certificates, reports or other information, (i) outlining all material insurance coverage maintained as of the date thereof by the Obligors under such Insurance Policy and all material insurance coverage planned to be maintained by the Obligors in the subsequent policy period and (ii) to the extent not paid directly by the Manager, evidencing payment in full of the premiums for such insurance policies.
(g) Other Information. With reasonable promptness, the Issuer shall deliver such other information and data with respect to the Obligors or the Fiber Networks as from time to time may be reasonably requested by the Indenture Trustee, the Back-Up Manager or the Servicer.
Section 7.03. Existence; Qualification. The Issuer shall, and shall cause each Asset Entity to, at all times preserve and keep in full force and effect its existence as a corporation, partnership, limited liability company or trust, as applicable, and all rights, franchises, licenses and permits material to its business, including its qualification to do business in each state where it is required by law to so qualify, except to the extent that the failure to be so qualified would not have a Material Adverse Effect; provided that nothing contained in this Section 7.03 shall restrict the merger, consolidation or amalgamation of an Asset Entity with another Asset Entity.
Section 7.04. Payment of Impositions and Claims.
(a) Except for those matters being contested pursuant to clause (b) below, the Issuer shall pay, and shall cause the Asset Entities to promptly pay, (i) all Impositions; (ii) all claims (including claims for labor, services, materials and supplies) for sums that have become due and payable and that by law have or may become a Lien upon any of its properties or assets (hereinafter referred to as the “Claims”); and (iii) all federal, state, provincial, territorial and local income taxes, sales taxes, excise taxes and all other taxes and assessments of the Issuer and the Asset Entities on their businesses, income, profits, franchises or assets (except to the extent the effect of which is not reasonably expected to result in a Material Adverse Effect), in each instance before any material penalty or fine is incurred with respect thereto.
(b) The Asset Entities shall not be required to pay, discharge or remove any Imposition or Claim relating to a Fiber Network that it is otherwise obligated to pay, discharge or remove such Imposition or Claim so long as the Asset Entities or the Issuer contest in good faith such Imposition, Claim or the validity, applicability or amount thereof by an appropriate legal proceeding which operates to prevent the collection of such amounts and the sale of the applicable Fiber Network or any portion thereof, so long as: (i) no Event of Default shall have occurred and be continuing, (ii) prior to the date on which such Imposition or Claim would otherwise have become delinquent, the Issuer shall have caused the Asset Entities to have given the Indenture Trustee and the Servicer prior written notice of their intent to contest said Imposition or Claim and shall have deposited with the Indenture Trustee (or with a court of competent jurisdiction or other appropriate body if necessary) such additional amounts as are necessary to keep on deposit at all times, an amount by way of cash, equal to (after giving effect to any Reserves then held by the Indenture Trustee for the item then subject to contest) at least 125% of the total of (x) the balance of such Imposition or Claim then remaining unpaid, and (y) all interest, penalties, costs and charges accrued or accumulated thereon; (iii) no risk of sale, forfeiture or loss or material impairment of any interest in the applicable Fiber Network or any part thereof arises, in the Servicer’s reasonable judgment (at any time the Notes are Specially Serviced Notes) or in the Manager’s reasonable judgment (at any time the Notes are not Specially Serviced Notes), during the pendency of such contest; (iv) such contest does not, in the reasonable determination of the Manager or (at any time the Notes are Specially Serviced Notes) the Servicer, have a Material Adverse Effect; and (v) such contest is based on bona fide, material, and reasonable claims or defenses. Any such contest shall be prosecuted with due diligence, and the Issuer shall, or shall cause the applicable Asset Entity to, promptly pay the amount of such Imposition or Claim as finally determined, together with all interest and penalties payable in connection therewith (it being understood that the Issuer shall have the right to direct the Indenture Trustee in writing to use the amount deposited with the Indenture Trustee under Section 7.04(b)(ii) for the payment thereof). The Indenture Trustee (at the written direction of the Manager (at any time the Notes are not Specially Serviced Notes) and at the written direction of the Servicer (at any time the Notes are Specially Serviced Notes)) shall have full power and authority to apply any amount deposited with the Indenture Trustee to the payment of any unpaid Imposition or Claim to prevent the sale or forfeiture of the applicable Fiber Network for non-payment thereof, if the Servicer (in consultation with the Manager (if applicable)) reasonably believes that such sale or forfeiture is threatened.
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In connection with any determination made by the Servicer pursuant to this Section 7.04, the Servicer shall be entitled to request and conclusively rely on any determination made by the Manager or a certificate or opinion from an independent certified public accountant or other expert and the Servicer shall have no liability for making any such determination solely on the basis of any such determinations made by the Manager or such certificates or opinions requested and received by it and failing to make such determination in the absence of its receipt of such determination of the Manager and such certificates or opinions.
Section 7.05. Maintenance of Insurance. Subject to availability on a commercially reasonable basis, the Issuer shall continuously maintain on behalf of the Obligors the following described policies of insurance with respect to all Fiber Networks without cost to the Indenture Trustee or the Servicer (the “Insurance Policies”):
(i) Commercial general liability insurance, including death, bodily injury and broad form property damage coverage with a combined single limit in an amount not less than $1,000,000 per occurrence and $2,000,000 in the aggregate for any policy year; and
(ii) An umbrella excess liability policy with a limit of not less than $10,000,000 over primary insurance, which policy shall include coverage for so-called assumed and contractual liability coverage, premises medical payment and automobile liability coverage, and coverage for safeguarding of personalty and shall also include such additional coverages and insured risks which are acceptable to the Manager (or, at any time that the Notes are Specially Serviced Notes, the Servicer).
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All Insurance Policies shall be in content (including endorsements or exclusions, if any), form, and amounts, and issued by companies, reasonably satisfactory to the Manager (or, at any time that the Notes are Specially Serviced Notes, the Servicer) from time to time and, to the extent permissible, shall name the Indenture Trustee not in its individual capacity but solely in its capacity as the Indenture Trustee for the benefit of the Secured Parties and its successors and assignees as their interests may appear as an “additional insured” (and, if applicable, “loss payee”) for each of the policies under this Section 7.05 and shall contain a waiver of subrogation clause reasonably acceptable to the Manager (or, at any time that the Notes are Specially Serviced Notes, the Servicer). All Insurance Policies shall provide, to the extent permissible, that the coverage shall not be modified without thirty (30) days’ advance written notice to the Indenture Trustee, the Back-Up Manager and the Servicer and shall provide that no claims shall be paid thereunder to a Person other than the Obligors and the Indenture Trustee, as loss payee, without ten (10) days’ advance written notice to the Indenture Trustee, the Back-Up Manager and the Servicer. The Issuer may obtain any insurance required by this Section 7.05 through blanket policies; provided that such blanket policies shall separately set forth the amount of insurance in force (together with applicable deductibles, and per occurrence limits) with respect to the Fiber Networks and shall afford all the protections to the Indenture Trustee as are required under this Section 7.05. If a blanket policy is issued, a certified copy of said policy shall be furnished, together with a certificate indicating that the Indenture Trustee, not in its individual capacity but solely in its capacity as Indenture Trustee on behalf of the Noteholders, is an additional insured (and, if applicable, loss payee) under such policy in the designated amount. The Issuer shall deliver duplicate originals of all Insurance Policies to the Indenture Trustee (if requested) and Servicer (if requested) and, in case of Insurance Policies about to expire, the Issuer shall deliver duplicate originals of replacement policies satisfying the requirements hereof to the Indenture Trustee (if requested) and the Servicer (if requested) prior to the date of expiration; provided that if such replacement policy is not yet available, the Issuer shall provide the Indenture Trustee (if requested) and the Servicer (if requested) with an insurance certificate executed by the insurer or its authorized agent evidencing that the insurance required hereunder is being maintained under such policy, which certificate shall be acceptable to the Indenture Trustee (if requested) and the Servicer (if requested) on an interim basis until the duplicate original of the policy is available. An insurance company shall not be satisfactory unless such insurance company (a) is licensed or authorized to issue insurance in the state, territory or province where the applicable Fiber Network is located and (b) has a claims paying ability rating (x) by (i) S&P Global Ratings, (ii) Moody’s or (iii) Fitch of “BBB+” (or its equivalent) or better or (y) by A.M. Best Rating Services, Inc. of “A-” (or its equivalent) or better; provided that if the claims paying ability rating of any such insurer is withdrawn or downgraded below “A” (or its equivalent) by any applicable rating agency, then such insurer must have a claims paying ability rating by Fitch of “BBB” or “F2” or better. Notwithstanding the foregoing, a carrier which does not meet the foregoing ratings requirement shall nevertheless be deemed acceptable hereunder; provided that such carrier is reasonably acceptable to the Manager (or, at any time that the Notes are Specially Serviced Notes, the Servicer) and the Issuer shall obtain and deliver to the Manager (or, at any time that the Notes are Specially Serviced Notes, the Servicer) a Rating Agency Confirmation with respect to such carrier. The Issuer shall furnish the Indenture Trustee (if requested) and the Servicer (if requested) receipts for the payment of premiums on such insurance policies or other evidence of such payment reasonably satisfactory to the Servicer in the event that such premiums have not been paid by the Manager or the Indenture Trustee pursuant to this Base Indenture. The requirements of this Section 7.05 shall apply to any separate policies of insurance taken out by the Issuer concurrent in form or contributing in the event of loss with the Insurance Policies. Losses shall be payable to the Indenture Trustee pursuant to a standard loss payable clause in its favor notwithstanding (1) any act, failure to act or negligence of the Obligors which might, absent such agreement, result in a forfeiture or all or part of such insurance payment, (2) the occupation or use of the Fiber Networks or any part thereof for purposes more hazardous than permitted by the terms of such policy or (3) any change in title to or ownership of the Fiber Networks or any part thereof; provided that the parties hereto acknowledge that coverage will not continue in effect if the applicable insurance carrier(s) are not notified of changes in ownership or substantial increase in risk prior to the loss in accordance with the policy. For purposes of determining whether the required insurance coverage is being maintained hereunder, each of the Indenture Trustee and Servicer shall be entitled to rely solely on a certification thereof furnished to it by the Issuer or the Manager, without any obligation to investigate the accuracy or completeness of any information set forth therein, and shall have no liability with respect thereto. The Insurance Policies shall not contain any deductible in excess of $250,000 (or, solely with respect to flood coverage, in excess of $500,000). For the avoidance of doubt, in no event shall the Indenture Trustee have any duty to monitor the Issuer’s compliance with or to review any documents delivered in connection with this Section 7.05.
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Section 7.06. Operation and Maintenance of the Fiber Networks.
(a) The Issuer shall cause each Asset Entity to maintain or cause to be maintained in good repair, working order and condition all material property necessary for use in the business of such Asset Entity, including the applicable Fiber Networks, and to make or cause to be made all appropriate repairs, renewals and replacements thereof except to the extent the failure to do so would not reasonably be expected to have a Material Adverse Effect. All work required or permitted under this Base Indenture shall be performed in a workmanlike manner and in compliance with all applicable laws except to the extent the failure to do so would not reasonably be expected to have a Material Adverse Effect.
(b) In the event of casualty or loss with respect to the Fiber Network Assets or other property of any Asset Entity at any Fiber Network, the Issuer shall give prompt written notice, and in any event within three (3) Business Days of obtaining Knowledge thereof, of any such casualty or loss exceeding $1,000,000, or which is not covered by insurance, to the insurance carrier (if applicable), to the Indenture Trustee, the Back-Up Manager and the Servicer and shall promptly commence and diligently prosecute to completion, in accordance with the terms hereof, the repair and restoration of such Fiber Network Assets or other property of such Asset Entity at such Fiber Network at least substantially to the Pre-Existing Condition (a “Restoration”). The Issuer hereby authorizes and empowers (without obligation) the Servicer as attorney-in-fact for the Asset Entities (jointly with the Asset Entities unless an Event of Default has occurred and is continuing), or any of them, with respect to Insurance Proceeds in excess of $1,000,000 to make proof of loss, to adjust and compromise any claim under Insurance Policies, to appear in and prosecute any action arising from such Insurance Policies, to collect and receive Insurance Proceeds (to be held in the Content Cost, Network Expense and Insurance Reserve Account pending the Asset Entities’ determination with respect to Restoration of the affected Fiber Network Asset or property as set forth in Section 7.06(c)), and to deduct therefrom the Indenture Trustee’s and the Servicer’s reasonable expenses incurred in the collection of such proceeds; provided that nothing contained in this Section 7.06 shall require the Indenture Trustee or the Servicer to incur any expense or take any action hereunder. The Issuer further authorizes the Indenture Trustee, at the Servicer’s option and written direction, with respect to proceeds in excess of $1,000,000 (a) to hold the balance of such proceeds to be made available to the Asset Entities for the cost of Restoration of any of the Fiber Networks in the Content Cost, Network Expense and Insurance Reserve Account or (b) unless prohibited by Section 7.06(c), to apply such Insurance Proceeds to the payment of the Obligations whether or not then due.
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(c) Notwithstanding any provision of this Section 7.06, the Servicer shall not exercise the Indenture Trustee’s option to apply Insurance Proceeds to the payment of the Obligations if all of the following conditions are met: (i) no Event of Default then exists; (ii) the Servicer reasonably determines that there will be sufficient funds to complete the Restoration of the Fiber Network Assets or other property of the Asset Entities at the Fiber Network to at least substantially the condition it was in immediately prior to such casualty (excluding replacement of obsolete Assets which are not required in connection with operating the applicable Fiber Network) and in compliance with applicable laws (the “Pre-Existing Condition”) and to timely make all payments due under the Transaction Documents during the Restoration of the affected Fiber Network Assets or other property of the Asset Entity at the Fiber Network; and (iii) the Servicer determines that the Restoration of the affected Fiber Network Assets or other property of the Asset Entities at the Fiber Network to the Pre-Existing Condition will be completed not later than six months prior to the latest Anticipated Repayment Date of any Notes then Outstanding. If the Servicer elects to apply Insurance Proceeds to the payment of the Obligations, such application shall be made on the Payment Date immediately following such election in accordance with the terms of the Cash Management Agreement. Notwithstanding the foregoing to the contrary, the Issuer, in its reasonable discretion, and within thirty (30) days of receipt of such Insurance Proceeds, may elect by a written notice to the Indenture Trustee and Servicer (with a copy of such notice to the Back-Up Manager) not to restore or replace the Fiber Network Assets or other property of the Asset Entities at the Fiber Network, in which event all Insurance Proceeds held in the Content Cost, Network Expense and Insurance Reserve Account, after reimbursing any amounts due to the Servicer, the Back-Up Manager, the Verification Agent and the Indenture Trustee, shall be applied to the payment of the Obligations on the Payment Date immediately following such election with any applicable Prepayment Consideration in direct order of alphanumerical designation; provided that, to the extent no written notice is given within such thirty (30) day period, the Issuer shall be deemed to have elected not to restore or replace the Fiber Network Assets or other property of the Asset Entities at the Fiber Network. In connection with any determination required to be made by the Servicer pursuant to this Section 7.06, the Servicer shall be entitled to request and conclusively rely on any determination made by the Manager or a certificate or opinion from an independent certified public accountant or other expert appointed in connection with its determination to direct the Indenture Trustee with respect to such application of Insurance Proceeds and the Servicer shall have no liability for making any such determination solely on the basis of any such determinations made by the Manager or such certificates or opinions requested and received by it and failing to make such determination in the absence of its receipt of such determination of the Manager and such certificates or opinions. Any determination required to be made by the Servicer pursuant to this Section 7.06(c) may be based on, and subject to prior receipt from the Issuer of, an Independent Certificate from a third-party expert obtained by, and at the cost of, the Issuer.
(d) The Indenture Trustee shall not be obligated to disburse Insurance Proceeds more frequently than once every calendar month or without written direction from the Servicer or the Issuer. If Insurance Proceeds are applied to the payment of the Obligations, such application of Insurance Proceeds to principal shall be with any applicable Prepayment Consideration and shall not extend or postpone the due dates of the monthly payments due under the Notes or otherwise under the Transaction Documents, or change the amounts of such payments. If Fiber Network Assets or other property of an Asset Entity at a Fiber Network is sold at foreclosure or if the Indenture Trustee acquires ownership of Fiber Network Assets or other property of an Asset Entity at a Fiber Network, the Indenture Trustee shall have all of the right, title and interest of the applicable Asset Entity in and to any Insurance Proceeds and unearned premiums on Insurance Policies relating to such Fiber Network.
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(e) In no event shall the Indenture Trustee be obligated to make disbursements of Insurance Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Issuer, less a retainage equal to the greater of (x) the actual retainage required pursuant to the applicable contract, or (y) 10% of such costs incurred until the Restoration has been completed. The retainage shall in no event be less than the amount actually held back by the Asset Entities from contractors, subcontractors and materialmen engaged in the Restoration. The retainage shall not be released until the Restoration has been completed in accordance with the provisions of this Section 7.06 and that all approvals necessary for the use of the Fiber Network have been obtained from all appropriate Governmental Authorities, and the Issuer delivers to the Servicer final lien waivers and such other evidence reasonably satisfactory to the Servicer that the costs of the Restoration have been paid in full or will be paid in full out of the retainage.
Section 7.07. Inspection; Investigation. The Issuer shall permit, and shall cause each Asset Entity to permit, any authorized representatives designated by the Indenture Trustee or the Servicer to visit and inspect during normal business hours its Fiber Networks and its business, including its financial and accounting records, and to make copies and take extracts therefrom, to cause such records to be audited by independent public accountants and to discuss its affairs, finances and business with its officers and independent public accountants (with such party’s representative(s) present), at such reasonable times during normal business hours and as often as may be reasonably requested; provided that same is (x) conducted in such a manner as to not unreasonably interfere with such Obligor’s business and (y) only to the extent permitted under the relevant Fiber Network Underlying Rights Agreement. The Issuer shall permit, and shall cause each Asset Entity to permit, any authorized representatives designated by the Indenture Trustee and the Servicer to conduct site investigations of the Fiber Networks as may be reasonably requested with respect to environmental matters; provided that no subsurface investigations or other investigations that would reasonably be deemed to be intrusive shall be conducted without the prior written consent of the Issuer, such consent not to be unreasonably withheld and shall be to the extent permitted under the relevant Fiber Network Underlying Rights Agreement. Unless an Event of Default has occurred and is continuing or the Notes are Specially Serviced Notes, the Indenture Trustee and the Servicer shall provide advance written notice of at least three (3) Business Days prior to visiting or inspecting any Fiber Network or the Issuer’s office.
Section 7.08. Compliance with Laws and Obligations. The Issuer shall, and shall cause each Asset Entity to, (A) comply with the requirements of all present and future applicable laws, rules, regulations and orders of any Governmental Authority in all jurisdictions in which it is now doing business or may hereafter be doing business, other than those laws, rules, regulations and orders the noncompliance with which collectively could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect, (B) maintain all licenses and permits now held or hereafter acquired by any Obligor, the loss, suspension, or revocation of which, or failure to renew, in the aggregate could have a Material Adverse Effect and (C) perform, observe, comply and fulfill all of its material obligations, covenants and conditions contained in any Contractual Obligation except to the extent the failure to so observe, comply or fulfill such could not reasonably be expected to have a Material Adverse Effect.
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Section 7.09. Further Assurances. The Issuer shall, and shall cause each Asset Entity to, from time to time, execute or deliver such documents, instruments, agreements, financing statements, and perform such acts as might be necessary or the Indenture Trustee or the Servicer at any time may reasonably request to evidence, preserve or protect the Assets and Collateral at any time securing or intended to secure the Obligations or to better and more effectively carry out the purposes of this Base Indenture and the other Transaction Documents. The Obligors shall file or cause to be filed all documents (including all financing statements) required to be filed by the terms of this Base Indenture and any applicable Series Supplement in accordance with and within the time periods provided for in this Base Indenture and in each applicable Series Supplement. In furtherance of the foregoing, the Obligors shall use commercially reasonable efforts to ensure that UCC-3 termination statements are filed as soon as practicable following the Initial Closing Date with respect to all UCC-1 financing statements filed with respect to Indebtedness previously secured by any portion of the Collateral that was paid off on the Initial Closing Date.
Section 7.10. Performance of Agreements. The Issuer shall, and shall cause each Asset Entity to, duly and timely perform, observe and comply in all material respects with all of the terms, provisions, conditions, covenants and agreements on its part to be performed, observed and complied with (i) hereunder and under the other Transaction Documents to which it is a party, (ii) under all Material Agreements and Customer Agreements and (iii) all other agreements entered into or assumed by such Person in connection with the Fiber Networks, and shall not suffer or permit any material default or any event of default (giving effect to any applicable notice requirements and cure periods) to exist under any of the foregoing except where the failure to perform, observe or comply with any agreement referred to in clause (ii) or (iii) of this Section 7.10 would not reasonably be expected to have a Material Adverse Effect. No Obligor shall consent to any amendment, waiver or termination of, or with respect to, any Transaction Document (or any agreement which requires consent of any Obligor to amend under the terms of any Transaction Document) without written consent of the Indenture Trustee if so required by Section 13.01.
Section 7.11. Advance Fees; New Customer Agreements. Any Fees which constitute Advance Fee Reserve Deposits shall be deposited into the applicable Advance Fee Reserve Account to be applied in accordance with Section 4.04 and the Cash Management Agreement. The Obligors, at the written request of the Indenture Trustee, acting at the written direction of the Servicer, shall furnish the Indenture Trustee or Servicer, as applicable, with executed copies of all Material Customer Agreements entered into after the Initial Closing Date.
Section 7.12. Management Agreement.
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(a) The Issuer shall, and shall cause the Asset Entities to, (i) perform and observe all of the material terms, covenants and conditions of the Management Agreement on the part of each Asset Entity to be performed and observed, (ii) promptly notify the Indenture Trustee, the Back-Up Manager and the Servicer in writing of any notice to any of the Asset Entities of any material default under the Management Agreement of which it has Knowledge, and (iii) prior to termination of the Manager in accordance with the terms of the Management Agreement, renew the Management Agreement prior to each expiration date thereunder in accordance with its terms. If any Asset Entity shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of such Asset Entity to be performed or observed, then, without limiting the Indenture Trustee’s other rights or remedies under this Base Indenture or the other Transaction Documents, and without waiving or releasing such Asset Entity from any of its obligations hereunder or under the Management Agreement, the Issuer grants the Indenture Trustee or the Servicer on its behalf the right, upon prior written notice to such Asset Entity, to pay any sums and to perform any act as may be reasonably appropriate to cause such material conditions of the Management Agreement on the part of such Asset Entity to be performed or observed; provided that neither the Indenture Trustee nor the Servicer shall be under any obligation to pay such sums or perform such acts.
(b) The Issuer shall not permit the Asset Entities to surrender, terminate,
cancel, or modify (other than non-material changes), the Management Agreement, or enter into any other Management Agreement with any new Manager (other than an Acceptable Manager), or consent to the assignment by the Manager of its interest under the Management Agreement, in each case without delivery of a Rating Agency Confirmation and written consent of the Servicer. If at any time the Servicer consents to the appointment of a new Manager, or if an Acceptable Manager shall become a Manager, such new Manager, or the Acceptable Manager, as the case may be, then the Issuer shall cause the Asset Entities to, as a condition of the Servicer’s consent, or with respect to an Acceptable Manager, prior to commencement of its duties as Manager, execute a subordination of management agreement in substantially the form delivered on the Initial Closing Date.
(c) The Servicer shall have the right to require that the Manager be replaced in the manner set forth in the Management Agreement following the occurrence and continuation of a Manager Termination Event pursuant to the Management Agreement.
(d) The Indenture Trustee, the Verification Agent, the Back-Up Manager and the Servicer are each permitted to utilize and in good faith rely upon the advice of the Manager (or to utilize other agents or attorneys), at the cost of the Manager or the Issuer, as an Additional Obligor Expense, in performing certain of its obligations under this Base Indenture and the other Transaction Documents, including Fiber Network management, operation, and maintenance; Fiber Network Asset dispositions and releases; any Restoration or Remedial Work; and confirmation of compliance by the Issuer with the provisions hereunder and under the other Transaction Documents and none of the Indenture Trustee, the Verification Agent, the Back-Up Manager or the Servicer shall have any liability with respect thereto.
Section 7.13. Maintenance of Office or Agency by Issuer.
(a) The Issuer shall maintain an office, agency or address where Notes (or evidence of ownership of Uncertificated Notes) may be presented or surrendered for payment, where Notes may be surrendered for registration of transfer or exchange, and where notices and demands to or upon the Issuer in respect of the Notes, this Base Indenture and any Indenture Supplement may be served. The Issuer shall give prompt written notice to the Indenture Trustee of the location, and any change in the location, of such office, agency or address; provided that if the Issuer does not furnish the Indenture Trustee with an address in the City of New York where Notes may be presented or surrendered for payment, such presentations, surrenders, notices, and demands may be made or served at the Corporate Trust Office, and the Issuer hereby appoints the Indenture Trustee to receive all such presentations, surrenders, notices, and demands on behalf of the Issuer. The Issuer hereby appoints the Corporate Trust Office as its agency for such purposes.
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(b) 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. The Issuer shall give prompt written notice to the Indenture Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Section 7.14. Deposits; Application of Deposits. On and after the Initial Closing Date, the Customers shall be directed by or on behalf of the Obligors to pay all Fees and other amounts due to the Asset Entities pursuant to the Customer Agreements (other than Excluded Amounts) directly to the applicable Control Account, and the Obligors agree to deposit all other Receipts due to the Asset Entities in respect of the Fiber Network Assets that have not been identified as Excluded Amounts that are paid by a Customer into an account other than a Control Account or that are otherwise received but not deposited directly into a Control Account, in all cases within two (2) Business Days following identification of such amounts by the Manager or the Obligors, to the Control Accounts pursuant to Section 3.02(a). All such deposits to the Control Accounts and amounts subsequently withdrawn from the Control Accounts for deposit to the Collection Account shall be allocated and applied pursuant to the terms of the Cash Management Agreement and this Base Indenture.
Section 7.15. Estoppel Certificates.
(a) Within ten Business Days following a written request by the Indenture Trustee or the Servicer, the Issuer shall provide to the Indenture Trustee and the Servicer a duly acknowledged written statement (upon which the Indenture Trustee and the Servicer may conclusively rely with no obligation to verify or confirm and with no liability therefor) confirming (i) the amount of the Outstanding Note Principal Balance of the Notes, (ii) the terms of payment and maturity date of the Notes, (iii) the date to which interest has been paid, (iv) whether any offsets or defenses exist against the Obligations, and if any such offsets or defenses are alleged to exist, the nature thereof shall be set forth in detail and (v) that this Base Indenture, the Notes and the other Transaction Documents are legal, valid and binding obligations of the Issuer and each Asset Entity (as applicable) and have not been modified or amended except in accordance with the provisions thereof.
(b) Within ten Business Days following a written request by the Issuer, the Indenture Trustee shall provide to the Issuer a duly acknowledged written statement setting forth the amount of the Outstanding Note Principal Balance of the Notes, the date to which interest has been paid, and whether the Indenture Trustee has provided the Issuer, on behalf of itself and the Asset Entities, with written notice of any Event of Default. Compliance by the Indenture Trustee with the requirements of this Section 7.15 shall be for informational purposes only and shall not be deemed to be a waiver of any rights or remedies of the Indenture Trustee hereunder or under any other Transaction Document.
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Section 7.16. Indebtedness. The Issuer shall not, and shall not permit the Asset Entities to, create, incur, assume, guarantee, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the following (collectively, “Permitted Indebtedness”):
(a) The Obligations; and
(b) (i) Unsecured trade payables not evidenced by a note and arising out of purchases of goods or services in the ordinary course of business, (ii) Indebtedness incurred in the financing of equipment and other personal property used in connection with the Fiber Networks in the ordinary course of business and (iii) reimbursement obligations to the Manager; provided that (A) none of such trade payables or other Indebtedness is secured by a lien on the Collateral or Assets of the Asset Entities, (B) each such trade payable is payable not later than 60 days after the original invoice date and is not overdue by more than 30 days and (C) the aggregate amount of all Indebtedness referred to in clauses (i), (ii) and (iii) of this Section 7.16(b) for all the Asset Entities (which, for the avoidance of doubt, excludes Revenue Sharing Payments and Fiber Network Operating Expenses) does not, at any time, exceed an amount equal to 5% of the aggregate initial Class Principal Balance of all Classes of then-Outstanding Notes in the aggregate.
In no event shall any Indebtedness (including any Permitted Indebtedness) other than the Obligations be secured, in whole or in part, by the Collateral or other Assets or any portion thereof or interest therein or any proceeds of any of the foregoing (other than Permitted Encumbrances).
Section 7.17. No Liens. None of the Issuer or the Asset Entities shall create, incur, assume or permit to exist any Lien on or with respect to the Fiber Networks or any other Collateral except Permitted Encumbrances.
Section 7.18. Contingent Obligations. Other than Permitted Indebtedness, the Issuer shall not, and shall not permit the Asset Entities to, create or become or be liable with respect to any material Contingent Obligation.
Section 7.19. Restriction on Fundamental Changes. Except as otherwise expressly permitted in this Base Indenture, the Issuer shall not, and shall not permit the Asset Entities to, (i) amend, modify or waive any term or provision of their respective articles of incorporation, by-laws, articles of organization, limited liability company agreements or other organizational documents so as to violate or permit the violation of the provisions of Article VIII, unless required by law; or (ii) liquidate, wind-up or dissolve such Asset Entity; provided that nothing contained in this Section 7.19 shall restrict the merger, consolidation or amalgamation of one Asset Entity into another Asset Entity so long as the surviving entity is an Asset Entity.
Section 7.20. Bankruptcy, Receivers, Similar Matters. An Obligor shall not apply for, consent to, aid, solicit, support, or otherwise act, cooperate or collude to cause the appointment of or taking possession by, a receiver, trustee or other custodian for all or a substantial part of the assets of any other Obligor. As used in this Base Indenture, an “Involuntary Obligor Bankruptcy” shall mean any involuntary case under the Bankruptcy Code or any other applicable bankruptcy, insolvency or other similar law now or hereafter in effect, in which any Obligor is a debtor or any portion of the Assets is property of the estate therein. An Obligor shall not file a petition for, consent to the filing of a petition for, aid, solicit, support, or otherwise act, cooperate or collude to cause the filing of a petition for an Involuntary Obligor Bankruptcy. In any Involuntary Obligor Bankruptcy, the other Obligors shall not, without the prior written consent of the Indenture Trustee (acting at the written direction of the Servicer) and the Servicer, consent to the entry of any order, file any motion, or support any motion (irrespective of the subject of the motion), and such Obligors shall not file or support any plan of reorganization. In any Involuntary Obligor Bankruptcy, the other Obligors shall do all things reasonably requested by the Indenture Trustee and the Servicer to assist the Indenture Trustee and the Servicer in obtaining such relief as the Indenture Trustee and the Servicer shall seek, and shall in all events vote as directed by the Indenture Trustee (acting at the written direction of the Servicer). Without limitation of the foregoing, each such Obligor shall do all things reasonably requested by the Indenture Trustee (acting at the written direction of the Servicer) to support any motion for relief from stay or plan of reorganization proposed or supported by the Indenture Trustee (acting at the written direction of the Servicer).
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Section 7.21. ERISA.
(a) No ERISA Plans. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Issuer shall not, and shall not permit any Asset Entity to, establish any Employee Benefit Plan or Multiemployer Plan, or commence making contributions to (or become obligated to make contributions to) any Employee Benefit Plan or Multiemployer Plan.
(b) Compliance with ERISA. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Issuer shall not, and shall not permit the Asset Entities to: (i) engage in any non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code; or (ii) except as may be necessary to comply with applicable laws, establish or amend any Employee Benefit Plan, which establishment or amendment could result in liability to the Obligors or increase the benefits obligation of the Obligors (including on behalf of any ERISA Affiliate thereof); provided that if the Issuer is in default of this covenant under subsection (i), the Issuer shall be deemed not to be in default if such default results solely because (x) any portion of the Notes have been, or will be, funded with plan assets of any Plan and (y) the purchase or holding of such portion of the Notes by such Plan or the operation of the Issuer or the Asset Entities constitutes or results in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or a violation of applicable Other Plan Laws.
Section 7.22. Money for Payments to be Held in Trust.
(a) The Paying Agent is hereby authorized to pay the principal of and interest on any Notes (as well as any other Obligation hereunder and under any other Transaction Document) on behalf of the Issuer and shall have an office or agency in Jersey City, New Jersey, where Notes may be presented or surrendered for payment and where notices, designations or requests in respect for payments with respect to the Notes and any other Obligations due hereunder and under any other Transaction Document may be served. The Issuer hereby appoints the Indenture Trustee as the initial Paying Agent for amounts due on the Notes of each Series and the other Obligations.
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(b) On each Payment Date (or such other dates as may be required or permitted hereunder) the Paying Agent shall cause all payments of amounts due and payable with respect to any Notes and other Obligations that are to be made from amounts in the Collection Account to be made on behalf of the Issuer by the Paying Agent, and no such amounts shall be paid over to the Issuer. All such payments shall be made based on the information set forth in the Manager Report.
(c) Subject to applicable laws with respect to escheatment of funds, any money held by the Indenture Trustee or any Paying Agent in trust for the payment of any amount due with respect to any Note and remaining unclaimed for two years after such amount has become due and payable shall be discharged from such trust and be paid to or at the direction of the Issuer on an Issuer Request; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof (but only to the extent of the amounts so paid to the Issuer), and all liability of the Indenture Trustee or such Paying Agent with respect to such trust money shall thereupon cease. The Indenture Trustee shall also adopt and employ, at the expense and direction of the Issuer, any other reasonable means of notification of such repayment (including mailing notice of such repayment to Holders whose right to or interest in monies due and payable but not claimed is determinable from the records of the Indenture Trustee or of any Paying Agent, at the last address of record for each such Holder).
Section 7.23. Fiber Network Underlying Rights Agreements.
(a) Modification. Except as provided in this Section 7.23, the Issuer shall not, and shall not permit the Asset Entities to, modify or amend any material substantive or economic terms of, or, subject to the terms herein, terminate or surrender any Fiber Network Underlying Rights Agreement, in each case without the prior written consent of the Manager (or, at any time the Notes are Specially Serviced Notes, the Servicer), which consent shall not be unreasonably withheld, conditioned or delayed. Any such attempted or purported material modification, amendment, or any surrender, termination, sale or assignment of any Fiber Network Underlying Rights Agreement without the Manager’s (or, at any time that the Notes are Specially Serviced Notes, the Servicer’s) prior written consent shall be null and void and of no force or effect. Notwithstanding the foregoing to the contrary, the Asset Entities shall be permitted, without the consent of the Indenture Trustee, the Manager or the Servicer, to:
(i) extend or expand the terms of the Fiber Network Underlying Rights Agreement on commercially reasonable substantive and economic terms; or
(ii) terminate or sell (including by way of assignment) any Fiber Network Underlying Rights Agreement which the Issuer reasonably deems necessary in accordance with prudent business practices subject to the provisions of Section 7.10.
(b) Performance of Fiber Network Underlying Rights Agreements. The Issuer shall cause each Asset Entity to fully perform as and when due each and all of its obligations under each applicable Fiber Network Underlying Rights Agreement in accordance with the terms of such Fiber Network Underlying Rights Agreement and shall not permit such Asset Entity to cause or suffer to occur any material breach or default in any of such obligations. The Issuer shall cause each Asset Entity to exercise any option to renew or extend any Fiber Network Underlying Rights Agreement; provided that an Asset Entity may elect not to exercise any such option if, and to the same extent that, such Asset Entity would be entitled to terminate, sell or assign such Fiber Network Underlying Rights Agreement pursuant to Section 7.23(a). If an Asset Entity does intend to exercise such option, the Issuer shall give the Servicer 30 days prior written notice thereof.
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(c) Notice of Default. If any Asset Entity shall have or receive any written notice that any Fiber Network Underlying Rights Default has occurred, the effect of which, in such Asset Entity’s reasonable opinion, is likely to result in the termination of the applicable Fiber Network Underlying Rights Agreement, then the Issuer shall, within three Business Days of receipt of such notice, notify the Indenture Trustee, the Back-Up Manager and the Servicer in writing of the same and deliver to the Indenture Trustee, the Back-Up Manager and the Servicer a true and complete copy of each such notice. Further, the Issuer shall provide such documents and information as the Indenture Trustee, the Back-Up Manager and the Servicer shall reasonably request concerning such Fiber Network Default.
(d) The Servicer’s Right to Cure. Each Obligor agrees that if any Fiber Network Underlying Rights Default shall occur and be continuing, or if any property owner, utility or municipal authority or other counterparty to a Fiber Network Underlying Rights Agreement asserts in writing that a Fiber Network Underlying Rights Default has occurred (whether or not such Obligor questions or denies such assertion), then, subject to (i) the terms and conditions of the applicable Fiber Network Underlying Rights Agreement, and (ii) the Asset Entities’ right to terminate, sell or assign the applicable Fiber Network Underlying Rights Agreement in accordance with Section 7.23(a), the Servicer, upon five Business Days’ prior written notice to the Issuer, unless the Servicer reasonably determines that a shorter period (or no period) of notice is necessary to protect the Indenture Trustee’s interest in such Fiber Network Underlying Rights Agreement, may (but shall not be obligated to, regardless of the Servicing Standard (if the Notes are not then Specially Serviced Notes) and consistent with the Servicing Standard (if the Notes are then Specially Serviced Notes)) take any action that the Servicer deems reasonably necessary, including (i) performance or attempted performance of the applicable Asset Entity’s obligations under such Fiber Network Underlying Rights Agreement, (ii) curing or attempting to cure any actual or purported Fiber Network Underlying Rights Default, (iii) mitigating or attempting to mitigate any damages or consequences of the same and (iv) access to the applicable Fiber Network Asset for any or all of such purposes. Upon the Indenture Trustee’s or the Servicer’s reasonable request, the Issuer shall submit satisfactory evidence of payment or performance of any of its obligations under the applicable Fiber Network Underlying Rights Agreement. The Servicer may pay and expend such sums of money as the Servicer in its sole discretion deems necessary or desirable for any such purpose, and the Issuer shall pay to the Servicer, within five Business Days of the written demand of the Servicer all such sums so paid or expended by the Servicer.
Section 7.24. Rule 144A Information. For so long as any of the Notes are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Issuer agrees to provide to any Noteholder or Note Owner, and to any prospective purchaser of Notes designated by such Noteholder or Note Owner upon the request of such Noteholder or Note Owner or prospective purchaser, any information required to be provided to such holder, owner or prospective purchaser to satisfy the conditions set forth in Rule 144A(d)(4) under the Securities Act.
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Section 7.25. Notice of Events of Default. The Issuer shall give the Indenture Trustee, the Servicer, the Back-Up Manager and the Rating Agencies prompt written notice of each Default of which it obtains Knowledge and each Event of Default and shall give the Indenture Trustee, the Back-Up Manager and the Servicer written notice of each default on the part of any party to the other Transaction Documents with respect to any of the provisions thereof of which the Issuer obtains Knowledge.
Section 7.26. Maintenance of Books and Records. The Issuer shall, and shall cause the Asset Entities to, maintain and implement administrative and operating procedures reasonably necessary in the performance of their obligations hereunder and the Issuer shall, and shall cause the Asset Entities to, keep and maintain at all times, or cause to be kept and maintained at all times, all documents, books, records, accounts and other information reasonably necessary or advisable for the performance of their obligations hereunder to the extent required under applicable law.
Section 7.27. Continuation of Ratings. To the extent permitted by applicable laws, rules or regulations, the Issuer shall, and shall cause the Asset Entities to, (i) provide the Rating Agencies with information, to the extent reasonably obtainable by the Issuer or the Asset Entities, and take all reasonable action necessary to enable the Rating Agencies to monitor the credit ratings of the Notes and (ii) pay such ongoing fees of the Rating Agencies as they may reasonably request to monitor their respective ratings of the Notes.
Section 7.28. The Indenture Trustee’s, Back-Up Manager’s and Servicer’s Expenses. The Issuer shall pay, on demand by the Indenture Trustee, the Back-Up Manager or the Servicer, all reasonable out-of-pocket expenses, charges, costs and fees (including reasonable attorneys’ fees and expenses) and indemnities in connection with the negotiation, documentation, closing, administration, servicing, enforcement, interpretation, and collection of the Notes and the Transaction Documents, and in the preservation and protection of the Indenture Trustee’s rights hereunder and thereunder. Without limitation the Issuer shall pay all costs and expenses, including reasonable attorneys’ fees, incurred by the Indenture Trustee, Back-Up Manager and the Servicer in any case or proceeding under the Bankruptcy Code (or any law succeeding or replacing any of the same) involving the Obligors, the Manager (as long as the Manager is an affiliate of the Obligors) or the Guarantor. In addition, the Issuer shall pay all expenses, charges, costs, fees and liabilities incurred in connection with enforcing any right to payment, reimbursement and/or indemnity hereunder.
Section 7.29. Disposition of Fiber Networks and Fiber Network Assets.
(a) The Asset Entities shall not dispose or otherwise transfer Fiber Network Assets, except for dispositions as expressly permitted in this Section 7.29, Section 7.33 or Section 7.34.
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(b) Subject to clause (d) of this Section 7.29, the Asset Entities may dispose of Fiber Network Assets at any time to one or more Persons (including affiliates of the Asset Entities); provided that the Disposition Conditions are satisfied as certified to the Indenture Trustee, the Back-Up Manager and the Servicer by the relevant Asset Entities or the Issuer, as applicable (upon which certifications the Indenture Trustee, the Back-Up Manager and the Servicer are entitled to conclusively rely with no obligation to verify or confirm the contents thereof and with no liability thereof), and that the pro forma Senior DSCR after giving effect to such disposition and any concurrent repayment of the Notes is greater than or equal to the Senior DSCR immediately prior to such disposition. In connection with each disposition of a Fiber Network Asset (other than in connection with the prepayment of a Series of Notes in full pursuant to Section 7.33), the Issuer shall prepay the Notes in an amount equal to the applicable Release Price for such Fiber Network Assets.
(c) Notwithstanding the foregoing, the Asset Entities may dispose of Fiber Network Assets with a value less than $5,000,000.00 in the aggregate (including all such disposition following the Initial Closing Date) (which amount may be increased with Rating Agency Confirmation in connection with the issuance of Additional Notes) in accordance with prudent business practices; provided that the applicable Asset Entity has provided written certification to the Indenture Trustee, the Back-Up Manager and the Servicer that such Asset Entity has reasonably determined that it is necessary to terminate or otherwise dispose of such Fiber Network Assets in accordance with prudent business practices and the terms hereof in order to maximize the aggregate revenue of all Fiber Networks as a whole; provided, further, that during a Special Servicing Period, the Servicer consents thereto provided, further, that none of the Indenture Trustee, the Servicer or the Back-Up Manager shall have any obligation to verify or confirm the contents of such certification and shall have no liability therefor.
(d) In connection with any disposition permitted by this Section 7.29, the Manager shall deliver an Officer’s Certificate to the Servicer, the Back-Up Manager and the Indenture Trustee to the effect that any applicable conditions to such disposition have been (or shall concurrently therewith be) satisfied and directing the Indenture Trustee in writing to release any security interests associated with the disposed Fiber Network Assets, upon which the Indenture Trustee, the Back-Up Manager and the Servicer shall be permitted to fully rely, and the Indenture Trustee shall thereupon take such actions as directed to release any security interests on the Collateral associated with the disposed Fiber Network Assets as the Issuer may reasonably request in writing with no obligation to verify or confirm the contents of such Officer’s Certificate or directions and with no liability therefor.
(e) The rights set forth in this Section 7.29 shall be in addition to the rights related the disposition of Fiber Network Assets set forth in Section 7.33. The Issuer shall be permitted to make dispositions of real property interests owned by the Issuer that are not Fiber Network Assets without regard to the provisions applicable to dispositions set forth in this Section 7.29 or Section 7.33.
(f) For purposes of this Section 7.29, the Issuer, in lieu of disposing individual Fiber Network Assets, may dispose of all, but not less than all, of the Equity Interests of an Asset Entity; provided that for purposes of this Section 7.29, the designation of all of the Fiber Networks owned by such Asset Entity otherwise would satisfy the requirements of Section 7.29(b) or 7.29(c), and the Issuer complies with the provisions thereof as if it had disposed of such Fiber Network Assets individually.
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Section 7.30. Environmental Remediation. Each Asset Entity agrees to commence within 30 days (or such shorter period as may be required by law) after written demand by the Indenture Trustee (acting at the written direction of the Majority Controlling Class) or the Servicer (solely after a Responsible Officer of the Servicer received written notice of the requirement for such Remedial Work with respect to any Fiber Network is required by applicable environmental law) and diligently prosecute to completion any Remedial Work to the extent required under applicable Environmental Laws (it being understood that such Asset Entity is not obligated to perform any such Remedial Work that a Customer is contractually obligated to perform). If an Asset Entity fails to promptly commence and diligently pursue to completion any such Remedial Work with respect to any Specially Serviced Fiber Network, the Servicer may (but shall not be obligated to), upon 30 days prior notice to the Issuer of its intention to do so, cause such Remedial Work to be performed to the extent required by applicable Environmental Laws. In connection with any such Remedial Work with respect to any Fiber Network that is projected to cost in excess of $1,000,000, the applicable Asset Entity agrees to cause such Remedial Work to be performed by licensed contractors. The Obligors agree to pay and reimburse the Servicer for all expenses reasonably incurred by the Servicer in connection with (a) monitoring, reviewing or performing such Remedial Work, (b) investigating potential environmental claims against the Asset Entities or (c) participating in any legal or administrative proceeding concerning any applicable Environmental Law.
Section 7.31. Limitation on Certain Issuances and Transfers. The Issuer shall not issue any Series of Tax Restricted Notes, permit the issuance or transfer of any Equity Interests of the Issuer or permit the issuance or transfer of any other interest in the Issuer that may be treated as equity of the Issuer if after giving effect thereto the sum of (a) the aggregate maximum number of Holders and Beneficial Owners for all Series and Classes of Tax Restricted Notes (including the Tax Restricted Notes to be issued), (b) the number of holders and beneficial owners of Equity Interests of the Issuer and (c) the number of holders and beneficial owners of any other interests in the Issuer that are or may be treated as equity of the Issuer (all as determined for purposes of Treasury regulation 1.7704-1(h)), would exceed 90.
Section 7.32. Tax Status. The Issuer and each of the Asset Entities agree that, as of the Initial Closing Date (in the case of the Issuer and the Closing Date Asset Entities) or as of the date of its joinder to this Base Indenture (in the case of an Additional Asset Entity), it shall maintain its status as an entity not treated for U.S. federal income tax purposes as a corporation or other entity taxable as a corporation.
Section 7.33. Disposition of Fiber Network Assets in Connection with the Prepayment of a Series of Notes. Notwithstanding anything to the contrary in Section 7.29, in connection with a payment in full of the Outstanding Note Principal Balance of a Series of Notes, the Asset Entities may dispose of Fiber Network Assets, and the Issuer may dispose of one or more Asset Entities that own Fiber Network Assets, to one or more Persons (including Affiliates of the Asset Entities); provided that if there are any Continuing Notes following such payment of a Series of Notes in full, the following conditions must be satisfied, as certified to the Indenture Trustee, the Back-Up Manager and the Servicer by the relevant Asset Entities or the Issuer, as applicable: (a) no Event of Default has occurred and is continuing and no Amortization Period has commenced, (b) during a Special Servicing Period, the Servicer consents thereto, (c) written notice is provided by the Issuer (or the Manager on its behalf) to each Rating Agency with respect to such disposition and if the aggregate Allocated Note Amount of all Fiber Networks released since the Initial Closing Date, after taking into account the proposed release, is greater than 10% of the aggregate initial Class Principal Balances of all Classes of then-Outstanding Notes, a Rating Agency Confirmation is obtained; provided that after each such Rating Agency Confirmation is obtained, the Obligors may dispose of Fiber Networks having aggregate Allocated Note Amounts in amount equal to an additional 10% of the aggregate initial Class Principal Balances of all Classes of then-Outstanding Notes prior to obtaining an additional Rating Agency Confirmation and (d) the pro forma Leverage Ratio after giving effect to such disposition and any concurrent repayment of the Notes is less than or equal to the greater of (x) 10.25x and (y) the Leverage Ratio as of the date of the most recent issuance of Additional Notes (after giving effect to the issuance of such Additional Notes), (the conditions set forth in clauses (a) through (d) collectively, the “Disposition Conditions”); provided that the Servicer, the Indenture Trustee, the Verification Agent and the Back-Up Manager have been paid all unpaid Additional Obligor Expenses and all other unpaid fees, indemnification amounts and expenses to the extent then due and payable to the Servicer, the Back-Up Manager, the Verification Agent and the Indenture Trustee, as applicable, under the Transaction Documents (in each case only to the extent sufficient funds for payment in full of such amounts have not been deposited in the Collection Account for distribution on the applicable Payment Date). The Indenture Trustee, the Servicer and the Back-Up Manager shall be entitled to fully rely on such certification with no obligation to verify or confirm the contents thereof and with no liability therefor. The Verification Agent shall be responsible for verifying the Allocated Note Amounts and Leverage Ratio.
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Section 7.34. Substitution of Fiber Networks.
The Asset Entities may at any time on or prior to the earliest Anticipated Repayment Date for any Series of Notes then outstanding substitute new Fiber Networks, the Fiber Network Assets related thereto to be owned by such Asset Entity or another Asset Entity for the Fiber Networks with related Fiber Network Assets then owned by an Asset Entity; provided that (a) Rating Agency Confirmation is received with respect to such substitution and (b) as certified in writing to the Servicer and the Indenture Trustee by the Manager, (i) the Allocated Note Amounts of the replacement Fiber Networks substituted during any calendar year (other than those replaced to cure a default) do not in the aggregate exceed 5% of the aggregate Class Principal Balance of all Classes of Notes (with any unused portion of such limit being permitted to be carried over into subsequent years subject to a carryover limit of 25%), (ii) after giving effect to such substitution, the DSCR is no less than the DSCR immediately prior to such substitution, (iii) the replacement Fiber Network is subject to one or more Customer Agreements, (iv) after giving effect to such substitution, (A) the Leverage Ratio is not greater than 10.25x and (B) the Class A Leverage Ratio is not greater than 6.25x; and (v) such substitute Fiber Networks and related Fiber Network Assets shall be fiber-based and used in residential, governmental and commercial fiber-to-the-premises business lines substantially similar to those of the Fiber Networks owned by the Closing Date Asset Entity on the Initial Closing Date. The Indenture Trustee and the Servicer shall be entitled to fully rely on such certification with no obligation to verify or confirm the contents thereof and with no liability therefor. The Verification Agent shall be responsible for verifying the Allocated Note Amounts, Leverage Ratio, Class A Leverage Ratio and Senior DSCR. In connection with any such substitution, the Indenture Trustee and the Servicer shall receive Opinions of Counsel (consistent with the Opinions of Counsel delivered on the Initial Closing Date) as they may reasonably request.
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Section 7.35. Sub-Servicers.
The Issuer shall assist and cooperate with the Servicer to obtain Rating Agency Confirmation in respect of any Sub-Servicing Agreement (as defined in the Servicing Agreement).
ARTICLE VIII
SINGLE-PURPOSE, BANKRUPTCY-REMOTE REPRESENTATIONS,
WARRANTIES AND COVENANTS
Section 8.01. Applicable to the Issuer and the Asset Entities. The Issuer hereby represents, warrants and covenants that since the formation of each of the Asset Entities and the Issuer, each of the Obligors has (or has not, as applicable), and as of the Initial Closing Date (or the date upon which an applicable Asset Entity becomes party to this Base Indenture) and until such time as all Obligations are paid in full, each of the Obligors:
(a) except for properties, or interests therein, which such Obligor has sold and for which such Obligor has no continuing obligations or liabilities, shall not own any assets other than (i) with respect to each Asset Entity, the direct or indirect ownership interests in any Additional Asset Entities, the Fiber Network Assets, the Customer Agreements, other property interests and Related Property (the “Underlying Interests”) and (ii) with respect to Issuer, direct or indirect ownership interests in the Asset Entities and Related Property (the “Asset Entity Interests”);
(b) will not engage in any business, directly or indirectly, other than the ownership, management and operation of the Underlying Interests or the Asset Entity Interests, as applicable;
(c) will not enter into any contract or agreement with any Related Party except in the ordinary course of business and upon terms and conditions that are commercially reasonable, intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with third parties other than a Related Party (it being understood that the Management Agreement and the other Transaction Documents comply with this covenant);
(d) has not incurred any Indebtedness that remains Outstanding as of the Initial Closing Date and shall not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than Permitted Indebtedness;
(e) has not made any loans or advances to any Person (other than among the Obligors) that remain Outstanding as of the Initial Closing Date and shall not make any loan or advance to any Person (including any of its Affiliates) other than another Obligor or as expressly permitted by the Transaction Documents, and has not acquired and shall not acquire obligations or securities of any Related Party;
(f) is and intends to remain solvent and to pay its own liabilities, indebtedness, and obligations of any kind from its own separate assets as the same shall become due, and intends to maintain adequate capital for its obligations in light of its contemplated business operations; provided that the foregoing shall not require any member of an Obligor to make additional capital contributions or provide other financial support to such Obligor;
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(g) will do all things necessary to preserve its existence and shall not, nor shall any Related Party or other Obligor, amend, modify or otherwise change its articles of incorporation, by-laws, articles of organization, operating agreement or other organizational documents in any manner with respect to the matters set forth in this Article VIII except as otherwise permitted under such organizational documents;
(h) shall continuously maintain its qualifications to do business in all jurisdictions necessary to carry on its business, except where the failure to so qualify would not reasonably be expected to have a Material Adverse Effect;
(i) will conduct and operate its business as presently contemplated with respect to the ownership of the Fiber Network Assets, Customer Agreements, or the Asset Entity Interests, as applicable;
(j) will maintain books and records and bank accounts separate from those of its Related Parties and any other Person (other than the Obligors) and shall maintain consolidated financial statements of the Issuer and its subsidiaries that are separate from their Affiliates (it being understood that the Obligors’ assets may also be included in consolidated financial statements of their Affiliates; provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Obligors from such Affiliates and to indicate that the Obligors’ assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) such assets shall also be included in the Issuer’s own separate consolidated financial statements to be delivered pursuant to Section 7.02(a)(iii));
(k) will hold itself out to the public as a legal entity separate and distinct from any other Person (including any of its Related Parties), and not as a department or division of any Person (other than the other Obligors) and shall correct any known misunderstandings regarding its existence as a separate legal entity;
(l) has not required and shall not require any employees to conduct its business operations; provided that any expenses related to the conduct of its business operations have been paid and shall be paid solely from its own funds;
(m) will allocate, fairly and reasonably any shared expenses with Related Parties (including shared office space);
(n) will use stationery, invoices and checks bearing its own name (including any trade name) and separate from those of any Related Party (it being understood that the Obligors are expressly permitted to use common stationery, invoices and checks among the Obligors);
(o) will file all such separate tax returns with respect to an Obligor (or consolidated tax returns for two or more Obligors, if applicable) that are required under applicable law;
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(p) intends to maintain adequate capital for its obligations in light of its contemplated business operations; provided that the foregoing shall not require its respective Member to make additional capital contributions to such Obligor;
(q) will not seek, acquiesce in, or suffer or permit, its liquidation, dissolution or winding up, in whole or in part;
(r) except as otherwise permitted in the Transaction Documents, shall not enter into any transaction of merger, consolidation, amalgamation, sell all or substantially all of its assets or acquire by purchase or otherwise all or substantially all of the business or assets (unless in the case of an asset acquisition, all such assets consist of Fiber Network Assets, Customer Agreements and Related Property) of or any stock or beneficial ownership of, any Person;
(s) will not commingle or permit to be commingled, its funds or other assets with those of any other Person (other than, with respect to the Obligors, each other Obligor, or as may be held by the Manager, as agent, for each Asset Entity pursuant to the terms of the Management Agreement);
(t) will maintain its assets in such a manner that it is not costly or difficult to segregate, ascertain or identify its individual assets from those of any Related Party;
(u) will not hold itself out to have guaranteed or otherwise be responsible for the debts or obligations of any other Person (other than any obligations (x) of another Obligor, including the Obligations or (y) that are no longer outstanding on the later of the Initial Closing Date or the date on which an applicable Asset Entity becomes party to this Base Indenture);
(v) has not guaranteed or otherwise become liable in connection with any obligation of any other Person (other than the other Obligors) that remains outstanding, and shall not guarantee or otherwise become liable on or in connection with any obligation (other than the Obligations) of any other Person (other than the other Obligors) that remains outstanding;
(w) will not pledge its assets to secure obligations of any other Person (other than the other Obligors);
(x) except for funds deposited into the Accounts in accordance with the Transaction Documents, shall not hold title to its assets other than in its name (including any trade name);
(y) shall hold all of its assets solely in its own name (including any trade name) or in the name of another Obligor;
(z) shall comply in all material respects with all of the assumptions, statements, certifications, representations, warranties and covenants regarding or made by it contained in or appended to the non-consolidation opinion delivered pursuant hereto on the Initial Closing Date;
(aa) will continue to conduct its business solely in its own name (including any trade name);
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(bb) will continue to observe all limited liability company or other applicable corporate formalities; and
(cc) since the Initial Closing Date, has not formed, acquired or held any subsidiary (other than another Obligor) and shall not form, acquire or hold any subsidiary (other than another Obligor).
Section 8.02. Applicable to the Issuer. In addition to its respective obligations under Section 8.01, and without limiting the provisions of Section 7.20, the Issuer hereby represents, warrants and covenants as of the Initial Closing Date and until such time as all Obligations are paid in full:
(a) The Issuer shall not, and the Issuer shall not in its capacity as the sole member of any Asset Entity, permit such Asset Entity to, without the prior unanimous written consent of the board of directors of the Issuer, including the independent directors of such board, institute proceedings for any of themselves to be adjudicated bankrupt or insolvent; consent to the institution of bankruptcy or insolvency proceedings against themselves; file a voluntary bankruptcy petition or any other petition seeking, or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) for themselves or a substantial part of their property; make or consent to any assignment for the benefit of creditors; or admit in writing their inability to pay their debts generally as they become due; and
(b) The Issuer has and at all times shall maintain at least two (2) independent directors on its board of directors, who shall be selected by the Member of the Issuer.
ARTICLE IX
SATISFACTION AND DISCHARGE
Section 9.01. Satisfaction and Discharge of Base Indenture. This Base Indenture shall cease to be of further effect with respect to any Notes of a particular Series except as to (i) rights of registration of transfer and exchange (or de-registration and/or registration of Uncertificated Notes), (ii) substitution of mutilated, destroyed, lost or wrongfully taken Notes of a particular Series, (iii) rights of Noteholders of a particular Series to receive payments of principal thereof and interest thereon, (iv) the rights, obligations and immunities of the Indenture Trustee hereunder (including the rights of the Indenture Trustee under Section 11.02 and the obligations of the Indenture Trustee under Section 9.02), and (v) the rights of Noteholders of a particular Series as beneficiaries hereof with respect to the property so deposited with the Indenture Trustee payable to all or any of them, and the Indenture Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments, to be prepared by the Issuer or its counsel, acknowledging satisfaction and discharge of this Base Indenture with respect to the Notes of a particular Series, when:
(a) either of
(i) all Notes of such Series theretofore authenticated and delivered (or with respect to Uncertificated Notes, registered) (other than (i) Notes of a particular Series that have been mutilated, destroyed, lost or wrongfully taken and that have been replaced or paid as provided in Section 2.04 and (ii) Notes of a particular Series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust, as provided in Section 7.22) have been delivered to the Indenture Trustee for cancellation; or
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(ii) all Notes of such Series not theretofore delivered to the Indenture Trustee for cancellation have become due and payable and the Issuer has irrevocably deposited or caused to be irrevocably deposited with the Indenture Trustee cash or direct obligations of or obligations guaranteed by the United States of America (which shall mature prior to the date such amounts are payable), in trust for such purpose, in an amount sufficient to pay and discharge the entire indebtedness on such Notes not theretofore delivered to the Indenture Trustee for cancellation, for principal and interest to the date of such deposit;
(b) the Issuer has paid or caused to be paid all Obligations and other sums due and payable hereunder by the Issuer in respect of such Series and all commitments to extend credit under all Class A-1-V Note Purchase Agreements, and all Class A-1-L Note Purchase Agreements have been terminated by the Issuer in respect of such Series; and
(c) the Issuer has delivered to the Indenture Trustee an Officer’s Certificate, an Opinion of Counsel and (if required by the Indenture Trustee in its sole discretion with no liability therefor) an Independent Certificate from a firm of certified public accountants, each meeting the applicable requirements of Section 15.01 and, subject to Section 15.02, each stating that all conditions precedent provided for in this Base Indenture relating to the satisfaction and discharge of this Base Indenture with respect to such Series have been complied with.
Section 9.02. Application of Trust Money. With respect to such Series, all monies deposited with the Indenture Trustee pursuant to Section 9.01 shall be held in trust and applied by the Indenture Trustee, in accordance with the provisions of the Notes of such Series and this Base Indenture, to the payment through the Paying Agent to the Holders of the particular Notes of such Series for the payment of which such monies have been deposited with the Indenture Trustee, of all sums due and to become due thereon for the Note Principal Balance of such Notes and interest but such monies need not be segregated from other funds except to the extent required in this Base Indenture or required by law.
Section 9.03. Repayment of Monies Held by Paying Agent. With respect to each Series, in connection with the satisfaction and discharge of this Base Indenture, all monies then held by any Paying Agent other than the Indenture Trustee under the provisions of this Base Indenture with respect to such Notes shall, upon demand of the Issuer, be paid to the Indenture Trustee to be held and applied according to Section 7.22 and thereupon such Paying Agent shall be released from all further liability with respect to such monies.
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ARTICLE X
EVENTS OF DEFAULT; REMEDIES
Section 10.01. Events of Default. Subject to the standard of care set forth in Section 11.01(a), which standard may require the Indenture Trustee to act, any rights or remedies granted to the Indenture Trustee under this Article X or elsewhere in this Base Indenture and the other Transaction Documents, upon the occurrence of an Event of Default, are hereby expressly delegated to and assumed by the Servicer, who shall act on behalf of the Indenture Trustee with respect to all enforcement matters relating to any such Event of Default, including the right to institute and prosecute any Proceeding on behalf of the Indenture Trustee and the Noteholders and other Secured Parties and direct the application of monies held by the Indenture Trustee (to the extent the Indenture Trustee has the discretion hereunder to apply such monies as it deems necessary or appropriate); provided that such delegation of authority shall not apply to any matters relating to the Controlling Class Representative set forth in Section 10.05; provided, further, that the Servicer shall have the benefit of the Indenture Trustee’s exculpation rights and protections under this Base Indenture (including Article X) in connection with such performance (in addition to such exculpation rights and protections afforded to it under the Servicing Agreement). The Servicer agrees to keep the Indenture Trustee informed on a reasonably current basis in its exercise of any rights or remedies of the Indenture Trustee delegated or assumed by the Servicer pursuant to the terms hereof, and each of the Indenture Trustee and the Servicer agrees to provide reasonable cooperation to each other in connection therewith. “Event of Default”, wherever used in this Base Indenture or in any Indenture Supplement shall mean the occurrence or existence of any one or more of the following:
(a) Principal and Interest. Failure of the Issuer to make any payment of interest or principal due on the Notes on any Payment Date (it being understood that the failure of the Issuer (1) to pay Accrued Note Interest on the Class C Notes on any Payment Date for which funds are not available in accordance with Section 5.01(a)(vi) or Section 5.01(a)(xvi), (2) to pay Post-ARD Additional Interest on any Payment Date for which funds are not available in accordance with Section 5.01(a)(xix), (3) to pay Prepayment Consideration on any Payment Date for which funds are not available in accordance with Section 5.01(a)(xx) or (4) to pay Monthly Amortization Amounts or Additional Principal Payment Amounts on any Payment Date for which funds are not available in accordance with Section 5.01(a)(ix) shall not constitute an Event of Default unless, in the case of clause (1), such amounts remain unpaid as of the applicable Rated Final Payment Date).
(b) Other Defaults Under Base Indenture. Any default in the observance or performance of any covenant or agreement of the Obligors contained in this Base Indenture (other than as provided in Section 10.01(a)), or any breach of any representation or warranty contained in this Base Indenture, which default or breach is reasonably likely to cause a Material Adverse Effect and which continues unremedied for a period of 30 days after (x) receipt by the Issuer of written notice from the Indenture Trustee or the Servicer (to the extent a Responsible Officer of the Indenture Trustee or the Servicer, as applicable, has received written notice thereof) (with a copy to the Servicer or the Indenture Trustee, as applicable, and the Back-Up Manager) or (y) the Manager obtains Knowledge of any such default or breach; provided that if (i) the default or breach is reasonably susceptible of cure but not within such period of 30 days, (ii) the Obligors have commenced the cure within such 30-day period and have pursued such cure diligently, and (iii) the Obligors deliver to the Indenture Trustee and the Servicer evidence reasonably satisfactory to the Servicer of the foregoing, then such period shall be extended for so long as is reasonably necessary for the Obligors in the exercise of due diligence to cure such default or breach, but in no event beyond 90 days after the original notice of default or breach; provided that the defaulting or breaching party diligently and continuously pursues such cure.
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(c) Involuntary Bankruptcy; Appointment of Receiver, etc. (i) A court enters a decree or order for relief with respect to any of the Obligors or the Guarantor in an Involuntary Bankruptcy, which decree or order is not stayed or other similar relief is not granted under any applicable law unless dismissed within 90 days; (ii) the occurrence and continuance of any of the following events for 90 days unless dismissed or discharged within such time: (x) an involuntary case under the Bankruptcy Code or any other applicable bankruptcy, insolvency or other similar law now or hereafter in effect, is commenced, in which any of the Obligors or the Guarantor is a debtor or any portion of the Fiber Networks is property of the estate therein, (y) a decree or order of a court for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other official having similar powers over any of the Obligors or the Guarantor, over all or a substantial part of its or their property, is entered, or (z) an interim receiver, trustee or other custodian is appointed without the consent of the Guarantor or any of its direct or indirect subsidiaries, as applicable, for all or a substantial part of the property of such Person, as applicable, for all or a substantial part of the property of such Person.
(d) Voluntary Bankruptcy; Appointment of Receiver, etc. (i) An order for relief is entered with respect to the Issuer, the Guarantor or any of the direct or indirect subsidiaries of the Issuer, or the Issuer, the Guarantor or any of the direct or indirect subsidiaries of the Issuer commences a voluntary case under the Bankruptcy Code or any other applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case or to the conversion of an involuntary case to a voluntary case under any such law or consents to the appointment of or taking possession by a receiver, trustee, custodian or other official having similar powers for the Issuer, the Guarantor or any of the direct or indirect subsidiaries of the Issuer, for all or a substantial part of the property of the Guarantor or any of its direct or indirect subsidiaries; (ii) the Issuer, the Guarantor or any of the direct or indirect subsidiaries of the Issuer makes any assignment for the benefit of creditors; or (iii) the board of directors or other governing body of the Issuer, the Guarantor or any of the direct or indirect subsidiaries of the Issuer adopts any resolution or otherwise authorizes action to approve any of the actions referred to in this Section 10.01(d).
(e) Bankruptcy Involving Equity Interests or Fiber Networks. Other than as described in either of Sections 10.01(c) or 10.01(d), all or any portion of the Collateral becomes property of the estate or subject to the automatic stay in any case or proceeding under the Bankruptcy Code or any other applicable bankruptcy, insolvency or other similar law now or hereafter in effect; provided that if the same occurs in the context of an involuntary proceeding, it shall not constitute an Event of Default if it is dismissed or discharged within 90 days following its occurrence.
(f) Other Monetary Default. Any monetary default by the Obligors or the Guarantor under any Transaction Document, other than this Base Indenture, which monetary default continues beyond the applicable cure period set forth in the corresponding Transaction Document, or if no cure period is set forth in such Transaction Document, such default continues unremedied for a period of five Business Days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Issuer by the Indenture Trustee (to the extent a Responsible Officer of the Indenture Trustee has received written notice or has Knowledge thereof), the Back-Up Manager, the Servicer or the Noteholders.
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(g) Non-Monetary Defaults Under Transaction Documents. Any default in the observance or performance of or compliance with any non-monetary covenant or agreement on the part of the Issuer, an Asset Entity or the Guarantor contained in any Transaction Document other than this Base Indenture, or any breach of any representation or warranty, or breach of any certification or other statement, contained in any Transaction Document, certification or other statement, other than this Base Indenture, which default or breach is reasonably likely to cause a Material Adverse Effect and shall continue unremedied for a period of 30 days after the date on which written notice of such default or breach, requiring the same to be remedied, shall have been given to the Issuer by the Indenture Trustee (to the extent a Responsible Officer of the Indenture Trustee has received written notice or has Knowledge thereof), the Back-Up Manager, the Servicer or the Noteholders; provided however if (i) the default or breach is reasonably susceptible of cure, but not within such period of 30 days, (ii) the defaulting or breaching party has commenced the cure within such 30-day period and has pursued such cure diligently, and (iii) the defaulting or breaching party delivers to the Indenture Trustee and the Servicer promptly evidence reasonably satisfactory to the Servicer of the foregoing, then such period shall be extended for so long as is reasonably necessary for the defaulting or breaching party in the exercise of due diligence to cure such default or breach, but in no event beyond 90 days after the original notice of default or breach; provided that the defaulting or breaching party diligently and continuously pursue such cure.
(h) Transfer Restrictions. The Guarantor shall cease to own, directly or indirectly, 100% of the Equity Interests in the Issuer (other than any ownership interests held solely and expressly for risk retention purposes), or the Issuer shall cease to own, directly or indirectly, 100% of the Equity Interests in any Asset Entity originally owned by it (other than as expressly permitted in this Base Indenture).
(i) Financial Reporting. The failure to comply with financial reporting requirements which continues unremedied for a period of 30 days after the date on which written notice of such default or breach has been provided, requiring the same to be remedied, unless such period has been extended at the request of the Obligors pursuant to the terms of this Base Indenture and the Servicer consents thereto.
(j) Perfection. Any lien granted under this Base Indenture or any other Transaction Document shall cease to be perfected as a first-priority lien on any Fiber Network Asset (other than any lien on any such Fiber Network Asset that cannot be perfected through the filing of a UCC financing statement (other than a fixture filing)), Customer Agreement (other than any interest in a Customer Agreement that cannot be perfected through the filing of a UCC financing statement), Pledged Equity Interest, the Asset Entities’ rights under the Obligor Access Agreements, cash accounts and the funds on deposit therein or any other material portion of the Collateral in favor of the Indenture Trustee for the benefit of the Secured Parties, in each case other than Permitted Encumbrances.
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If more than one of the foregoing paragraphs shall describe the same condition or event, then the Indenture Trustee will, at the written direction of a Majority of Noteholders, have the right to select which paragraph or paragraphs shall apply. In any such case, the Indenture Trustee shall have the right (but not the obligation) to designate the paragraph or paragraphs which provide for non-written notice (or for no notice) or for a shorter time to cure (or for no time to cure).
Section 10.02. Acceleration and Remedies. Upon the occurrence and during the continuance of any Event of Default, the Indenture Trustee shall, at the written direction of a Majority of Noteholders, accelerate the maturity of the Notes by declaring all of the Notes immediately due and payable, by written notice to the Issuer and the Back-Up Manager. Upon any such declaration, or automatically upon the occurrence of an Event of Default of the types specified in Sections 10.01(c) through 10.01(e), the aggregate Outstanding Class Principal Balances of all Classes of Notes together with accrued and unpaid interest thereon through the date of acceleration, any applicable Prepayment Consideration and all other Obligations shall become immediately due and payable, subject to the provisions of Section 15.18.
(a) At any time after a declaration of acceleration of maturity or an automatic acceleration of maturity has been made and before a judgment or decree for payment of the amount due has been obtained by the Indenture Trustee as hereinafter provided in this Section 10.02, a Majority of Noteholders may, with written notice to the Issuer, the Back-Up Manager and the Indenture Trustee, rescind and annul such declaration and its consequences; provided that such rescission or annulment shall be effective only if:
(i) the Issuer has paid or deposited with the Indenture Trustee a sum sufficient to pay:
(A) all payments of the principal of and interest on all Notes and all other Obligations that would then be due hereunder or upon such Notes if the Event of Default giving rise to such acceleration had not occurred;
(B) all sums paid or advanced by the Indenture Trustee, the Servicer and the Back-Up Manager hereunder and under the Transaction Documents and the reasonable compensation, expenses, disbursements, indemnities and advances of the Indenture Trustee, the Servicer and the Back-Up Manager and their agents and counsel and other amounts due and owing to the Indenture Trustee pursuant to Section 11.05 and to the Servicer and the Back-Up Manager under the Transaction Documents shall have been paid in full; and
(C) all sums paid or advanced by the Class A-1-L Noteholder or the Class A-1-L Administrative Agent under the Transaction Documents and the reasonable compensation, expenses and disbursements of the Class A-1-L Noteholders or the Class A-1-L Administrative Agent, their agents and counsel, and any unreimbursed advances (with interest thereon at the Note Rate) together with any such fees previously accrued and unpaid; and
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(ii) all Events of Default, other than the nonpayment of the principal and interest of the Notes that has become due solely by such acceleration, have been cured or waived as provided in Section 10.15.
(b) Upon the occurrence and during the continuance of an Event of Default of which a Responsible Officer of the Indenture Trustee has Knowledge, all or any one or more of the rights, powers, privileges and other remedies available to the Indenture Trustee against the Obligors (or the Guarantor) under this Base Indenture or any of the other Transaction Documents, or at law or in equity, may be exercised by the Indenture Trustee (at the direction of a Majority of Noteholders) at any time and from time to time, whether or not all or any of the Obligations shall be declared due and payable, and whether or not the Indenture Trustee shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Transaction Documents with respect to the Fiber Networks, the Assets, the Customer Agreements or the other Collateral and the proceeds from any of the foregoing. Any such actions taken by the Indenture Trustee (at the written direction of a Majority of Noteholders) shall be cumulative and concurrent and may be pursued independently, singly, successively, together or otherwise, at such time and in such order as the Indenture Trustee (at the written direction of a Majority of Noteholders) may determine, to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of the Indenture Trustee permitted by law, equity or contract or as set forth herein or in the other Transaction Documents. Without limiting the generality of the foregoing, if an Event of Default is continuing (i) to the fullest extent permitted by law, the Indenture Trustee shall not be subject to any “one action” or “election of remedies” law or rule, and (ii) all liens and other rights, remedies or privileges provided to the Indenture Trustee shall remain in full force and effect until the Indenture Trustee (at the written direction of a Majority of Noteholders) has exhausted all of its remedies against each Fiber Network, the Assets, the Customer Agreements and the other Collateral and the proceeds from any of the foregoing or the Obligations have been paid in full.
(c) Any amounts recovered with respect to the Collateral and the proceeds from any of the foregoing for the Notes and other Guaranteed Obligations after an Event of Default shall be applied by the Indenture Trustee after payment of any fees, costs, indemnities and expenses incurred by or due and owing to the Indenture Trustee, the Servicer and the Back-Up Manager, in accordance with the priorities set forth in Section 5.01(a).
Notwithstanding anything contained herein to the contrary, in no event shall the Indenture Trustee be liable or responsible for the supervision of or for the acts or omissions of the Servicer taken or omitted to be taken in connection with this Article X.
Section 10.03. Performance by the Indenture Trustee and the Servicer. Upon the occurrence and during the continuation of an Event of Default, if any of the Asset Entities, the Issuer, the Guarantor or the Manager shall fail to perform, or cause to be performed, any material covenant, duty or agreement contained in any of the Transaction Documents (subject to applicable notice and cure periods), the Indenture Trustee or the Servicer may, but shall have no obligation to, perform such covenant, duty or agreement on behalf of such Asset Entity, the Issuer, the Guarantor or the Manager, including making protective advances on behalf of any Asset Entities, or, in its sole discretion, causing the obligations of the Obligors to be satisfied with the proceeds of any Reserves. In such event, the Issuer shall, at the written request of the Indenture Trustee or the Servicer, promptly pay to the Indenture Trustee, or reimburse, as applicable, any of the Reserves and any actual amount reasonably expended or disbursed by the Indenture Trustee or the Servicer in such performance or attempted performance, together with interest thereon (including reimbursement of any applicable Reserves), from the date of such expenditure or disbursement, until paid. Any amounts advanced or expended by the Indenture Trustee or the Servicer in its sole discretion to perform or attempt to perform any such matter shall be added to and included within the Obligations and shall be secured by all of the Collateral securing the Notes. Notwithstanding the foregoing, it is expressly agreed that neither the Indenture Trustee nor the Servicer shall have any liability or responsibility for the performance of any obligation of the Asset Entities, the Issuer, the Guarantor or the Manager under this Base Indenture or any other Transaction Document, and it is further expressly agreed that no such performance by the Indenture Trustee or the Servicer shall cure any Event of Default hereunder.
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Section 10.04. Evidence of Compliance. Promptly following request by the Indenture Trustee (at the written direction of a Majority of Noteholders), the Issuer shall, or shall cause each Asset Entity, the Guarantor or the Manager to, provide such documents and instruments as shall be reasonably satisfactory to the Indenture Trustee (at the written direction of a Majority of Noteholders) to evidence compliance with any material provision of the Transaction Documents applicable to such entities.
Section 10.05. Controlling Class Representative.
(a) The Noteholders (or, in the case of Book-Entry Notes, the Note Owners) of the Controlling Class whose Notes represent more than 50% of the related Outstanding Class Principal Balance shall be entitled to select a representative (the “Controlling Class Representative”) having the rights and powers specified in the Servicing Agreement and this Base Indenture (including those specified in Section 10.06) or to replace an existing Controlling Class Representative. Upon (i) the receipt by the Indenture Trustee of written requests for the selection of a Controlling Class Representative from the Noteholders (or, in the case of Book-Entry Notes, the Note Owners) of Notes representing more than 50% of the Outstanding Class Principal Balance of the Controlling Class, (ii) the resignation or removal of the Person acting as Controlling Class Representative or (iii) a Responsible Officer of the Indenture Trustee receiving written notice that the Controlling Class has changed, the Indenture Trustee shall promptly notify the Issuer, the Servicer, the Back-Up Manager and the Noteholders (and, in the case of Book-Entry Notes, to the extent a Responsible Officer of the Indenture Trustee has Knowledge or identified thereto by the Depositary, at the expense of the Noteholder or Note Owner requesting information with respect to clause (i) or clause (iii) above if the Depositary charges a fee for such identification, the Note Owners) of the Controlling Class that they may select a Controlling Class Representative. Such notice shall set forth the process set forth in this Base Indenture for selecting a Controlling Class Representative. No appointment of any Person as a Controlling Class Representative shall be effective until such Person provides the Indenture Trustee with written confirmation of its acceptance of such appointment, written confirmation that it shall keep confidential all information received by it as Controlling Class Representative hereunder or otherwise with respect to the Notes, the Assets or the Servicing Agreement, an address and facsimile number for the delivery of notices and other correspondence and a list of officers or employees of such Person with whom the parties to the Servicing Agreement may deal (including their names, titles, work addresses and email addresses). Unless no other Notes are Outstanding, no Affiliate of the Issuer may act as, or vote its Notes in the selection of, the Controlling Class Representative.
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(b) Within ten Business Days (or as soon thereafter as practicable if the Controlling Class consists of Book-Entry Notes) of any change in the identity of the Controlling Class Representative of which a Responsible Officer of the Indenture Trustee has Knowledge, the Indenture Trustee shall deliver to the Noteholders or Note Owners, as applicable, of the Controlling Class and the Servicer a notice setting forth the identity of the new Controlling Class Representative and a list of each Noteholder (or, in the case of Book-Entry Notes, to the extent a Responsible Officer of the Indenture Trustee has Knowledge or identified thereto by the Depositary or the DTC Participants, each Note Owner) of the Controlling Class, including, in each case, names and addresses. With respect to such information, the Indenture Trustee shall be entitled to rely conclusively on information provided to it by the Noteholders (or, in the case of Book-Entry Notes, subject to Section 2.06, by the Depositary or the Note Owners) of such Notes with no obligation to verify, confirm or otherwise review and with no liability therefor, and the Servicer shall be entitled to rely on such information provided by the Indenture Trustee with respect to any obligation or right hereunder that the Servicer may have to deliver information or otherwise communicate with the Controlling Class Representative or any of the Noteholders (or, if applicable, Note Owners) of the Controlling Class. In addition to the foregoing, within two Business Days of the selection, resignation or removal of a Controlling Class Representative, the Indenture Trustee shall notify the parties to this Base Indenture, the Back-Up Manager and the Servicer of such event.
(c) A Controlling Class Representative may at any time resign as such by giving written notice to the Indenture Trustee, the Servicer, the Back-Up Manager and to each Noteholder (or, in the case of Book-Entry Notes, each Note Owner) of the Controlling Class. The Noteholders (or, in the case of Book-Entry Notes, the Note Owners) of the Controlling Class whose Notes represent more than 50% of the Outstanding Class Principal Balance of the Controlling Class shall be entitled to remove any existing Controlling Class Representative by giving written notice to the Indenture Trustee, the Servicer, the Back-Up Manager and to such existing Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected pursuant to this Section 10.05, each of the parties to the Servicing Agreement and each Noteholder (or Note Owner, if applicable) shall be entitled to rely on such selection unless a Majority of Noteholders (or, in the case of Book-Entry Notes, the Note Owners) of the Controlling Class whose Notes represent more than 50% of the Outstanding Class Principal Balance of the Controlling Class, or such Controlling Class Representative, as applicable, shall have notified the Indenture Trustee and each other party to the Servicing Agreement and each Noteholder (or, in the case of Book-Entry Notes, Note Owner) of the Controlling Class, in writing, of the resignation or removal of such Controlling Class Representative.
(e) In the event that no Controlling Class Representative has been appointed or identified to the Servicer, then the Servicer shall have no duty to consult with, provide notice to, or seek the approval or consent of any such Controlling Class Representative as the case may be until such time as a Controlling Class Representative meeting the definition thereof is so appointed and identified to the Servicer; provided that at any time that no Controlling Class Representative has been appointed or identified to the Servicer, to the extent the Servicer receives direction from the Majority Controlling Class, and the Servicer has not previously taken any actions with respect to the subject of such direction, the Servicer shall take such direction (it being understood that the Servicer shall not be liable for any actions taken or omitted by it prior to the receipt of such direction without the approval or consent of any Controlling Class Representative, even if such act or omission is contrary to any direction later provided to it by the Majority Controlling Class).
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(f) Any and all expenses of the Controlling Class Representative, or the Majority Controlling Class, as applicable, shall be borne by the Noteholders (or, if applicable, the Note Owners) of Notes of the Controlling Class, pro rata according to their respective Percentage Interests in such Class. Notwithstanding the foregoing, if a claim is made against the Controlling Class Representative by the Guarantor or an Obligor with respect to the Servicing Agreement or the Notes, the Controlling Class Representative shall immediately notify the Indenture Trustee and the Servicer in writing, whereupon (if the Servicer or the Indenture Trustee is also a named party to the same action and, in the sole judgment of the Servicer, (i) the Controlling Class Representative had acted in good faith, without gross negligence or willful misconduct, with regard to the particular matter at issue, and (ii) there is no potential for the Servicer or the Indenture Trustee to be an adverse party in such action as regards the Controlling Class Representative) the Servicer shall, subject to the Servicing Agreement, assume the defense (with any costs incurred in connection therewith being deemed to be reimbursable Additional Obligor Expenses) of any such claim against the Controlling Class Representative. In the event the Servicer is required to act at the direction of the Majority Controlling Class, if a Controlling Class Representative has not been elected pursuant to the provisions of any Transaction Document, the Servicer shall have no obligation to obtain any consent, direction or instruction of the Majority Controlling Class.
(g) In the event any action under the Transaction Documents is at the written direction of the Majority Controlling Class, the Indenture Trustee shall identify, to the extent unknown by the party taking such action, the holders (or, in the case of Global Notes, to the extent identified thereto by DTC, at the expense of the Noteholder or Note Owner if DTC charges a fee for such identification, the Note Owners) of the Controlling Class; provided that the Noteholders and the Note Owners agree that the Indenture Trustee shall not be held accountable by reason of any disclosure of such information.
Section 10.06. Certain Rights and Powers of the Controlling Class Representative.
(a) At any time following the occurrence of an Event of Default that the Servicer proposes to direct the Indenture Trustee in writing to transfer the ownership of a Fiber Network or the ownership of the direct or indirect Equity Interests of any of the Obligors pursuant to the terms of the Transaction Documents, the Controlling Class Representative shall be entitled to advise the Servicer with respect to such transfer, and notwithstanding anything in any other section of this Base Indenture to the contrary, but in all cases subject to Section 10.06(b), the Servicer shall not be permitted to take such action if the Controlling Class Representative has objected in writing to the Servicer and the Indenture Trustee within ten Business Days of having been notified thereof and having been provided with information with respect thereto reasonably requested no later than the fifth Business Day after notice thereof; provided that if such written objection has not been received by the Servicer and the Indenture Trustee within such ten Business Day period, then the Controlling Class Representative’s approval shall be deemed to have been given.
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If the Controlling Class Representative affirmatively approves or is deemed to have approved in writing such a request, the Servicer shall implement the action for which approval was sought. If the Controlling Class Representative disapproves of such a request within the ten Business Day period referred to in the preceding paragraph, the Servicer must (unless it withdraws the request) revise the request and deliver to the Controlling Class Representative a revised request promptly and in any event within 30 days after such disapproval. The Servicer shall be required to implement the action for which approval was most recently requested (unless such request was withdrawn by the Servicer) upon the earlier of (x) the failure of the Controlling Class Representative to disapprove a request within ten Business Days after its receipt thereof and (y) (1) the passage of 60 days following the Servicer’s delivery of its initial request to the Controlling Class Representative and (2) the determination by the Servicer in its reasonable good faith judgment that the failure to implement the most recently requested action would violate the Servicer’s obligation to act in accordance with the Servicing Standard.
(b) Notwithstanding anything herein to the contrary, (i) the Servicer shall not have any right or obligation to consult with or to seek or obtain consent or approval from any Controlling Class Representative prior to acting, and provisions of the Servicing Agreement requiring such shall be of no effect, during the period prior to the initial selection of a Controlling Class Representative and, if any Controlling Class Representative resigns or is removed, during the period following such resignation or removal until a replacement is selected and (ii) no advice, direction or objection from or by the Controlling Class Representative, as contemplated by Section 10.06(a), may (A) require or cause the Servicer to violate applicable law, the terms of the Notes or Transaction Documents or any other section of the Servicing Agreement, including the Servicer’s obligation to act in accordance with the Servicing Standard, (B) expose the Servicer, the Back-Up Manager or the Indenture Trustee, or any of their respective Affiliates, officers, directors, members, managers, employees, agents or partners, to any claim, suit or liability, or (C) materially expand the scope of the Servicer’s responsibilities under the Servicing Agreement. In addition, the Controlling Class Representative may not prevent the Servicer from transferring the ownership of a Fiber Network or the ownership of any of the direct or indirect Equity Interests of any of the Obligors (including by way of foreclosure on the direct or indirect Equity Interests of the Obligors) if the Servicer determines in accordance with the Servicing Standard that such transfer would be in the best interest of the Noteholders (taken as a whole).
(c) The Controlling Class Representative, or the Majority Controlling Class, as applicable, shall have no liability to the Noteholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to the Servicing Agreement, or for errors in judgment; provided that the Controlling Class Representative shall not be protected against any liability that would otherwise be imposed by reason of willful misconduct, gross negligence or reckless disregard of obligations or duties under the Servicing Agreement or the Back-Up Management Agreement. Each Noteholder and Note Owner acknowledges and agrees, by its acceptance of its Notes or interest therein, that the Controlling Class Representative, or the Majority Controlling Class, as applicable, may have special relationships and interests that conflict with those of Noteholders and Note Owners of one or more Classes of Notes, that the Controlling Class Representative, or the Majority Controlling Class, as applicable, may act solely in the interests of the Noteholders and Note Owners of the Controlling Class, that the Controlling Class Representative, or the Majority Controlling Class, as applicable, does not have any duties to the Noteholders and Note Owners of any Class of Notes other than the Controlling Class, that the Controlling Class Representative, or the Majority Controlling Class, as applicable, may take actions that favor the interests of the Noteholders and Note Owners of the Controlling Class over the interests of the Noteholders and Note Owners of one or more other Classes of Notes, that the Controlling Class Representative, or the Majority Controlling Class, as applicable, shall not be deemed to have been grossly negligent or reckless, or to have acted in bad faith or engaged in willful misconduct, by reason of its having acted solely in the interests of the Controlling Class and that the Controlling Class Representative, or the Majority Controlling Class, as applicable, shall have no liability whatsoever for having so acted, and no Noteholder may take any action whatsoever against the Controlling Class Representative, or the Majority Controlling Class, as applicable, for having so acted or against any director, officer, employee, agent or principal thereof for having so acted.
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Section 10.07. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.
(a) Subject to the provisions of Section 10.02, upon acceleration of the maturity of the Notes, the Issuer shall pay to the Indenture Trustee, for the benefit of the Holders of the Notes, the whole amount then due and payable on such Notes for the aggregate Outstanding Class Principal Balance of all Classes of Notes and accrued and unpaid interest thereon, with interest upon the overdue principal and, to the extent payment at such rate of interest shall be legally enforceable, upon overdue installments of interest at the rate borne by the relevant Notes and in addition thereto all other Obligations, including such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements, indemnities and advances of the Indenture Trustee, the Servicer, the Back-Up Manager and their agents and counsel and other amounts due and owing to the Indenture Trustee pursuant to Section 11.05 and the Servicer and the Back-Up Manager under the Transaction Documents.
(b) Subject to the provisions of Section 10.02 and Section 15.18, in case the Issuer shall fail forthwith to pay such amounts upon such demand, the Indenture Trustee (acting at the direction of a Majority of Noteholders), in its own name and as trustee of an express trust, may institute a Proceeding for the collection of the sums so due and unpaid, and may prosecute such Proceeding to judgment or final decree, and may enforce the same against the Issuer or the other Obligors upon such Notes and collect in the manner provided by law out of the property of the Issuer or the other Obligors upon such Notes wherever situated, the monies adjudged or decreed to be payable.
(c) Subject to the provisions of Section 15.18, if an Event of Default occurs and is continuing, the Indenture Trustee may, as more particularly provided in Section 10.08, acting at the written direction of a Majority of Noteholders, proceed to protect and enforce its rights and the rights of the Noteholders, by such appropriate Proceedings as the Indenture Trustee, at the direction of a Majority of Noteholders, shall deem most effective to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Base Indenture or any Indenture Supplement or in aid of the exercise of any power granted in this Base Indenture or any Indenture Supplement, or to enforce any other proper remedy or legal or equitable right vested in the Indenture Trustee by this Base Indenture or any Indenture Supplement or by law.
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(d) In case there shall be pending, relative to the Issuer or any other Obligor upon the Notes, proceedings under any applicable federal, state, provincial, territorial or foreign bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Issuer or its property or such other Obligor, or in case of any other comparable judicial Proceedings relative to the Issuer or other Obligor upon the Notes, or to the creditors or property of the Issuer or such other Obligor, the Indenture Trustee, irrespective of whether the Outstanding Class Principal Balance shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Indenture Trustee, acting at the written direction of a Majority of Noteholders, shall have made any demand pursuant to the provisions of this Section 10.07, shall be entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of the principal and interest owing and unpaid in respect of Notes, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee (including any claim for reasonable compensation, expenses, disbursements, indemnities and advances of the Indenture Trustee and each predecessor Indenture Trustee, and their respective agents, attorneys and counsel, and all other amounts due and owing to the Indenture Trustee pursuant to Section 11.05 and all other amounts due and owing to the Servicer under the Servicing Agreement and the other Transaction Documents) and of the Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on behalf and at the written direction of the Noteholders in any election of a trustee, a standby trustee or Person performing similar functions in any such Proceedings;
(iii) to collect and receive any monies or other property payable or deliverable on any such claims and to pay all amounts received with respect to the claims of the Noteholders and of the Indenture Trustee on their behalf; and
(iv) 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 Indenture Trustee or the Noteholders allowed in any judicial proceedings relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in any such Proceeding is hereby authorized by each of such Noteholders to make payments to the Indenture Trustee and, in the event that the Indenture Trustee, acting at the written direction of a Majority of Noteholders, shall consent to the making of payments directly to such Noteholders, to pay to the Indenture Trustee such amounts as shall be sufficient to cover reasonable compensation to the Indenture Trustee, each predecessor Indenture Trustee and their respective agents, attorneys and counsel, and all other amounts due and owing to the Indenture Trustee pursuant to Section 11.05 and all other amounts due and owing to the Servicer under the Servicing Agreement.
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(e) Nothing contained in this Base Indenture or in any Indenture Supplement shall be deemed to authorize the Indenture Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Noteholder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the Indenture Trustee to vote in respect of the claim of any such Noteholder in any such Proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar Person and be a member of a creditors’ or other similar committee.
(f) Subject to the provisions of Section 15.18, all rights of action and of asserting claims under this Base Indenture or in any Indenture Supplement, or under any of the Notes, may be enforced by the Indenture Trustee (or the Servicer on its behalf pursuant to Section 10.01), acting at the written direction of a Majority of Noteholders, without the possession of the Notes or the production thereof in any trial or other Proceedings relative thereto, and any such action or Proceedings instituted by the Indenture Trustee or the Servicer, acting at the written direction of a Majority of Noteholders, may be brought in its own name and as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses, disbursements, advances, amounts owed to and compensation of the Indenture Trustee, the Back-Up Manager and the Servicer, each predecessor Indenture Trustee, each predecessor Back-Up Manager and each predecessor Servicer and their respective agents and external legal counsels, shall be for the benefit of the Secured Parties.
(g) In any Proceedings brought by the Indenture Trustee (and also any Proceedings involving the interpretation of any provision of this Base Indenture or any Indenture Supplement to which the Indenture Trustee shall be a party), the Indenture Trustee shall be held to represent all the Noteholders, and it shall not be necessary to make any Noteholder a party to any such Proceedings.
Section 10.08. Remedies. If an Event of Default shall have occurred and be continuing, the Indenture Trustee, acting at the written direction of a Majority of Noteholders, may do one or more of the following (subject to Section 10.02, Section 10.09, Section 14.01 and Section 15.18):
(i) institute Proceedings in its own name and as trustee of an express trust for the collection of all amounts then payable on the Notes or under this Base Indenture, any Indenture Supplement or any other Transaction Document with respect thereto, whether by declaration or otherwise, enforce any judgment obtained and collect from the Issuer and any other Obligor upon such Notes, this Base Indenture, any Indenture Supplement or any other Transaction Document monies adjudged due;
(ii) institute Proceedings from time to time for the complete or partial foreclosure of this Base Indenture or any Indenture Supplement with respect to the Trust Estate;
(iii) exercise any and all rights and remedies of a secured party under applicable law of any relevant jurisdiction or in equity and take any other appropriate action to protect and enforce the rights and remedies of the Indenture Trustee and the Noteholders;
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(iv) sell the Trust Estate or any portion thereof or rights or interest therein, at one or more public or private sales called and conducted in any manner permitted by law;
(v) without notice to the Issuer, except as required by law and as otherwise provided in this Base Indenture, and at any time or from time to time, charge, set-off and otherwise apply all or any part of the Collateral against the Obligations or any part thereof; and
(vi) demand, collect, take possession of, receive, settle, compromise, adjust, sue for, foreclose or realize upon the Collateral (or any portion thereof) as the Indenture Trustee, acting at the written direction of a Majority of Noteholders, may determine.
Section 10.09. Optional Preservation of the Trust Estate. If the Notes have been declared to be due and payable under Section 10.02 following an Event of Default, and such declaration and its consequences have not been rescinded and annulled, the Indenture Trustee shall, upon the written direction of a Majority of Noteholders, elect to maintain possession of the Trust Estate and apply proceeds as if there had been no declaration of acceleration. It is the desire of the Issuer and the Noteholders that there be at all times sufficient funds for the payment of all Outstanding Obligations, including the Outstanding Class Principal Balance of and interest on all Classes of Notes. In determining whether to maintain possession of the Trust Estate, the Indenture Trustee, at the written direction of a Majority of Noteholders, shall, at the Issuer’s expense, obtain and shall be protected in relying upon an opinion of an Independent investment banking or accounting firm of international reputation as to the feasibility of such proposed action and as to the sufficiency of the Trust Estate for such purpose.
Section 10.10. Limitation of Suits. Subject to the provisions of Section 15.18, no Noteholder shall have any right to institute any Proceeding, judicial or otherwise, with respect to this Base Indenture or any Indenture Supplement or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Indenture Trustee and the Servicer of a continuing Event of Default;
(b) Noteholders by an Affirmative Direction have made written request to the Indenture Trustee and the Servicer to institute such Proceeding in respect of such Event of Default in its own name as Indenture Trustee hereunder;
(c) such Holder or Holders has offered to the Indenture Trustee and the Servicer indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred in complying with such request;
(d) the Indenture Trustee and the Servicer for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute such Proceedings; and
(e) no direction inconsistent with such written request has been given to the Indenture Trustee or the Servicer during such 60-day period by a Majority of Noteholders.
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It is understood and intended that no one or more Noteholders shall have any right in any manner whatsoever by virtue of, or by availing of, any provision of this Base Indenture or any Indenture Supplement to affect, disturb or prejudice the rights of any other Noteholders or to obtain or to seek to obtain priority or preference over any other Noteholders or to enforce any right under this Base Indenture or any Indenture Supplement, except in the manner provided in this Base Indenture.
In the event the Indenture Trustee or the Servicer shall receive conflicting or inconsistent requests and indemnity from two or more groups of Noteholders, each representing less than a majority of the aggregate Outstanding Class Principal Balance of all Classes of Notes, no action shall be taken, notwithstanding any other provisions of this Base Indenture or any Indenture Supplement. Notwithstanding any provision of this Section 10.10, the Indenture Trustee shall not take any action or permit any action to be taken that is inconsistent with Section 15.18.
Section 10.11. Unconditional Rights of Noteholders to Receive Principal and Interest. Notwithstanding any other provisions in this Base Indenture or any Indenture Supplement, the Holder of any Note shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest on such Note on or after the respective due dates thereof expressed in such Note or in this Base Indenture or any Indenture Supplement, and such right shall not be impaired without the consent of such Holder.
Section 10.12. Restoration of Rights and Remedies. If the Indenture Trustee or any Noteholder has instituted any Proceeding to enforce any right or remedy under this Base Indenture or any Indenture Supplement and such Proceeding has been discontinued or abandoned for any reason or has been determined adversely to the Indenture Trustee or to such Noteholder, then thereafter all rights and remedies of the Indenture Trustee and the Noteholders shall continue as though no such Proceeding had been instituted.
Section 10.13. Rights and Remedies Cumulative. Except as provided herein, no right or remedy conferred in this Base Indenture, in any Indenture Supplement or in any other Transaction Document upon or reserved to the Indenture Trustee or to the Noteholders 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, in any Indenture Supplement or in any other Transaction Document or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, in any Indenture Supplement, or in any other Transaction Document or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 10.14. Delay or Omission Not a Waiver. No delay or omission of the Indenture Trustee, the Servicer or any Holder of any Note to exercise any right or remedy accruing upon any Default or Event of Default shall impair any such right or remedy or constitute a waiver of any such Default or Event of Default or any acquiescence therein. Every right and remedy given by this Article X or by law to the Indenture Trustee, the Servicer or to the Noteholders may be exercised from time to time, and as often as may be deemed expedient, by the Indenture Trustee or by the Noteholders, as the case may be.
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Section 10.15. Waiver of Past Defaults. Prior to the declaration of the acceleration of the maturity of the Notes as provided in Section 10.02 as may be modified by any Indenture Supplement, a Majority of Noteholders may waive any past Default or Event of Default and its consequences except (i) a Default (a) in the payment of principal of or interest on any of the Notes or (b) in respect of a covenant or provision hereof that cannot be amended, supplemented or modified without the consent of each Noteholder and (ii) before any such waiver may be effective, the Indenture Trustee, the Servicer, the Back-Up Manager, the Class A-1-L Noteholders and the Class A-1-L Administrative Agent must receive any reimbursement then due or payable in respect of any amounts then due to the Servicer, the Back-Up Manager, the Verification Agent, the Indenture Trustee, the Class A-1-L Noteholders and the Class A-1-L Administrative Agent hereunder or under the other Transaction Documents (including unpaid Additional Obligor Expenses, and all unpaid fees, expenses, and indemnification due to the Servicer, the Back-Up Manager, the Verification Agent, the Indenture Trustee, the Class A-1-L Noteholders and the Class A-1-L Administrative Agent hereunder and under the other Transaction Documents). Upon any such waiver, such Default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured and not to have occurred, for every purpose of this Base Indenture or any Indenture Supplement; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereto.
Section 10.16. Undertaking for Costs. All parties to this Base Indenture or any Indenture Supplement agree, and each Holder of any Note by such Holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Base Indenture or any Indenture Supplement, or in any suit against the Indenture Trustee for any action taken, suffered or omitted by it as Indenture Trustee, the filing by any party litigant (other than the Issuer) in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorney’s fees, against any party litigant (other than the Issuer) in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant (other than the Issuer); but the provisions of this Section 10.16 as may be modified by any Indenture Supplement shall not apply to (a) any suit instituted by the Indenture Trustee, (b) any suit instituted by any Noteholder, or group of Noteholders, representing more than 10% of the aggregate Outstanding Class Principal Balance of all Classes of Notes or (c) any suit instituted by any Noteholder for the enforcement of the payment of the unpaid principal balance of any Note or interest on any Note on or after the respective due dates expressed in such Note and in this Base Indenture or any Indenture Supplement.
Section 10.17. Waiver of Stay or Extension Laws. The Issuer covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, or plead or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Base Indenture, any Indenture Supplement or any Transaction Document; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not hinder, delay or impede the execution of any power granted in this Base Indenture to the Indenture Trustee or the Servicer, but shall suffer and permit the execution of every such power as though no such law had been enacted.
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Section 10.18. Action on Notes. The Indenture Trustee’s right to seek and recover judgment on the Notes or under this Base Indenture, any Indenture Supplement or any Transaction Document shall not be affected by the seeking, obtaining or application of any other relief under or with respect to this Base Indenture, any Indenture Supplement or any Transaction Document. No rights or remedies of the Indenture Trustee or the Noteholders shall be impaired by the recovery of any judgment by the Indenture Trustee against the Issuer or by the levy of any execution under such judgment upon any portion of the Trust Estate or upon any of the Assets of the Issuer.
Section 10.19. Waiver. The Issuer hereby expressly waives, to the fullest extent permitted by law, presentment, demand, protest or any notice of any kind in connection with this Base Indenture or the Collateral. The Issuer acknowledges and agrees that ten days prior written notice of the time and place of any public sale of the Collateral or any other intended disposition thereof shall be reasonable and sufficient notice to the Issuer within the meaning of the UCC (to the extent that the UCC is applicable).
ARTICLE XI
THE INDENTURE TRUSTEE
Section 11.01. Duties of Indenture Trustee.
(a) The Indenture Trustee, prior to the occurrence of an Event of Default of which a Responsible Officer of the Indenture Trustee has Knowledge and after the curing or waiving of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Base Indenture. If an Event of Default of which a Responsible Officer of the Indenture Trustee has Knowledge occurs and is continuing, the Indenture Trustee (or the Servicer on its behalf, if applicable) shall exercise such of the rights and powers vested in it by this Base Indenture, any Indenture Supplement and any other Transaction Document, and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of its own affairs; provided that, absent actual knowledge by a Responsible Officer of the Indenture Trustee, the Indenture Trustee shall have no liability in connection with any action or inaction taken, or not taken by it upon the deemed occurrence of an Event of Default, Post-ARD Period or Servicer Termination Event of which a Responsible Officer of the Indenture Trustee has not received written notice; provided, further, that the Indenture Trustee shall have no liability in connection with any action or inaction due to the acts or failure to act of the Controlling Class Representative or the Servicer in connection with any Event of Default, Post-ARD Period or Servicer Termination Event or for acting or failing to act due to any direction or lack of direction from the Manager, the Servicer, the Controlling Class Representative or Noteholders. Any permissive right of the Indenture Trustee contained in this Base Indenture, any Indenture Supplement and any other Transaction Document shall not be construed as a duty. The Indenture Trustee shall be liable in accordance herewith only to the extent of the respective obligations specifically imposed upon and undertaken by the Indenture Trustee.
(b) Upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Indenture Trustee which are specifically required to be furnished to it pursuant to any provision of this Base Indenture, any Indenture Supplement and any other Transaction Document, the Indenture Trustee shall examine them to determine whether they conform on their face to the requirements of this Base Indenture, any Indenture Supplement or any other Transaction Document. If any such instrument is found not to conform on its face to the requirements of this Base Indenture, any Indenture Supplement, or any other Transaction Document in a material manner, the Indenture Trustee shall take such action as it deems appropriate to have the instrument corrected. The Indenture Trustee shall not be responsible or liable for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Issuer, the Guarantor, the Asset Entities, the Manager, the Servicer, any actual or prospective Noteholder or Note Owner or any Rating Agency, and accepted by the Indenture Trustee in good faith, pursuant to this Base Indenture, any Indenture Supplement or any other Transaction Document. Except as otherwise provided herein, the Indenture Trustee shall not be responsible for recomputing, recalculating or verifying any information provided by the Servicer or the Manager pertaining to any report, distribution statement or Officer’s Certificate.
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(c) No provision of this Base Indenture shall be construed to relieve the Indenture Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided that:
(i) Prior to the occurrence of an Event of Default of which a Responsible Officer of the Indenture Trustee has Knowledge, and after the curing or waiving of all Events of Default which may have occurred, the duties and obligations of the Indenture Trustee shall be determined solely by the express provisions of this Base Indenture, the Indenture Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Base Indenture or any Indenture Supplement and no implied duties, covenants or obligations shall be read into this Base Indenture or any other Transaction Document against the Indenture Trustee.
(ii) In the absence of bad faith on the part of the Indenture Trustee, the Indenture Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Indenture Trustee and conforming to the requirements of this Base Indenture and any Indenture Supplement.
(iii) The Indenture Trustee shall not be liable for any action taken or omitted to be taken by it at the direction of the Manager, the Issuer, the Servicer, the Controlling Class Representative or Noteholders pursuant to this Base Indenture, any other Transaction Document or applicable law, including without limitation relating to the time, method and place for conducting any proceeding for any remedy available to the Indenture Trustee, exercising any trust or power conferred upon the Indenture Trustee under this Base Indenture or any other circumstances in which such direction is required or permitted by the terms of this Base Indenture, any other Transaction Document or applicable law.
(iv) The Indenture Trustee shall not be liable for any action it takes, suffers or omits to take in the absence of gross negligence or willful misconduct which it believes to be authorized or within the discretion or rights or powers conferred upon it by this Base Indenture, any other Transaction Document or applicable law.
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(v) Notwithstanding anything to the contrary contained in this Base Indenture or any of the other Transaction Documents, no provision of this Base Indenture or any of the other Transaction Documents shall require the Indenture Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or exercises of its rights or powers hereunder. The Indenture Trustee may refuse to perform any duty or exercise any right or power unless it receives security and/or indemnity satisfactory to it against any risk, loss, liability or expense, including, without limitation, any actions taken at the direction of the Noteholders pursuant to Sections 10.07(f), 10.08 or 10.09.
(vi) The Indenture Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Indenture Trustee unless it shall be proved that the Indenture Trustee was negligent in ascertaining the pertinent facts.
(vii) The Indenture Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by the Indenture Trustee, in good faith in accordance with this Base Indenture or the written direction of Noteholders entitled to at least 25% (or, as to any particular matter, any higher percentage as may be specifically provided for hereunder) of the Voting Rights relating to the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred upon the Indenture Trustee, under this Base Indenture.
(viii) The Indenture Trustee shall not be required to take notice or be deemed to have notice or knowledge of any event, Event of Default, Servicer Termination Event or other information hereunder or under any other Transaction Document unless either (1) a Responsible Officer shall have Knowledge of such event, Event of Default, Servicer Termination Event or other information or (2) written notice of such event, Event of Default, Servicer Termination Event or other information referring to the Notes, this Base Indenture and any Indenture Supplement shall have been received by a Responsible Officer in accordance with the provisions of this Base Indenture and any Indenture Supplement. In the absence of receipt of such Knowledge or written notice, the Indenture Trustee may conclusively assume that no event, Event of Default or Servicer Termination Event shall have occurred and have no duty to otherwise determine whether such event, Event of Default, or Servicer Termination Event shall have occurred.
(ix) Subject to the other provisions of this Base Indenture, and without limiting the generality of this Section 11.01, the Indenture Trustee shall not have any duty, except as expressly provided in the Transaction Documents, (A) to cause any recording, filing, or depositing of this Base Indenture or any Indenture Supplement or any agreement referred to herein or therein or any financing statement or continuation statement evidencing a security interest, or to cause the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (B) to see to or cause the maintenance of any insurance, (C) to confirm or verify the truth, accuracy or contents of any reports, resolutions, certificates, statements, instruments, opinions, notices, requests, consents, orders, approvals or other documentation of the Issuer, the Guarantor, the Asset Entities, the Manager, the Servicer, any Noteholder or Note Owner or any Rating Agency, delivered to the Indenture Trustee pursuant to this Base Indenture reasonably believed by the Indenture Trustee to be genuine, absent manifest error, and to have been signed or presented by the proper party or parties; provided that the Indenture Trustee may, upon written direction of a Majority of Noteholders, make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Indenture Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer and any Asset Entity personally or by agent or attorney, and (D) to see to the payment of any assessment or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Collateral other than from funds available in the Collection Account; provided that such assessment, charge, lien or encumbrance did not arise out of the Indenture Trustee’s willful misconduct, bad faith or negligence. The Indenture Trustee shall not be responsible (i) for the existence, genuineness or value of any of the Collateral, (ii) for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, (iii) for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iv) for the validity of the title of the Obligors to the Collateral, (v) for insuring the Collateral, (vi) for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral or (vii) the legality, enforceability, effectiveness or sufficiency of the Transaction Documents. The Indenture Trustee shall have no duty to inquire as to the performance or observance of any of the terms of this Base Indenture or the other Transaction Documents by the Issuer or any other Person.
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(x) The Indenture Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with this Base Indenture or at the direction of the Manager, the Issuer, the Servicer, the Controlling Class Representative or Noteholders relating to exercising any trust or power conferred upon the Indenture Trustee under this Base Indenture, any other Transaction Document or applicable law.
(xi) None of the provisions contained in this Base Indenture or any Indenture Supplement shall in any event require the Indenture Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under the Servicing Agreement except during such time, if any, as the Indenture Trustee shall be successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with the terms of this Base Indenture and the Servicing Agreement.
(xii) The rights, protections, immunities and indemnities given to the Indenture Trustee hereunder are extended to and shall be enforceable by Citibank, N.A., in each of its capacities hereunder, and to each agent, custodian and other Person employed to act on its behalf hereunder.
(xiii) If the same Person is acting as Indenture Trustee, Verification Agent and Note Registrar, then any notices required to be given by such Person in one such capacity shall be deemed to have been timely given to itself in any other such capacity.
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(d) The Indenture Trustee is hereby directed to execute and deliver any Transaction Document to which it is a party.
(e) The Indenture Trustee shall not be liable for interest on any money received by it except as the Indenture Trustee may agree in writing with the Issuer.
(f) Money held in trust by the Indenture Trustee need not be segregated from other funds except to the extent required by law, this Base Indenture or any Indenture Supplement.
(g) Every provision in this Base Indenture and any Indenture Supplement that in any way relates to the Indenture Trustee is subject to paragraphs (a) through (f) of this Section 11.01.
Section 11.02. Certain Matters Affecting the Indenture Trustee. Except as otherwise provided in Section 11.01:
(i) the Indenture Trustee may conclusively rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document reasonably believed by it to be genuine, absent manifest error, and to have been signed or presented by the proper party or parties with no duty to confirm, verify or otherwise review and with no liability therefor unless otherwise expressly provided herein;
(ii) the Indenture Trustee may consult with counsel and any advice or opinion of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewith;
(iii) the Indenture Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Base Indenture or any Indenture Supplement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Noteholders, unless such Noteholders shall have provided to the Indenture Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; the Indenture Trustee shall not be required to expend or risk its own funds (except to pay overhead expenses, such as costs for office space, office equipment, supplies and related expenses, employee salaries and related expenses and similar internal costs and expenses) 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; provided that nothing contained herein shall relieve the Indenture Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Indenture Trustee has Knowledge which has not been waived or cured, to exercise such of the rights and powers vested in it by this Base Indenture or any Indenture Supplement, and to use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his own affairs;
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(iv) the Indenture Trustee shall not be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Base Indenture or any Indenture Supplement;
(v) the Indenture 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, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Notes entitled to at least 25% of the Voting Rights; provided that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Base Indenture, the Indenture Trustee may require an indemnity reasonably satisfactory to the Indenture Trustee against such cost, expense or liability as a condition to taking any such action;
(vi) the Indenture Trustee may execute any of the trusts or powers vested in it by this Base Indenture or any Indenture Supplement and may perform any its duties hereunder, either directly or by or through agents, attorneys, nominees or custodians, and the Indenture Trustee shall not be responsible for any misconduct or negligence on the part of any such agent, attorney, nominee or custodian appointed by the Indenture Trustee with due care; provided that the use of agents, attorneys, nominees or custodians shall not be deemed to relieve the Indenture Trustee of any of its duties and obligations hereunder (except as expressly set forth herein);
(vii) the Indenture Trustee shall not be responsible for any act or omission of any other party to the Transaction Documents or any related document (or any agent thereof) and the Indenture Trustee shall not be liable for any action or inaction of any other party to the Transaction Documents or any related document (or agent thereof) and may assume compliance by such parties with their obligations under the Transaction Documents or any related document, unless a Responsible Officer of the Indenture Trustee shall have received written notice to the contrary;
(viii) the Indenture Trustee shall not have any obligation or duty to monitor, determine or inquire as to compliance with any restriction on transfer imposed under Article II under this Base Indenture or under applicable law with respect to any transfer of any Note or any interest therein, other than to request delivery of the certification(s) or Opinions of Counsel described in said Article applicable with respect to changes in registration or record ownership of Notes in the Note Register and to examine the same to determine substantial compliance with the express requirements of this Base Indenture; and the Indenture Trustee and the Note Registrar shall have no liability for transfers, including transfers made through the book-entry facilities of the Depositary or between or among DTC Participants or Note Owners of the Notes, made in violation of applicable restrictions except for its failure to perform its express duties in connection with changes in registration or record ownership in the Note Register;
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(ix) neither the Indenture Trustee nor any of its officers, directors, employees or agents shall be liable for any action taken or omitted under this Base Indenture or any Indenture Supplement hereto or in connection therewith except to the extent caused by the Indenture Trustee’s fraud, negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review;
(x) the Indenture Trustee shall not be liable for any losses on investments except for losses resulting from the failure of the Indenture Trustee to make an investment in accordance with instructions given in accordance herewith;
(xi) in order to comply with laws, rules, regulation and executive orders in effect from time to time including those relating to the funding of terrorist activities and money laundering, the Indenture Trustee may be required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Indenture Trustee, and accordingly, each of the parties hereto agrees to provide the Indenture Trustee upon its reasonable request from time to time such identifying information and documentation as may be reasonably available for such party in order to enable the Indenture Trustee to comply with the foregoing;
(xii) the rights, protections, immunities and indemnities afforded to the Indenture Trustee pursuant to this Base Indenture shall also be afforded to the Indenture Trustee under the other Transaction Documents;
(xiii) whenever in the administration of the provisions of this Base Indenture or any Indenture Supplement hereto the Indenture Trustee shall deem it necessary (in good faith) that a matter be proved or established as a matter of fact prior to taking or suffering any action or refraining from taking any action, the Indenture Trustee may require a certificate from an Executive Officer of the Issuer or an Opinion of Counsel from the party requesting that the Indenture Trustee act or refrain from acting. The Indenture Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or Opinion of Counsel;
(xiv) in no event shall the Indenture Trustee be liable for any failure or delay in the performance of its obligations under this Base Indenture or any related documents because of circumstances beyond the Indenture Trustee’s control, including a failure, termination, or suspension of, or limitations or restrictions in respect of post-payable adjustments through, a clearing house, securities depositary, settlement system or central payment system in any applicable part of the world or acts of God, flood, war (whether declared or undeclared), epidemics, pandemics, civil or military disturbances or hostilities, nuclear or natural catastrophes, political unrest, explosion, severe weather or accident, earthquake, terrorism, fire, riot, labor disturbances, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like (whether domestic, federal, state, county or municipal or foreign) which delay, restrict or prohibit the providing of the services contemplated by this Base Indenture or any related documents, or the unavailability of communications or computer facilities, the failure of equipment or interruption of communications or computer facilities, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility, or any other causes beyond the Indenture Trustee’s control whether or not of the same class or kind as specified in this Section 11.02(xiv); it being understood that the Indenture Trustee shall use commercially reasonable efforts to resume performance of its obligations hereunder as soon as practicable under the circumstances;
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(xv) the Indenture Trustee shall not be required to expend or risk its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties, or the exercise of any of its rights or powers;
(xvi) delivery of any reports, information, notices, Officer’s Certificates and documents to the Indenture Trustee provided for herein is for informational purposes only and the Indenture Trustee’s receipt of such reports, information, notices, Officer’s Certificates, documents and any publicly available information, shall not constitute actual or constructive knowledge or notice of any information contained therein or determinable from information contained therein, including any Securitization Entity’s, the Manager’s or any other Person’s compliance with any of its covenants under this Base Indenture, the Notes or any other Transaction Document, (x) other than written notice or directions to the Indenture Trustee expressly provided for in this Base Indenture or any other Transaction Document, or (y) unless the Indenture Trustee shall have an explicit duty to review such content;
(xvii) knowledge of the Indenture Trustee shall not be attributed or imputed to Citibank, N.A.’s other roles in the transaction and knowledge of the Paying Agent, Note Registrar or Verification Agent shall not be attributed or imputed to each other or to the Indenture Trustee (other than those where the roles are performed by the same group or division within Citibank, N.A. or otherwise share the same Responsible Officers), or any affiliate, line of business, or other division of Citibank, N.A. (and vice versa);
(xviii) notwithstanding anything to the contrary in the Indenture, the Indenture Trustee shall not be required to take any action that is not in accordance with applicable law;
(xix) the Indenture Trustee shall have no liability or obligation with respect to the applicability (or otherwise) of any risk retention rules;
(xx) the permissive rights of the Indenture Trustee to take or refrain from taking any action enumerated in this Base Indenture or any other Transaction Document shall not be construed as a duty, and the Indenture Trustee shall not be answerable for other than its own gross negligence or willful misconduct in the performance or omission of such act as finally determined in a non-appealable decision by a court of competent jurisdiction in the State of New York;
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(xxi) the parties hereto acknowledge that in accordance with Section 326 of the USA Patriot Act, the Indenture Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account. The parties hereto undertake to provide the Indenture Trustee with such information as it may request in order for the Indenture Trustee to satisfy the requirements of the USA Patriot Act, including but not limited to the name, address, tax identification number and other information that will allow it to identify the individual or entity who is establishing the relationship or opening the account and may also ask for formation documents such as articles of incorporation or other identifying documents to be provided;
(xxii) the Indenture Trustee shall not be required to give any bond or surety in respect of the execution of the trust created hereby or the powers granted hereunder;
(xxiii) the Indenture Trustee may request written direction from any applicable party any time this Base Indenture or any other Transaction Document provides that the Indenture Trustee may be directed to act;
(xxiv) any request or direction of the Issuer or the Manager mentioned in this Base Indenture or any other Transaction Document shall be sufficiently evidenced by an Issuer Order;
(xxv) whenever in the administration of this Base Indenture the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee may rely upon an Officer’s Certificate of the Issuer or the Manager and shall incur no liability for its reliance thereon;
(xxvi) the Indenture Trustee shall not be responsible for the accuracy of the books or records of, or for any acts or omissions of, DTC, any transfer agent (other than the Indenture Trustee itself acting in that capacity), any calculation agent (other than the Indenture Trustee itself acting in that capacity), or any agent appointed by it with due care or any Paying Agent (other than the Indenture Trustee itself acting in that capacity);
(xxvii) the Indenture Trustee or its Affiliates are permitted to receive additional compensation that could be deemed to be in the Indenture Trustee’s economic self-interest for (i) serving as an investment advisor, administrator, shareholder servicing agent, custodian or sub-custodian with respect to certain Permitted Investments, (ii) using Affiliates to effect transactions in certain Permitted Investments and (iii) effecting transactions in certain Permitted Investments. The Indenture Trustee does not guarantee the performance of any Permitted Investments;
(xxviii) the Indenture Trustee shall have no obligation to invest and reinvest any cash held in the absence of timely and specific written investment direction from the Manager or the Issuer. In no event shall the Indenture Trustee be liable for the selection of investments or for investment losses incurred thereon except for losses resulting from the failure of the Indenture Trustee to make an investment in accordance with instructions given in accordance herewith or to the extent arising out of the Indenture Trustee’s gross negligence or willful misconduct. The Indenture Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or the failure of the Manager or the Issuer to provide timely written investment direction;
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(xxix) for any purpose of this Base Indenture or any other Transaction Document, the Indenture Trustee may conclusively assume without incurring any liability therefor that no Notes are held by any of the Obligors or Guarantor, any other obligor on the Notes, the Manager or any Affiliate of them unless a Responsible Officer of the Indenture Trustee has received written notice at the applicable Corporate Trust Office that any Notes are so held by any of the Obligors or Guarantor or any other obligor upon the Notes, the Manager or any Affiliate of them, as applicable;
(xxx) the Indenture Trustee may act directly or through agents or attorneys pursuant to agreements entered into with any of them and may, at its own expense if it is acting solely on its own behalf and not on behalf of or for the benefit of the Noteholders, consult with counsel, accountants and other professionals or experts selected by the Indenture Trustee in good faith and in the absence of gross negligence on the part of the Indenture Trustee, and the Indenture Trustee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other professionals or experts;
(xxxi) the Indenture Trustee is permitted to utilize and in good faith rely upon the advice of the Manager (or to utilize other agents or attorneys), at the cost of the Manager or the Issuer, as an Additional Obligor Expense, in performing certain of its obligations under this Base Indenture and the other Transaction Documents, including Fiber Network management, operation and maintenance, Fiber Network dispositions and releases, and confirmation of compliance by the Obligors with the provisions of this Base Indenture and under the other Transaction Documents, and the Indenture Trustee shall not have any liability with respect thereto; and
(xxxii) in the event that the Indenture Trustee is required to act with the consent, or at the direction or instruction, of the Majority of Noteholders, the Majority Controlling Class or such other percentage of noteholders indicated in this Base Indenture or any Transaction Document, the Indenture Trustee’s sole obligation with respect to any consents, directions, instructions or actions of the Majority of Noteholders, the Majority Controlling Class or noteholders shall be to await direction from the Majority of Noteholders, the Majority Controlling Class or such holders. The Issuer shall seek the consent, direction, instruction or appropriate action from the Majority of Noteholders, the Majority Controlling Class or such noteholders and shall provide the Indenture Trustee with evidence of such consent, direction or instruction or the specific action to be taken. If the Issuer does not provide the Indenture Trustee with evidence that the Majority of Noteholders, the Majority Controlling Class or such noteholders have provided such consent, direction, instruction or specific action, the Indenture Trustee shall have no further responsibility with respect to the relevant proposed consent, direction, instruction or specific action. The Indenture Trustee shall be entitled to security indemnity reasonably satisfactory to the Indenture Trustee against the costs, expenses and liabilities that may be incurred by it in compliance with such request, order or direction.
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Section 11.03. Indenture Trustee’s Disclaimer. The Indenture Trustee (i) shall not be responsible for, and makes no representation as to, the validity or adequacy of this Base Indenture, any Indenture Supplement, the Collateral or the Notes and (ii) shall not be accountable for the Issuer’s use of the proceeds from the Notes, nor responsible for any statement of the Issuer in this Base Indenture, any Indenture Supplement or in any document issued in connection with the sale of the Notes or in the Notes other than the Indenture Trustee’s certificate of authentication. The Indenture Trustee shall not be responsible for, and makes no representation or warranty as to, the validity, legality, enforceability, sufficiency or adequacy of the Indenture, the Notes or any related document, or as to the correctness of any statement contained in any thereof. The recitals contained herein and in the Notes shall be construed as the statements of the Issuer.
Section 11.04. Indenture Trustee May Own Notes. The Indenture Trustee (in its individual or any other capacity) or any of its respective Affiliates may become the owner or pledgee of Notes with (except as otherwise provided in the definition of “Noteholder”) the same rights it would have if it were not the Indenture Trustee or one of its Affiliates, as the case may be.
Section 11.05. Fees and Expenses of Indenture Trustee and Verification Agent; Indemnification of the Indenture Trustee and Verification Agent.
(a) On each Payment Date, the Indenture Trustee shall withdraw from the Collection Account and pay to itself and the Verification Agent pursuant to Section 5.01(a)(iii) the Indenture Trustee Fee and Verification Agent Fee due on such Payment Date as compensation for all services rendered by the Indenture Trustee and the Verification Agent, as applicable, hereunder. The Indenture Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.
(b) The Indenture Trustee and the Verification Agent and any of their respective affiliates, directors, officers, employees or agents shall be entitled to be reimbursed for, and indemnified and held harmless out of the funds available therefor pursuant to Section 5.01(a)(iii) from and against, any loss, liability, claim or expense (including reasonable costs and expenses of litigation, and of investigation, reasonable counsel’s fees and expenses, damages, judgments and amounts paid in settlement) arising out of, or incurred in connection with, this Base Indenture, the Notes (unless, in the case of the Indenture Trustee, it incurs any such expense or liability in the capacity of successor Servicer, in which case such expense or liability shall be reimbursable thereto in the same manner as it would be for any other Servicer in accordance with the Servicing Agreement) or any act or omission of the Indenture Trustee or the Verification Agent relating to the exercise and performance of any of the rights and duties of the Indenture Trustee or the Verification Agent hereunder and under any other Transaction Document, or any estoppel certificate, landlord consent, waiver or subordination and non-disturbance agreement and related real estate documents in connection with any Fiber Network, including in connection with any action, claim or suit brought to enforce the Indenture Trustee’s or the Verification Agent’s right to indemnification; provided that none of the Indenture Trustee or any of the other above specified Persons shall be entitled to indemnification or reimbursement pursuant to this Section 11.05(b) for (1) any expense that constitutes allocable overhead, such as costs for office space, office equipment, supplies and related expenses, employee salaries and related expenses and similar internal costs and expenses, (2) any loss, liability, damage, claim or expense specifically required to be borne by the Indenture Trustee pursuant to this Base Indenture or (3) any loss, liability, damage, claim or expense incurred by reason of any breach on the part of the Indenture Trustee of any of its representations or warranties contained herein or any willful misconduct, bad faith or negligence in the performance of, the Indenture Trustee’s or the Verification Agent’s obligations and duties hereunder. Without limiting the foregoing, the Issuer agrees to indemnify and hold harmless the Indenture Trustee and the Verification Agent and their respective Affiliates from and against any liability (including for taxes, penalties or interest asserted by any taxing jurisdiction) arising from any failure to withhold taxes from amounts payable in respect of payments from the Collection Account. The Indenture Trustee and the Verification Agent shall notify the Issuer promptly of any claim for which it may seek indemnity. Failure by the Indenture Trustee or the Verification Agent to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. To the extent the Indenture Trustee (or the Servicer on its behalf) renders services or incurs expenses after and during the continuation of an Event of Default specified in Section 10.01(c) or Section 10.01(d), the compensation for services and expenses incurred by it are intended to constitute expenses of administration under any applicable federal, state or foreign bankruptcy, insolvency or other similar law now or hereafter in effect. The Indenture Trustee (for itself and on behalf of the Servicer) shall have a lien on the Collateral, as governed by this Base Indenture, to secure the obligations of the Issuer under this Section 11.05.
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(c) Notwithstanding anything in this Base Indenture to the contrary, in no event shall the Indenture Trustee be liable for special, indirect or consequential damages of any kind whatsoever (including lost profits), even if the Indenture Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(d) This Section 11.05 shall survive the discharge or termination of this Base Indenture or the resignation or removal of the Indenture Trustee as regards rights and obligations prior to such discharge, termination, resignation or removal.
Section 11.06. Eligibility Requirements for Indenture Trustee. The Indenture Trustee hereunder shall not be an Affiliate of the Servicer (unless the Indenture Trustee is a successor servicer) or any Asset Entity (unless the Indenture Trustee becomes an Affiliate through any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Transaction Documents) and shall at all times be a corporation, bank, trust company or association that: (i) is organized and doing business under the laws of the United States of America or any State thereof or the District of Columbia and authorized under such laws to exercise corporate trust powers; (ii) together with its corporate parent has a combined capital and surplus of at least $100,000,000; and (iii) is subject to supervision or examination by federal or state authorities. If such corporation, bank, trust company or association publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 11.06, the combined capital and surplus of such corporation, bank, trust company or association shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In addition: (i) the Indenture Trustee shall at all times meet the requirements of Section 26(a)(1) of the Investment Company Act; and (ii) the Indenture Trustee may not have any affiliations or act in any other capacity with respect to the transactions contemplated hereby that would cause U.S. Department of Labor Prohibited Transaction Exemption (“PTE”) 90-24 or PTE 93-31 (in each case as amended by PTE 2000-58 and PTE 2002-41) to be unavailable with respect to any Class of Notes that it would otherwise be available in respect of. Furthermore, the Indenture Trustee and/or its corporate parent shall at all times maintain (or shall have caused to have been appointed a fiscal agent that at all times maintains) a long-term unsecured debt rating of no less than investment grade from KBRA, to the extent then rated by KBRA, and a short-term unsecured debt rating of no less than investment grade from KBRA, and a long-term issuer rating commonly regarded as “BBB” from Fitch or a short-term issuer rating of “F2” from Fitch. The corporation, bank, trust company or association serving as Indenture Trustee may have normal banking and trust relationships with the Asset Entities, the Servicer and their respective Affiliates but, except to the extent permitted or required by the Servicing Agreement, shall not be an “Affiliate” (as such term is defined in Section III of PTE 2000-58) of the Servicer, any sub-servicer, any Initial Purchasers, the Issuer and the Asset Entities or any “Affiliate” (as such term is defined in Section III of PTE 2000-58) of any such Persons.
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Section 11.07. Resignation and Removal of Indenture Trustee.
(a) The Indenture Trustee may at any time resign and be discharged from its obligations and duties created hereunder with respect to one or more or all Series of Notes by giving not less than 30 days prior written notice thereof to the other parties to this Base Indenture, the Servicer, the Back-Up Manager and all of the Noteholders. Upon receiving such notice of resignation, the Issuer shall use its commercially reasonable efforts to promptly appoint a successor indenture trustee meeting the eligibility requirements of Section 11.06 by written instrument, in duplicate, which instrument shall be delivered to the resigning Indenture Trustee and to the successor indenture trustee. A copy of such instrument shall be delivered to the other parties to this Base Indenture, the Servicer, the Back-Up Manager and to the Noteholders by the Issuer. If no successor indenture trustee shall have been so appointed and have accepted appointment within 20 days after the giving of such notice of resignation, the resigning Indenture Trustee may petition any court of competent jurisdiction for the appointment of a successor indenture trustee.
(b) If at any time the Indenture Trustee shall cease to be eligible in accordance with the provisions of Section 11.06 and shall fail to resign after written request therefor by the Issuer or the Servicer, or if at any time the Indenture Trustee shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver of the Indenture Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Indenture Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, or if the Indenture Trustee’s continuing to act in such capacity would (as confirmed in writing to the Issuer by any Rating Agency) result in the qualification, downgrade or withdrawal of the rating then assigned to any Class of Notes rated by such Rating Agency (or the placing of such Class of Notes on negative credit watch or ratings outlook negative status in contemplation of any such action with respect thereto), then the Issuer, or the Noteholders entitled to more than 50% of the aggregate Voting Rights will, upon 90 days’ prior written notice, be authorized to remove the Indenture Trustee and appoint a successor indenture trustee by written instrument, in duplicate, which instrument shall be delivered to the Indenture Trustee so removed and to the successor indenture trustee. A copy of such instrument shall be delivered to the other parties to this Base Indenture, the Servicer, the Back-Up Manager and the Noteholders by the Issuer. If no successor indenture trustee has accepted an appointment within 30 days after such removal, the retiring Indenture Trustee may petition any court of competent jurisdiction to appoint a successor indenture trustee.
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(c) Noteholders entitled to more than 50% of the aggregate Voting Rights may at any time upon 30 days advance written notice (with or without cause) remove the Indenture Trustee and appoint a successor indenture trustee by written instrument or instruments, in triplicate, signed by such holders or their attorneys-in-fact duly authorized, one complete set of which instruments shall be delivered to the Issuer, one complete set to the Indenture Trustee so removed, and one complete set to the successor indenture trustee so appointed. All expenses incurred by the Indenture Trustee in connection with its transfer of all documents relating to the Notes to a successor indenture trustee following the removal of the Indenture Trustee without cause pursuant to this Section 11.07 shall be reimbursed to the removed Indenture Trustee within 30 days of demand therefor, such reimbursement to be made by the Noteholders that terminated the Indenture Trustee; provided that if such Noteholders do not reimburse the Indenture Trustee within such thirty (30) day period, such expenses shall be reimbursed as Additional Obligor Expenses. A copy of such instrument shall be delivered to the other parties to this Base Indenture, the Servicer, the Back-Up Manager and the remaining Noteholders by the successor indenture trustee so appointed.
(d) Any resignation or removal of the Indenture Trustee and appointment of a successor indenture trustee pursuant to any of the provisions of this Section 11.07 shall not become effective until acceptance of appointment by the successor indenture trustee as provided in Section 11.08.
Section 11.08. Successor Indenture Trustee.
(a) Any successor indenture trustee appointed as provided in Section 11.07 shall execute, acknowledge and deliver to the Issuer, the Servicer, the Back-Up Manager and its predecessor Indenture Trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor Indenture Trustee shall become effective and such successor indenture trustee, without any further act, deed or conveyance, shall become fully vested with all of the rights, powers, duties and obligations of its predecessor hereunder, with the like effect as if originally named as indenture trustee herein. The predecessor Indenture Trustee shall deliver to the successor indenture trustee all documents relating to the Notes held by it hereunder, and the Issuer, the Servicer and the predecessor Indenture Trustee shall execute and deliver such instruments and do such other things as may reasonably be required to more fully and certainly vest and confirm in the successor indenture trustee all such rights, powers, duties and obligations, and to enable the successor indenture trustee to perform its obligations hereunder.
(b) No successor indenture trustee shall accept appointment as provided in this Section 11.08 unless at the time of such acceptance such successor indenture trustee shall be eligible under the provisions of Section 11.06.
(c) Upon acceptance of appointment by a successor indenture trustee as provided in this Section 11.08, such successor indenture trustee shall mail notice of the succession of such indenture trustee hereunder to the Issuer, the Servicer, the Back-Up Manager and the Noteholders.
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Section 11.09. Merger or Consolidation of Indenture Trustee. Any entity into which the Indenture Trustee may be merged or converted or with which it may be consolidated or any entity resulting from any merger, conversion or consolidation to which the Indenture Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of the Indenture Trustee shall be the successor of the Indenture Trustee hereunder, provided, such entity shall be eligible under the provisions of Section 11.06, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
Section 11.10. Appointment of Co-Indenture Trustee or Separate Indenture Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any of the Notes or property securing the same may at the time be located, for enforcement actions and where a conflict of interest exists, the Indenture Trustee shall have the power and shall execute and deliver all instruments to appoint one or more Persons approved by the Indenture Trustee to act as co-indenture trustee or co-indenture trustees, jointly with the Indenture Trustee, or separate indenture trustee or separate indenture trustees, of the Notes, and to vest in such Person or Persons, in such capacity, such title to the Notes, or any part thereof, and, subject to the other provisions of this Section 11.10, such powers, duties, obligations, rights and trusts as the Indenture Trustee may consider necessary or desirable. No co-indenture trustee or separate Indenture Trustee hereunder shall be deemed an agent of the Indenture Trustee or be required to meet the terms of eligibility as a successor indenture trustee under Section 11.06, and no notice to Holders of Notes of the appointment of co-indenture trustee(s) or separate Indenture Trustee(s) shall be required under Section 11.08.
(b) In the case of any appointment of a co-indenture trustee or separate indenture trustee pursuant to this Section 11.10, all rights, powers, duties and obligations conferred or imposed upon the Indenture Trustee shall be conferred or imposed upon and exercised or performed by the Indenture Trustee and such separate Indenture Trustee or co-indenture trustee jointly, except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Indenture Trustee hereunder or when acting as successor servicer under the Servicing Agreement), the Indenture Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations shall be exercised and performed by such separate Indenture Trustee or co-indenture trustee solely at the written direction of the Indenture Trustee.
(c) Any notice, request or other writing given to the Indenture Trustee shall be deemed to have been given to each of the then-separate Indenture Trustees and co-indenture trustees, as effectively as if given to each of them. Every instrument appointing any separate Indenture Trustee or co-indenture trustee shall refer to this Base Indenture and the conditions of this Article XI. Each separate Indenture Trustee and co-indenture trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Indenture Trustee or separately, as may be provided therein, subject to all of the provisions of this Base Indenture and any Indenture Supplement, specifically including every provision of this Base Indenture and any Indenture Supplement relating to the conduct of, affecting the liability of, or affording protection to, the Indenture Trustee. Every such instrument shall be filed with the Indenture Trustee.
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(d) Any separate trustee or co-trustee may, at any time, constitute the Indenture Trustee, its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Base Indenture or any Indenture Supplement on its behalf and in its name. The Indenture Trustee shall not be responsible or liable for any act, inaction or the appointment of any such trustee or co-trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Indenture Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this Section 11.10 shall not relieve the Indenture Trustee of its duties and responsibilities hereunder.
Section 11.11. Access to Certain Information.
(a) The Indenture Trustee shall afford to the Issuer, the Initial Purchasers, the Servicer, the Controlling Class Representative, the Back-Up Manager and each Rating Agency and any banking or insurance regulatory authority that may exercise authority over any Noteholder or Note Owner, access to any documentation regarding the Notes. Such access shall be afforded without charge but only upon reasonable prior written request and during normal business hours at the Corporate Trust Office; provided that any such examination permitted under this Section 11.11 shall be conducted in a manner which does not unreasonably interfere with the Indenture Trustee’s normal operations or customer and employee relations.
(b) The Indenture Trustee shall maintain at its Corporate Trust Office and, upon reasonable prior written request and during normal business hours, shall make available, or cause to be made available, for review by the Issuer, the Rating Agencies, the Servicer, the Back-Up Manager and the Controlling Class Representative originals or copies of the following items (to the extent that such items were prepared by or delivered to the Indenture Trustee): (i) this Base Indenture, and any applicable Indenture Supplements and any amendments and exhibits hereto or thereto; (ii) the Servicing Agreement, each sub-servicing agreement delivered to the Indenture Trustee since the Initial Closing Date and any amendments and exhibits thereto; (iii) all Manager Reports actually delivered or otherwise made available to Noteholders pursuant to Section 11.11(d) since the Initial Closing Date; and (iv) any other information in the possession of the Indenture Trustee that may be necessary to satisfy the requirements of subsection (d)(4)(i) of Rule 144A. The Indenture Trustee shall make available copies of any and all of the foregoing items to any of the Persons set forth in the previous sentence promptly following request therefor by such Person via the Indenture Trustee’s internet website at www.sf.citidirect.com; provided that except in the case of the Rating Agencies, the Indenture Trustee shall be permitted to require payment of a sum sufficient to cover the reasonable costs and expenses of providing such copies.
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(c) Upon reasonable advance notice and at the expense of any Noteholder, Note Owner, Controlling Class Representative, Person identified to the Indenture Trustee as a prospective transferee of a Note or an interest therein or Rating Agency (a “Requesting Party”), the Indenture Trustee, subject to the succeeding paragraph, shall make available to such Requesting Party copies of (i) this Base Indenture and any Series Supplement; (ii) the Cash Management Agreement; (iii) the Servicing Agreement; (iv) the Management Agreement; (v) the Holdco Guaranty; (vi) all Manager Reports; and (vii) to the extent delivered to the Indenture Trustee, the most recent audited financial statements of the Guarantor and its consolidated subsidiaries; provided that the Requesting Party furnish to the Indenture Trustee a written certification substantially in the form attached hereto as Exhibit D-1, Exhibit D-2 or Exhibit E, as applicable, as to the effect that (x) in the case of a Noteholder, such Person or entity shall keep such information confidential (except that any Noteholder may provide any such information obtained by it to any other person or entity that holds or is contemplating the purchase of any Note or interest therein; provided that such other person or entity confirms to such Noteholder in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (y) in the case of a Note Owner, such person or entity is a beneficial owner of Book-Entry Notes and shall keep such information confidential (except that such Note Owner may provide such information to any other Person or entity that holds or is contemplating the purchase of any Note or interest therein; provided that such other person or entity confirms to such Note Owner in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential).
(d) The Indenture Trustee shall make available to each Noteholder and to the Servicer the Manager Report delivered by the Manager as required under the terms of the Management Agreement and Section 7.02(a)(iv) hereof and the Indenture Trustee and shall also make available to any Requesting Party the amounts on deposit in, and withdrawn from, the Prefunding Account for the related Collection Period, to the extent such information is delivered to the Indenture Trustee by the Manager. The Verification Agent shall review, recalculate and confirm certain calculations contained in (i) the Manager Report including, interest due and payable on the Payment Date, Senior DSCR, DSCR, Class A Leverage Ratio and the Leverage Ratio at the Class-level (based on Annualized Net Operating Income) and (ii) officer’s certificates, including (a) draws on Class A-1-V Notes, (b) releases of funds from any Prefunding Account and (c) dispositions of Fiber Network Assets. The Verification Agent shall be entitled to conclusively rely on information provided to it by the Issuer and may request evidence to its satisfaction of certifications prepared by the Issuer. The Indenture Trustee shall make available to each Noteholder the applicable Manager Report and certain other information each month on its website, which shall initially be located at www.sf.citidirect.com. The manner in which notices and other communications are conveyed by DTC to DTC Participants, and by DTC Participants to the Note Owners, shall be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. The Servicer and the Indenture Trustee are required to recognize as Noteholders only those persons in whose names the Notes are registered on the books and records of the Note Registrar.
(e) The Indenture Trustee shall not be liable for providing or disseminating information in accordance with the terms of this Base Indenture.
Section 11.12. Servicer to Act for Indenture Trustee. To the extent necessary for the Servicer to perform its express duties under the Transaction Documents, the Indenture Trustee hereby grants (without obligation) to the Servicer the power and authority to perform on its behalf the duties, rights and remedies granted to the Indenture Trustee under this Base Indenture and the other Transaction Documents to the extent such duties, rights and remedies relate to the servicing and administration of the Fiber Networks and related Collateral, and the Indenture Trustee shall have no responsibility or liability for the Servicer’s exercise of such duties, rights and remedies; provided that such grant shall not obligate the Servicer to perform any such duties, rights and remedies (other than those that the Servicer has expressly agreed to perform pursuant to the Transaction Documents).
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ARTICLE XII
NOTEHOLDERS’ LISTS, REPORTS AND MEETINGS
Section 12.01. Issuer to Furnish Indenture Trustee Names and Addresses of Noteholders. Unless the Note Registrar and Indenture Trustee are the same entity, the Issuer shall cause the Note Registrar to furnish to the Indenture Trustee (a) not more than three Business Days prior to each Payment Date a list, in such form as the Indenture Trustee may reasonably require, of the names and addresses of the Holders of Definitive Notes as of such date and (b) at such other times as the Indenture Trustee may request in writing, within 30 days after receipt by the Issuer of any such request, a list of similar form and content as of a date not more than ten days prior to the time such list is furnished; provided that the Issuer shall not be required to furnish such list so long as the Indenture Trustee is the Note Registrar; provided, further, that the Indenture Trustee shall be entitled to fully rely on the most recent such lists it has been provided until such time as it received update copies of such lists at which time it shall be entitled to fully rely on such updated lists.
Section 12.02. Preservation of Information. The Indenture Trustee shall cause the Note Registrar to preserve in as current a form as is reasonably practicable, the names and addresses of Holders of Definitive Notes received by the Note Registrar and the names and addresses of the Holders of Definitive Notes contained in the most recent list furnished to the Indenture Trustee as provided in Section 12.01. The Indenture Trustee may destroy any list furnished to it as provided in such Section 12.01 upon receipt of a new list so furnished.
Section 12.03. Fiscal Year. Unless the Issuer otherwise determines, the fiscal year of the Issuer shall correspond to the calendar year.
Section 12.04. Voting by Noteholders.
(a) The Voting Rights shall be allocated among the respective Classes of Notes according to the ratio of the Outstanding Class Principal Balance of each Class of Notes to the Outstanding Class Principal Balance of all Classes of Notes. Voting Rights allocated to a Class of Notes shall be allocated among the Notes of such Class in proportion to the Percentage Interest in such Class evidenced thereby. Notes held by the Issuer or any of its Affiliates shall be deemed not to be Outstanding in determining Voting Rights.
(b) Except as otherwise provided herein or in any Indenture Supplement, all resolutions of Noteholders shall be passed by votes representing more than 50% of the Voting Rights of Notes. Book-Entry Notes shall be voted by the Depositary on behalf of the Beneficial Owners thereof in accordance with written instructions received in accordance with applicable DTC procedures.
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Section 12.05. Communication by Noteholders with other Noteholders. Noteholders may communicate with other Noteholders with respect to their rights under this Base Indenture, any Indenture Supplement or the Notes. If any Noteholder makes written request to the Note Registrar, and such request states that such Noteholder desires to communicate with other Noteholders with respect to their rights under this Base Indenture or under the Notes and such request is accompanied by a copy of the communication that such Noteholder proposes to transmit, then the Note Registrar shall, within 30 days after the receipt of such request, afford the requesting Noteholder access during normal business hours to, or deliver to the requesting Noteholder a copy of, the most recent list of Noteholders held by the Note Registrar (which list shall be current as of a date no earlier than 30 days prior to the Note Registrar’s receipt of such request). Every Noteholder, by receiving such access, acknowledges that neither the Note Registrar nor the Indenture Trustee shall be held accountable in any way by reason of the disclosure of any information as to the names and addresses of any Noteholder regardless of the source from which such information was derived.
ARTICLE XIII
INDENTURE SUPPLEMENTS
Section 13.01. Indenture Supplements without Consent of Noteholders. Without the consent of the Noteholders or the Servicer, the Issuer and the Indenture Trustee, when authorized by an Issuer Order, at any time and from time to time, may enter into one or more Indenture Supplements at the expense of the party requesting the supplement or amendment of this Base Indenture, in form satisfactory to the Indenture Trustee for any of the following purposes:
(i) to correct any typographical error or cure any ambiguity, or to cure, correct or supplement any defective or inconsistent provision in this Base Indenture, any Series Supplement or the Notes or any provision in this Base Indenture or any Series Supplement or the Notes which is inconsistent with the Offering Memorandum;
(ii) to convey, transfer, assign, mortgage or pledge any property to the Indenture Trustee for the benefit of the Secured Parties;
(iii) to modify this Base Indenture or any Series Supplement as required or made necessary by any change in applicable law or to comply with any requirements imposed by the Code;
(iv) to add to the covenants of the Obligors or any other party for the benefit of the Noteholders and the other Secured Parties, or to surrender any right or power conferred upon the Obligors in this Base Indenture or any Series Supplement;
(v) to add any additional Events of Default;
(vi) to issue a Series of Additional Notes in accordance with Section 2.12(d);
(vii) to prevent the Issuer, the Noteholders or the Indenture Trustee from being subject to taxes (including withholding taxes), fees or assessments, or to reduce or eliminate any such taxes, fees or assessments;
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(viii) to evidence and provide for the acceptance of appointment by a successor indenture trustee;
(ix) modify or supplement the provisions of this Base Indenture to the extent necessary to enable the issuance of a Series of Class A-1-V Notes and provide for other terms and provisions applicable to such Series of Class A-1-V Notes;
(x) to modify the provisions of this Base Indenture or any Indenture Supplement to allow for a Fiber Network acquisition account in connection with a future issuance of a Series of Notes;
(xi) to modify the provisions of Section 5.01(a) to add clauses and/or modify the clauses contained in Section 5.01(a)(xvi) through Section 5.01(a)(xviii) to allow for one or more Classes of Notes subordinated in priority to any Class C Notes;
(xii) to amend the definition of Required Liquidity Amount or effect any other Specified Amendment to that extent that:
(A) in the case of an amendment to the definition of Required Liquidity Amount, the Issuer enters into an agreement with a third-party servicer or other entity that agrees to advance amounts to pay shortfalls in (x) debt service on the Notes and (y) certain other amounts due necessary to operate Fiber Networks and
(B) in each case, a Rating Agency Confirmation is received with respect to such amendment;
(xiii) modify or supplement the provisions of this Base Indenture to the extent necessary to enable the issuance of a Series of Class A-1-L Notes and provide for other terms and provisions applicable to such Series of Class A-1-L Notes; or
(xiv) for any other purpose;
provided that the amendment of this Base Indenture or any Indenture Supplement shall be prohibited unless (A) the Indenture Trustee shall first have received a certificate of an Executive Officer of the Issuer to the effect that such amendment or Indenture Supplement does not adversely affect in any material respect the interests of any Noteholder (as evidenced by a Rating Agency Confirmation), or diminish any rights, protections, indemnifications, immunities or remedies or increase any liabilities, duties or obligations of the Servicer (unless the Servicer has consented thereto) or the Back-Up Manager (unless the Back-Up Manager has consented thereto) hereunder, under the Servicing Agreement, the Back-Up Management Agreement or any other Transaction Document, and (B) in connection with any Indenture Supplement for the purposes described in clauses (ii), (iii), (iv), (v), (vii), (ix), (x), (xi), (xiii) or (xiv) above, the Indenture Trustee shall have received an Opinion of Counsel (which opinion may contain similar assumptions and qualifications as are contained in the Opinion of Counsel delivered on the Initial Closing Date) to the effect that such amendment or supplement will not, for U.S. federal income tax purposes, (x) cause any of the Outstanding Notes to be deemed to have been exchanged for a new debt instrument or (y) cause the Issuer to be taxable as other than a disregarded entity or a partnership.
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In addition, without the consent of the Noteholders, the Indenture Trustee, when authorized by an Issuer Order, at any time and from time to time, may enter into any amendment (or provide its consent to any amendment) of any other Transaction Document (or any agreement which requires consent of any Obligor to amend under the terms of any Transaction Document) in accordance with the terms of such Transaction Document; provided that either (x) the Indenture Trustee shall first have received a certificate of an Executive Officer of the Issuer to the effect that such amendment will not adversely affect in any material respect the interests of any Noteholder (as evidenced by a Rating Agency Confirmation) or diminish any rights, protections, indemnifications, immunities, or remedies or increase any liabilities, duties or obligations of the Servicer (unless the Servicer has consented thereto) hereunder, under the Servicing Agreement or any other Transaction Document or diminish any rights, protections, indemnifications, immunities or remedies or increase any liabilities, duties or obligations of the Back-Up Manager (unless the Back-Up Manager has consented thereto) hereunder, under the Back-Up Management Agreement or any other Transaction Document or (y) the Indenture Trustee shall have received the consent of the Noteholders as and to the same extent such consent would be required for an Indenture Supplement pursuant to Section 13.02 and the consent of the Servicer if the effect of any such amendment would be to diminish any rights, protections, indemnifications, immunities or remedies or increase any liabilities, duties or obligations of the Servicer under the Servicing Agreement or any other Transaction Document and/or the consent of the Back-Up Manager if the effect of any such amendment would be to diminish any rights, protections, immunities, indemnifications or remedies or increase any liabilities, duties or obligations of the Back-Up Manager under the Back-Up Management Agreement or any other Transaction Document; provided that any consent by the Indenture Trustee required by the provisions of Section 9(j) of the limited liability company agreement or operating agreement, as applicable, of the Issuer or of the Guarantor shall require the prior direction of Noteholders representing more than 75% of the Voting Rights of all Notes voting as a single class and the consent of the Controlling Class Representative (which consent shall not be unreasonably withheld, conditioned or delayed).
Promptly after the execution by the Issuer and the Indenture Trustee of any Indenture Supplement pursuant to this Section 13.01, the Indenture Trustee shall make available to the Holders of the Notes, the Back-Up Manager and the Servicer a copy of such Indenture Supplement. Any failure of the Indenture Trustee to make available such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such Indenture Supplement.
Section 13.02. Indenture Supplements with Consent of Noteholders. The Issuer and the Indenture Trustee, when authorized by an Issuer Order, with a prior direction of Noteholders representing more than 50% of the Voting Rights of each Class of Notes adversely affected thereby and without prior notice to any other Noteholder, also may amend, supplement or modify this Base Indenture, any Indenture Supplement or the Notes or waive compliance by the Issuer with any provision of this Base Indenture, any Indenture Supplement or the Notes; provided that no such amendment, modification, supplement or waiver may, without the consent of the Holder of each Note (including, notwithstanding anything to the contrary contained herein, the Holder of any Note that is the Issuer or any of its Affiliates) adversely affected thereby (including any tax consequences):
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(i) change the Anticipated Repayment Date applicable to the Series or the Rated Final Payment Date applicable to the Series or any scheduled Payment Date applicable to the Series;
(ii) reduce the amounts required to be paid on the Notes on any Payment Date, any Anticipated Repayment Date or the Rated Final Payment Date;
(iii) change the place of payments on the Notes on any Payment Date, any Anticipated Repayment Date or the Rated Final Payment Date;
(iv) change the coin or currency in which the principal of any Note or interest thereon is payable;
(v) impair the right of a Noteholder to institute suit for the enforcement of any payment on or with respect to any Note on or after the maturity thereof;
(vi) reduce the percentage in principal balance of the Outstanding Note Principal Balance of any of the Notes, the consent of whose Holders is required for such amendment or eliminate the requirement that affected Noteholders consent to any amendment;
(vii) change any obligation of the Issuer to maintain an office or agency in the places and for the purposes set forth in this Base Indenture; or
(viii) permit the creation of any lien ranking prior to or on parity with the lien of the Noteholders with respect to the Collateral or, except as otherwise permitted or contemplated in this Base Indenture or any Indenture Supplement, terminate the lien of the Noteholders on such Collateral or deprive the Noteholders of the security afforded by such.
In determining whether a proposed amendment would adversely affect any Class of Notes, the Indenture Trustee may rely conclusively and shall be fully protected in relying on a certificate of an Executive Officer of the Issuer.
It shall not be necessary for any Act of the Noteholders under this Section 13.02 to approve the particular form of any proposed Indenture Supplement, but it shall be sufficient if such Act shall approve the substance thereof.
Notwithstanding anything to the contrary in this Section 13.02, an Indenture Supplement entered into for the purpose of issuing Additional Notes the issuance of which complies with the terms of this Base Indenture shall not require the consent of any Noteholder.
Promptly after the execution by the Issuer and the Indenture Trustee of any Indenture Supplement pursuant to this Section 13.02, the Indenture Trustee shall make available to the Holders of the Notes, the Back-Up Manager and the Servicer a copy of such Indenture Supplement. Any failure of the Indenture Trustee to make available such notice, or any defect therein, shall not in any way impair or affect the validity of any such Indenture Supplement.
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Section 13.03. Execution of Indenture Supplements. In executing, or permitting the additional trusts created by, any Indenture Supplement permitted by this Article XIII or the modification thereby of the trusts created by this Base Indenture, the Indenture Trustee shall be entitled to receive, and, subject to Section 11.02, shall be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such Indenture Supplement is authorized or permitted by this Base Indenture and that all conditions precedent to the execution and delivery of such Indenture Supplement have been satisfied; provided that an Opinion of Counsel shall not be required in connection with any Series Supplement entered into solely in connection with the issuance of a Series of Additional Notes. The Indenture Trustee may, but shall not be obligated to (and with respect to the Servicer and the Back-Up Manager shall not, except as permitted by the Servicing Agreement and the Back-Up Management Agreement), enter into any such Indenture Supplement that affects the Indenture Trustee’s (or with respect to the Servicer and the Back-Up Manager, the Servicer’s and the Back-Up Manager’s, as applicable) own rights, duties, liabilities or immunities under this Base Indenture or otherwise. In addition to the foregoing, no provision of this Base Indenture or any other Transaction Document may be amended, supplemented, modified or waived: (a) without the Servicer’s consent if such amendment, supplement, modification or waiver would increase the Servicer’s duties, obligations or liabilities, or diminish the Servicer’s rights, protections, remedies, indemnifications or immunities under the Servicing Agreement, this Base Indenture or any other Transaction Document and (b) without the Back-Up Manager’s consent if such amendment, supplement, modification or waiver would increase the Back-Up Manager’s duties, obligations or liabilities, or diminish the Back-Up Manager’s rights, protections, remedies, indemnifications or immunities under the Back-Up Management Agreement, this Base Indenture or any other Transaction Document.
Section 13.04. Effect of Indenture Supplement. Upon the execution of any Indenture Supplement pursuant to the provisions hereof, this Base Indenture, any Series Supplement affected by such Indenture Supplement and/or any Notes affected by such Indenture Supplement shall be and shall be deemed to be modified and amended in accordance therewith with respect to the Notes affected thereby, and the respective rights, limitations of rights, obligations, duties, liabilities and immunities under this Base Indenture, such Series Supplement and/or such Notes of the Indenture Trustee, the Servicer, the Issuer and the Holders of the Notes shall thereafter be determined, exercised and enforced hereunder and thereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such Indenture Supplement shall be and be deemed to be part of the terms and conditions of this Base Indenture, such Series Supplement and/or such Notes for any and all purposes.
Section 13.05. Reference in Notes to Indenture Supplements. Notes authenticated and delivered (or with respect to Uncertificated Notes, registered) after the execution of any Indenture Supplement pursuant to this Article XIII may bear a notation in form approved by the Indenture Trustee as to any matter provided for in such Indenture Supplement. If the Issuer shall so determine, new Notes so modified as to conform, in the opinion of the Issuer, to any such Indenture Supplement may be prepared and executed by the Issuer and authenticated and delivered (or with respect to Uncertificated Notes, registered) by the Indenture Trustee in exchange for Outstanding Notes.
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ARTICLE XIV
PLEDGE OF OTHER OBLIGOR COLLATERAL
Section 14.01. Grant of Security Interest/UCC Collateral.
(a) Each Obligor hereby grants to the Indenture Trustee for the benefit of the Secured Parties a security interest in and to all of its fixtures (as defined in the UCC) and personal property whether now owned or hereafter acquired and wherever located, including the following (collectively, the “Other Obligor Collateral”):
(i) equipment (as defined in the UCC), all parts thereof and all accessions thereto, including machinery, satellite receivers, antennas, headend electronics, furniture, motor vehicles, aircraft and rolling stock;
(ii) fixtures, all substitutes and replacements therefor, all accessions and attachments thereto, and all tools, parts and equipment now or hereafter added to or used in connection with the fixtures (including proceeds which constitute property of the types described herein);
(iii) the Obligors’ rights, title and interest in and under the Customer Agreements with respect to the Fiber Networks (including all rights to payment thereunder, but excluding any other rights that cannot be assigned without third party consent), if any;
(iv) the Obligors’ rights, title and interest in and to any other Fiber Network Asset owned by the Obligors;
(v) accounts (as defined in the UCC);
(vi) inventory (as defined in the UCC);
(vii) goods (as defined in the UCC);
(viii) contract rights (as defined in the UCC);
(ix) general intangibles (as defined in the UCC), including any limited liability company or other ownership interests which are not “securities” as provided under Section 8-103 of the UCC;
(x) investment property (as defined in the UCC), including the Collection Account;
(xi) deposit accounts (as defined in the UCC), including all Reserve Accounts and each Control Account;
(xii) chattel paper (as defined in the UCC);
(xiii) instruments (as defined in the UCC);
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(xiv) all rights and remedies of any of the Obligors under the Management Agreement and the other Transaction Documents (including all rights to payment thereunder);
(xv) the Fiber Network Underlying Rights Agreements and any and all rights, remedies and proceeds thereunder and derived therefrom;
(xvi) all leases of personal property and any Customer Agreements that constitute personal property;
(xvii) all Fiber Network Assets that constitute real property; and
(xviii) the proceeds of the foregoing clauses (i) through (xiii) as security for payment and performance of all of the Obligations hereunder;
provided that no Prefunding Account, or any of the funds on deposit therein, shall be included in the Other Obligor Collateral.
(b) If the grant of the security interests with respect to any contract, intellectual property right, government license or permit hereunder would result in the termination or breach of such contract, intellectual property right, government license or permit, or is otherwise prohibited or ineffective (whether by the terms thereof or under applicable law), then such contract, intellectual property right, government license or permit shall not be subject to the security interests but shall be held in trust by the applicable Obligor for the benefit of the Indenture Trustee (for its own benefit and for the benefit of the Secured Parties) and, on the exercise by the Indenture Trustee of any of its rights or remedies under this Base Indenture following an Event of Default, such contract, intellectual property right, government license or permit shall be assigned by such Obligor as directed by the Indenture Trustee (acting at the direction of a Majority of Noteholders).
(c) Each Obligor confirms that value has been given by the Noteholders to such Obligor, that such Obligor has rights in its Collateral existing at the date of this Base Indenture, and that such Obligor and the Indenture Trustee have not agreed to postpone the time for attachment of the security interests to any of the Collateral of such Obligor.
(d) The Issuer and the Asset Entities hereby authorize the Indenture Trustee, and the Indenture Trustee shall have the right but not the obligation, to file such financing statements as the Issuer shall deem reasonably necessary to perfect the Indenture Trustee’s interest in the Other Obligor Collateral and file continuation statements to match such perfection; provided that the Indenture Trustee shall not be obligated to execute or authorize such instruments except upon the written direction of the Servicer or the Issuer; provided, however, such designation shall not be deemed to create any duty in the Indenture Trustee to authorize, execute or file any such financing statements or to monitor the compliance of the Issuer or the Manager with the foregoing covenants and the Indenture Trustee shall not be liable for any failure to file or for any defects that exist in the financing statements, continuation statements or other instruments, documents, certificates or agreements; and provided, further that the authority of the Indenture Trustee to execute or authorize the filing of any financing statement, continuation statement, instrument, document certificate or agreement (i) shall not require the Indenture Trustee to pay any fees, taxes or other governmental charges, (ii) shall not require the Indenture Trustee to prepare or file any financing statements, continuation statements or other instruments, documents, certificates or agreements and (iii) shall not require the Indenture Trustee to review any financing statements, continuation statements or other instruments, documents, certificates or agreements. The Issuer and the Asset Entities authorize the Indenture Trustee to use the collateral description “all assets” or similar variation in any such financing statements. The Issuer and the Asset Entities hereby ratify and authorize the filing (i) by the Issuer of any financing statement and (ii) by the Indenture Trustee (or the Servicer on its behalf) of any continuation statement, in each case with respect to the Other Obligor Collateral made prior to the Initial Closing Date. Upon the occurrence and during the continuance of any Event of Default, the Indenture Trustee shall have all rights and remedies pertaining to the Other Obligor Collateral as are provided for in any of the Transaction Documents or under any applicable law including the Indenture Trustee’s rights of enforcement with respect to the Other Obligor Collateral or any part thereof, exercising its rights of enforcement with respect to the Other Obligor Collateral or any part thereof under the UCC (or under the Uniform Commercial Code in force in any other state to the extent the same is applicable law) and in conjunction with, in addition to, or in substitution for, such rights and remedies of the following:
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(i) The Indenture Trustee may enter upon the premises of an Obligor to take
possession of, assemble and collect the Other Obligor Collateral or to render it unusable.
(ii) The Indenture Trustee may require an Obligor to assemble the Other
Obligor Collateral and make it available at a place the Indenture Trustee designates which is mutually convenient to allow the Indenture Trustee to take possession or dispose of the Other Obligor Collateral.
(iii) To the extent a Responsible Officer of the Indenture Trustee has Knowledge thereof, written notice mailed to the Issuer as provided herein at least ten days prior to the date of public sale of the Other Obligor Collateral or prior to the date after which private sale of the Other Obligor Collateral shall be made shall constitute reasonable notice.
(iv) In the event of a foreclosure sale, the Other Obligor Collateral and the
other Collateral may, at the option of the Indenture Trustee (acting at the direction of Noteholders), be sold as a whole.
(v) It shall not be necessary that the Indenture Trustee take possession of the
Other Obligor Collateral or any part thereof prior to the time that any sale pursuant to the provisions of this section is conducted and it shall not be necessary that the Other Obligor Collateral or any part thereof be present at the location of such sale.
(vi) Prior to application of proceeds of disposition of the Other Obligor
Collateral to the Obligations, such proceeds shall be applied to the reasonable expenses of retaking, holding, preparing for sale or lease, selling, leasing and the like and the reasonable attorneys’ fees and legal expenses incurred by the Indenture Trustee.
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(vii) Any and all statements of fact or other recitals made in any bill of sale or assignment or other instrument evidencing any foreclosure sale hereunder as to nonpayment of the Obligations or as to the occurrence of any default, or as to the Indenture Trustee having declared all Obligations to be due and payable, or as to notice of time, place and terms of sale and of the properties to be sold having been duly given, or as to any other act or thing having been duly done by the Indenture Trustee, shall be taken as prima facie evidence of the truth of the facts so stated and recited.
(viii) The Indenture Trustee may appoint or delegate any one or more persons as agent to perform any act or acts necessary or incident to any sale held by the Indenture Trustee, including the sending of notices and the conduct of the sale, but in the name and on behalf of the Indenture Trustee.
(ix) The Indenture Trustee may appoint by instrument in writing one or more Receivers of any or all Obligors or any or all of the Collateral of any or all Obligors with such rights, powers and authority (including any or all of the rights, powers and authority of the Indenture Trustee under this Base Indenture) as may be provided for in the instrument of appointment or any supplemental instrument, and remove and replace any such Receiver from time to time. To the extent permitted by applicable law, any Receiver appointed by the Indenture Trustee shall be considered to be the agent of any such Obligor and not of the Indenture Trustee or any of the other Secured Parties.
Section 14.02. Equity Interest Pledges.
(a) Unless an Event of Default has occurred and is continuing, each Obligor shall, for greater certainty, be entitled to continue to exercise all voting power from time to time exercisable with respect to the Equity Interests pledged by such Obligor and give consents, waivers and ratifications with respect thereto; provided that no Obligor shall cast any vote or take any other action which would be, or would have a reasonable likelihood of being, prejudicial to the interests of the Noteholders or which would have the effect of reducing the value of the Collateral of such Obligor as security for the Obligations of such Obligor or imposing any additional restriction on the transferability of any of the Collateral of such Obligor. Unless an Event of Default has occurred and is continuing, the Indenture Trustee shall, from time to time at the request and expense of the applicable Obligor, execute or cause to be executed, with respect to all Pledged Equity Interests of such Obligor that are registered in the name of the Indenture Trustee or its nominee, valid proxies appointing such Obligor as its (or its nominee’s) proxy to attend, vote and act for and on behalf of the Indenture Trustee or such nominee, as the case may be, at any and all meetings of the applicable issuer’s shareholders or debt holders, all Equity Interests that are registered in the name of the Indenture Trustee or such nominee, as the case may be, and to execute and deliver, consent to or approve or disapprove of or withhold consent to any resolutions in writing of shareholders or debt holders of the applicable issuer for and on behalf of the Indenture Trustee or such nominee, as the case may be. Immediately upon the occurrence and during the continuance of any Event of Default, all such rights of the applicable Obligor to vote and give consents, waivers and ratifications shall cease and the Indenture Trustee or its nominee shall be entitled to exercise all such voting rights and to give all such consents, waivers and ratifications.
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(b) Unless an Event of Default has occurred and is continuing, each Obligor shall be entitled to receive any and all cash dividends, interest, principal payments and other forms of cash distribution otherwise permitted hereunder on Equity Interests pledged by such Obligor which it is otherwise entitled to receive. If an Event of Default has occurred and is continuing, all rights of such Obligor pursuant to this Section 14.02 shall cease and the Indenture Trustee shall have the sole and exclusive right and authority to receive and retain the cash dividends, interest, principal payments and other forms of cash distribution which such Obligor would otherwise be authorized to retain pursuant to this Section 14.02. Any money and other property paid over to or received by the Indenture Trustee pursuant to the provisions of this Section 14.02 shall be retained by the Indenture Trustee as additional Collateral hereunder and be applied in accordance with the provisions of this Base Indenture.
ARTICLE XV
MISCELLANEOUS
Section 15.01. Compliance Certificates and Opinions, etc. Upon any application or request by the Issuer to the Indenture Trustee or the Servicer to take any action under any provision of this Base Indenture, any Indenture Supplement or any other Transaction Document, the Issuer shall furnish to the Indenture Trustee and Servicer (i) an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Base Indenture, such Indenture Supplement, or the other Transaction Documents relating to the proposed action have been complied with, when requested by the Indenture Trustee or the Servicer, (ii) an Opinion of Counsel stating that in the opinion of such counsel such action is authorized or permitted by this Base Indenture, such Indenture Supplement or the other Transaction Documents, and all such conditions precedent, if any, have been complied with, and (iii) if applicable, an Independent Certificate from a firm of certified public accountants meeting the applicable requirements of this Section 15.01, except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Base Indenture, any Indenture Supplement or any Transaction Document, no additional certificate or opinion need be furnished.
Every certificate or opinion provided by or on behalf of the Issuer with respect to compliance with a condition or covenant provided for in this Base Indenture, or any Indenture Supplement or any other Transaction Document shall include:
(i) a statement that each signatory of such certificate or opinion has read or has caused to be read such covenant or condition and the definitions in this Base Indenture, in such Indenture Supplement and the other Transaction Documents relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such signatory, such signatory has made such examination or investigation as is necessary to enable such signatory to express an informed opinion as to whether or not such covenant or condition has been complied with; and
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(iv) a statement as to whether, in the opinion of each such signatory, such condition or covenant has been complied with.
Nothing herein shall be deemed to require either the Indenture Trustee, the Back-Up Manager or the Servicer to confirm, represent or warrant the accuracy of (or to be liable or responsible for) any other Person’s information or report, including any communication from the Issuer, any Asset Entity, the Guarantor or the Manager. In connection with the performance of its obligations hereunder and under the other Transaction Documents, each of the Indenture Trustee, the Back-Up Manager and the Servicer shall be entitled to conclusively rely upon any written information or certification (without any obligation to investigate the accuracy or completeness of any information or certification set forth therein) or recommendation provided to it by the Manager, and none of the Indenture Trustee, the Back-Up Manager or the Servicer shall have any liability with respect thereto.
Section 15.02. Form of Documents Delivered to Indenture Trustee.
(a) In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an Authorized Officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or Opinion of Counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which such Officer’s Certificate or opinion is based are erroneous. Any such certificate of an Authorized Officer or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Issuer, stating that the information with respect to such factual matters is in the possession of the Issuer, unless such officer or officers of the Issuer or such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or more applications, requests, comments, certificates, statements, opinions or other instruments under this Base Indenture, any Indenture Supplement or any other Transaction Document, they may, but need not, be consolidated and form one instrument.
(d) Whenever in this Base Indenture, any Indenture Supplement or any other Transaction Document, in connection with any application or certificate or report to the Indenture Trustee, it is provided that the Issuer or the Asset Entities shall deliver any document as a condition of the granting of such application, or as evidence of the Issuer’s or the Asset Entities’ compliance with any term hereof, in any Indenture Supplement or any other Transaction Document, it is intended that the truth and accuracy, at the time of the granting of such application or at the effective date of such certificate or report (as the case may be), of the facts and opinions stated in such document shall in such case be conditions precedent to the right of the Issuer or the Asset Entities to have such application granted or to the sufficiency of such certificate or report. The foregoing shall not be construed to affect the Indenture Trustee’s or Servicer’s right to rely upon the truth and accuracy of any statement or opinion contained in any such document as provided in Article XI.
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Section 15.03. Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Base Indenture or any Indenture Supplement to be given or taken by Noteholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Noteholders in person or by agents duly appointed in writing; and except as otherwise expressly provided in this Base Indenture or in any Indenture Supplement, such action shall become effective when such instrument or instruments are delivered to the Indenture Trustee, and, where it is hereby expressly required, to the Issuer. Such instrument or instruments (and the action embodied in this Base Indenture or in any Indenture Supplement and evidenced thereby) are sometimes referred to in this Base Indenture as the “Act” of the Noteholders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Base Indenture or any Indenture Supplement and (subject to Article XI) conclusive in favor of the Indenture Trustee and the Issuer, if made in the manner provided in this Section 15.03.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved in any reasonable manner which the Indenture Trustee deems sufficient.
(c) The ownership, principal balance and serial numbers of the Notes, and the date of holding the same, shall be proved by the Note Register.
(d) If the Issuer shall solicit from Noteholders any request, demand, authorization, direction, notice, consent, waiver or other Act, the Issuer may, at its option, fix in advance a record date for the determination of Noteholders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Issuer shall have no obligation to do so. Any such record date shall be fixed at the Issuer’s discretion. If not set by the Issuer prior to the first solicitation of a Noteholder made by any Person in respect of any such matters referred to in the foregoing sentence, such record date shall be the date 30 days prior to such first solicitation of Noteholders. If such a record date is fixed, such request, demand, authorization, direction, notice, consent and waiver or other Act may be sought or given before or after the record date, but only the Noteholders of record at the close of business on such record date shall be deemed to be Noteholders for the purpose of determining whether Noteholders of the requisite proportion of the Notes Outstanding have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Notes Outstanding shall be computed as of such record date.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Notes shall bind the Holder of every Note issued upon the registration thereof or in exchange therefor or in lieu thereof, in respect of anything done, omitted or suffered to be done by the Indenture Trustee, the Servicer or the Issuer in reliance thereon, whether or not notation of such action is made upon such Note.
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(f) Without limiting the foregoing, a Noteholder entitled hereunder or under any Indenture Supplement to take any action hereunder or thereunder with regard to any Note may do so with regard to all or any part of the principal balance of such Note or by one or more appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal balance of such Note.
(a) The Indenture Trustee (in each of its capacities) agrees to accept and act upon instructions or directions pursuant to this Base Indenture, any other Transaction Document or any additional document executed in connection herewith that is transmitted by electronic transmission in accordance with Section 15.14.
Section 15.04. Notices; Copies of Notices and Other Information.
(a) Any request, demand, authorization, direction, notice, consent, waiver or Act of Noteholders or other documents provided or permitted by this Base Indenture shall be in writing and if such request, demand, authorization, direction, notice, consent, waiver or Act of Noteholders is to be made upon, given or furnished to or filed with:
(i) the Indenture Trustee by any Noteholder or by any Obligor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Indenture Trustee at its Corporate Trust Office; or
(ii) the Issuer by the Indenture Trustee, the Servicer, or by any Noteholder shall be sufficient for every purpose hereunder if in writing and mailed first-class, postage prepaid and by email to the Issuer addressed to: Shentel Issuer LLC, 500 Shentel Way, Edinburg, Virginia 22824, Attention: Chief Financial Officer, or at any other address previously furnished in writing to the Indenture Trustee and the Servicer by the Issuer. The Issuer shall promptly transmit any notice received by it from the Noteholders to the Indenture Trustee and Servicer.
(b) Any notice to be given to the Indenture Trustee hereunder shall also be given to the Note Registrar and the Servicer in writing, personally delivered, faxed, emailed or mailed by certified mail; provided that only one notice to the Indenture Trustee shall be necessary at any time that the Indenture Trustee is also the Note Registrar.
(c) Any notice, and copies of any reports, certificates, schedules, statements, documents or other information to be given to the Indenture Trustee by the Issuer, the Guarantor or the Asset Entities hereunder shall also be simultaneously given to the Servicer in writing, personally delivered, faxed, emailed or mailed by certified mail and shall not be deemed given to the Indenture Trustee until also given to the Servicer.
(d) Notices required to be given to the Rating Agencies by the Issuer or the Asset Entities or the Indenture Trustee with respect to any Series of Notes shall be made as specified in the Series Supplement for such Series of Notes.
(e) In addition to the notice provisions set forth in Section 15.04(d), notices required to be given to KBRA and Fitch by the Issuer or the Asset Entities or the Indenture Trustee with respect to any Series of Notes shall also be provided to the Rating Agencies for so long as the Rating Agencies are rating any Series of Notes then Outstanding in writing and mailed first class, postage prepaid addressed to: Kroll Bond Rating Agency, LLC 805 Third Avenue, 29^th^ Floor, New York, New York 10022, Attention: ABS Surveillance and by email to: abssurveillance@kbra.com, in the case of KBRA and to Fitch, One North Wacker Drive, Floor 23, Chicago, IL 60606, and by email to: globalcrosssectorsf@fitchratings.com, in the case of Fitch.
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Section 15.05. Notices to Noteholders; Waiver.
(a) Where this Base Indenture or any Indenture Supplement provides for notice to Noteholders of any event, such notice shall be sufficiently given (unless otherwise expressly provided in this Base Indenture or in such Indenture Supplement) if in writing and mailed, first-class, postage prepaid to each Noteholder affected by such event, at its address as it appears on the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Noteholders is given by mail, neither the failure to mail such notice nor any defect in any notice so mailed to any particular Noteholder shall affect the sufficiency of such notice with respect to other Noteholders, and any notice that is mailed in the manner provided in this Base Indenture shall conclusively be presumed to have been duly given.
(b) Where this Base Indenture or any Indenture Supplement provides for notice in any manner, such notice may be waived in writing by any Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Noteholders shall be filed with the Indenture Trustee but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such a waiver.
(c) In case, by reason of the suspension of regular mail service as a result of a strike, work stoppage or similar activity, it shall be impractical to mail notice of any event to Noteholders when such notice is required to be given pursuant to any provision of this Base Indenture or any Indenture Supplement, then any manner of giving such notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a sufficient giving of such notice.
(d) Where this Base Indenture or any Indenture Supplement provides for notice to the Rating Agencies, failure to give such notice to the Rating Agencies shall not affect any other rights or obligations created hereunder or under any Indenture Supplement, and shall not under any circumstance constitute a Default or Event of Default.
Section 15.06. Payment and Notice Dates. All payments to be made and notices to be delivered pursuant to this Base Indenture, any Indenture Supplement or any other Transaction Document shall be made by the responsible party as of the dates set forth in this Base Indenture, in such Indenture Supplement or in such other Transaction Document.
Section 15.07. Effect of Headings and Table of Contents. The Article and Section headings in this Base Indenture or in any Indenture Supplement and the Table of Contents are for convenience only and shall not affect the construction hereof or thereof.
Section 15.08. Successors and Assigns. All covenants and agreements in this Base Indenture, any Indenture Supplement and the Notes by the Obligors shall bind their successors and assigns, whether so expressed or not. All agreements of the Indenture Trustee in this Base Indenture and any Indenture Supplement shall bind its successors, co-trustees and agents.
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Section 15.09. Severability; Entire Agreement. In case any provision in this Base Indenture or any Indenture Supplement or in the Notes of any Series 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. This Base Indenture, together with any Indenture Supplements and the other Transaction Documents, supersedes all prior agreements between the parties and constitutes the entire agreement between the parties hereto with respect to the matters covered hereby and supersedes all prior agreements between the parties.
Section 15.10. Benefits of Base Indenture. Subject to Section 13.01 and Section 13.02 and Article XI, nothing in this Base Indenture, any Indenture Supplement or in the Notes, express or implied, shall give to any Person, other than the parties hereto, the Servicer and their successors hereunder, the Noteholders and any other party secured hereunder or under any such Indenture Supplement, and any other Person with an ownership interest in any part of the Collateral and the Rating Agencies, any benefit or any legal or equitable right, remedy or claim under this Base Indenture or any Indenture Supplement.
Section 15.11. Legal Holiday. In any case where the date on which any payment is due shall not be a Business Day, then (notwithstanding any other provision of the Notes, this Base Indenture or any Indenture Supplement) payment need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date on which nominally due, and, except as otherwise expressly provided in this Base Indenture or in any such Indenture Supplement, no interest shall accrue for the period from and after any such nominal date.
Section 15.12. Governing Law. THIS BASE INDENTURE AND EACH INDENTURE SUPPLEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS BASE INDENTURE AND EACH SUCH INDENTURE SUPPLEMENT. EACH OBLIGOR AND THE INDENTURE TRUSTEE IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR UNITED STATES FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR IN RELATION TO THIS BASE INDENTURE OR EACH SUCH INDENTURE SUPPLEMENT.
Section 15.13. Waiver of Jury Trial. EACH OBLIGOR AND THE INDENTURE TRUSTEE HEREBY IRREVOCABLY WAIVE, 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 BASE INDENTURE, THE NOTES, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
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Section 15.14. Counterparts(a).
(a) The parties may sign any number of copies of this Base Indenture and any Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Base Indenture and any Supplemental Indenture or any document to be signed in connection with this Base Indenture shall be deemed to include electronic signatures, deliveries 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, physical delivery thereof 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; provided that, notwithstanding anything herein to the contrary, the Indenture Trustee is not under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Indenture Trustee, pursuant to procedures approved by the Indenture Trustee. As used herein, “electronic signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or other record.
(b) For purposes of this Base Indenture, any reference to “written” or “in writing” means any form of written communication, including, without limitation, electronic signatures, and any such written communication may be transmitted by Electronic Transmission. “Electronic Transmission” means any form of communication not directly involving the physical transmission of paper, including the use of, or participation in, one or more electronic networks or databases (including one or more distributed electronic networks or databases), that creates a record that may be retained, retrieved and reviewed by a recipient thereof and that may be directly reproduced in paper form by such a recipient through an automated process. The Indenture Trustee is authorized to accept written instructions, directions, reports, notices or other communications delivered by Electronic Transmission and shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by Electronic Transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such Electronic Transmission; and the Indenture Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information to the Indenture Trustee, including, without limitation, the risk of the Indenture Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties (except to the extent such action results from gross negligence, willful misconduct or fraud by the Indenture Trustee).
(c) Any person providing instructions or directions indicated above shall provide to the Indenture Trustee an incumbency certificate listing persons designated to provide such instructions or directions (including the e-mail addresses of such persons), which incumbency certificate shall be amended whenever a person is added or deleted from the listing. If such person elects to give the Indenture Trustee instructions or directions by e-mail (of .pdf or similar files), the Indenture Trustee’s reasonable understanding of such instructions shall be deemed controlling. The Indenture Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Indenture Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflicting with or being inconsistent with a subsequent written instruction. Any person providing such instructions or directions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Indenture Trustee, including without limitation the risk of the Indenture Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
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(d) Notwithstanding anything to the contrary in this Base Indenture, any and all communications (both text and attachments) by or from the Indenture Trustee that the Indenture Trustee in its sole discretion deems to contain confidential, proprietary and/or sensitive information and sent by Electronic Transmission will be encrypted. The recipient of the Electronic Transmission will be required to complete a one-time registration process.
(e) Delivery of an executed counterpart of a signature page of this Base Indenture by Electronic Transmission shall be effective as delivery of a manually executed counterpart of this Base Indenture.
Section 15.15. Recording of Base Indenture. If this Base Indenture or any Indenture Supplement is subject to recording in any appropriate public recording offices, such recording is to be effected by the Issuer and at its expense.
Section 15.16. Corporate Obligation. No recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer or the Indenture Trustee, in each of their capacities hereunder or under any Indenture Supplement, on the Notes, under this Base Indenture or any Indenture Supplement or any certificate or other writing delivered in connection herewith or under any Indenture Supplement, against (i) the Indenture Trustee, the Paying Agent and the Note Registrar in its individual capacity, or (ii) any partner, owner, beneficiary, agent, officer, director, employee or agent of the Indenture Trustee in its individual capacity, any holder of equity in any Obligor or the Indenture Trustee or in any successor or assign of the Indenture Trustee in its individual capacity, except as any such Person may have expressly agreed (it being understood that the Indenture Trustee has no such obligations in its individual capacity), and except that any such partner, owner or equity holder shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
Section 15.17. No Petition. The Indenture Trustee, by entering into this Base Indenture or any Indenture Supplement, and each Noteholder, by accepting a Note, and each Note Owner, by accepting an ownership interest in a Global Note, hereby covenants and agrees that neither it nor the Indenture Trustee on behalf of such Noteholder shall at any time institute against the Issuer or the Asset Entities or the Guarantor, or join in any institution against the Issuer or the Asset Entities or the Guarantor of, any bankruptcy, reorganization, insolvency or similar proceedings, or other proceedings under any federal, state or foreign bankruptcy or similar law in connection with any obligations relating to the Notes, this Base Indenture, any such Indenture Supplement or any of the other Transaction Documents. In the event that the Indenture Trustee or any other Secured Party takes action in violation of this Section 15.17, the Issuer, the Asset Entities or the Guarantor shall file or cause to be filed an answer with the bankruptcy court or otherwise properly contesting the filing of such a petition by any such Secured Party against such Person or the commencement of such action and raising the defense that such Secured Party has agreed in writing not to take such action and should be estopped and precluded therefrom and such other defenses, if any, as its counsel advises that it may assert. The provisions of this Section 15.17 shall survive the termination of the Base Indenture (and any Indenture Supplements thereto) and the resignation or removal of the Indenture Trustee. Nothing contained herein shall preclude participation by any Secured Party in the assertion or defense of its claims in any such proceeding involving any of the Obligors or the Guarantor.
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Section 15.18. Extinguishment of Obligations. Notwithstanding anything to the contrary in this Base Indenture or any Indenture Supplement, all obligations of the Obligors hereunder or under any Indenture Supplement shall be deemed to be extinguished in the event that, at any time, the Issuer, the Guarantor and the Asset Entities have no assets (which shall include claims that may be asserted by the Issuer, the Guarantor and the Asset Entities with respect to contractual obligations of third parties to the Issuer, the Guarantor and the Asset Entities but which shall not include the proceeds of the issue of their Equity Interests in respect of the Initial Closing Date). No further claims may be brought against any of the Obligors’ directors or officers or against their shareholders or members, as the case may be, for any such obligations, except in the case of fraud or actions taken in bad faith by such Persons.
Section 15.19. Survival of Representations and Warranties. All representations and warranties made hereunder and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Base Indenture and the purchase of the Notes hereunder and the termination of this Base Indenture.
Section 15.20. Waiver of Immunities. To the extent that the Issuer has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, the Issuer hereby irrevocably waives such immunity in respect of its obligations under this Base Indenture, any Indenture Supplement, the Notes and any other Transaction Document, to the extent permitted by law.
Section 15.21. Non-Recourse. The Noteholders shall not have at any time any recourse on the Notes or under this Base Indenture or any Indenture Supplement against the Obligors (other than the Collateral) or against the Indenture Trustee, the Servicer or any Agents or Affiliates thereof.
Section 15.22. Indenture Trustee’s Duties and Obligations Limited. The duties and obligations of the Indenture Trustee, in its various capacities hereunder and under any Indenture Supplement, shall be limited to those expressly provided for in their entirety in this Base Indenture (including any exhibits to this Base Indenture and to any Indenture Supplement). Any references in this Base Indenture and in any Indenture Supplement (and in the exhibits to this Base Indenture and to any Indenture Supplement) to duties or obligations of the Indenture Trustee, in its various capacities hereunder and under any such Indenture Supplement, that purport to arise pursuant to the provisions of any of the Transaction Documents or any such Indenture Supplement shall only be duties and obligations of the Indenture Trustee, or the Indenture Trustee in its other capacities, as applicable, if the Indenture Trustee is a signatory to any such Transaction Documents or any such Indenture Supplement. By its acquisition of the Notes, each Noteholder shall be deemed to have authorized and directed the Indenture Trustee in writing to enter into the Transaction Documents to which the Indenture Trustee is a signatory.
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Section 15.23. Appointment of Servicer. The Issuer hereby consents to the appointment of Drivetrain Agency Services, LLC, to act as Servicer.
Section 15.24. Agreed Upon Tax Treatment. By purchasing the Notes (or by registration of an Uncertificated Note) or a beneficial interest therein, each Holder or Beneficial Owner shall agree to treat the Notes as debt for all U.S. federal, state and local tax purposes.
Section 15.25. Tax Forms. Each Holder, by its acceptance of its Note, agrees that it shall timely furnish the Issuer or its agents any U.S. federal income tax form or certification (such as IRS Form W-9, Form W-8BEN, Form W-8BEN-E, Form W-8IMY, or Form W-8ECI or any successors to such IRS forms) that the Issuer or its agents may reasonably request and shall update or replace such form or certification in accordance with its terms or its subsequent amendments. It agrees to provide any certification or information that is reasonably requested by the Issuer or its agents (a) to permit the Issuer to make payments to it without, or at a reduced rate of, withholding, (b) to enable the Issuer to qualify for a reduced rate of withholding in any jurisdiction from or through which the Issuer receives payments on its assets, or (c) to determine or satisfy its duties and liabilities with respect to any taxes or other charges that it may be required to pay, deduct or withhold from payments in respect of the Notes under any present or future law or regulation of any jurisdiction or taxing authority therein or to comply with any reporting or other requirements under any law or regulation.
ARTICLE XVI
GUARANTEES
Section 16.01. Guarantees. Each Asset Entity hereby unconditionally and irrevocably guarantees, jointly and severally, to each Holder and to the Indenture Trustee, on behalf of the Noteholders, the Servicer and other Secured Parties and their respective successors and assigns (a) the full and timely payment of principal of and interest on the Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Issuer and the other Asset Entities under this Base Indenture and the Notes and each other Transaction Document and (b) the full and timely performance within applicable grace periods of all other obligations of the Issuer and the other Asset Entities under this Base Indenture and the Notes and all other Transaction Documents (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”).
Each Asset Entity waives presentation to, demand of, payment from and protest to the Issuer and the other Asset Entities of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Asset Entity waives notice of any default under the Notes or the other Guaranteed Obligations. The obligations of each Asset Entity hereunder shall not be affected by (a) the failure of any Holder or the Indenture Trustee or the Servicer to assert any claim or demand or to enforce any right or remedy under the Transaction Documents against any other Obligor or any other Person or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Base Indenture, the Notes or any other Transaction Document; (d) the release of any security held by any Holder or the Indenture Trustee for the Obligations or any of them; or (e) the failure of any Holder or the Indenture Trustee or the Servicer to exercise any right or remedy against any other guarantor of the Guaranteed Obligations.
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Each Asset Entity further agrees that its guaranty herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Indenture Trustee or the Servicer to any security held for payment of the Guaranteed Obligations.
Except as expressly set forth herein, the obligations of each Asset Entity hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Asset Entity herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Indenture Trustee or the Servicer to assert any claim or demand or to enforce any remedy under this Base Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Asset Entity or would otherwise operate as a discharge of such Asset Entity as a matter of law or equity.
Each Asset Entity further agrees that its guaranty herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Indenture Trustee or the Servicer upon the bankruptcy or reorganization of the Issuer or otherwise.
In furtherance of the foregoing and not in limitation of any other right which any Holder or the Indenture Trustee or the Servicer has at law or in equity against any Asset Entity by virtue hereof, upon the failure of the Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Asset Entity hereby promises to and shall, upon receipt of written demand by the Indenture Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Indenture Trustee or the Servicer, as the case may be, an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Obligations and (iii) all other monetary Guaranteed Obligations of the Issuer to the Holders and the Indenture Trustee and the Servicer.
Each Asset Entity also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses and court costs) incurred by the Indenture Trustee or the Servicer in enforcing any rights under this Section 16.01.
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Notwithstanding any payment made by any Asset Entity hereunder, such Asset Entity shall not be entitled to be subrogated to any of the rights of the Indenture Trustee against the Issuer or any collateral security or guarantee or right of offset held by the Indenture Trustee for the payment of the Obligations, nor shall the Asset Entity seek or be entitled to seek any contribution or reimbursement from the Issuer in respect of payments made by the Asset Entity hereunder, until the Obligations are paid in full. If any amount shall be paid to an Asset Entity on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full, such amount shall be held by such Asset Entity in trust for the Indenture Trustee, segregated from other funds of such Asset Entity, and shall, forthwith upon receipt by such Asset Entity, be turned over to the Indenture Trustee in the exact form received by such Asset Entity (duly indorsed by such Asset Entity, as applicable, to the Indenture Trustee, if required), to be applied against the Obligations, whether matured or unmatured, in such order as the Indenture Trustee may determine.
Section 16.02. Limitation on Liability. Any term or provision of this Base Indenture to the contrary, the maximum, aggregate amount of the Guaranteed Obligations guaranteed hereunder by any U.S. Asset Entity shall not exceed the maximum amount that can be hereby guaranteed without rendering this Base Indenture, as it relates to such U.S. Asset Entity, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
Section 16.03. Successors and Assigns. Subject to Section 16.06, this Article XVI shall be binding upon each Asset Entity and its successors and assigns and shall inure to the benefit of the successors and assigns of the Indenture Trustee, the Servicer and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Indenture Trustee, the rights and privileges conferred upon that party in this Base Indenture and in the Notes shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions of this Base Indenture.
Section 16.04. No Waiver. Neither a failure nor a delay on the part of either the Indenture Trustee, the Servicer or the Holders in exercising any right, power or privilege under this Article XVI shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. The rights, remedies and benefits of the Indenture Trustee, the Servicer and the Holders herein expressly specified are cumulative and not exclusive of any other rights, remedies or benefits which either may have under this Article XVI at law, in equity, by statute or otherwise.
Section 16.05. Modification. No modification, amendment or waiver of any provision of this Article XVI, nor the consent to any departure by any Asset Entity therefrom, shall in any event be effective unless the same shall be in writing and signed by the Indenture Trustee, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Asset Entity in any case shall entitle such Asset Entity to any other or further notice or demand in the same, similar or other circumstances.
Section 16.06. Release of Asset Entity. Upon the sale or other disposition (including by way of consolidation, merger or amalgamation) of an Asset Entity that is permitted hereunder (in each case other than to the Issuer or another Asset Entity), such Asset Entity shall be deemed released from all obligations under this Article XVI without any further action required on the part of the Indenture Trustee or any Holder. At the written request of the Issuer, the Indenture Trustee shall execute and deliver an appropriate instrument evidencing such release.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this Base Indenture to be duly executed by their respective officers, thereunto duly authorized, all as of the day and year first above written.
| SHENTEL ISSUER LLC, as Issuer |
|---|
| By: |
| Name: |
| Title: |
Shentel Issuer LLC
Base Indenture
| SHENTEL ASSET ENTITY I LLC, as an Obligor |
|---|
| By: |
| Name: |
| Title: |
| SHENTEL ASSET ENTITY II LLC, as an Obligor |
| By: |
| Name: |
| Title: |
Shentel Issuer LLC
Base Indenture
| CITIBANK, N.A., not in its individual capacity, but solely as Indenture Trustee and Verification Agent |
|---|
| By: |
| Name: |
| Title: |
Shentel Issuer LLC
Base Indenture
ANNEX I
| Closing Date Asset Entities | Jurisdiction of<br><br> <br>Organization |
|---|---|
| Shentel Asset Entity I LLC | Delaware |
| Shentel Asset Entity II LLC | Delaware |
Annex 1
Schedule 6.14Insurance
[Attached]
Schedule 6.15Investments; Ownership of the Obligors
| Entity | Legal Name | Ownership |
|---|---|---|
| Issuer | Shentel Issuer LLC, a Delaware limited liability company | 100% owned by Shentel Guarantor LLC |
| Asset Entity | Shentel Asset Entity I LLC, a Delaware limited liability company | 100% owned by Shentel Issuer LLC |
| Asset Entity | Shentel Asset Entity II LLC, a Delaware limited liability company | 100% owned by Shentel Issuer LLC |
Exhibit 4.2
SERIES 2025-1
INDENTURE SUPPLEMENT
among
SHENTEL ISSUER LLC
AND
THE SUBSIDIARIES OF THE ISSUER PARTY HERETO,
AS OBLIGORS,
AND
CITIBANK, N.A.,
AS INDENTURE TRUSTEE
dated as of December 5, 2025
Secured Fiber Network Revenue Notes, Series 2025-1
TABLE OF CONTENTS
| ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE | 2 | |
|---|---|---|
| Section 1.01 | Definitions | 2 |
| Section 1.02 | Rules of Construction | 4 |
| ARTICLE II SERIES 2025-1 NOTE DETAILS, DELIVERY AND FORM | 5 | |
| Section 2.01 | Series 2025-1 Note Details | 5 |
| Section 2.02 | Delivery of the Series 2025-1 Notes | 6 |
| Section 2.03 | Forms of Series 2025-1 Notes; Transfers | 6 |
| Section 2.04 | Minimum Denominations | 7 |
| ARTICLE III FUNDING OF ACCOUNTS; RETAINED COLLECTIONS CONTRIBUTIONS | 7 | |
| Section 3.01 | Funding of the Advance Fee Reserve Account | 7 |
| Section 3.02 | Funding of the Liquidity Reserve Account | 7 |
| Section 3.03 | Retained Collections Contributions | 7 |
| ARTICLE IV GENERAL PROVISIONS | 7 | |
| Section 4.01 | Notices | 7 |
| Section 4.02 | Governing Law | 8 |
| Section 4.03 | Submission to Jurisdiction | 8 |
| Section 4.04 | Waiver of Jury Trial | 8 |
| Section 4.05 | Severability; Entire Agreement | 8 |
| Section 4.06 | Counterparts | 8 |
| ARTICLE V APPLICABILITY OF BASE INDENTURE | 9 | |
| Section 5.01 | Applicability | 9 |
| EXHIBIT A-1 | Form of Series 2025-1 Class A-1-V Advance Note | |
| --- | --- | |
| EXHIBIT A-2 | Form of Series 2025-1 Class A-1-V L/C Note | |
| --- | --- | |
| EXHIBIT A-3 | Form of Series 2025-1 Class A-1-L Note | |
| --- | --- |
i
SERIES 2025-1INDENTURE SUPPLEMENT
THIS SERIES 2025-1 INDENTURE SUPPLEMENT (as amended, supplemented or otherwise modified and in effect from time to time, this “Series Supplement”), dated as of December 5, 2025, is entered into by among (i) Shentel Issuer LLC, a Delaware limited liability company, as the issuer (the “Issuer”), (ii) Shentel Asset Entity I LLC and Shentel Asset Entity II LLC, each a Delaware limited liability company and a direct subsidiary of the Issuer, as a Closing Date Asset Entity (the “Closing Date Asset Entities” and, together with any entity that becomes a party hereto after the date hereof as an Additional Asset Entity, the “Asset Entities;” the Issuer and the Asset Entities being referred to herein collectively as the “Obligors”) and (iii) Citibank, N.A., as Indenture Trustee and not in its individual capacity and any successor thereto (in such capacity, the “Indenture Trustee”).
RECITALS
WHEREAS, the Obligors have entered into a Base Indenture, dated as of the date hereof (as amended, restated, supplemented or otherwise modified and in effect from time to time, the “Base Indenture”), among the Indenture Trustee and the Obligors;
WHEREAS, the Obligors desire to enter into this Series Supplement in order to issue a Series of Notes pursuant to Section 2.07 of the Base Indenture in accordance with the terms thereof;
WHEREAS, the Issuer represents that it has duly authorized the issuance of up to $767,405,000 aggregate initial principal amount of Secured Fiber Network Revenue Notes, Series 2025-1, comprised of the following five Classes of Notes: (i) up to $175,000,000 of Secured Fiber Network Revenue Variable Funding Notes, Series 2025-1, Class A-1-V (the “Series 2025-1 Class A-1-V Notes”), (ii) up to $25,000,000 of Secured Fiber Network Revenue Liquidity Funding Notes, Series 2025-1, Class A-1-L (the “Series 2025-1 Class A-1-L Notes” and, together with the Series 2025-1 Class A-1-V Notes, the “Series 2025-1 Class A-1 Notes”), (iii) $489,142,000 initial principal amount of 5.64% Secured Fiber Network Revenue Term Notes, Series 2025-1, Class A-2 (the “Series 2025-1 Class A-2 Notes”) and (iv) $78,263,000 initial principal amount of 6.03% Secured Fiber Network Revenue Term Notes, Series 2025-1, Class B (the “Series 2025-1 Class B Notes” and, together with the Series 2025-1 Class A-2 Notes, the “Series 2025-1 Term Notes” and, together with the Series 2025-1 Class A-1 Notes, the “Series 2025-1 Notes”);
WHEREAS, the Series 2025-1 Notes constitute “Notes” and a “Series” or “Series of Notes” as defined in the Base Indenture; and
WHEREAS, the Indenture Trustee has agreed to accept the trusts herein created upon the terms herein set forth.
NOW, THEREFORE, it is mutually covenanted and agreed as follows:
ARTICLE IDEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions All defined terms used herein and not defined herein (including in the preamble and recitals hereto) shall have the meaning ascribed to such terms or incorporated by reference in the Base Indenture. All words and phrases defined in the Base Indenture shall have the same meaning in this Series Supplement, except as otherwise appears in this Article. In addition, the following terms have the following meanings in this Series Supplement unless the context clearly requires otherwise:
“ARD Prepayment Date” shall mean, with respect to the Series 2025-1 Term Notes, the Payment Date occurring in December 2028.
“Initial Payment Date” shall mean, with respect to the Series 2025-1 Notes, the Payment Date occurring in February 2026.
“Initial Purchasers” shall mean BofA Securities, Inc., Morgan Stanley & Co. LLC, Citizens JMP Securities, LLC, Fifth Third Securities, Inc. and Truist Securities, Inc..
“Note Rate” shall mean, with respect to the Series 2025-1 Notes, the rate per annum at which interest accrues on each Class of Series 2025-1 Notes as set forth in Section 2.01(a).
“Offering Memorandum” shall mean the Offering Memorandum dated November 19, 2025, relating to the offering by the Issuer of the Series 2025-1 Term Notes.
“Post-ARD Note Spread” shall mean, for each Class of Series 2025-1 Term Notes, the spread per annum set forth in the table below:
| Class of Notes | Post-ARD Note Spread |
|---|---|
| Series 2025-1 Class A-2 Notes | 2.00% |
| Series 2025-1 Class B Notes | 2.40% |
“Rating Agencies” shall mean, in relation to the Series 2025-1 Notes issued pursuant to this Series Supplement, each of Fitch and KBRA.
“Series 2025-1 Class A-1-L Commitment Amount” shall have the meaning ascribed to “Commitment Amount” in the Series 2025-1 Class A-1-L Note Purchase Agreement.
“Series 2025-1 Class A-1-L Note Purchase Agreement” shall mean, for the Series 2025-1 Class A-1-L Notes, the Series 2025-1 Class A-1-L Note Purchase Agreement, dated December 5, 2025, by and among the Issuer, the Closing Date Asset Entities, the Manager, the Class A-1-L Noteholder and Bank of America, N.A., as Class A-1-L Administrative Agent.
“Series 2025-1 Class A-1-L Notes” shall have the meaning ascribed to it in the recitals hereto.
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“Series 2025-1 Class A-1 Note Purchase Agreement” shall mean, as applicable, the Series 2025-1 Class A-1-L Note Purchase Agreement and the Series 2025-1 Class A-1-V Note Purchase Agreement.
“Series 2025-1 Class A-1 Notes” shall have the meaning ascribed to it in the recitals hereto.
“Series 2025-1 Class A-1-V Anticipated Repayment Date” shall have the meaning ascribed to it in Section 2.01(b). For purposes of the Base Indenture, the “Series 2025-1 Class A-1-V Anticipated Repayment Date” shall be deemed to be the “Anticipated Repayment Date” with respect to the Series 2025-1 Class A-1-V Notes.
“Series 2025-1 Class A-1-V Maximum Principal Amount” shall have the meaning ascribed to it in the Series 2025-1 Class A-1-V Note Purchase Agreement.
“Series 2025-1 Class A-1-V Note Purchase Agreement” shall mean, for the Series 2025-1 Class A-1-V Notes, the Series 2025-1 Class A-1-V Note Purchase Agreement, dated December 5, 2025, by and among the Issuer, the Closing Date Asset Entities, the Manager, certain conduit investors party thereto from time to time, certain funding agents party thereto from time to time, the committed note purchasers party thereto from time to time and Bank of America, N.A., as Class A-1-V Administrative Agent.
“Series 2025-1 Class A-1-V Notes” shall have the meaning ascribed to it in the recitals hereto
“Series 2025-1 Class A-2 Notes” shall have the meaning ascribed to it in the recitals hereto.
“Series 2025-1 Class B Notes” shall have the meaning ascribed to it in the recitals hereto.
“Series 2025-1 Closing Date” shall mean December 5, 2025. For purposes of the Base Indenture, the “Series 2025-1 Closing Date” shall be deemed to be the “Series Closing Date” with respect to the Series 2025-1 Notes.
“Series 2025-1 Closing Date Fiber Networks” shall mean the Fiber Networks in which the Closing Date Asset Entities hold interests as of the Series 2025-1 Closing Date that will continue to be owned by the Closing Date Asset Entities as of the Series 2025-1 Closing Date.
“Series 2025-1 Cut-Off Date” shall mean August 31, 2025.
“Series 2025-1 Notes” shall have the meaning ascribed to it in the recitals.
“Series 2025-1 Rated Final Payment Date” shall have the meaning ascribed to it in Section 2.01(c). For purposes of the Base Indenture, the “Series 2025-1 Rated Final Payment Date” shall be deemed to be the “Rated Final Payment Date” with respect to the Series 2025-1 Notes.
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“Series 2025-1 Term Note Anticipated Repayment Date” shall have the meaning ascribed to it in Section 2.01(b). For purposes of the Base Indenture, the “Series 2025-1 Anticipated Repayment Date” shall be deemed to be the “Anticipated Repayment Date” with respect to the Series 2025-1 Term Notes.
“Series 2025-1 Term Notes” shall have the meaning ascribed to it in the recitals hereto.
Section 1.02 Rules of ConstructionUnless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) accounting terms not otherwise defined herein and accounting terms partly defined herein, to the extent not defined, shall have the respective meanings given to them under GAAP as in effect from time to time;
(c) “or” is not exclusive;
(d) “including” means including without limitation;
(e) words in the singular include the plural and words in the plural include the singular;
(f) all references to “$” or “USD” are to United States dollars;
(g) any agreement, instrument, regulation, directive or statute defined or referred to in this Series Supplement or in any instrument or certificate delivered in connection herewith means such agreement, instrument, regulation, directive or statute as from time to time amended, supplement or otherwise modified in accordance with the terms thereof and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein;
(h) references to a Person are also to its permitted successors and assigns;
(i) the words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Series Supplement, shall refer to this Series Supplement as a whole and not to any particular provision of this Series Supplement, and Section, Schedule and Exhibit references are to this Series Supplement unless otherwise specified; and
(j) whenever the phrase “in direct order of alphabetical designation” or “highest alphabetical designation” or a similar phrase is used herein, it shall be construed to mean beginning with the letter “A” and ending with the letter “Z”; if any Series or Class is also given a numerical designation (e.g., “A-1” or “A-2”) the significance thereof shall be set forth in this Series Supplement.
In the event that any term or provision contained herein with respect to the Series 2025-1 Notes shall conflict with or be inconsistent with any term or provision contained in the Base Indenture, the terms and provisions of this Series Supplement shall govern.
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ARTICLE IISERIES 2025-1 NOTE DETAILS, DELIVERY AND FORM
Section 2.01 Series 2025-1 Note Details(a)The aggregate principal amount of the Series 2025-1 Notes which may be initially authenticated and delivered (or registered, in the case of Uncertificated Notes) under this Series Supplement shall be issued in five Classes, having the Class, Initial Class Principal Balance, Note Rate, type and initial ratings set forth below (except for Series 2025-1 Notes authenticated and delivered (or registered) upon transfer of (or de-registration of), or in exchange for, or in lieu of Series 2025-1 Notes pursuant to Section 2.02 of the Base Indenture), subject to clause (d) below.
| Class of Notes | Initial Class Principal Balance^(1)^ | Note Rate | Type | Initial Ratings<br><br> <br>(KBRA / Fitch) |
|---|---|---|---|---|
| Series 2025-1, Class A-1-L | $25,000,000 | ^(2)^ | Liquidity Funding Notes | A- (sf) / A-sf |
| Series 2025-1, Class A-1-V | $175,000,000 | ^(3)^ | Variable Funding Notes | A- (sf) / A-sf |
| Series 2025-1, Class A-2 | $489,142,000 | 5.64% | Term Notes | A- (sf) / A-sf |
| Series 2025-1, Class B | $78,263,000 | 6.03% | Term Notes | BBB (sf) / BBB-sf |
________________
| (1) | The Initial Class Principal Balance with respect to the Series 2025-1 Notes shall be $767,405,000 comprised<br>of (i) with respect to the Series 2025-1 Class A-1-L Notes, up to $25,000,000, (ii) with respect to the Series 2025-1 Class A-1-V Notes,<br>up to $175,000,000, (iii) $489,142,000 of Series 2025-1 Class A-2 Notes and (iv) $78,263,000 of Series 2025-1 Class B Notes. |
|---|---|
| (2) | The Note Rate for the Series 2025-1 Class A-1-L Notes shall be the Prime Rate plus 3.00%, as provided<br>in the Series 2025-1 Class A-1-L Note Purchase Agreement. |
| --- | --- |
| (3) | The Note Rate for the Series 2025-1 Class A-1-V Notes shall be an amount equal to the Base Rate, CP Rate<br>or Term SOFR Rate (each as defined in the Series 2025-1 Class A-1-V Note Purchase Agreement (or, following certain events, an alternative<br>rate as determined in the manner provided in the Series 2025-1 Class A-1-V Note Purchase Agreement)), in each case, as determined in accordance<br>with the Series 2025-1 Class A-1-V Note Purchase Agreement, plus a spread equal to 1.75%. From and after the Series 2025-1 Closing Date,<br>Series 2025-1 Class A-1-V Undrawn Fees shall accrue on the Series 2025-1 Class A-1-V Notes as provided in the Series 2025-1 Class A-1-V<br>Note Purchase Agreement. |
| --- | --- |
Accrued Note Interest with respect to the initial Interest Accrual Period for the Series 2025-1 Term Notes shall be calculated by multiplying the applicable Note Rate by a fraction, the numerator of which is the number of days from and including the Series 2025-1 Closing Date to but excluding the Initial Payment Date and the denominator of which is 360. Accrued Note Interest with respect to each Interest Accrual Period thereafter for the Series 2025-1 Term Notes shall be calculated in the manner set forth in the definition of “Accrued Note Interest” in Section 1.01 of the Base Indenture.
Accrued Note Interest with respect to the initial Interest Accrual Period for the Series 2025-1 Class A-1 Notes shall be calculated in the manner set forth in the Series 2025-1 Class A-1-V Note Purchase Agreement or the Series 2025-1 Class A-1-L Note Purchase Agreement, as applicable.
(b) The “Series 2025-1 Term Note Anticipated Repayment Date” is the Payment Date occurring in December 2030. The “Series 2025-1 Class A-1-V Anticipated Repayment Date” is the Payment Date occurring in December 2029, which date may be extended from time to time pursuant to Section 7.04 of the Series 2025-1 Class A-1-V Note Purchase Agreement.
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(c) The “Series 2025-1 Rated Final Payment Date” is the Payment Date occurring in December 2055.
(d) The Series 2025-1 Class A-1-V Notes shall have a maximum principal balance equal to the Series 2025-1 Class A-1-V Notes Maximum Principal Amount (as such term is defined in the Series 2025-1 Class A-1-V Note Purchase Agreement).
(e) The Series 2025-1 Class A-1-L Notes shall have a maximum principal balance equal to the Series 2025-1 Class A-1-L Notes Maximum Principal Amount (as such term is defined in the Series 2025-1 Class A-1-L Note Purchase Agreement).
(f) There shall be no Targeted Amortization Amount with respect to the Series 2025-1 Notes.
(g) The Record Date for purposes of determining payments to the Holders of the Series 2025-1 Notes for the Initial Payment Date shall be January 30, 2026.
Section 2.02 Delivery of the Series 2025-1 NotesUpon the execution and delivery of this Series Supplement on the Series 2025-1 Closing Date, the Issuer shall execute and deliver the Series 2025-1 Notes (other than the Uncertificated Notes) to the Indenture Trustee and the Indenture Trustee shall, upon receipt of an Issuer Order, authenticate the Series 2025-1 Notes and deliver the Series 2025-1 Class A-1 Notes (or register, in the case of Uncertificated Notes) as directed by the Issuer and shall hold the Series 2025-1 Term Notes as agent for the Depositary under the Fast Automated Securities Transfer Program. The Series 2025-1 Class A-1 Notes may be issued, transferred and held as a Definitive Note or at the request of a Holder or transferee of the Series 2025-1 Class A-1 Notes, the Series 2025-1 Class A-1 Notes shall be issued in the form of Uncertificated Notes. With respect to any Uncertificated Note, the Indenture Trustee shall provide to the beneficial owner promptly after registration of the Uncertificated Note in the Note Register by the Note Registrar a Confirmation of Registration. Upon the execution and delivery of the Series 2025-1 Supplement, the Issuer shall execute and deliver to the Indenture Trustee and the Indenture Trustee, upon receipt of an Issuer Order, shall register the Confirmations of Registration related to the Series 2025-1 Class A-1 Notes.
Section 2.03 Forms of Series 2025-1 Notes; Transfers(a)The Series 2025-1 Class A-1 Notes (other than any Uncertificated Notes) shall be issued substantially the form set forth in Exhibit A and duly executed (or registered with respect to any Uncertificated Notes) in the manner set forth in Section 2.01 of the Base Indenture.
(b) The Series 2025-1 Term Notes shall be issued substantially in the form set forth in the Base Indenture, each with such variations, omissions and insertions as may be necessary.
(c) The transfer, sale, pledge or other disposition of the Series 2025-1 Class A-1 Notes shall be subject to the terms of the applicable Series 2025-1 Class A-1 Note Purchase Agreement.
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(d) Except as otherwise set forth herein, the transfer, sale, pledge or other disposition of the Series 2025-1 Term Notes shall be subject to the terms of the Base Indenture.
Section 2.04 Minimum Denominations (a) The Series 2025-1 Class A-1-L Notes shall be issued in minimum denominations of $25,000 and in any whole dollar denomination in excess thereof.
(b) The Series 2025-1 Class A-1-V Notes shall be issued in minimum denominations of $25,000 and in any whole dollar denomination in excess thereof.
(c) The Series 2025-1 Class A-2 Notes and the Series 2025-1 Class B Notes shall be issued in minimum denominations of $25,000 and in any whole dollar denomination in excess thereof.
ARTICLE IIIFUNDING OF ACCOUNTS;RETAINED COLLECTIONS CONTRIBUTIONS
Section 3.01 Funding of the Advance Fee Reserve Account On the Series 2025-1 Closing Date, the Issuer shall apply a portion of the net proceeds from the issuance and sale of the Series 2025-1 Notes to deposit an amount equal to approximately $517,224 to the Advance Fee Reserve Account.
Section 3.02 Funding of the Liquidity Reserve Account On the Series 2025-1 Closing Date, the Issuer shall apply a portion of the net proceeds from the issuance and sale of the Series 2025-1 Notes to deposit an amount equal to approximately $8,076,716.93 to the Liquidity Reserve Account.
Section 3.03 Retained Collections Contributions For purposes of the Series 2025-1 Notes, any Retained Collections Contribution made to the Obligors pursuant to Section 2.12(e) of the Base Indenture may be designated by the Obligors, acting at the direction of the Manager, as part of Aggregate Annualized Net Operating Income for up to one (1) year, so long as such amounts are held in the Retained Collections Contribution Account in an amount not to exceed (x) the greater of (A) 15% of Annualized Net Operating Income as of the last day of the immediately preceding calendar month and (B) $12,000,000 over any period of four consecutive calendar quarters and not to exceed (y) the greater of (A) 25% of Annualized Net Operating Income and (B) $20,000,000 from the Series 2025-1 Closing Date to the Series 2025-1 Term Note Anticipated Repayment Date.
ARTICLE IVGENERAL PROVISIONS
Section 4.01 Notices Notices required to be given to the Rating Agencies by the Issuer, the Asset Entities or the Indenture Trustee shall be e-mailed (i) first (or simultaneously with second) to the Issuer to be posted to the password protected internet website maintained by the Issuer for communication to the Rating Agencies pursuant to Rule 17g-5 under the Exchange Act and (ii) second to the following addresses: globalcrosssectorsf@fitchratings.com and abssurveillance@kbra.com.
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Section 4.02 Governing Law THIS SERIES SUPPLEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS SERIES SUPPLEMENT.
Section 4.03 Submission to Jurisdiction EACH OBLIGOR AND THE INDENTURE TRUSTEE IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR UNITED STATES FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR IN RELATION TO THIS SERIES SUPPLEMENT.
Section 4.04 Waiver of Jury Trial EACH OBLIGOR AND THE INDENTURE TRUSTEE 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 SERIES SUPPLEMENT, THE SERIES 2025-1 NOTES, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
Section 4.05 Severability; Entire Agreement In case any provision in this Series Supplement 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. This Series Supplement supersedes all prior agreements between the parties and constitutes the entire agreement between the parties hereto with respect to the matters covered hereby and supersedes all prior agreements between the parties.
Section 4.06 Counterparts The parties may sign any number of copies of the Base Indenture and any Series Supplement. Each signed copy shall be an original, but all of them together represent the same agreement. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to the Base Indenture and any Series Supplement or any document to be signed in connection with this Series Supplement shall be deemed to include electronic signatures, deliveries 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, physical delivery thereof 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; provided that, notwithstanding anything herein to the contrary, the Indenture Trustee is not under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Indenture Trustee, pursuant to procedures approved by the Indenture Trustee. As used herein, “electronic signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or other record.
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ARTICLE VAPPLICABILITY OF BASE INDENTURE
Section 5.01 Applicability The provisions of the Base Indenture are hereby ratified, approved and confirmed, except as otherwise expressly modified by this Series Supplement and the Base Indenture as so supplemented by this Series Supplement shall be read, taken and construed as one and the same instrument. The representations, warranties and covenants contained in the Base Indenture (except as expressly modified herein) are hereby reaffirmed with the same force and effect as if fully set forth herein and made again as of the date hereof.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the Issuer, the Closing Date Asset Entities and the Indenture Trustee have caused this Series Supplement to be duly executed by their respective officers, thereunto duly authorized, all as of the day and year first above written.
| SHENTEL ISSUER LLC, |
|---|
| as Issuer |
| By: |
| Name: |
| Title: |
| SHENTEL ASSET ENTITY I LLC |
| as a Closing Date Asset Entity |
| By: |
| Name: |
| Title: |
| SHENTEL ASSET ENTITY II LLC, |
| as a Closing Date Asset Entity |
| By: |
| Name: |
| Title: |
Shentel 2025-1
Series Supplement
| CITIBANK, N.A., |
|---|
| not in its individual capacity, but solely<br>in its capacity as Indenture Trustee |
| By: |
| Name: |
| Title |
Shentel 2025-1
Series Supplement
EXHIBIT A-1
Form of Series 2025-1 Class A-1-V Advance Note
See Following Pages
| A-1 |
| --- |
EXHIBIT A-2
Form of Series 2025-1 Class A-1-V L/C Note
See Following Pages
| A-2 |
| --- |
EXHIBIT A-3
Form of Series 2025-1 Class A-1-L Note
See Following Pages
A-2-1
Exhibit 10.1
CLASS A-1-V NOTE PURCHASE AGREEMENT
(SECURED FIBER NETWORK REVENUE VARIABLE FUNDING NOTES,
SERIES 2025-1, CLASS A-1-V)
dated as of December 5, 2025
among
SHENTEL ISSUER LLC,
as the Issuer,
SHENTEL ASSET ENTITY I LLC
as an Asset Entity,
SHENTEL ASSET ENTITY II LLC,
as an Asset Entity,
SHENTEL BROADBAND OPERATIONS LLC,
as the Manager,
Shentel Broadband Operations LLC,
as the Parent,
CERTAIN CONDUIT INVESTORS,
each as a Conduit Investor,
CERTAIN FINANCIAL INSTITUTIONS,
each as a Committed Note Purchaser,
CERTAIN FUNDING AGENTS,
BANK OF AMERICA, N.A.,
as Letter of Credit Provider, and
BANK OF AMERICA, N.A.,
as the Series 2025-1 Class A-1-V Administrative Agent
TABLE OF CONTENTS
| ARTICLE I DEFINITIONS | 2 | |
|---|---|---|
| Section 1.01. | Definitions | 2 |
| Section 1.02. | Rates | 18 |
| ARTICLE II PURCHASE AND SALE OF SERIES 2025-1 CLASS A-1-V NOTES | 18 | |
| Section 2.01. | Series 2025-1 Class A-1-V Notes | 18 |
| Section 2.02. | Advances; Voluntary Decreases | 19 |
| Section 2.03. | Borrowing Procedures | 21 |
| Section 2.04. | The Series 2025-1 Class A-1-V Notes | 24 |
| Section 2.05. | Reduction in Commitments | 24 |
| Section 2.06. | L/C Commitment | 26 |
| Section 2.07. | L/C Reimbursement Obligations | 30 |
| Section 2.08. | L/C Participations | 33 |
| Section 2.09. | Payments by Issuer; Presumptions by Administrative Agent. | 34 |
| ARTICLE III INTEREST AND FEES | 35 | |
| Section 3.01. | Interest | 35 |
| Section 3.02. | Fees | 36 |
| Section 3.03. | Inability to Determine Rates; SOFR Lending Unlawful | 37 |
| Section 3.04. | Alternate Rate of Interest | 38 |
| Section 3.05. | Increased Costs, etc | 39 |
| Section 3.06. | Funding Losses | 40 |
| Section 3.07. | Increased Capital or Liquidity Costs | 41 |
| Section 3.08. | Taxes | 42 |
| Section 3.09. | Change of Lending Office | 45 |
| ARTICLE IV OTHER PAYMENT TERMS | 46 | |
| Section 4.01. | Time and Method of Payment (Amounts Distributed by the Series 2025-1 Class A-1-V Administrative Agent) | 46 |
| Section 4.02. | Order of Distributions (Amounts Distributed by the Indenture Trustee or the Series 2025-1 Class A-1-V Administrative Agent) | 47 |
| Section 4.03. | L/C as Collateral | 48 |
| Section 4.04. | Alternative Arrangements with Respect to Letters of Credit | 48 |
| Section 4.05. | Recovery of Erroneous Payments | 49 |
| ARTICLE V THE SERIES 2025-1 CLASS A-1-V ADMINISTRATIVE AGENT AND THE FUNDING AGENTS | 49 | |
| Section 5.01. | Authorization and Action of the Series 2025-1 Class A-1-V Administrative Agent | 49 |
| Section 5.02. | Delegation of Duties | 50 |
| Section 5.03. | Exculpatory Provisions | 50 |
| Section 5.04. | Reliance | 50 |
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| Section 5.05. | Non-Reliance on the Series 2025-1 Class A-1-V Administrative Agent and Other Purchasers | 51 |
|---|---|---|
| Section 5.06. | The Series 2025-1 Class A-1-V Administrative Agent in its Individual Capacity | 51 |
| Section 5.07. | Successor Series 2025-1 Class A-1-V Administrative Agent; Defaulting Class A-1-V Administrative Agent | 51 |
| Section 5.08. | Authorization and Action of Funding Agents | 53 |
| Section 5.09. | Delegation of Duties | 53 |
| Section 5.10. | Exculpatory Provisions | 54 |
| Section 5.11. | Reliance | 54 |
| Section 5.12. | Non-Reliance on the Funding Agent and Other Purchasers | 54 |
| Section 5.13. | The Funding Agent in its Individual Capacity | 55 |
| Section 5.14. | Successor Funding Agent. | 55 |
| ARTICLE VI REPRESENTATIONS AND WARRANTIES | 55 | |
| Section 6.01. | The Issuer and the Asset Entities | 55 |
| Section 6.02. | U.S. Risk Retention Rules | 58 |
| Section 6.03. | The Manager | 59 |
| Section 6.04. | Investors | 59 |
| ARTICLE VII CONDITIONS | 60 | |
| Section 7.01. | Conditions to Issuance and Effectiveness | 60 |
| Section 7.02. | Conditions to Initial Extensions of Credit | 61 |
| Section 7.03. | Conditions to Each Extension of Credit | 61 |
| Section 7.04. | Conditions to Extension of Series 2025-1 Class A-1-V Anticipated Repayment Date | 63 |
| ARTICLE VIII COVENANTS | 65 | |
| Section 8.01. | Covenants of the Manager, the Issuer and the Asset Entities | 65 |
| ARTICLE IX MISCELLANEOUS PROVISIONS | 67 | |
| Section 9.01. | Amendments | 67 |
| Section 9.02. | No Waiver; Remedies | 69 |
| Section 9.03. | Binding on Successors and Assigns | 69 |
| Section 9.04. | Survival of Agreement | 70 |
| Section 9.05. | Payment of Costs and Expenses; Indemnification | 71 |
| Section 9.06. | Characterization as Transaction Document; Entire Agreement | 73 |
| Section 9.07. | Notices | 73 |
| Section 9.08. | Severability of Provisions | 74 |
| Section 9.09. | Tax Characterization | 74 |
| Section 9.10. | No Proceedings; Limited Recourse | 74 |
| Section 9.11. | Confidentiality | 76 |
| Section 9.12. | GOVERNING LAW; CONFLICTS WITH INDENTURE OR THE SERIES 2025-1 SUPPLEMENT | 77 |
| Section 9.13. | JURISDICTION | 77 |
ii
| Section 9.14. | WAIVER OF JURY TRIAL | 78 |
|---|---|---|
| Section 9.15. | Counterparts | 78 |
| Section 9.16. | Third Party Beneficiary | 78 |
| Section 9.17. | Assignment | 78 |
| Section 9.18. | Defaulting Investors | 81 |
| Section 9.19. | No Fiduciary Duties | 83 |
| Section 9.20. | No Guarantee by the Manager | 84 |
| Section 9.21. | Term; Termination of Agreement | 84 |
| Section 9.22. | Acknowledgement and Consent to Bail-In of EEA Financial Institutions | 84 |
| Section 9.23. | Obligations of the Asset Entities; Designation of Manager as Representative and Agent | 86 |
| Section 9.24. | Patriot Act | 86 |
| Section 9.25. | Limitation | 87 |
| Section 9.26. | Recognition of U.S. Special Resolution Regimes | 87 |
iii
SCHEDULES AND EXHIBITS
| SCHEDULE I | Investor Groups and Commitments |
|---|---|
| SCHEDULE II | Notice Addresses for Investors and Series 2025-1 Class A-1-V Administrative Agent |
| SCHEDULE III | Additional Closing Conditions |
| SCHEDULE IV | U.S. Risk Retention Disclosure |
| EXHIBIT A | Form of Advance Request |
| EXHIBIT B | Form of Assignment and Assumption Agreement |
| EXHIBIT C | Form of Investor Group Supplement |
| EXHIBIT D | Form of Purchaser’s Letter |
| EXHIBIT E | Form of Voluntary Decrease |
iv
CLASS A-1-V NOTE PURCHASE AGREEMENT
THIS CLASS A-1-V NOTE PURCHASE AGREEMENT, dated as of December 5, 2025 (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms hereof, this “Agreement”), is made by and among:
(a) SHENTEL ISSUER LLC, a Delaware limited liability company, as the issuer (the “Issuer”);
(b) SHENTEL ASSET ENTITY I LLC and SHENTEL ASSET ENTITY II LLC, each a Delaware limited liability company and a direct, wholly-owned subsidiary of the Issuer, together with any additional direct or indirect wholly-owned subsidiaries of the Issuer that become a party hereto after the date hereof pursuant to Section 8.01(i) (each, together with its permitted successors and assigns, an “Asset Entity” and, collectively with any Additional Asset Entities, the “Asset Entities”; the Asset Entities and the Issuer being referred to herein each, as an “Obligor” and collectively as the “Obligors”);
(c) SHENTEL BROADBAND OPERATIONS LLC, a Delaware limited liability company, (x) as the Manager under the Management Agreement (the “Manager”), solely for purposes of Section 8.01 and (y) as the Parent (the “Parent”), solely for purposes of Section 6.02 hereof;
(d) the several commercial paper conduits listed on Schedule I as Conduit Investors, and their respective permitted successors and assigns (each, a “Conduit Investor” and, collectively, the “Conduit Investors”);
(e) the several financial institutions listed on Schedule I as Committed Note Purchasers, and their respective permitted successors and assigns (each, a “Committed Note Purchaser” and, collectively, the “Committed Note Purchasers”);
(f) for each Investor Group, the financial institution entitled to act on behalf of the Investor Group set forth opposite the name of such Investor Group on Schedule I as Funding Agent, and its permitted successors and assigns (each, the “Funding Agent” with respect to such Investor Group and, collectively, the “Funding Agents”); and
(g) BANK OF AMERICA, N.A., as (x) Letter of Credit Provider and (y) the administrative agent for the Conduit Investors, the Committed Note Purchasers, the Letter of Credit Provider and the Funding Agents (together with its permitted successors and assigns in such capacity, the “Series 2025-1 Class A-1-V Administrative Agent”).
BACKGROUND
1. Contemporaneously with the execution and delivery of this Agreement, the Issuer, the Asset Entities and Citibank, N.A., a national banking association, as the indenture trustee (together with its permitted successors and assigns in such capacity, the “Indenture Trustee”) are entering into the Base Indenture, dated as of the date hereof (as the same may be amended, amended and restated, supplemented or otherwise, modified from time to time in accordance with the terms thereof, the “Base Indenture”), and the Series 2025-1 Indenture Supplement thereto (as the same may be amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof, the “Series 2025-1 Supplement” and, together with the Base Indenture, the “Indenture”), pursuant to which the Issuer will issue the Series 2025-1 Class A-1-V Notes, which may be issued in the form of Uncertificated Notes (as defined in the Indenture) in accordance with the Base Indenture and the Series 2025-1 Supplement.
1
2. The Issuer wishes to (a) issue the Series 2025-1 Class A-1-V Advance Notes to each Funding Agent on behalf of the Investors in the related Investor Group, and obtain the agreement of the applicable Investors to make advances of loans from time to time (each, an “Advance” or a “Series 2025-1 Class A-1-V Advance” and, collectively, the “Advances” or the “Series 2025-1 Class A-1-V Advances”) that will constitute the purchase of increases to the Series 2025-1 Class A-1-V Outstanding Principal Amount on the terms and conditions set forth in this Agreement and (b) issue the Series 2025-1 Class A-1-V L/C Notes to each Letter of Credit Provider and obtain the agreement of the Letter of Credit Provider to provide Letters of Credit on the terms and conditions set forth in this Agreement. The Series 2025-1 Class A-1-V Advance Notes and the Series 2025-1 Class A-1-V L/C Notes constitute Series 2025-1 Class A-1-V Notes.
3. The Manager has joined in this Agreement to make certain representations, warranties, covenants and agreements for the benefit of each Investor, each Funding Agent and the Series 2025-1 Class A-1-V Administrative Agent.
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. As used in this Agreement and unless the context requires a different meaning, capitalized terms used but not defined herein (including the preamble and the recitals hereto) shall have the meanings assigned to such terms in the Base Indenture and, to the extent not defined therein, in the Series 2025-1 Supplement. Unless otherwise specified herein, all Article, Exhibit, Section or Subsection references herein shall refer to Articles, Exhibits, Sections or Subsections of this Agreement. The following terms shall have the following meanings for purposes of this Agreement:
“Acquiring Committed Note Purchaser” has the meaning set forth in Section 9.17(a).
“Acquiring Investor Group” has the meaning set forth in Section 9.17(c).
“Additional Asset Entity” and “Additional Asset Entities” has the meaning specified in Section 8.01(i).
“Advance” or “Advances” have the meaning set forth in the recitals hereto.
“Advance Request” has the meaning specified in Section 7.03(d).
“Affected Person” has the meaning specified in Section 3.05.
“Aggregate Unpaids” has the meaning specified in Section 5.01.
2
“Agreement” has the meaning specified in the preamble hereto. This Agreement shall be a Class A-1-V Note Purchase Agreement for all purposes under the Base Indenture, the Series 2025-1 Supplement and this Agreement.
“Annual Inspection Notice” has the meaning specified in Section 8.01(d).
“Applicable Agent Indemnified Liabilities” has the meaning set forth in Section 9.05(c).
“Applicable Agent Indemnified Parties” has the meaning set forth in Section 9.05(c).
“Approved Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) an Investor, (b) an Affiliate of an Investor or (c) an entity or an Affiliate of an entity that administers or manages an Investor.
“Asset Entity” has the meaning specified in the preamble hereto.
“Assignment and Assumption Agreement” has the meaning set forth in Section 9.17(a).
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement, in each case, as of such date.
“Bankruptcy Code” means Title 11 of the United States Code, as amended from time to time, and all rules and regulations promulgated thereunder.
“Base Rate” means, for purposes of the Series 2025-1 Class A-1-V Notes when applicable pursuant to this Agreement, on any day, a rate per annum equal to the sum of (a) 0.75% plus (b) the greatest of (i) the Prime Rate in effect on such day, (ii) the Federal Funds Rate in effect on such day plus 0.50% and (iii) Term SOFR in effect on such day plus 1.00%; provided that any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Rate or Term SOFR shall be effective as of the opening of business on the effective day of such change in the Prime Rate, the Federal Funds Rate or Term SOFR, respectively; provided, further, that changes in any rate of interest calculated by reference to the Base Rate shall take effect simultaneously with each change in the Base Rate and the Base Rate will in no event be higher than the maximum rate permitted by applicable law.
“Base Rate Advance” means a Series 2025-1 Class A-1-V Advance that bears interest at the Base Rate during such time as it bears interest at such rate, as provided in this Agreement.
“Benchmark” means, initially, the Term SOFR Reference Rate; provided that, if a Benchmark Transition Event and the Benchmark Replacement Date with respect thereto have occurred with respect to the Term SOFR Reference Rate or 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 (a) of Section 3.04.
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“Benchmark Replacement” means, with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by the Series 2025-1 Class A-1-V Administrative Agent on the applicable Benchmark Replacement Date:
| (1) | Daily Simple SOFR; or |
|---|---|
| (2) | the sum of: (i) the alternate benchmark rate that has been selected by the Series 2025-1 Class A-1-V Administrative Agent and the Issuer giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for U.S. dollar denominated secured financings or securitizations relating to the relevant asset class, as applicable, and (ii) the related Benchmark Replacement Adjustment. |
| --- | --- |
If at any time the Benchmark Replacement as determined pursuant to this definition 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 Transaction Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an 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 Series 2025-1 Class A-1-V Administrative Agent and the Issuer giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar denominated secured financings or securitizations relating to the relevant asset class, as applicable.
“Benchmark Replacement Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including but not limited to changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Accrual Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Series 2025-1 Class A-1-V Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Series 2025-1 Class A-1-V Administrative Agent in a manner substantially consistent with market practice (or, if the Series 2025-1 Class A-1-V Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Series 2025-1 Class A-1-V Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Series 2025-1 Class A-1-V Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement).
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“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark, or if the then-current Benchmark is Term SOFR, with respect to the Term SOFR Reference Rate:
| (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 the applicable 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 non-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, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the 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 the applicable 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 such Available Tenors 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 Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide the applicable 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 such<br>Available Tenor of such Benchmark (or such component thereof); or |
| --- | --- |
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| (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 the applicable Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative. |
|---|
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each applicable Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Transaction Document in accordance with Section 3.04 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Transaction Document in accordance with Section 3.04.
“Borrowing” means any increase to the Series 2025-1 Class A-1-V Outstanding Principal Amount on any Business Day by the Issuer by drawing ratably (or as otherwise set forth herein), at par, additional principal amounts on the Series 2025-1 Class A-1-V Notes corresponding to the aggregate amount of the Series 2025-1 Class A-1-V Advances made on such Business Day.
“Breakage Amount” has the meaning set forth in Section 3.06.
“Change in Law” means (a) any law, rule or regulation or any change therein or in the interpretation or application thereof (whether or not having the force of law), in each case, adopted, issued or occurring after the Series 2025-1 Closing Date or (b) any request, guideline or directive (whether or not having the force of law) from any government or political subdivision or agency, authority, bureau, central bank, commission, department or instrumentality thereof, or any court, tribunal, grand jury or arbitrator, or any accounting board or authority (whether or not a Governmental Authority) which is responsible for the establishment or interpretation of national or international accounting principles, in each case, whether foreign or domestic (each, an “Official Body”) charged with the administration, interpretation or application thereof, or the compliance with any request or directive of any Official Body (whether or not having the force of law) made, issued or occurring after the Series 2025-1 Closing Date.
“Class A-1-V Amendment Expenses” means the amounts payable to the Series 2025-1 Class A-1-V Administrative Agent, each Funding Agent and each Investor in connection with any amendments, waivers, consents, supplements or other modifications to the Series 2025-1 Supplement or any other Transaction Document pursuant to Section 9.05(a).
“Class A-1-V Indemnities” has the meaning specified in Section 9.05(b).
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“Class A-1-V Taxes” has the meaning specified in Section 3.08(a).
“Commercial Paper” means, with respect to any Conduit Investor, the short-term promissory notes issued in the commercial paper market by or for the benefit of such Conduit Investor.
“Commitment” means the commitment of each Committed Note Purchaser included in each Investor Group to (i) fund Series 2025-1 Class A-1-V Advances pursuant to Section 2.02(a) and (ii) to participate in Letters of Credit pursuant to Section 2.08, in an aggregate amount for clauses (i) and (ii) at any one time outstanding up to its Commitment Amount.
“Commitment Amount” means, as to each Committed Note Purchaser, the amount set forth on Schedule I attached hereto opposite such Committed Note Purchaser’s name as its Commitment Amount or, in the case of a Committed Note Purchaser that becomes a party to this Agreement pursuant to an Assignment and Assumption Agreement or Investor Group Supplement, the amount set forth therein as such Committed Note Purchaser’s Commitment Amount, in each case, as such amount may be (i) reduced pursuant to Section 2.05 or (ii) increased or reduced by any Assignment and Assumption Agreement or Investor Group Supplement entered into by such Committed Note Purchaser in accordance with the terms of this Agreement.
“Commitment Percentage” means, on any date of determination, with respect to any Investor Group, the ratio, expressed as a percentage, which such Investor Group’s Maximum Investor Group Principal Amount bears to the Series 2025-1 Class A-1-V Notes Maximum Principal Amount on such date.
“Commitment Term” means the period from and including the Series 2025-1 Closing Date to but excluding the earlier of (a) the Commitment Termination Date and (b) the date on which the Commitments are otherwise terminated or reduced to zero in accordance with this Agreement.
“Commitment Termination Date” means the Series 2025-1 Class A-1-V Anticipated Repayment Date.
“Committed Note Purchaser” and “Committed Note Purchasers” have the meaning specified in the preamble hereto.
“Committed Note Purchaser Percentage” means, on any date of determination, with respect to any Committed Note Purchaser in any Investor Group, the ratio, expressed as a percentage, which the Commitment Amount of such Committed Note Purchaser bears to such Investor Group’s Maximum Investor Group Principal Amount on such date.
“Competitor” has the meaning set forth in Section 9.17(a).
“Conduit Assignee” means, with respect to any Conduit Investor, any commercial paper conduit, whose Commercial Paper is rated at least “A-2” from S&P and/or the equivalent rating of another “nationally-recognized statistical rating organization” registered with the SEC, that is administered by the Funding Agent (or for which the related Program Support Provider provides liquidity support) with respect to such Conduit Investor or any Affiliate of such Funding Agent, in each case, designated by such Funding Agent to accept an assignment from such Conduit Investor of the Investor Group Principal Amount or a portion thereof with respect to such Conduit Investor pursuant to Section 9.17(b).
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“Conduit Investor” and “Conduit Investors” have the meaning specified in the preamble hereto.
“Corporate Transparency Act” has the meaning set forth in Section 6.01(o).
“Covered Fund” has the meaning specified in Section 6.01(g).
“CP Advance” means a Series 2025-1 Class A-1-V Advance that bears interest at the CP Rate during such time as it bears interest at such rate, as provided herein.
“CP Funding Rate” means, with respect to each Conduit Investor, for any day during any Interest Accrual Period, for any CP Advance funded by such Conduit Investor, the per annum rate equivalent to the weighted average cost (as determined by the related Funding Agent, and which shall include (without duplication) the fees and commissions of placement agents and dealers, incremental carrying costs incurred with respect to Commercial Paper maturing on dates other than those on which corresponding funds are received by such Conduit Investor, other borrowings by such Conduit Investor and any other costs associated with the issuance of Commercial Paper) of or related to the issuance of Commercial Paper that are allocated, in whole or in part, by such Conduit Investor or its related Funding Agent to fund or maintain such CP Advances for such Interest Accrual Period (and which may also be allocated in part to the funding of other assets of the Conduit Investor); provided, however, that if any component of any such rate is a discount rate, in calculating the “CP Funding Rate” for such CP Advances for such Interest Accrual Period, the related Funding Agent shall for such component use the rate resulting from converting such discount rate to an interest bearing equivalent rate per annum.
“CP Rate” means, on any day during any Interest Accrual Period, an interest rate per annum equal to the sum of (i) the CP Funding Rate for such Interest Accrual Period plus (ii) 1.75%; provided that the CP Rate will in no event be higher than the maximum rate permitted by applicable law.
“Credit Party” has the meaning set forth in Section 4.07(b).
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which may include a lookback) being established by the Series 2025-1 Class A-1-V Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided that, if the Series 2025-1 Class A-1-V Administrative Agent decides that any such convention is not administratively feasible for the Series 2025-1 Class A-1-V Administrative Agent, then the Series 2025-1 Class A-1-V Administrative Agent may establish another convention in its reasonable discretion.
“Defaulting Agent Event” has the meaning set forth in Section 5.07(b).
“Defaulting Investor” means any Investor that has (a) failed to make a payment required to be made by it under the terms hereof within one (1) Business Day of the day such payment is required to be made by such Investor hereunder, (b) notified the related Funding Agent in writing that it does not intend to make any payment required to be made by it under the terms hereof within one (1) Business Day of the day such payment is required to be made by such Investor hereunder, (c) become the subject of an Event of Bankruptcy or (d) become the subject of a Bail-In Action; provided that an Investor shall not be a Defaulting Investor solely by virtue of the ownership or acquisition of any equity interest in that Investor or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Investor 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 Investor (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Investor.
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“Delayed Amount” has the meaning set forth in Section 2.03(d).
“Delayed Funding Date” has the meaning set forth in Section 2.03(d).
“Delayed Funding Notice” has the meaning set forth in Section 2.03(d).
“Delayed Funding Notice Date” has the meaning set forth in Section 2.03(d).
“Delaying Investor” has the meaning set forth in Section 2.03(d).
“Eligible Assignee” has the meaning set forth in Section 9.17(a).
“Eligible Conduit Investor” means, at any time, any Conduit Investor whose Commercial Paper is rated at least “A-1” from S&P and/or the equivalent rating of another “nationally-recognized statistical rating organization” registered with the SEC.
“EU/UK Retail Investor” means:
(a) in respect of a person in the European Economic Area, a person who is one (or more) of: (i) a retail client as defined in point (11) of article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”), (ii) a customer within the meaning of Directive (EU) 2016/97 (as amended, the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (10) of article 4(1) of MiFID II or (iii) not a qualified investor as defined in Regulation (EU) 2017/1129 (as amended, the “Prospectus Regulation”); and
(a) in respect of a person in the United Kingdom, a person who is one (or more) of: (i) a retail client, as defined in the FCA Handbook Conduct of Business Sourcebook; (ii) a customer within the meaning of the provisions of the FSMA and any rules or regulations made under the FSMA to implement the Insurance Distribution Directive, where that customer would not qualify as a professional client, as defined in point (8) of article 2(1) of Regulation (EU) No 600/2014, as it forms part of domestic law in the UK by virtue of the EUWA; or (iii) not a qualified investor, as defined in article 2 of the Prospectus Regulation, as it forms part of domestic law in the UK by virtue of the EUWA.
“EUWA” means the European Union (Withdrawal) Act 2018 (as amended).
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“Event of Bankruptcy” means, with respect to any Person, (i) a court enters a decree or order for relief with respect to such Person in an Involuntary Bankruptcy, which decree or order is not stayed or other similar relief is not granted under any applicable federal or state law unless dismissed within sixty (60) days or an order for relief is entered with respect to such Person or such Person commences a voluntary case under the Bankruptcy Code or any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case or to the conversion of an involuntary case to a voluntary case under any such law or consents to the appointment of or taking possession by a receiver, trustee or other custodian for such Person, for all or a substantial part of the property of such Person.
“FATCA” means Sections 1471 through 1474 of the Code, any current or future regulations thereunder or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code, any published intergovernmental agreement entered into in connection with the implementation of such sections of the Code and any fiscal or regulatory legislation, rules or official practices adopted pursuant to any such published intergovernmental agreement.
“FCPA” has the meaning specified in Section 6.01(j).
“Federal Funds Rate” means, for any specified period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the overnight federal funds rates as published in Federal Reserve Board Statistical Release H.15(519) or any successor or substitute publication selected by the related Funding Agent (or, if such day is not a Business Day, for the next preceding Business Day), or if, for any reason, such rate is not available on any day, the average of the quotations for the day of such transactions received by the related Funding Agent from three federal funds brokers of recognized standing selected by it.
“Fitch” means Fitch Ratings, Inc.
“Floor” means zero percent (0%).
“F.R.S. Board” means the Board of Governors of the Federal Reserve System.
“FSMA” means the Financial Services and Markets Act 2000, as amended.
“Funding Agent” and “Funding Agents” have the meaning specified in the preamble hereto.
“Funding Agent Indemnified Parties” has the meaning set forth in Section 9.05(c).
“Guarantor” means Shentel Guarantor LLC.
“Increased Capital Costs” has the meaning set forth in Section 3.07.
“Increased Costs” has the meaning set forth in Section 3.05.
“Increased Tax Costs” has the meaning set forth in Section 3.08(b).
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“Indemnified Liabilities” has the meaning set forth in Section 9.05(b).
“Indemnified Parties” has the meaning set forth in Section 9.05(b).
“Indenture” has the meaning specified in the preamble hereto.
“Investment Company Act” has the meaning set forth in Section 6.01(g).
“Investor” means any one of the Conduit Investors and the Committed Note Purchasers (including each Letter of Credit Provider and any L/C Issuing Bank), and “Investors” means the Conduit Investors and the Committed Note Purchasers (including each Letter of Credit Provider and any L/C Issuing Banks) collectively.
“Investor Group” means (i) for each Conduit Investor, collectively, such Conduit Investor, the related Committed Note Purchaser(s) set forth opposite the name of such Conduit Investor on Schedule I attached hereto (or, if applicable, set forth for such Conduit Investor in the Assignment and Assumption Agreement or Investor Group Supplement pursuant to which such Conduit Investor or Committed Note Purchaser becomes a party hereto), any related Program Support Provider(s) and the related Funding Agent (which shall constitute the Series 2025-1 Class A-1-V Noteholder for such Investor Group) and (ii) for each other Committed Note Purchaser that is not related to a Conduit Investor, collectively, such Committed Note Purchaser, any related Program Support Provider(s) and the related Funding Agent (which shall constitute the Series 2025-1 Class A-1-V Noteholder for such Investor Group).
“Investor Group Borrowing Amount” means, with respect to any Investor Group, for any Business Day, the portion of a Borrowing, if any, actually funded by such Investor Group on such Business Day.
“Investor Group Principal Amount” means, with respect to any Investor Group, (a) when used with respect to the Investor Groups as of the Series 2025-1 Closing Date, an amount equal to (i) such Investor Group’s Commitment Percentage of the Series 2025-1 Class A-1-V Initial Advance Principal Amount, if any plus (ii) such Investor Group’s Commitment Percentage of the Series 2025-1 Class A-1-V Outstanding L/C Subfacility Amount outstanding on the Series 2025-1 Closing Date, if any, and (b) when used with respect to the Investor Groups as of any other date (including with respect to any Investor Groups that exist as of any other date pursuant to an Assignment and Assumption Agreement or an Investor Group Supplement but excluding any Series 2025-1 Class A-1-V Outstanding L/C Subfacility Amount included therein), an amount equal to (i) the Investor Group Principal Amount with respect to such Investor Group on the immediately preceding Business Day (including after giving effect to the assignment under any Assignment and Assumption Agreement or Investor Group Supplement), plus (ii) the Investor Group Borrowing Amount with respect to such Investor Group on such date minus (iii) the amount of principal payments made to such Investor Group on the Series 2025-1 Class A-1-V Advance Notes on such date, plus (iv) such Investor Group’s Commitment Percentage of the Series 2025-1 Class A-1-V Outstanding L/C Subfacility Amount outstanding on such date.
“Investor Group Supplement” has the meaning set forth in Section 9.17(c).
“Involuntary Bankruptcy” means any involuntary case under the Bankruptcy Code or any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, in which any Person is a debtor.
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“Issuer” has the meaning specified in the preamble hereto.
“Joinder Agreement” has the meaning specified in Section 8.01(i).
“KBRA” means Kroll Bond Rating Agency, LLC.
“L/C Commitment” means the obligation of each Letter of Credit Provider directly or through an L/C Issuing Bank to provide Letters of Credit pursuant to Section 2.06, in an aggregate Undrawn L/C Face Amount, together with any Unreimbursed L/C Drawings, at any one time outstanding not to exceed the face amount of the Series 2025-1 Class A-1-V L/C Notes held by such Letter of Credit Provider. As of the Closing Date, the aggregate amount of L/C Commitments is $25,000,000 which amount may be reduced pursuant to Section 2.05(b) or Section 2.06(f) or increased pursuant to Section 2.06(f).
“L/C Issuance Fees” has the meaning set forth in Section 2.06(d).
“L/C Issuing Bank” has the meaning specified in Section 2.06(g).
“L/C Monthly Fees” has the meaning set forth in the Series 2025-1 Class A-1-V Notes Fee Letter.
“L/C Obligations” means, at any time, an amount equal to the sum of (i) any Undrawn L/C Face Amounts outstanding at such time and (ii) any Unreimbursed L/C Drawings outstanding at such time.
“L/C Other Reimbursement Costs” has the meaning set forth in Section 2.07(a).
“L/C Reimbursement Amount” has the meaning set forth in Section 2.07(a).
“L/C Subfacility Decrease” has the meaning set forth in Section 2.06(b).
“L/C Subfacility Increase” has the meaning set forth in Section 2.06(b).
“Letter of Credit” has the meaning set forth in Section 2.06(a).
“Letter of Credit Provider” means each Person in whose name a Series 2025-1 Class A-1-V L/C Note is registered in the Note Register, and its permitted successors and assigns in such capacity. References to a Letter of Credit Provider herein and in the Indenture shall apply independently to each Letter of Credit Provider in such capacity and solely with respect to such Letter of Credit Provider’s L/C Commitment or the Letters of Credit issued in respect thereof, or, if the context requires, all Letter of Credit Providers in such capacity the aggregate L/C Commitments or the Letters of Credit issued in respect thereof.
“Manager” has the meaning specified in the preamble hereto.
“Margin Stock” has the meaning specified in Section 8.01(e).
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“Maximum Investor Group Principal Amount” means, as to each Investor Group existing on the Series 2025-1 Closing Date, the amount set forth on Schedule I attached hereto as such Investor Group’s Maximum Investor Group Principal Amount or, in the case of any other Investor Group, the amount set forth as such Investor Group’s Maximum Investor Group Principal Amount in the Assignment and Assumption Agreement or Investor Group Supplement by which the members of such Investor Group become parties hereto, in each case, as such amount may be (i) reduced pursuant to Section 2.05 or (ii) increased or reduced by any Assignment and Assumption Agreement or Investor Group Supplement entered into by the members of such Investor Group in accordance with the terms hereof.
“Money Laundering Laws” has the meaning set forth in Section 6.01(k).
“Non-Excluded Taxes” has the meaning set forth in Section 3.08(a).
“Non-Funding Committed Note Purchaser” has the meaning set forth in Section 2.02(a).
“Obligor” and “Obligors” has the meaning specified in the preamble hereto.
“OFAC” has the meaning set forth in Section 6.01(l).
“Other Class A-1-V Transaction Expenses” means all amounts payable pursuant to Section 9.05(a) including Class A-1-V Amendment Expenses.
“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 Series 2025-1 Class A-1-V Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Series 2025-1 Class A-1-V Administrative Agent).
“Priority of Payments” means the priority of payments for the application of funds on each Payment Date set forth in Section 5.01(a) of the Base Indenture.
“Program Support Agreement” means, with respect to any Conduit Investor, any agreement entered into by any Program Support Provider in respect of any Commercial Paper and/or Series 2025-1 Class A-1-V Note of such Conduit Investor providing for the issuance of one or more letters of credit for the account of such Conduit Investor, the issuance of one or more insurance policies for which such Conduit Investor is obligated to reimburse the applicable Program Support Provider for any drawings thereunder, the sale by such Conduit Investor to any Program Support Provider of the Series 2025-1 Class A-1-V Notes (or portions thereof or interests therein) and/or the making of loans and/or other extensions of credit to such Conduit Investor in connection with such Conduit Investor’s securitization program, together with any letter of credit, insurance policy or other instrument issued thereunder or guaranty thereof (but excluding any discretionary advance facility provided by a Committed Note Purchaser).
“Program Support Provider” means, with respect to any Conduit Investor, any financial institutions and any other or additional Person now or hereafter extending credit or having a commitment to extend credit to or for the account of, and/or agreeing to make purchases from, such Conduit Investor in respect of such Conduit Investor’s Commercial Paper and/or Series 2025-1 Class A-1-V Note, and/or agreeing to issue a letter of credit or insurance policy or other instrument to support any obligations arising under or in connection with such Conduit Investor’s securitization program as it relates to any Commercial Paper issued by such Conduit Investor, and/or holding equity interests in such Investor, in each case pursuant to a Program Support Agreement, and any guarantor of any such Person.
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“reference amount” has the meaning set forth in Section 2.03(b).
“Reimbursement Obligation” means the obligation of the Issuer to reimburse any Letter of Credit Provider pursuant to Section 2.07 for amounts drawn under Letters of Credit.
“Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.
“Required Investors” has the meaning set forth in Section 5.07(a).
“Requirements of Law” means, with respect to any Person or any of its property, the certificate of incorporation or articles of association and bylaws, limited liability company agreement, partnership agreement or other organizational or governing documents of such Person or any of its property, and any law, treaty, rule or regulation, or determination of any arbitrator or 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, whether federal, state, local or foreign (including usury laws, the Federal Truth in Lending Act, state franchise laws and retail installment sales acts).
“Rescindable Amount” has the meaning set forth in Section 2.09(b).
“Sanctions” has the meaning set forth in Section 6.01(l).
“Series 2025-1 Class A-1-V Administrative Agent” has the meaning set forth in the preamble hereto.
“Series 2025-1 Class A-1-V Administrative Agent Fee Letter” shall mean the Series 2025-1 Class A-1-V Administrative Agent Fee Letter, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time), by and among the Issuer, the Asset Entities and the Series 2025-1 Class A-1-V Administrative Agent.
“Series 2025-1 Class A-1-V Administrative Agent Indemnified Parties” has the meaning set forth in Section 9.05(c).
“Series 2025-1 Class A-1-V Advance” and “Series 2025-1 Class A-1-V Advances” have the meaning set forth in the recitals hereto.
“Series 2025-1 Class A-1-V Advance Request” has the meaning specified in Section 7.03(d).
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“Series 2025-1 Class A-1-V Anticipated Repayment Date” means the Payment Date occurring in December 2029 as the same may be extended pursuant to Section 7.04. The Series 2025-1 Class A-1-V Anticipated Repayment Date shall be the Anticipated Repayment Date for the Series 2025-1 Class A-1-V Notes for all purposes under the Base Indenture and the Series 2025-1 Supplement.
“Series 2025-1 Class A-1-V Breakage Amount” has the meaning set forth in Section 3.06.
“Series 2025-1 Class A-1-V Extension Election” has the meaning specified in Section 7.04(b).
“Series 2025-1 Class A-1-V Extension Fees” means the fees payable by the Issuer pursuant to the exercise of a Series 2025-1 Class A-1-V Extension Election pursuant to the Series 2025-1 Class A-1-V Notes Fee Letter.
“Series 2025-1 Class A-1-V Initial Advance” means the initial Series 2025-1 Class A-1-V Advance, if any, made pursuant to Section 2.02 on the Series 2025-1 Closing Date.
“Series 2025-1 Class A-1-V Initial Advance Principal Amount” means the aggregate initial outstanding principal amount of the Series 2025-1 Class A-1-V Advance Notes corresponding to the aggregate amount of the Series 2025-1 Class A-1-V Initial Advances made on the Series 2025-1 Closing Date pursuant to Section 2.02.
“Series 2025-1 Class A-1-V Noteholders” means the Investors as Holders of the Series 2025-1 Class A-1-V Notes.
“Series 2025-1 Class A-1-V Notes” means the $175,000,000 Secured Fiber Network Revenue Variable Funding Notes, Series 2025-1, Class A-1-V, issued by the Issuer pursuant to the Base Indenture, as supplemented by the Series 2025-1 Supplement, in two tranches: (a) Series 2025-1 Class A-1-V Advance Notes (the “Series 2025-1 Class A-1-V Advance Notes”) and (b) Series 2025-1 Class A-1-V L/C Notes (the “Series 2025-1 Class A-1-V L/C Notes”). The Series 2025-1 Class A-1-V Notes shall be Variable Funding Notes that are Class A-1-V Notes payable in accordance with the Base Indenture, the Series 2025-1 Supplement and this Agreement.
“Series 2025-1 Class A-1-V Notes Fee Letter” means the Series 2025-1 Class A-1-V Fee Letter, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time), by and among the Issuer, the Asset Entities, the Series 2025-1 Class A-1-V Administrative Agent, the Committed Note Purchasers and the Funding Agents.
“Series 2025-1 Class A-1-V Notes Maximum Principal Amount” means $175,000,000, as such amount may be reduced pursuant to Section 2.05.
“Series 2025-1 Class A-1-V Notes Other Amounts” means, as of any date of determination, the aggregate amount of any Breakage Amount, Class A-1-V Indemnities, Increased Capital Costs, Increased Costs, Increased Tax Costs, L/C Other Reimbursement Costs and Other Class A-1-V Transaction Expenses then due and payable and not previously paid.
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“Series 2025-1 Class A-1-V Notes Upfront Fee” has the meaning set forth in the Series 2025-1 Class A-1-V Notes Fee Letter.
“Series 2025-1 Class A-1-V Outstanding L/C Subfacility Amount” means, when used with respect to any date, the aggregate principal amount of any Series 2025-1 Class A-1-V L/C Notes outstanding on such date (after giving effect to L/C Subfacility Increases or L/C Subfacility Decreases to occur on such date pursuant to the terms of this Agreement or the Series 2025-1 Supplement).
“Series 2025-1 Class A-1-V Outstanding Principal Amount” means, when used with respect to any date, an amount equal to (a) the Series 2025-1 Class A-1-V Initial Advance Principal Amount, if any, minus (b) the amount of principal payments (whether pursuant to a Decrease, a redemption or otherwise) made on the Series 2025-1 Class A-1-V Advance Notes on or prior to such date plus (c) the amount of any Borrowings resulting from Series 2025-1 Class A-1-V Advances made on or prior to such date and after the Series 2025-1 Closing Date plus (d) any Series 2025-1 Class A-1-V Outstanding L/C Subfacility Amount on such date. For purposes of the Indenture, the Series 2025-1 Class A-1-V Outstanding Principal Amount shall be the Note Principal Balance for the Series 2025-1 Class A-1-V Notes.
“Series 2025-1 Class A-1-V Post-ARD Additional Interest” means the interest that accrues on the Series 2025-1 Class A-1-V Outstanding Principal Amount at the Series 2025-1 Class A-1-V Post-ARD Additional Interest Rate pursuant to Section 2.10 of the Base Indenture and Section 3.01.
“Series 2025-1 Class A-1-V Post-ARD Additional Interest Rate” means a rate per annum equal to 5.0%, which shall be the “Post-ARD Additional Interest Rate” on the Series 2025-1 Class A-1-V Notes for all purposes of the Base Indenture and the Series 2025-1 Supplement.
“Series 2025-1 Class A-1-V Undrawn Fees” has the meaning specified in Section 3.02(c).
“Series 2025-1 Class A-2 Notes” means the $489,142,000 Secured Fiber Network Revenue Term Notes, Series 2025-1, Class A-2, issued by the Issuer pursuant to the Base Indenture and the Series 2025-1 Supplement.
“Series 2025-1 Class B Notes” means the $78,263,000 Secured Fiber Network Revenue Term Notes, Series 2025-1, Class B, issued by the Issuer pursuant to the Base Indenture and the Series 2025-1 Supplement.
“Series 2025-1 Closing Date” means the date of this Agreement.
“Series 2025-1 Liquidity Reserve Letter of Credit” means any Liquidity Reserve Letter of Credit issued to the Indenture Trustee, for the benefit of the Secured Parties, and the Servicer as the joint beneficiaries thereof in accordance with this Agreement.
“Series 2025-1 Notes” means the Series 2025-1 Class A-1-V Notes, the Series 2025-1 Class A-1-L Notes, the Series 2025-1 Class A-2 Notes and the Series 2025-1 Class B Notes, collectively.
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“Series 2025-1 Supplement” has the meaning set forth in the preamble hereto.
“SOFR” with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of such benchmark, (or a successor administrator) on the Federal Reserve Bank of New York’s website.
“SOFR Advance” means a Series 2025-1 Class A-1-V Advance that bears interest at the Term SOFR Rate during such time as it bears interest at such rate, as provided herein.
“Term SOFR” means, with respect to any Advance for any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of the applicable Interest Accrual Period, as such rate is published by the Term SOFR Administrator for such Term SOFR Determination Day at 6:00 a.m. (New York City time); provided, however, that if as of 5:00 p.m. (New York City time) on any Term SOFR Determination Day the Term SOFR Reference Rate for one month has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for one month as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for one month was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Term SOFR Determination Day; provided that if Term SOFR as so determined shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Series 2025-1 Class A-1-V Administrative Agent in its reasonable discretion).
“Term SOFR Rate” means, for purposes of any calculation, the rate per annum equal to the sum of (a) Term SOFR and (b) 1.75%.
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the Benchmark Replacement Adjustment with respect thereto.
“Undrawn L/C Face Amounts” means, at any time, the aggregate then-undrawn and unexpired face amount of any Letters of Credit outstanding at such time.
“Unreimbursed L/C Drawings” means, at any time, the aggregate amount of any L/C Reimbursement Amounts that have not then been reimbursed pursuant to Section 2.07.
“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
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“U.S. Risk Retention Rules” has the meaning specified in Section 6.02.
“Voluntary Decrease” has the meaning specified in Section 2.02(d).
Section 1.02. Rates. The Series 2025-1 Class A-1-V Administrative Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to Base Rate, the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Base Rate, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Benchmark Replacement Conforming Changes. The Series 2025-1 Class A-1-V Administrative Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Base Rate, the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Issuer. The Series 2025-1 Class A-1-V Administrative Agent may select information sources or services in its reasonable discretion to ascertain the Base Rate, the Term SOFR Reference Rate, Term SOFR or any other Benchmark or any component definition thereof or rates referred to in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Issuer, any Noteholder 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
PURCHASE AND SALE OF SERIES 2025-1 CLASS A-1-V NOTES
Section 2.01. Series 2025-1 Class A-1-V Notes. On the terms and conditions set forth in this Agreement, the Base Indenture and the Series 2025-1 Supplement, and in reliance on the representations, warranties, covenants and agreements set forth herein and therein, the Issuer shall issue and shall request the Indenture Trustee to authenticate (or register as described in Section 2.01(a) of the Base Indenture and the Series 2025-1 Supplement), pursuant to Section 2.01(b) of the Base Indenture and the Series 2025-1 Supplement, the Series 2025-1 Class A-1-V Advance Notes, which the Issuer shall deliver to each Funding Agent on behalf of the Investors in the related Investor Group on the Series 2025-1 Closing Date. Such Series 2025-1 Class A-1-V Advance Note for each Investor Group shall be dated the Series 2025-1 Closing Date, shall be registered in the name of the related Funding Agent or its nominee, as agent for the related Investors, or in such other name or nominee as such Funding Agent may request, shall have a maximum principal amount equal to the Maximum Investor Group Principal Amount for such Investor Group, shall have an initial outstanding principal amount equal to such Investor Group’s Commitment Percentage of the Series 2025-1 Class A-1-V Initial Advance Principal Amount, if any, and (other than any Uncertificated Note) shall be duly authenticated in accordance with the provisions of Section 2.01(b) of the Base Indenture. The issuance and sale of the Series 2025-1 Class A-1-V Advance Notes to the Series 2025-1 Class A-1-V Noteholders shall be subject to satisfaction of the conditions set forth in Section 7.01 in addition to the conditions to the issuance of a Series of Notes set forth in Section 2.07 of the Base Indenture. The Series 2025-1 Class A-1-V Notes shall be Variable Funding Notes that are Class A-1-V Advance Notes payable in accordance with the Base Indenture, the Series 2025-1 Supplement and this Agreement. This Agreement shall be a Variable Funding Note Purchase Agreement for all purposes under the Base Indenture and the Series 2025-1 Supplement.
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Section 2.02. Advances; Voluntary Decreases.
(a) Subject to the terms and conditions of this Agreement, the Base Indenture and the Series 2025-1 Supplement, including, without limitation, the conditions to the initial extension of credit set forth in Section 7.02 and the conditions to each extension of credit set forth in Section 7.03, each Eligible Conduit Investor, if any, may, in its sole discretion, and if such Eligible Conduit Investor determines that it will not make (or it does not in fact make) an Advance or any portion of an Advance, its related Committed Note Purchaser(s) shall or, if there is no Eligible Conduit Investor with respect to any Investor Group, the Committed Note Purchaser(s) with respect to such Investor Group shall, upon the Issuer’s request for a Borrowing delivered in accordance with the provisions of Section 2.03 and the satisfaction of all conditions precedent thereto (or under the circumstances set forth in Section 2.05, 2.06 or 2.08), make Advances from time to time during the Commitment Term; provided that such Advances shall be made ratably by each Investor Group based on their respective Commitment Percentages and the portion of any such Advance made by any Committed Note Purchaser in such Investor Group shall be its Committed Note Purchaser Percentage of the Advances to be made by such Investor Group (or the portion thereof not being made by any Conduit Investor in such Investor Group); provided, further, that if, as a result of any Committed Note Purchaser (a “Non-Funding Committed Note Purchaser”) failing to make any previous Advance that such Non-Funding Committed Note Purchaser was required to make, outstanding Advances are not held ratably by each Investor Group based on their respective Commitment Percentages and among the Committed Note Purchasers within each Investor Group based on their respective Committed Note Purchaser Percentages at the time a request for Advances is made, (x) such Non-Funding Committed Note Purchaser shall make all of such Advances until outstanding Advances are held ratably by each Investor Group based on their respective Commitment Percentages and among the Committed Note Purchasers within each Investor Group based on their respective Committed Note Purchaser Percentages and (y) further Advances shall be made ratably by each Investor Group based on their respective Commitment Percentages and the portion of any such Advance made by any Committed Note Purchaser in such Investor Group shall be its Committed Note Purchaser Percentage of the Advances to be made by such Investor Group (or the portion thereof not being made by any Conduit Investor in such Investor Group); provided, further, that the failure of a Non-Funding Committed Note Purchaser to make Advances pursuant to the immediately preceding proviso shall not, subject to the immediately following proviso, relieve any other Committed Note Purchaser of its obligation hereunder, if any, to make Advances in accordance with Section 2.03(b)(i); provided, further, that, subject, in the case of clause (i) below, to Section 2.03(b)(ii), no Advance shall be required or permitted to be made by any Investor on any date to the extent that, after giving effect to such Advance, (i) the related Investor Group Principal Amount would exceed the related Maximum Investor Group Principal Amount or (ii) the Series 2025-1 Class A-1-V Outstanding Principal Amount would exceed the Series 2025-1 Class A-1-V Notes Maximum Principal Amount.
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(b) Notwithstanding anything herein or in any other Transaction Document to the contrary, at no time will a Conduit Investor be obligated to make Advances hereunder. If at any time any Conduit Investor is not an Eligible Conduit Investor, such Conduit Investor shall deliver prompt written notice to each of the related Funding Agent, the Series 2025-1 Class A-1-V Administrative Agent and the Issuer.
(c) Each of the Advances to be made on any date shall be made as part of a single Borrowing. The Advances made as part of the initial Borrowing on or after the Series 2025-1 Closing Date will be evidenced by the Series 2025-1 Class A-1-V Advance Notes issued in connection herewith and will constitute purchases of Series 2025-1 Class A-1-V Initial Advance Principal Amounts corresponding to the amount of such Advances. All of the other Advances will constitute Borrowings evidenced by the Series 2025-1 Class A-1-V Advance Notes issued in connection herewith and will constitute purchases of Series 2025-1 Class A-1-V Outstanding Principal Amounts corresponding to the amount of such Advances. The Series 2025-1 Class A-1-V Outstanding Principal Amounts shall be the aggregate unpaid principal balance and the Class Principal Balances of the Series 2025-1 Class A-1-V Notes for all purposes under the Base Indenture and the Series 2025-1 Supplement.
(d) On any Business Day, upon at least three (3) Business Days’ prior written notice, substantially in the form of Exhibit E, to each of the Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent, the Indenture Trustee and the Servicer, the Issuer may decrease the Series 2025-1 Class A-1-V Outstanding Principal Amount (each such decrease of the Series 2025-1 Class A-1-V Outstanding Principal Amount pursuant to this Section 2.02(d), a “Voluntary Decrease”) by depositing with the Series 2025-1 Class A-1-V Administrative Agent an amount equal to such Voluntary Decrease not later than 10:00 a.m. (New York City time) on the date specified as the decrease date in the prior written notice referred to above and providing a written report to the Series 2025-1 Class A-1-V Administrative Agent (with a copy to the Indenture Trustee) directing the Series 2025-1 Class A-1-V Administrative Agent to distribute to each Investor Group pro rata according to the portion of the Series 2025-1 Class A-1-V Outstanding Principal Amount allocable to each Investor Group (which report shall include the calculation of such amounts and wiring instructions for the distributions thereof); provided that to the extent the deposit with the Series 2025-1 Class A-1-V Administrative Agent described above is not made by 10:00 a.m. (New York City time) on a Business Day, the same shall be deemed to be deposited on the following Business Day. Any associated Series 2025-1 Class A-1-V Breakage Amounts incurred as a result of such decrease (calculated in accordance with this Agreement) shall be deposited with the Series 2025-1 Class A-1-V Administrative Agent for allocation pursuant to the report referred to above. Each such Voluntary Decrease in respect of any Advances shall be either (i) in an aggregate minimum principal amount of $1,000,000 and integral multiples of $100,000 in excess thereof or (ii) in such other amount necessary to reduce the Series 2025-1 Class A-1-V Outstanding Principal Amount to zero. The failure to pay the amount of any Voluntary Decrease on the date specified as the decrease date in the related notice shall not constitute an Event of Default under the Base Indenture, and any amounts deposited with the Series 2025-1 Class A-1-V Administrative Agent for application in the manner set forth above shall only be so deposited to the extent available in accordance with the Priority of Payments.
(e) Subject to the terms of this Agreement and the Series 2025-1 Supplement, the aggregate principal amount of the Advances evidenced by the Series 2025-1 Class A-1-V Advance Notes may be increased by Borrowings or decreased by Voluntary Decreases and such other amounts that are paid on the Series 2025-1 Class A-1-V Notes pursuant to the Priority of Payments from time to time.
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(f) At any time that the aggregate Series 2025-1 Class A-1-V Outstanding Principal Amount attributable to each Investor Group is not held pro rata based on its respective Commitment Percentage (as a result of the issuance of any Letter of Credit or otherwise), the Investor Groups (and the Investors within each such Investor Group) shall at the direction of the Series 2025-1 Class A-1-V Administrative Agent, reallocate any outstanding Advances to ensure that the aggregate Series 2025-1 Class A-1-V Outstanding Principal Amount attributable to each Investor Group is pro rata based on its respective Commitment Percentage. In the event that any reallocation of the Series 2025-1 Class A-1-V Outstanding Principal Amount required to be made to ensure that the Series 2025-1 Class A-1-V Outstanding Principal Amount attributable to each Investor Group is pro rata based on its respective Commitment Percentage would give rise to Series 2025-1 Class A-1-V Breakage Amounts, the related breakage shall occur with respect to the applicable Advance closest to maturity.
Section 2.03. Borrowing Procedures.
(a) Whenever the Issuer wishes to make a Borrowing, the Issuer shall (or shall cause the Manager on its behalf to) by written notice in the form of an Advance Request, notify (for which purpose electronic means shall be sufficient) each Funding Agent of its pro rata share thereof (or other required share, as required pursuant to Section 2.02(a)) and notify each of the Indenture Trustee, the Letter of Credit Provider and the Servicer in writing of such Borrowing no later than 12:00 p.m. (New York City time) two (2) Business Days (or, in the case of any SOFR Advances for purposes of Section 3.01(b), two (2) U.S. Government Securities Business Days) prior to the date of such Borrowing (unless a shorter period is agreed upon by each of the Funding Agents) or, in the case of any Borrowing to be made concurrently with the Series 2025-1 Closing Date, one (1) Business Day prior to the date of such Borrowing, which date of Borrowing shall be a Business Day during the Commitment Term. Each such Advance Request shall be irrevocable and shall in each case refer to this Agreement and specify (i) the Borrowing date, (ii) the aggregate amount of the requested Borrowing to be made on such date, and (iii) Unreimbursed L/C Drawingssufficient instructions for application of the balance, if any, of the proceeds of such Borrowing on the Borrowing date (which proceeds shall be made available to the Issuer). Requests for any Borrowing may not be made in an aggregate principal amount of less than $1,000,000 or in an aggregate principal amount that is not an integral multiple of $100,000 in excess thereof (or in each case such other amount as agreed to by the Funding Agents); except as otherwise provided herein with respect to Advances for the purpose or repaying then-outstanding Unreimbursed L/C Drawings. Subject to the provisos to Section 2.02(a), each Borrowing shall be ratably allocated among the Investor Groups’ respective Maximum Investor Group Principal Amounts. Each Funding Agent shall promptly advise its related Conduit Investor, if any, of any notice given pursuant to this Section 2.03(a) and shall promptly thereafter (but in no event later than 10:00 a.m. (New York City time) on the date of Borrowing) notify the Series 2025-1 Class A-1-V Administrative Agent, the Issuer and the related Committed Note Purchaser(s) whether such Conduit Investor has determined to make all or any portion of the Advances in such Borrowing that are to be made by its Investor Group. On the date of each Borrowing and subject to the other conditions set forth herein and in the Series 2025-1 Supplement (, the applicable Investors in each Investor Group shall make available to the Series 2025-1 Class A-1-V Administrative Agent the amount of the Advances in such Borrowing that are to be made by such Investor Group by wire transfer in U.S. Dollars of such amount in same day funds no later than 11:00 a.m. (New York City time) on the date of such Borrowing as instructed in the applicable Advance Request and upon receipt thereof the Series 2025-1 Class A-1-V Administrative Agent shall make such proceeds available by 5:00 p.m. (New York City time), first, if applicable, to the Letter of Credit Provider for application to repayment of the amount of outstanding Unreimbursed L/C Drawings as set forth in the applicable Advance Request, ratably in proportion to such respective amounts, and/or second, to the Issuer as instructed in the applicable Advance Request.
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(b) (i) The failure of any Committed Note Purchaser to make the Advance to be made by it as part of any Borrowing shall not relieve any other Committed Note Purchaser (whether or not in the same Investor Group) of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but neither the Committed Note Purchaser nor any other Person shall be responsible for the failure of any other Committed Note Purchaser to make the Advance to be made by such other Committed Note Purchaser on the date of any Borrowing and (ii) in the event that one or more Committed Note Purchasers fails to make its Advance by 11:00 a.m. (New York City time) on the date of such Borrowing, the Issuer shall deliver written notice (for which purpose electronic means shall be sufficient) to each of the other Committed Note Purchasers not later than 4:00 p.m. (New York City time) on such Business Day, and each of the other Committed Note Purchasers shall make available to the Issuer a supplemental Advance in a principal amount (such amount, the “Reference Amount”) equal to the lesser of (a) the aggregate principal Advance that was unfunded multiplied by a fraction, the numerator of which is the Commitment Amount of such Committed Note Purchaser and the denominator of which is the aggregate Commitment Amounts of all Committed Note Purchasers (less the aggregate Commitment Amount of the Committed Note Purchasers failing to make Advances on such date) and (b) the excess of (i) such Committed Note Purchaser’s Commitment Amount over (ii) the product of (1) such Committed Note Purchaser’s related Investor Group Principal Amount, multiplied by (2) such Committed Note Purchaser’s Committed Note Purchaser Percentage (after giving effect to all prior Advances on such date of Borrowing) (provided that a Committed Note Purchaser may (but shall not be obligated to), on terms and conditions to be agreed upon by such Committed Note Purchaser and the Issuer, make available to the Issuer a supplemental Advance in a principal amount in excess of the Reference Amount; provided, however, that no such supplemental Advance shall be permitted to be made to the extent that, after giving effect to such Advance, the Series 2025-1 Class A-1-V Outstanding Principal Amount would exceed the Series 2025-1 Class A-1-V Notes Maximum Principal Amount). Such supplemental Advances shall be made by wire transfer in U.S. Dollars in same day funds to the Series 2025-1 Class A-1-V Administrative Agent no later than 11:00 a.m. (New York City time) one (1) Business Day following the date of such Borrowing, and upon receipt thereof the Series 2025-1 Class A-1-V Administrative Agent shall by 5:00 p.m. (New York time) make such proceeds available, first, if applicable, to the Letter of Credit Provider for application to repayment of the amount of outstanding Unreimbursed L/C Drawings as set forth in the applicable Advance Request, ratably in proportion to such respective amounts, and, second, to the Issuer as instructed in the applicable Advance Request. If any Committed Note Purchaser which shall have so failed to fund its Advance shall subsequently pay such amount, the Series 2025-1 Class A-1-V Administrative Agent shall apply such amount pro rata to repay any supplemental Advances made by the other Committed Note Purchasers pursuant to this Section 2.03(b).
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(c) Unless the Series 2025-1 Class A-1-V Administrative Agent shall have received notice from a Funding Agent prior to the date of any Borrowing that an applicable Investor in the related Investor Group will not make available to the Series 2025-1 Class A-1-V Administrative Agent such Investor’s share of the Advances to be made by such Investor Group as part of such Borrowing, the Series 2025-1 Class A-1-V Administrative Agent may (but shall not be obligated to) assume that such Investor has made such share available to the Series 2025-1 Class A-1-V Administrative Agent on the date of such Borrowing in accordance with Section 2.02(a) and the Series 2025-1 Class A-1-V Administrative Agent may (but shall not be obligated to), in reliance upon such assumption, make available to the Letter of Credit Provider and/or the Issuer, as applicable, on such date a corresponding amount, and shall, if such corresponding amount has not been made available by the Series 2025-1 Class A-1-V Administrative Agent, make available to the Letter of Credit Provider and/or the Issuer, as applicable, on such date a corresponding amount once such Investor has made such portion available to the Series 2025-1 Class A-1-V Administrative Agent. If and to the extent that any Investor shall not have so made such amount available to the Series 2025-1 Class A-1-V Administrative Agent, such Investor and the Issuer jointly and severally agree to repay (without duplication) to the Series 2025-1 Class A-1-V Administrative Agent on the next Business Day such corresponding amount (or, in the case of the Issuer, on the next Payment Date in accordance with the Priority of Payments), together with interest thereon, for each day from the date such amount is made available to the Issuer until the date such amount is repaid to the Series 2025-1 Class A-1-V Administrative Agent, at (i) in the case of the Issuer, the interest rate applicable at the time to the Advances comprising such Borrowing and (ii) in the case of such Investor, the Federal Funds Rate and without deduction by such Investor for any withholding taxes. If such Investor shall repay to the Series 2025-1 Class A-1-V Administrative Agent such corresponding amount, such amount so repaid shall constitute such Investor’s Advance as part of such Borrowing for purposes of this Agreement.
(d) After the Issuer delivers an Advance Request for a Borrowing pursuant to Section 2.03 hereof, the Funding Agents, on behalf of the Investors, may, not later than 4:00 p.m. New York City time on the date that is one (1) Business Day prior to the proposed Borrowing date, deliver a written notice (a “Delayed Funding Notice”, and the date of such delivery, the “Delayed Funding Notice Date”) to the Issuer of their intention to fund the related Borrowing (such amount, the “Delayed Amount”) on a date (the date of such funding, the “Delayed Funding Date”) that is on or before the thirty-fifth (35th) day following the date of such request for a Borrowing (or if such day is not a Business Day, then on the next succeeding Business Day) rather than on the requested Borrowing date; provided that in no event shall the aggregate unfunded Delayed Amount at any time exceed 100% of the Series 2025-1 Class A-1-V Notes Maximum Principal Amount. By delivery of a Delayed Funding Notice, each Funding Agent shall be deemed to represent and warrant that (x) charges relating to the “liquidity coverage ratio” under Basel III have been incurred on the related Committed Note Purchaser’s interests or obligations hereunder and (y) it is seeking or has obtained a delayed funding option in transactions similar to the transactions contemplated hereby as of the date of such Delayed Funding Notice. A Funding Agent that delivers a Delayed Funding Notice with respect to any Borrowing date shall be referred to herein as a “Delaying Investor” with respect to such Borrowing date. If the conditions to any Borrowing described in Section 7.03 are satisfied on the requested Borrowing date, there shall be no conditions whatsoever (including, without limitation, the occurrence of an Amortization Period, notwithstanding any statement to the contrary in Section 7.03) to the obligation of the Committed Note Purchasers to fund the requested amount on the related Delayed Funding Date.
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Section 2.04. The Series 2025-1 Class A-1-V Notes. On each date an Advance is made or a Letter of Credit is drawn on hereunder, and on each date the outstanding amount thereof is reduced, a duly authorized officer, employee or agent of the related Series 2025-1 Class A-1-V Noteholder shall make appropriate notations in its books and records of the amount, evidenced by the related Series 2025-1 Class A-1-V Advance Note of such Advance or Series 2025-1 Class A-1-V L/C Note of such drawn Letter of Credit, as applicable, and the amount of such reduction, as applicable. The Issuer hereby authorizes each duly authorized officer, employee and agent of such Series 2025-1 Class A-1-V Noteholder to make such notations on the books and records as aforesaid and every such notation made in accordance with the foregoing authority shall be prima facie evidence of the accuracy of the information so recorded; provided, however, that in the event of a discrepancy between the books and records of such Series 2025-1 Class A-1-V Noteholder and the records maintained by the Indenture Trustee pursuant to the Base Indenture and the Series 2025-1 Supplement, such discrepancy shall be resolved between such Series 2025-1 Class A-1-V Noteholder and the Indenture Trustee (in consultation with the Issuer), and such resolution shall control in the absence of manifest error; provided, further, that the failure of any such notation to be made, or any finding that a notation is incorrect, in any such records shall not limit or otherwise affect the obligations of the Issuer under this Agreement, the Base Indenture or the Series 2025-1 Supplement.
Section 2.05. Reduction in Commitments.
(a) The Issuer may, upon at least three (3) Business Days’ notice to the Series 2025-1 Class A-1-V Administrative Agent, the Indenture Trustee, the Servicer and each Funding Agent (which will promptly notify the related Investor), effect a permanent reduction in the Series 2025-1 Class A-1-V Notes Maximum Principal Amount and a corresponding reduction in each Commitment Amount and Maximum Investor Group Principal Amount on a pro rata basis according to the Maximum Investor Group Principal Amount of each Investor Group; provided that (i) any such reduction will be limited to the undrawn portion of the Commitments such that the Series 2025-1 Class A-1-V Outstanding Principal Amount shall not exceed the Series 2025-1 Class A-1-V Notes Maximum Principal Amount (after giving effect to any Voluntary Decrease effected pursuant to and in accordance with Section 2.02(d) on such date), (ii) any such reduction must be in a minimum amount of $5,000,000 and (iii) after giving effect to such reduction, the Series 2025-1 Class A-1-V Notes Maximum Principal Amount equals or exceeds $5,000,000, unless reduced to zero, and (iv) no such reduction shall be permitted if, after giving effect thereto, (w) the aggregate L/C Commitments (after giving effect to any decrease thereof on such date) would exceed 25% of the Series 2025-1 Class A-1-V Notes Maximum Principal Amount, (x) the aggregate Commitment Amounts would be less than the Series 2025-1 Class A-1-V Outstanding Principal Amount (excluding any Undrawn L/C Face Amounts with respect to which cash collateral is held by the Letter of Credit Provider pursuant to Section 4.03(b)) or (y) the aggregate Commitment Amounts would be less than the L/C Commitment.
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(b) If any of the following events shall occur, then the Commitment Amounts shall be automatically and permanently reduced on the dates and in the amounts set forth below with respect to the applicable event and the other consequences set forth below with respect to the applicable event shall ensue (and the Issuer shall give the Indenture Trustee, the Servicer, each Funding Agent and the Series 2025-1 Class A-1-V Administrative Agent prompt written notice thereof):
(i) if the Outstanding Principal Amount of the Series 2025-1 Class A-1-V Notes has not been paid in full or otherwise refinanced in full (which refinancing may also include an extension thereof) on or prior to the Series 2025-1 Class A-1-V Anticipated Repayment Date, (A) on such Business Day, (x) the principal amount of all then-outstanding Unreimbursed L/C Drawings shall be repaid in full with proceeds of Advances made on such date (and the Issuer shall be deemed to have delivered such Advance Requests under Section 2.03 as may be necessary to cause such Advances to be made), and (y) the L/C Commitment shall both be automatically and permanently reduced to zero, and (B) (x) all undrawn portions of the Commitments shall automatically and permanently terminate and the corresponding portions of the Series 2025-1 Class A-1-V Notes Maximum Principal Amount and the Maximum Investor Group Principal Amounts shall be automatically and permanently reduced by a corresponding amount (with respect to the Maximum Investor Group Principal Amounts, on a pro rata basis) and (y) each payment of principal on the Series 2025-1 Class A-1-V Outstanding Principal Amount occurring on or following such Business Day (excluding the repayment of any Unreimbursed L/C Drawings with proceeds of Advances pursuant to clause (A) above) shall result automatically and permanently in a dollar-for-dollar reduction of the Series 2025-1 Class A-1-V Notes Maximum Principal Amount and a corresponding reduction in each Maximum Investor Group Principal Amount on a pro rata basis;
(ii) if an Amortization Period has occurred and is continuing prior to the Series 2025-1 Class A-1-V Anticipated Repayment Date, then (A) on the date such Amortization Period occurs, all undrawn portions of the Commitments shall automatically be reduced to zero (other than as set forth in clause (B)) for so long as such Amortization Period has occurred and is continuing, and the corresponding portions of the Series 2025-1 Class A-1-V Notes Maximum Principal Amount and the Maximum Investor Group Principal Amounts shall be automatically reduced by a corresponding amount (with respect to the Maximum Investor Group Principal Amounts, on a pro rata basis) and (B) no later than the second Business Day after the occurrence of such Amortization Period, the principal amount of all then-outstanding Unreimbursed L/C Drawings (to the extent not otherwise repaid) shall be repaid in full with proceeds of Advances (and the Issuer shall be deemed to have delivered such Advance Requests under Section 2.03 as may be necessary to cause such Advances to be made) and the all unused portions of the L/C Commitment (including such amount of Unreimbursed L/C Drawings repaid by such Advances) shall be automatically reduced to zero, and (C) each payment of principal (which, for the avoidance of doubt, shall include cash collateralization of Undrawn L/C Face Amounts pursuant to Sections 4.02, 4.03(a), 4.03(b) and 9.18(c)(ii)) on the Series 2025-1 Class A-1-V Outstanding Principal Amount occurring on or after the date on which such Amortization Period has occurred and is continuing (excluding the repayment of any Unreimbursed L/C Drawings with proceeds of Advances pursuant to clause (B) above) shall result automatically in a dollar-for-dollar reduction of the Series 2025-1 Class A-1-V Notes Maximum Principal Amount and a corresponding reduction in each Maximum Investor Group Principal Amount on a pro rata basis; provided that if the Amortization Period is no longer continuing, the Commitments and L/C Commitment shall be restored to the full extent reduced pursuant to this subclause (ii) except to the extent voluntarily reduced by the Issuer pursuant to Section 2.05(a); and
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(iii) if any Event of Default shall occur and be continuing (and shall not have been waived in accordance with the Indenture), the Series 2025-1 Class A-1-V Notes Maximum Principal Amount, the Commitment Amounts, the L/C Commitment and the Maximum Investor Group Principal Amounts shall all be automatically and permanently reduced to zero for so long as such Event of Default has occurred and is continuing and the Issuer shall (in accordance with the Indenture) cause the Series 2025-1 Class A-1-V Outstanding Principal Amount to be paid in full (which, for the avoidance of doubt, shall include cash collateralization of Undrawn L/C Face Amounts pursuant to Sections 4.02, 4.03(a), 4.03(b) and 9.18(c)(ii)) together with accrued interest, accrued Series 2025-1 Class A-1-V Undrawn Fees, Series 2025-1 Class A-1-V Notes Other Amounts and all other amounts then due and payable to the Investors, the Series 2025-1 Class A-1-V Administrative Agent and the Funding Agents under this Agreement and the other Transaction Documents, in each case subject to and in accordance with the provisions of the Base Indenture, including the Priority of Payments.
Section 2.06. L/C Commitment.
Subject to the terms and conditions hereof, each Letter of Credit Provider (or its permitted successors and assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections 2.07 and 2.08, agrees to provide Liquidity Reserve Letters of Credit or other standby letters of credit requested by Issuer and agreed upon by Letter of Credit Provider in its sole discretion (together with the Liquidity Reserve Letters of Credit each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the Issuer or its designee on any Business Day at any time until the date that is thirty (30) Business Days prior to the Commitment Termination Date to be issued in accordance with Section 2.06(g) in such form as may be approved from time to time by the Letter of Credit Provider; provided that the Letter of Credit Provider shall have no obligation or right to provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment, or (ii) the Series 2025-1 Class A-1-V Outstanding Principal Amount would exceed the Series 2025-1 Class A-1-V Notes Maximum Principal Amount.
Each Letter of Credit shall (x) be denominated in Dollars, (y) have a face amount of at least $1,000,000 or, with the consent of the Letter of Credit Provider and a reasonable administrative fee to be agreed upon by the Issuer and the Letter of Credit Provider, less than $1,000,000 and (z) expire no later than the earlier of (A) the first anniversary of its date of issuance and (B) the date that is ten (10) Business Days prior to the Commitment Termination Date (the “Required Expiration Date”); provided that any Letter of Credit may provide for the automatic extensions thereof for additional periods, each individually not to exceed one year (which shall in no event extend beyond the Required Expiration Date) unless the Letter of Credit Provider notifies each beneficiary of such Letter of Credit at least thirty (30) calendar days prior to the then-applicable expiration date (or no later than the applicable notice date, if earlier, as specified in such Letter of Credit) that such Letter of Credit shall not be extended; provided, further, that any Letter of Credit may have an expiration date that is later than the Required Expiration Date so long as either (x) the Undrawn L/C Face Amount with respect to such Letter of Credit has been fully cash collateralized by the Issuer in accordance with Section 4.02 or 4.03 as of the Required Expiration Date and there are no other outstanding L/C Obligations with respect to such Letter of Credit as of the Required Expiration Date or (y) other than with respect to Liquidity Reserve Letters of Credit, arrangements satisfactory to the Letter of Credit Provider in its sole and absolute discretion have been made with the Letter of Credit Provider (and, if the Letter of Credit Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) pursuant to Section 4.04 such that such Letter of Credit shall cease to be deemed outstanding or to be deemed a “Letter of Credit” for purposes of this Agreement as of the Commitment Termination Date.
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Additionally, each Series 2025-1 Liquidity Reserve Letter of Credit shall (1) name the Indenture Trustee, for the benefit of the Secured Parties, and the Servicer as the joint beneficiaries thereof; (2) allow either the Indenture Trustee or the Servicer, individually and not jointly, to submit a notice of drawing in respect of such Series 2025-1 Liquidity Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the Liquidity Reserve Account, pursuant to the Indenture; and (3) indicate by its terms that the proceeds in respect of drawings under such Series 2025-1 Liquidity Reserve Letter of Credit shall be paid directly into the Liquidity Reserve Account or otherwise used to pay Liquidity Reserve Draw Amounts in accordance with Section 5.01(c) of the Base Indenture.
The Letter of Credit Provider shall not at any time be obligated to (I) provide any Letter of Credit hereunder if such issuance would violate, or cause any L/C Issuing Bank to exceed any limits imposed by, any applicable Requirement of Law or (II) amend any Letter of Credit hereunder if (1) the Letter of Credit Provider would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (2) each beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(a) On the terms and conditions set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, the Issuer shall issue and shall cause the Indenture Trustee to authenticate the Series 2025-1 Class A-1-V L/C Notes, which the Issuer shall deliver to the Letter of Credit Providers on the Series 2025-1 Closing Date; provided that, if such Series 2025-1 Class L/C Note is an Uncertificated Note, the Indenture Trustee shall instead register it as described in Section 2.01(a) of the Base Indenture. Such Series 2025-1 Class A-1-V L/C Note shall be dated the Series 2025-1 Closing Date, shall be registered in the name of the Letter of Credit Provider or in such other name or nominee as the Letter of Credit Provider may request, shall have a maximum principal amount equal to the L/C Commitment, shall have an initial outstanding principal amount equal to $0 and (unless it is an Uncertificated Note) shall be duly authenticated in accordance with the provisions of the Base Indenture. The issuance and sale of the Series 2025-1 Class A-1-V L/C Notes to the Letter of Credit Providers shall be subject to satisfaction of the conditions set forth in Section 7.01. The Series 2025-1 Class A-1-V L/C Notes shall be Variable Funding Notes that are Class A-1-V Notes payable in accordance with the Base Indenture, the Series 2025-1 Supplement and this Agreement.
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(b) Each drawing on a Letter of Credit after the Series 2025-1 Closing Date will constitute a Borrowing in the outstanding principal amount evidenced by the Series 2025-1 Class A-1-V L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of Credit and shall be deemed to be a Series 2025-1 Class A-1-V Outstanding L/C Subfacility Amount. All L/C Obligations (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under the Series 2025-1 Class A-1-V L/C Note and shall be deemed to be Series 2025-1 Class A-1-V Outstanding Principal Amounts (in the form of Series 2025-1 Class A-1-V Outstanding L/C Subfacility Amount) for all purposes of this Agreement, the Indenture and the other Transaction Documents other than, in the case of Undrawn L/C Face Amounts, for the purposes of accrual of interest. Subject to the terms of this Agreement, each drawing of a Letter of Credit will constitute a “L/C Subfacility Increase” in the outstanding principal amount evidenced by the Series 2025-1 Class A-1-V L/C Note and reimbursements of any Unreimbursed L/C Drawings thereunder will constitute a “L/C Subfacility Decrease” in the outstanding principal amount evidenced by the Series 2025-1 Class A-1-V L/C Note. Each Letter of Credit Provider and the Issuer agree to promptly notify the Series 2025-1 Class A-1-V Administrative Agent and the Indenture Trustee of any such decreases for which notice to the Series 2025-1 Class A-1-V Administrative Agent is not otherwise provided hereunder.
(c) The Issuer may (or shall cause the Manager on its behalf to) from time to time request that any Letter of Credit Provider provide a new Letter of Credit by delivering to the Letter of Credit Provider at its address for notices specified herein an application therefor in the form required by the applicable Letter of Credit Provider or L/C Issuing Bank, as applicable (an “Application”), completed to the satisfaction of the Letter of Credit Provider, and such other certificates, documents and other papers and information as the Letter of Credit Provider may reasonably request. Upon receipt of any completed Application, the Letter of Credit Provider will notify the Series 2025-1 Class A-1-V Administrative Agent, the Servicer and the Indenture Trustee in writing of the amount, the beneficiary or beneficiaries and the requested expiration of the requested Letter of Credit (which shall comply with Section 2.06(a) and (i)) and, subject to the other conditions set forth herein and upon receipt of written confirmation from the Series 2025-1 Class A-1-V Administrative Agent (based, with respect to any portion of the Series 2025-1 Class A-1-V Outstanding L/C Subfacility Amount held by any Person other than the Series 2025-1 Class A-1-V Administrative Agent, solely on written notices received by the Series 2025-1 Class A-1-V Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series 2025-1 Class A-1-V Outstanding Principal Amount would not exceed the Series 2025-1 Class A-1-V Notes Maximum Principal Amount (provided that the Letter of Credit Provider shall be entitled to rely upon any written statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons of the Series 2025-1 Class A-1-V Administrative Agent for purposes of determining whether the Letter of Credit Provider received such prior written confirmation from the Series 2025-1 Class A-1-V Administrative Agent with respect to any Letter of Credit), the Letter of Credit Provider will cause such Application and the certificates, documents and other papers and information delivered in connection therewith to be processed in accordance with the L/C Issuing Bank’s customary procedures and shall promptly provide the Letter of Credit requested thereby (but in no event shall the Letter of Credit Provider be required to provide any Letter of Credit earlier than three (3) Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto, as provided in Section 2.06(a)) by issuing the original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the Letter of Credit Provider and the Issuer. The Letter of Credit Provider shall furnish a copy of such Letter of Credit to the Manager (with a copy to the Series 2025-1 Class A-1-V Administrative Agent) promptly following the issuance thereof. Each Letter of Credit Provider shall promptly furnish to the Series 2025-1 Class A-1-V Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, and the Indenture Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof).
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(d) The Issuer shall pay ratably to the Committed Note Purchasers, based on their respective Commitments, the L/C Monthly Fees in accordance with the terms of the Series 2025-1 Class A-1-V Notes Fee Letter and subject to the Priority of Payments. In addition, the Issuer shall pay to or reimburse the Letter of Credit Provider for its own account or for the account of the applicable L/C Issuing Bank the L/C Issuance Fees (as defined in the Series 2025-1 Class A-1-V Notes Fee Letter, the “L/C Issuance Fees”) in accordance with the terms of the Series 2025-1 Class A-1-V Notes Fee Letter and subject to the Priority of Payments.
(e) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article II, the provisions of this Article II shall apply.
(f) The Issuer may, upon at least three (3) Business Days’ notice to the Series 2025-1 Class A-1-V Administrative Agent and the applicable Letter of Credit Provider, effect a permanent reduction in the related L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the Issuer in writing and with the prior written consent of the Letter of Credit Provider and the Series 2025-1 Class A-1-V Administrative Agent, the Letter of Credit Provider may (but shall not be obligated to) increase the amount of the L/C Commitment; provided that, after giving effect thereto, the aggregate amount of each of the Outstanding Series 2025-1 Class A-1-V Advance Notes and the L/C Commitment does not exceed the aggregate amount of the Commitments.
(g) Each Letter of Credit Provider shall satisfy its obligations under this Section 2.06 with respect to providing any Letter of Credit hereunder by issuing such Letter of Credit itself or through an Affiliate as long as any such Letter of Credit issued would not be an Ineligible Liquidity Reserve Letter of Credit. If any such Letter of Credit would be an Ineligible Liquidity Reserve Letter of Credit, a Person selected by the Issuer (at the reasonable expense of the Issuer) shall issue such Letter of Credit; provided that any Letter of Credit issued by such Person would not be an Ineligible Liquidity Reserve Letter of Credit (the Letter of Credit Provider (or such Affiliate of the Letter of Credit Provider) or such other Person selected by the Issuer (at the reasonable expense of the Issuer), in each case in its capacity as the issuer of such Letter of Credit being referred to as the “L/C Issuing Bank” with respect to such Letter of Credit).
(h) Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the Issuer in order to have any Letter of Credit issued by a Person selected by the Issuer pursuant to Section 2.06(g) be a “Letter of Credit” that has been issued hereunder and such Person selected by the Issuer be an “L/C Issuing Bank”.
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(i) Each Letter of Credit Provider and, if the Letter of Credit Provider is not the L/C Issuing Bank for any Letter of Credit, the L/C Issuing Bank shall be under no obligation to issue any Letter of Credit if: (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing the Letter of Credit, (ii) any law applicable to the Letter of Credit Provider or the L/C Issuing Bank, as applicable, or any request or directive (which request or directive, in the reasonable judgment of the Letter of Credit Provider or the L/C Issuing Bank, as applicable, has the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Provider or the L/C Issuing Bank, as applicable, shall prohibit the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing of letters of credit generally or the Letter of Credit in particular, or (iii) the issuance of such Letter of Credit would violate any policies of the Letter of Credit Provider or L/C Issuing Bank regarding Letters of Credit in general.
(j) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuing Bank, as applicable, and the Issuer when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit issued hereunder.
(k) For the avoidance of doubt, the L/C Commitment shall be a sub-facility limit of the Commitment Amounts of the relevant Committed Note Purchaser and aggregate outstanding Unreimbursed L/C Drawings as of any date of determination shall be a component of the Series 2025-1 Class A-1-V Outstanding Principal Amount on such date of determination, pursuant to the definition thereof.
(l) Each Series 2025-1 Liquidity Reserve Letter of Credit (including all drawings thereunder) shall be subject to Section 4.07 of the Base Indenture in all respects.
Section 2.07. L/C Reimbursement Obligations.
(a) For the purpose of reimbursing the payment of any draft presented under any Letter of Credit, the Issuer agrees to pay the Letter of Credit Provider, for its own account or for the account of the L/C Issuing Bank, as applicable, the sum of (i) the amount of such draft so paid (such amount at any time, as reduced by repayments with respect thereto as described below and amounts repaid with respect thereto pursuant to Section 4.03(b) at or prior to such time the “L/C Reimbursement Amount”) and (ii) any Non-Excluded Taxes, fees, charges or other costs or expenses (including amounts payable pursuant to Section 3.02(c) and such amount at any time, as reduced by repayments with respect thereto as described below and amounts repaid with respect thereto pursuant to Section 4.03(b) at or prior to such time, collectively, the “L/C Other Reimbursement Costs”) incurred by the L/C Issuing Bank in connection with such payment, which shall be paid (1) in the case of the L/C Reimbursement Amount, in same day funds on the day on which the Letter of Credit Provider notifies the Issuer and the Series 2025-1 Class A-1-V Administrative Agent (and in each case the Series 2025-1 Class A-1-V Administrative Agent shall promptly, and in any event by 4:00 p.m. (New York City time) on the same Business Day as its receipt of the same, notify the Funding Agents) of the date and the amount of such draft, and (2) in the case of L/C Other Reimbursement Costs, subject to and in accordance with the Priority of Payments. The outstanding L/C Reimbursement Amount and L/C Other Reimbursement Costs shall be evidenced by the Series 2025-1 Class A-1-V L/C Notes until repaid (or, in the case of the L/C Reimbursement Amount, converted to a Base Rate Advance) as set forth herein. Unless the L/C Reimbursement Amount with respect thereto is repaid as set forth in the second preceding sentence, each drawing under any Letter of Credit shall (unless an Event of Bankruptcy shall have occurred and be continuing with respect to the Issuer or any Guarantor, in which cases the procedures specified in Section 2.08 for funding by Committed Note Purchasers shall apply) constitute a request by the Issuer to the Series 2025-1 Class A-1-V Administrative Agent and each Funding Agent for a Base Rate Advance pursuant to Section 2.03 in the amount of the unreimbursed L/C Reimbursement Amount, and the Issuer shall be deemed to have made such request pursuant to the procedures set forth in Section 2.03. The applicable L/C Other Reimbursement Costs shall be paid as Class A-1-V Notes Other Amounts subject to and in accordance with the Priority of Payments. In the event such request for a Base Rate Advance is deemed to have been given, the applicable Investors in each Investor Group hereby agree to make Advances in an aggregate amount for each Investor Group equal to such Investor Group’s Commitment Percentage of the L/C Reimbursement Amount and L/C Other Reimbursement Costs to pay the Letter of Credit Provider, and the conditions set forth in Section 7.03 shall not apply to such Advance. The Increase date with respect to such Advance shall be the date on which the Funding Agents receive a notice of such Increase at the time the Series 2025-1 Class A-1-V Administrative Agent receives notice from the Letter of Credit Provider of such drawing under such Letter of Credit. Such Investors shall make the amount of such Advances available to the Series 2025-1 Class A-1-V Administrative Agent in immediately available funds not later than 3:00 p.m. (New York City time) on such Borrowing date and the proceeds of such Advances shall be immediately made available by the Series 2025-1 Class A-1-V Administrative Agent to the Letter of Credit Provider, for its own account or for the account of the L/C Issuing Bank, as applicable, for application to the reimbursement of such drawing.
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(b) The Issuer’s obligations under Section 2.07(a) shall be absolute and unconditional, and shall be performed strictly in accordance with the terms of this Agreement, under any and all circumstances and irrespective of (i) any setoff, counterclaim or defense to payment that the Issuer may have or has had against the applicable Letter of Credit Provider, the L/C Issuing Bank, any beneficiary of a Letter of Credit or any other Person, (ii) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (iii) payment by the L/C Issuing Bank under a Letter of Credit against presentation of a draft or other document that substantially complies with the terms of such Letter of Credit, (iv) payment by the L/C Issuing Bank under a Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under the Bankruptcy Code or any other liquidation, conservatorship, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of any jurisdictions, so long as such Person has a reasonable belief to make such payment, or (v) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.07(b), provide a right of setoff against, the Issuer’s obligations hereunder. The Issuer also agrees that the Letter of Credit Provider and the L/C Issuing Bank shall not be responsible for, and the Issuer’s Reimbursement Obligations under Section 2.07(a) shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements thereon, even though such documents shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Issuer and any beneficiary of any Letter of Credit or any other party to which such Letter of Credit may be transferred or any claims whatsoever of the Issuer against any beneficiary of such Letter of Credit or any such transferee. Neither the Letter of Credit Provider nor the L/C Issuing Bank shall be liable for any error, omission, interruption, loss or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit, except for direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Issuer to the extent permitted by applicable law) caused by errors or omissions found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Letter of Credit Provider or the L/C Issuing Bank, as the case may be. The Issuer agrees that any action taken or omitted by the Letter of Credit Provider or the L/C Issuing Bank, as the case may be, under or in connection with any Letter of Credit or the related drafts or documents, if done in the absence of gross negligence or willful misconduct (as found by a final and nonappealable decision of a court of competent jurisdiction) and in accordance with the standards of care specified in the UCC of the State of New York, shall be binding on the Issuer and shall not result in any liability of the Letter of Credit Provider or the L/C Issuing Bank to the Issuer. As between the Issuer and the L/C Issuing Bank, the Issuer hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to such beneficiary’s or transferee’s use of any Letter of Credit. In furtherance of the foregoing and without limiting the generality thereof, the Issuer agrees with the L/C Issuing Bank that, with respect to documents presented that appear on their face to be in substantial compliance with the terms of a Letter of Credit, the L/C 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. In connection with each Series 2025-1 Liquidity Reserve Letter of Credit, the Indenture Trustee as beneficiary shall be entitled to the benefit of every provision of the Indenture limiting the liability of or affording rights, benefits, protections, immunities or indemnities to the Indenture Trustee as if they were expressly set forth herein mutatis mutandis.
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(c) If any draft shall be presented for payment under any Letter of Credit for which the Letter of Credit Provider has actual knowledge, the Letter of Credit Provider shall promptly notify the Manager, the Issuer and the Series 2025-1 Class A-1-V Administrative Agent of the date and amount thereof. The responsibility of the applicable L/C Issuing Bank to the Issuer in connection with any draft presented for payment under any Letter of Credit shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to determining that the documents (including each draft) delivered under such Letter of Credit in connection with such presentment are substantially in conformity with such Letter of Credit and, in paying such draft, such L/C Issuing Bank shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of any Person(s) executing or delivering any such document.
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Section 2.08. L/C Participations.
(a) Each Letter of Credit Provider irrevocably grants to each Committed Note Purchaser, and, to induce the Letter of Credit Provider (or the L/C Issuing Bank, as applicable) to provide Letters of Credit hereunder, each Committed Note Purchaser irrevocably and unconditionally agrees to accept and purchase and hereby accepts and purchases from the Letter of Credit Provider (or the L/C Issuing Bank, as applicable), on the terms and conditions set forth below, for such Committed Note Purchaser’s own account and risk an undivided interest equal to its Committed Note Purchaser Percentage of the related Investor Group’s Commitment Percentage of obligations and rights of the Letter of Credit Provider (or the L/C Issuing Bank, as applicable) under and in respect of each Letter of Credit provided hereunder and the L/C Reimbursement Amount with respect to each draft paid or reimbursed by the Letter of Credit Provider (or the L/C Issuing Bank, as applicable) in connection therewith. Subject to Section 2.06(c), each Committed Note Purchaser unconditionally and irrevocably agrees with each Letter of Credit Provider that, if a draft is paid under any Letter of Credit for which such Letter of Credit Provider (or the L/C Issuing Bank, as applicable) is not paid in full by the Issuer in accordance with the terms of this Agreement, such Committed Note Purchaser shall pay to the Series 2025-1 Class A-1-V Administrative Agent upon demand of the Letter of Credit Provider an amount equal to its Committed Note Purchaser Percentage of the related Investor Group’s Commitment Percentage of the L/C Reimbursement Amount with respect to such draft, or any part thereof, that is not so paid.
(b) If any amount required to be paid by any Committed Note Purchaser to the Series 2025-1 Class A-1-V Administrative Agent for forwarding to the Letter of Credit Provider (or the L/C Issuing Bank, as applicable) pursuant to Section 2.08(a) in respect of any unreimbursed portion of any payment made by the Letter of Credit Provider (or the L/C Issuing Bank, as applicable) under any Letter of Credit is paid to the Series 2025-1 Class A-1-V Administrative Agent for forwarding to the Letter of Credit Provider (or the L/C Issuing Bank, as applicable) on the date such payment is due, such Committed Note Purchaser shall pay to the Series 2025-1 Class A-1-V Administrative Agent for forwarding to the Letter of Credit Provider (or the L/C Issuing Bank, as applicable) on demand an amount equal to the product of (i) such amount, times (ii) the daily average Federal Funds Rate during the period from and including the date such payment is required to the date on which such payment is immediately available to the Letter of Credit Provider (or the L/C Issuing Bank, as applicable), times (iii) a fraction the numerator of which is the number of days that elapse during such period and the denominator of which is 360. If any such amount required to be paid by any Committed Note Purchaser pursuant to Section 2.08(a) is not made available to the Series 2025-1 Class A-1-V Administrative Agent by such Committed Note Purchaser on the date such payment is due, the Letter of Credit Provider shall be entitled to recover from such Committed Note Purchaser, on demand, such amount with interest thereon calculated from such due date at the Base Rate. A certificate of the Letter of Credit Provider submitted to any Committed Note Purchaser with respect to any amounts owing under this Section 2.08(b), in the absence of manifest error, shall be conclusive and binding on such Committed Note Purchaser. Such amounts payable under this Section 2.08(b) shall be paid without any deduction for any withholding taxes.
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(c) Whenever, at any time after payment has been made under any Letter of Credit and the applicable Letter of Credit Provider (or the L/C Issuing Bank, as applicable) has received from any Committed Note Purchaser its pro rata share of such payment in accordance with Section 2.08(a), the Series 2025-1 Class A-1-V Administrative Agent or the Letter of Credit Provider (or the L/C Issuing Bank, as applicable) receives any payment related to such Letter of Credit (whether directly from the Issuer or otherwise, including proceeds of collateral applied thereto), or any payment of interest on account thereof, the Series 2025-1 Class A-1-V Administrative Agent or the Letter of Credit Provider (or the L/C Issuing Bank, as applicable), as the case may be, will distribute to such Committed Note Purchaser its pro rata share thereof; provided, however, that in the event that any such payment received by the Series 2025-1 Class A-1-V Administrative Agent or the Letter of Credit Provider (or the L/C Issuing Bank, as applicable), as the case may be, shall be required to be returned by the Series 2025-1 Class A-1-V Administrative Agent or the Letter of Credit Provider (or the L/C Issuing Bank, as applicable) such Committed Note Purchaser shall return to the Series 2025-1 Class A-1-V Administrative Agent for the account of the Letter of Credit Provider (or the L/C Issuing Bank, as applicable) the portion thereof previously distributed by the Series 2025-1 Class A-1-V Administrative Agent or Letter of Credit Provider (or the L/C Issuing Bank, as applicable), as the case may be, to it.
(d) Each Committed Note Purchaser’s obligation to make the Advances referred to in Section 2.06(a) and to pay its pro rata share of any unreimbursed draft pursuant to Section 2.07(a) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such Committed Note Purchaser or the Issuer may have against the Letter of Credit Provider, any L/C Issuing Bank, the Issuer or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in Article VII other than at the time the related Letter of Credit was issued; (iii) an adverse change in the condition (financial or otherwise) of the Issuer; (iv) any breach of this Agreement or any other Transaction Document by the Issuer or any other Person; (v) any amendment or extension of any Letter of Credit in compliance with this Agreement or with the terms of such Letter of Credit, as applicable; or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Section 2.09. Payments by Issuer; Presumptions by Administrative Agent.(a)Unless the Series 2025-1 Class A-1-V Administrative Agent shall have received notice from the Issuer prior to the date on which any payment is due to the Series 2025-1 Class A-1-V Administrative Agent for the account of the Investors or the Funding Agents hereunder that the Issuer will not make such payment, the Series 2025-1 Class A-1-V Administrative Agent may assume that the Issuer has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Investors the amount due.
(b) With respect to any payment that the Series 2025-1 Class A-1-V Administrative Agent makes for the account of the Investors or the Funding Agents hereunder as to which the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”) : (1) the Issuer has not in fact made such payment; (2) the Series 2025-1 Class A-1-V Administrative Agent has made a payment in excess of the amount so paid by the Issuer (whether or not then owed); or (3) the Series 2025-1 Class A-1-V Administrative Agent has for any reason otherwise erroneously made such payment; then each of the Investors or each of the Funding Agents severally agrees to repay to the Series 2025-1 Class A-1-V Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Investors or such Funding Agents, in immediately available funds 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 Series 2025-1 Class A-1-V Administrative Agent, at the greater of the federal funds rate and a rate determined by the Series 2025-1 Class A-1-V Administrative Agent in accordance with banking industry rules on interbank compensation.
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ARTICLE III
INTEREST AND FEES
Section 3.01. Interest.
(a) To the extent that an Advance is funded or maintained by a Conduit Investor through the issuance of Commercial Paper, such Advance shall bear interest at the weighted average daily CP Rate applicable to such Conduit Investor for each applicable Interest Accrual Period. To the extent that, and only for so long as, an Advance is funded or maintained by a Conduit Investor through means other than the issuance of Commercial Paper (based on its determination in good faith that it is unable to raise or is precluded or prohibited from raising, or that it is not advisable to raise, funds through the issuance of Commercial Paper in the commercial paper market of the United States to finance its purchase or maintenance of such Advance or any portion thereof (which determination may be based on any allocation method employed in good faith by such Conduit Investor), including by reason of market conditions or by reason of insufficient availability under any of its Program Support Agreement or the downgrading of any of its Program Support Providers), such Advance shall bear interest at (i) the Base Rate or (ii) if the required notice has been given pursuant to Section 3.01(b) with respect to such Advance, the Term SOFR Rate, in each case except as otherwise provided in Section 3.03 or 3.04. Each Advance funded or maintained by a Committed Note Purchaser or a Program Support Provider shall bear interest at (i) the Base Rate or (ii) if the required notice has been given pursuant to Section 3.01(b) with respect to such Advance, the Term SOFR Rate, in each case except as otherwise provided in Section 3.03 or 3.04. By 11:00 a.m. (New York City time) on the second Business Day preceding each Payment Date, each Funding Agent shall notify each of the Series 2025-1 Class A-1-V Administrative Agent, the Issuer and the Servicer in writing of the applicable weighted average daily CP Rate and the amount of interest accrued for each Advance made by its Investor Group that was funded or maintained through the issuance of Commercial Paper and was outstanding during all or any portion of the Interest Accrual Period ending immediately prior to such Payment Date and of the applicable interest rate for each other Advance for such Interest Accrual Period and of the amount of interest accrued on each other Advance during such Interest Accrual Period.
(b) With respect to any Advance (other than one funded or maintained by a Conduit Investor through the issuance of Commercial Paper), so long as no Amortization Period or Event of Default has commenced and is continuing, the Issuer may elect that such Advance bear interest at the Term SOFR Rate to the extent provided in Section 3.01(a) by giving notice thereof to the Funding Agents prior to 12:00 p.m. (New York City time) on the date which is two (2) U.S. Government Securities Business Days prior to the date of the applicable Borrowing. If such notice is not given in a timely manner, such Advance shall bear interest at the Base Rate.
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(c) Any outstanding Unreimbursed L/C Drawings shall bear interest at the Base Rate. By (x) 11:00 a.m. (New York City time) on the second Business Day preceding each Payment Date, the Letter of Credit Provider shall notify the Series 2025-1 Class A-1-V Administrative Agent in reasonable detail of the amount of interest accrued on any Unreimbursed L/C Drawings during such Interest Accrual Period and the amount of fees accrued on any Undrawn L/C Face Amounts during such Interest Accrual Period and (y) 3:00 p.m. (New York City time) on such date, the Series 2025-1 Class A-1-V Administrative Agent shall notify the Manager, the Indenture Trustee and the Issuer of the amount of such accrued interest and fees as set forth in such notices.
(d) All accrued interest pursuant to Section 3.01(a) shall be due and payable in arrears on each Payment Date in accordance with the applicable provisions of the Indenture.
(e) Following the Series 2025-1 Class A-1-V Anticipated Repayment Date, the Issuer shall pay additional interest in respect of the Series 2025-1 Class A-1-V Outstanding Principal Amount in an amount equal to the Series 2025-1 Class A-1-V Post-ARD Additional Interest payable pursuant to Section 2.10 of the Base Indenture subject to and in accordance with the Priority of Payments.
(f) All computations of interest at the CP Rate and the Term SOFR Rate, all computations of Series 2025-1 Class A-1-V Post-ARD Additional Interest (other than any accruing on any Base Rate Advances) and all computations of fees shall be made on the basis of a year of 360 days and the actual number of days elapsed. All computations of interest at the Base Rate and all computations of Series 2025-1 Class A-1-V Post-ARD Additional Interest accruing on any Base Rate Advances shall be made on the basis of a 360-day year and actual number of days elapsed. Whenever any payment of interest, principal or fees hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day unless specified otherwise in the Indenture and such extension of time shall be included in the computation of the amount of interest owed. Interest shall accrue on each Advance and Unreimbursed L/C Drawing from and including the day on which it is made to but excluding the date of repayment thereof.
Section 3.02. Fees.
(a) [Reserved].
(b) The Issuer shall compensate the Series 2025-1 Class A-1-V Administrative Agent for the performance of its duties as the Series 2025-1 Class A-1-V Administrative Agent pursuant to the terms of the Series 2025-1 Class A-1-V Administrative Agent Fee Letter, payable pursuant to the Priority of Payments.
(c) On each Payment Date on or prior to the Commitment Termination Date, the Issuer shall, in accordance with Section 4.01, pay to each Funding Agent, for the account of the related Committed Note Purchaser(s), an undrawn commitment fee calculated daily on the undrawn portion of the Commitments (the “Series 2025-1 Class A-1-V Undrawn Fees”) in accordance with the terms of the Series 2025-1 Class A-1-V Notes Fee Letter and subject to and in accordance with the Priority of Payments. The Series 2025-1 Class A-1-V Undrawn Fee will be calculated on an Actual/360 Basis. The Series 2025-1 Class A-1-V Undrawn Fees shall be Class A-1-V Undrawn Fees for all purposes under the Base Indenture and the Series 2025-1 Supplement.
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(d) The Issuer shall pay (i) the fees required pursuant to Section 2.06 in respect of Letters of Credit and (ii) any other fees set forth in the Series 2025-1 Class A-1-V Administrative Agent Fee Letter and Series 2025-1 Class A-1-V Notes Fee Letter (including, without limitation, the Series 2025-1 Class A-1-V Notes Upfront Fee and the Series 2025-1 Class A-1-V Extension Fees) subject to and in accordance with the Priority of Payments (other than the Series 2025-1 Class A-1-V Notes Upfront Fee which shall be paid by the Issuer on the Series 2025-1 Closing Date or such later date in accordance with the Series 2025-1 Class A-1-V Notes Fee Letter).
(e) Once paid, all fees payable hereunder shall be nonrefundable under all circumstances other than manifest error.
Section 3.03. Inability to Determine Rates; SOFR Lending Unlawful.
(a) Subject to Section 3.04, if, on or prior to the Term SOFR Determination Day related to any Interest Accrual Period for any SOFR Advance:
(i) the Series 2025-1 Class A-1-V Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Term SOFR” cannot be determined pursuant to the definition thereof, or
(ii) the Required Investors determine that for any reason in connection with any request for a SOFR Advance or a conversion thereto or a continuation thereof that Term SOFR with respect to a proposed SOFR Advance does not adequately and fairly reflect the cost to such Investors of making and maintaining such Advance, and the Required Investors have provided notice of such determination to the Series 2025-1 Class A-1-V Administrative Agent,
the Series 2025-1 Class A-1-V Administrative Agent will promptly so notify the Issuer and each Investor.
Upon notice thereof by the Series 2025-1 Class A-1-V Administrative Agent to the Issuer, any obligation of the Investors to make SOFR Advances, and any right of the Issuer to continue SOFR Advances or to convert Base Rate Advances to SOFR Advances, shall be suspended (to the extent of the affected SOFR Advances or affected Interest Accrual Periods) until the Series 2025-1 Class A-1-V Administrative Agent (with respect to clause (ii) above, at the instruction of the Required Investors) revokes such notice. Upon receipt of such notice, (i) the Issuer may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Advances (to the extent of the affected SOFR Advances or affected Interest Accrual Periods) or, failing that, the Issuer will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Advances in the amount specified therein and (ii) any outstanding affected SOFR Advances will be deemed to have been converted into Base Rate Advances at the end of the applicable Interest Accrual Period. Upon any such conversion, the Issuer shall also pay accrued interest on the amount so converted, together with any additional amounts required pursuant to Section 3.06. Subject to Section 3.04, if the Series 2025-1 Class A-1-V Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Term SOFR” cannot be determined pursuant to the definition thereof on any given day, the interest rate on Base Rate Advances shall be determined by the Series 2025-1 Class A-1-V Administrative Agent without reference to clause (iii) of the definition of “Base Rate” until the Series 2025-1 Class A-1-V Administrative Agent revokes such determination.
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(b) If any Investor or Program Support Provider shall determine that any Change in Law makes it unlawful, or any Official Body asserts that it is unlawful, for any such Person to fund or maintain any Advance as a SOFR Advance, then, upon notice thereof by such Investor or Program Support Provider to the Issuer (through the Series 2025-1 Class A-1-V Administrative Agent) (an “Illegality Notice”), (a) any obligation of the Investors to make SOFR Advances, and any right of the Issuer to continue SOFR Advances or to convert Base Rate Advances to SOFR Advances, shall be suspended, and (b) the interest rate on which Base Rate Advances shall, if necessary to avoid such illegality, be determined by the Series 2025-1 Class A-1-V Administrative Agent without reference to clause (iii) of the definition of “Base Rate”, in each case until each affected Investor or Program Support Provider notifies the Series 2025-1 Class A-1-V Administrative Agent and the Issuer that the circumstances giving rise to such determination no longer exist. Upon receipt of an Illegality Notice, the Issuer shall, if necessary to avoid such illegality, upon demand from any Investor (with a copy to the Series 2025-1 Class A-1-V Administrative Agent) prepay or, if applicable, convert all SOFR Advances to Base Rate Advances (the interest rate on which Base Rate Advances shall, if necessary to avoid such illegality, be determined by the Series 2025-1 Class A-1-V Administrative Agent without reference to clause (iii) of the definition of “Base Rate”), on the following Payment Date, if all affected Investors may lawfully continue to maintain such SOFR Advances to such day, or immediately, if any Investor may not lawfully continue to maintain such SOFR Advances to such day, in each case until the Series 2025-1 Class A-1-V Administrative Agent is advised in writing by each affected Investor that it is no longer illegal for such Investor to determine or charge interest rates based upon SOFR, the Term SOFR Reference Rate or Term SOFR. Upon any such prepayment or conversion, the Issuer shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 3.06.
Section 3.04. Alternate Rate of Interest.
(a) Benchmark Replacement*.* Notwithstanding anything to the contrary herein or in any other Transaction Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred in connection with 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 Transaction 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 Transaction 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 Transaction 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 parties hereto without any amendment to, or further action or consent of any other party to, this Agreement or any other Transaction Document so long as the Series 2025-1 Class A-1-V Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Noteholders comprising the Required Investors.
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(b) Benchmark Replacement Conforming Changes*.* In connection with the use, administration, adoption or implementation of Term SOFR or a Benchmark Replacement, the Series 2025-1 Class A-1-V Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Transaction Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without requiring any further action by or consent of any other party to this Agreement or any other Transaction Document.
(c) Notices*.* The Series 2025-1 Class A-1-V Administrative Agent will promptly notify all the parties hereto of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Benchmark Replacement Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Series 2025-1 Class A-1-V Administrative Agent will notify the Issuer of the commencement of any Benchmark Unavailability Period.
(d) Standards for Decisions and Determinations*.* Any determination, decision or election that may be made by the Series 2025-1 Class A-1-V Administrative Agent pursuant to this Section 3.04, 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 the Series 2025-1 Class A-1-V Administrative Agent’s sole discretion and without consent from any other party to this Agreement or any other Transaction Document.
(e) Benchmark Unavailability Period. Upon the Issuer’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Issuer may revoke any pending request for a SOFR Advance or a conversion to or continuation of SOFR Advances to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Issuer will be deemed to have converted any such request into a request for an Advance of or conversion to Base Rate Advances and (ii) any outstanding affected SOFR Advances will be deemed to have been converted to Base Rate Advances on the subsequent Payment Date. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate.
Section 3.05. Increased Costs, etc. The Issuer agrees to reimburse each Investor and any Program Support Provider (each, an “Affected Person”, which term, for the purposes of Section 3.07 and 3.08 shall also include the L/C Issuing Bank) for any increase in the cost of, or any reduction in the amount of any sum receivable by any such Affected Person, including reductions in the rate of return on such Affected Person’s capital, in respect of funding or maintaining (or of its obligation to fund or maintain) any Advances that arise in connection with any Change in Law which shall:
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(i) impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Affected Person; or
(ii) impose on any Affected Person any other condition affecting this Agreement or SOFR Advances made by such Affected Person or any Letter of Credit or participation therein;
except for such Changes in Law with respect to Increased Capital Costs and Class A-1-V Taxes which shall be governed by Sections 3.07 and 3.08, respectively (whether or not amounts are payable thereunder in respect thereof). Each such demand shall be provided to the related Funding Agent and the Issuer in writing and shall state, in reasonable detail, the reasons therefor and the additional amount required fully to compensate such Affected Person for such increased cost or reduced amount of return; provided that any such demand claiming reimbursement for increased costs resulting from a Change in Law described in clause (i) or (ii) above shall, in addition, state the basis upon which such amount has been calculated and certify that such Affected Person’s method of allocating such costs is fair and reasonable and that such Affected Person’s demand for payment of such costs hereunder, and such method of allocation, is consistent with, or more favorable than, its treatment of other borrowers which, as a credit matter, are substantially similar to the Issuer and which are subject to similar provisions. Such additional amounts (“Increased Costs”) shall be paid by the Issuer to the Series 2025-1 Class A-1-V Administrative Agent as Series 2025-1 Class A-1-V Notes Other Amounts, subject to and in accordance with the Priority of Payments, on the Payment Date following the Collection Period in which such written notice is received, and by the Series 2025-1 Class A-1-V Administrative Agent to such Funding Agent pursuant to written direction and by such Funding Agent directly to such Affected Person, and such notice shall, in the absence of manifest error, be conclusive and binding on the Issuer; provided that with respect to any notice given to the Issuer under this Section 3.05 the Issuer shall not be under any obligation to pay any amount with respect to any period prior to the date that is nine (9) months prior to such demand; provided, further, that if the Change in Law giving rise to such Increased Costs is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof.
Section 3.06. Funding Losses. In the event any Affected Person shall incur any loss or expense (including any loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Affected Person to fund or maintain any portion of the principal amount of any Advance as a SOFR Advance) as a result of:
(a) any Advance not being funded or maintained as a SOFR Advance after a request therefor has been made in accordance with the terms contained herein (for a reason other than the failure of such Affected Person to make an Advance after all conditions thereto have been met); or
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(b) any failure of the Issuer to make a Voluntary Decrease, prepayment or redemption with respect to any SOFR Advance after giving notice thereof pursuant to the applicable provisions of the Indenture;
then, upon the written notice of any Affected Person to the related Funding Agent and the Issuer, the Issuer shall pay to the Series 2025-1 Class A-1-V Administrative Agent, in the form of Series 2025-1 Class A-1-V Notes Other Amounts, subject to and in accordance with the Priority of Payments on the Payment Date following the Collection Period in which such written notice is received, and by the Series 2025-1 Class A-1-V Administrative Agent to such Funding Agent pursuant to written direction and such Funding Agent shall pay directly to such Affected Person such amount (“Breakage Amount” or “Series 2025-1 Class A-1-V Breakage Amount”) as will (in the reasonable determination of such Affected Person) reimburse such Affected Person for such loss or expense. With respect to any notice given to the Issuer under this Section 3.06 the Issuer shall not be under any obligation to pay any amount with respect to any period prior to the date that is nine (9) months prior to such notice. Such written notice (which shall include calculations in reasonable detail) shall, in the absence of manifest error, be conclusive and binding on the Issuer.
Section 3.07. Increased Capital or Liquidity Costs. If any Change in Law affects or would affect the amount of capital or liquidity required or reasonably expected to be maintained by any Affected Person or any Person controlling such Affected Person and such Affected Person determines in its sole and absolute discretion that the rate of return on its or such controlling Person’s capital as a consequence of its commitment hereunder or under a Program Support Agreement or the Advances or Letters of Credit made or issued by such Affected Person is reduced to a level below that which such Affected Person or such controlling Person would have achieved but for the occurrence of any such circumstance, then, in any such case after notice from time to time by such Affected Person (or in the case of an L/C Issuing Bank, by the Letter of Credit Provider) to the related Funding Agent and the Issuer (or, in the case of any Letter of Credit Provider, to the Issuer), the Issuer shall pay to the Series 2025-1 Class A-1-V Administrative Agent, in the form of Series 2025-1 Class A-1-V Notes Other Amounts, subject to and in accordance with the Priority of Payments, on the Payment Date following the Collection Period in which the Issuer receives such written notice, and by the Series 2025-1 Class A-1-V Administrative Agent pursuant to written direction to such Funding Agent (or, in the case of the Letter of Credit Provider, directly to such Person) and such Funding Agent shall pay to such Affected Person, such amounts (“Increased Capital Costs”) as will be sufficient to compensate such Affected Person or such controlling Person for such reduction in rate of return on its or such controlling Person’s capital as a consequence of its commitment hereunder or the Advances made or issued by such Affected Person; provided that with respect to any notice given to the Issuer under this Section 3.07 the Issuer shall not be under any obligation to pay any amount with respect to any period prior to the date that is nine (9) months prior to such notice; provided, further, if the Change in Law giving rise to such Increased Capital Costs is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof. A statement of such Affected Person as to any such additional amount or amounts (including calculations thereof in reasonable detail), in the absence of manifest error, shall be conclusive and binding on the Issuer. In determining such additional amount, such Affected Person may use any method of averaging and attribution that it (in its reasonable discretion) shall deem applicable so long as it applies such method to other similar transactions.
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For purposes of this Agreement, including, without limitation, Section 3.05 and this Section 3.07, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all regulations, requests, guidelines or directives issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case, pursuant to Basel III, are deemed to have gone into effect and been adopted subsequent to the date hereof, regardless of the date enacted, adopted or issued.
Section 3.08. Taxes.
(a) Except as otherwise required by law, all payments by the Issuer of principal of, and interest on, the Advances and the Unreimbursed L/C Drawings and all other amounts payable hereunder (including fees) shall be made free and clear of and without deduction or withholding for or on account of any present or future income, excise, documentary, property, stamp or franchise taxes and other taxes, fees, duties, withholdings or other charges in the nature of a tax imposed by any taxing authority including all interest, penalties or additions to tax and other liabilities with respect thereto (all such taxes, fees, duties, withholdings and other charges, and including all interest, penalties or additions to tax and other liabilities with respect thereto, being called “Class A-1-V Taxes”), but excluding in the case of any Affected Person (i) net income, franchise (imposed in lieu of net income) or similar Class A-1-V Taxes (and including branch profits or alternative minimum Class A-1-V Taxes) and any other Class A-1-V Taxes imposed or levied on the Affected Person as a result of a present or former connection between the Affected Person and the jurisdiction of the governmental authority imposing such Class A-1-V Taxes (or any political subdivision or taxing authority thereof or therein) (other than any such connection arising solely from such Affected Person having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement or any other Transaction Document), (ii) any withholding tax that is imposed on amounts payable to the Affected Person at the time the Affected Person becomes a party to this Agreement (or designates a new lending office), except to the extent that such Affected Person (or its assignor, if any) was already entitled, at the time of the designation of the new lending office (or assignment), to receive additional amounts from the Issuer with respect to such withholding tax, (iii) any taxes imposed under FATCA, (iv) any backup withholding tax and (v) any Class A-1-V Taxes imposed as a result of such Affected Person’s failure to comply with Section 3.08(d) (such Class A-1-V Taxes not excluded by (i), (ii), (iii), (iv) and (v) above being called “Non-Excluded Taxes”). If any Class A-1-V Taxes are imposed and required by law to be withheld or deducted from any amount payable by the Issuer hereunder to an Affected Person, then, (x) the Issuer shall withhold the amount of such Class A-1-V Taxes from such payment (as increased, if applicable, pursuant to the following clause (y)) and shall pay such amount, subject to and in accordance with the Priority of Payments, to the taxing authority imposing such Class A-1-V Taxes in accordance with applicable law and (y) if such Class A-1-V Taxes are Non-Excluded Taxes, the amount of the payment shall be increased so that such payment is made, after withholding or deduction for or on account of such Non-Excluded Taxes, in an amount that is not less than the amount equal to the sum that would have been received by the Affected Person had no such deduction or withholding been required.
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(b) Moreover, if any Non-Excluded Taxes are directly asserted against any Affected Person or its agent with respect to any payment received by such Affected Person or its agent from the Issuer or otherwise in respect of any Transaction Document or the transactions contemplated therein, such Affected Person or its agent may pay such Non-Excluded Taxes and the Issuer shall pay to the Series 2025-1 Class A-1-V Administrative Agent, in the form of Series 2025-1 Class A-1-V Notes Other Amounts, subject to and in accordance with the Priority of Payments, on the Payment Date following the Collection Period in which the related Funding Agent and the Issuer receive written notice stating the amount of such Non-Excluded Taxes (including the calculation thereof in reasonable detail), and the Series 2025-1 Class A-1-V Administrative Agent shall pay to such Funding Agent pursuant to written direction from such Funding Agent and such Funding Agent shall pay directly to such Affected Persons such additional amounts (collectively, “Increased Tax Costs,” which term shall include all amounts payable by or on behalf of the Issuer pursuant to this Section 3.08) as is necessary in order that the net amount received by such Affected Person or agent after the payment of such Non-Excluded Taxes (including any Non-Excluded Taxes on such Increased Tax Costs) shall equal the amount such Person would have retained had no such Non-Excluded Taxes been asserted. Any amount payable to an Affected Person under this Section 3.08 shall be reduced by, and Increased Tax Costs shall not include, the amount of incremental damages (including Class A-1-V Taxes) due or payable by the Issuer as a direct result of such Affected Person’s failure to demand from the Issuer additional amounts pursuant to this Section 3.08 within 180 days from the date on which the related Non-Excluded Taxes were incurred.
(c) As promptly as practicable after the payment of any Class A-1-V Taxes, and in any event within thirty (30) days of any such payment being due, the Issuer shall furnish to each applicable Affected Person or its agents a certified copy of an official receipt (or other documentary evidence reasonably satisfactory to such Affected Person and agents) evidencing the payment of such Class A-1-V Taxes. If the Issuer fails to pay any Class A-1-V Taxes when due to the appropriate taxing authority or fails to remit to the Affected Persons or their agents the required receipts (or such other documentary evidence), the Issuer shall indemnify (by depositing such amounts into the Collection Account, to be distributed subject to and in accordance with the Priority of Payments) each Affected Person and its agents for any Non-Excluded Taxes that may become payable by any such Affected Person or its agents as a result of any such failure.
(d) Each Affected Person and Funding Agent on or prior to the date it becomes a party to this Agreement (and from time to time thereafter as soon as practicable after the obsolescence, expiration or invalidity of any form or document previously delivered) or within a reasonable period of time following a written request by the Issuer or the Series 2025-1 Class A-1-V Administrative Agent, shall timely deliver to the Issuer and the Series 2025-1 Class A-1-V Administrative Agent a United States Internal Revenue Service Form W-8BEN, Form W-8BEN-E, Form W-8ECI, Form W-8IMY or Form W-9, as applicable, or applicable successor form (together with all required attachments), or such other forms or documents (or successor forms or documents), appropriately completed and executed, as may be applicable and as will permit the Issuer or the Series 2025-1 Class A-1-V Administrative Agent, in their reasonable determination, to establish the extent to which a payment to such Affected Person is exempt from or eligible for a reduced rate of withholding or deduction of United States federal withholding taxes, including but not limited to such information necessary to claim the benefits of the exemption for portfolio interest under Section 881(c) of the Code, and to determine whether or not such Affected Person or Funding Agent is subject to backup withholding or information reporting requirements. Promptly following the receipt of a written request by the Issuer or the Series 2025-1 Class A-1-V Administrative Agent, each Affected Person and Funding Agent shall deliver to the Issuer and the Series 2025-1 Class A-1-V Administrative Agent any other forms or documents (or successor forms or documents) appropriately completed and executed, as may be applicable to establish the extent to which a payment to such Affected Person or Funding Agent is exempt from withholding or deduction of Non-Excluded Taxes other than United States federal withholding taxesThe Issuer shall not be required to pay any increased amount under Section 3.08(a) or Section 3.08(b) to an Affected Person in respect of the withholding or deduction of United States federal withholding taxes or other Non-Excluded Taxes imposed as the result of the failure or inability (other than as a result of a Change in Law) of such Affected Person to comply with the requirements set forth in this Section 3.08(d). The Issuer and the Series 2025-1 Class A-1-V Administrative Agent (or other withholding agent selected by the Issuer) may rely on any form or document provided pursuant to this Section 3.08(d) until notified otherwise by the Affected Person or the Funding Agent that delivered such form or document. Notwithstanding anything to the contrary, no Affected Person or Funding Agent shall be required to deliver any documentation that it is not legally eligible to deliver as a result of a change in applicable law after the time the Affected Person or Funding Agent becomes a party to this Agreement (or designates a new lending office).
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(e) If a payment made to an Affected Person or Funding Agent pursuant to this Agreement would be subject to United States federal withholding tax imposed by FATCA if such Affected Person or Funding Agent 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 Affected Person or Funding Agent shall deliver to the Issuer and the Series 2025-1 Class A-1-V Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Issuer or the Series 2025-1 Class A-1-V 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 Issuer or the Series 2025-1 Class A-1-V Administrative Agent as may be necessary for the Issuer and the Series 2025-1 Class A-1-V Administrative Agent to comply with their obligations under FATCA and to determine that such Affected Person or Funding Agent has complied with such Affected Person’s or Funding Agent’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. For purposes of this clause (e), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(f) Prior to the Series 2025-1 Closing Date, the Series 2025-1 Class A-1-V Administrative Agent will provide the Issuer with a properly executed and completed U.S. Internal Revenue Service Form W-8BEN-E, Form W-8IMY or Form W-9, as appropriate (together with all required attachments) of the Series 2025-1 Class A-1-V Administrative Agent. At any time thereafter, the Series 2025-1 Class A-1-V Administrative Agent will provide updated documentation (or a successor form thereto) if any documentation previously delivered has expired or become obsolete or invalid or otherwise upon the request of the Issuer.
(g) If an Affected Person determines, in its sole reasonable discretion, that it has received a refund of any Non-Excluded Taxes as to which it has been indemnified pursuant to this Section 3.08 or as to which it has been paid additional amounts pursuant to this Section 3.08, it shall promptly notify the Issuer and the Manager in writing of such refund and shall, within thirty (30) days after receipt of a written request from the Issuer, pay over such refund to the Issuer (but only to the extent of indemnity payments made or additional amounts paid to such Affected Person under this Section 3.08 with respect to the Non-Excluded Taxes giving rise to such refund), net of all out-of-pocket expenses (including the net amount of Class A-1-V Taxes, if any, imposed on or with respect to such refund or payment) of the Affected Person and without interest (other than any interest paid by the relevant taxing authority that is directly attributable to such refund of such Non-Excluded Taxes); provided that the Issuer, immediately upon the request of the Affected Person to the Issuer (which request shall include a calculation in reasonable detail of the amount to be repaid), agrees to repay the amount of the refund (and any applicable interest) (plus any penalties, interest or other charges imposed by the relevant taxing authority with respect to such amount) to the Affected Person in the event the Affected Person is required to repay such refund to such taxing authority. This Section 3.08(g) shall not be construed to require the Affected Person to make available its tax returns (or any other information relating to its Class A-1-V Taxes that it deems confidential) to the Issuer or any other Person. Notwithstanding anything to the contrary in this clause (g), in no event will the Affected Person be required to pay any amount to the Issuer pursuant to this clause (g), the payment of which would place the Affected Person in a less favorable net after-tax position than the Affected Person would have been in if the Non-Excluded Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed, and the indemnification payments or additional amounts with respect to such Non-Excluded Tax had never been paid.
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(h) If any Governmental Authority asserts that the Issuer or the Series 2025-1 Class A-1-V Administrative Agent or other withholding agent did not properly withhold or backup withhold, as the case may be, any Class A-1-V Taxes from payments made to or for the account of any Affected Person, then to the extent such improper withholding or backup withholding was directly caused by such Affected Person’s actions or inactions, such Affected Person shall indemnify the Issuer, the Indenture Trustee and the Series 2025-1 Class A-1-V Administrative Agent for any Class A-1-V Taxes imposed by any jurisdiction as a result of such actions or inactions, and costs and expenses (including attorney costs) of the Issuer, the Indenture Trustee and the Series 2025-1 Class A-1-V Administrative Agent.
(i) The obligation of the Affected Persons, severally, under this Section 3.08 shall survive any assignment of rights by, or the replacement of, an Affected Person or the termination of the aggregate Commitments, repayment of all other obligations hereunder and the resignation of the Series 2025-1 Class A-1-V Administrative Agent.
(j) The Series 2025-1 Class A-1-V Administrative Agent, the Indenture Trustee, the Issuer or any other withholding agent may deduct and withhold any Class A-1-V Taxes required by any laws to be deducted and withheld from any payments.
Section 3.09. Change of Lending Office. Each Committed Note Purchaser agrees that, upon the occurrence of any event giving rise to the operation of Section 3.05 or 3.07 or the payment of additional amounts to it under Section 3.08(a) or (b), in each case with respect to an Affected Person in such Committed Note Purchaser’s Investor Group, it will, (i) if requested by the Issuer, use reasonable efforts (subject to overall policy considerations of such Committed Note Purchaser) to designate, or cause the designation of, another lending office for any Advances affected by such event with the object of avoiding the consequences of such event; provided that such designation is made on terms that, in the sole judgment of such Committed Note Purchaser, cause such Committed Note Purchaser and its lending office(s) or the related Affected Person to suffer no economic, legal or regulatory disadvantage; and provided, further, that nothing in this Section 3.09 shall affect or postpone any of the obligations of the Issuer or the rights of any Committed Note Purchaser pursuant to Section 3.05, 3.07 and 3.08 and (ii) pay all reasonable costs and reasonable documented out-of-pocket expenses incurred by any Committed Note Purchaser in connection with any such designation. If a Committed Note Purchaser notifies the Issuer in writing that such Committed Note Purchaser will be unable to designate, or cause the designation of, another lending office, the Issuer may replace every member (but not any subset thereof) of such Committed Note Purchaser’s entire Investor Group by giving written notice to each member of such Investor Group and the Series 2025-1 Class A-1-V Administrative Agent designating one or more Persons that are willing and able to purchase each member of such Investor Group’s rights and obligations under this Agreement for a purchase price that with respect to each such member of such Investor Group will equal the amount owed to each such member of such Investor Group with respect to the Series 2025-1 Class A-1-V Advance Notes (whether arising under the Indenture, this Agreement, the Series 2025-1 Class A-1-V Advance Notes or otherwise). Upon receipt of such written notice, each member of such Investor Group shall assign its rights and obligations under this Agreement pursuant to and in accordance with Sections 9.17 in consideration for such purchase price and at the reasonable expense of the Issuer (including, without limitation, the reasonable documented fees and out-of-pocket expenses of counsel to each such member); provided, however, that no member of such Investor Group shall be obligated to assign any of its rights and obligations under this Agreement if the purchase price to be paid to such member is not at least equal to the amount owed to such member with respect to the Series 2025-1 Class A-1-V Advance Notes (whether arising under the Indenture, this Agreement, the Series 2025-1 Class A-1-V Advance Notes or otherwise).
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ARTICLE IV
OTHER PAYMENT TERMS
Section 4.01. Time and Method of Payment (Amounts Distributed by the Series 2025-1 Class A-1-V Administrative Agent). Except as otherwise provided in Section 4.02, all amounts payable to any Funding Agent or Investor hereunder or with respect to the Series 2025-1 Class A-1-V Advance Notes shall be made by the Issuer pursuant to written direction or the Manager Report to the Series 2025-1 Class A-1-V Administrative Agent for the benefit of the applicable Person, by wire transfer of immediately available funds in Dollars not later than 1:00 p.m. (New York City time) on the date due. The Series 2025-1 Class A-1-V Administrative Agent will promptly, and in any event no later than 5:00 p.m. (New York City time) on the day of its receipt or deemed receipt of the same, distribute to the applicable Funding Agent for the benefit of the applicable Person, or upon the order of the applicable Funding Agent for the benefit of the applicable Person, in each case pursuant to written direction, in an amount equal to its pro rata share (or other applicable share as provided herein) of such payment by wire transfer in like funds as received. Except as otherwise provided in Section 2.06 and Section 4.02, all amounts payable to any Letter of Credit Provider hereunder or with respect to the L/C Obligations shall be made to or upon the order of the Letter of Credit Provider by wire transfer of immediately available funds in Dollars not later than 3:00 p.m. (New York City time) on the date due. Any funds received after that time will be deemed to have been received on the next Business Day. The Issuer’s obligations hereunder in respect of any amounts payable to any Investor shall be discharged to the extent funds are disbursed by the Issuer to the Series 2025-1 Class A-1-V Administrative Agent as provided herein or by the Indenture Trustee or the Series 2025-1 Class A-1-V Administrative Agent in accordance with Section 4.02 whether or not such funds are properly applied by the Series 2025-1 Class A-1-V Administrative Agent or by the Indenture Trustee or the Series 2025-1 Class A-1-V Administrative Agent. The Series 2025-1 Class A-1-V Administrative Agent’s obligations hereunder in respect of any amounts payable to any Investor shall be discharged to the extent funds are disbursed by the Series 2025-1 Class A-1-V Administrative Agent to the applicable Funding Agent as provided herein whether or not such funds are properly applied by such Funding Agent.
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Section 4.02. Order of Distributions (Amounts Distributed by the Indenture Trustee or the Series 2025-1 Class A-1-V Administrative Agent). Subject to the application of Section 9.18(c)(ii) to Defaulting Investors, any amounts deposited into the Collection Account in respect of accrued interest, letter of credit fees or undrawn commitment fees, but excluding amounts allocated for the purpose of reducing the Series 2025-1 Class A-1-V Outstanding Principal Amount, shall be distributed by the Indenture Trustee or the Series 2025-1 Class A-1-V Administrative Agent under the Indenture, as applicable, on the date due and payable under the Indenture and in the manner provided therein, to the Series 2025-1 Class A-1-V Noteholders of record on the applicable Record Date, ratably in proportion to the respective amounts due to such payees at each applicable level of the Priority of Payments in accordance with the applicable Manager Report.
Subject to the application of Section 9.18(c)(ii) to Defaulting Investors, any amounts deposited into the Collection Account for the purpose of reducing the Series 2025-1 Class A-1-V Outstanding Principal Amount shall be distributed by the Indenture Trustee or the Series 2025-1 Class A-1-V Administrative Agent under the Indenture, as applicable, on the date due and payable under the Indenture and in the manner provided therein, to the Series 2025-1 Class A-1-V Noteholders of record on the applicable Record Date, in the following order of priority: first, to each Letter of Credit Provider in respect of outstanding Unreimbursed L/C Drawings, to the extent Unreimbursed L/C Drawings cannot be reimbursed pursuant to Section 2.07, ratably in proportion to the respective amounts due to such payees; second, to the other to the Series 2025-1 Class A-1-V Noteholders in respect of their outstanding Advances, ratably in proportion thereto; and third, any balance remaining of such amounts (up to an aggregate amount not to exceed the amount of Undrawn L/C Face Amounts at such time) shall be paid to the Letter of Credit Provider to be deposited by the Letter of Credit Provider into a cash collateral account in the name of the Letter of Credit Provider.
Subject to the application of Section 9.18(c)(ii) to Defaulting Investors, any amounts distributed to the Series 2025-1 Class A-1-V Administrative Agent for disbursement to the applicable Funding Agent as provided herein pursuant to the Priority of Payments in respect of any other amounts related to the Class A-1-V Notes shall be distributed by the Series 2025-1 Class A-1-V Administrative Agent in accordance with Section 4.01 on the date such amounts are due and payable hereunder to the applicable Series 2025-1 Class A-1-V Noteholders and/or the Series 2025-1 Class A-1-V Administrative Agent for its own account, as applicable, ratably in proportion to the respective aggregate of such amounts due to such payees.
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Section 4.03. L/C as Collateral.
(a) If as of five (5) Business Days prior to the Commitment Termination Date, any Undrawn L/C Face Amounts remain in effect, the Issuer shall either (i) provide cash collateral (in an aggregate amount equal to the amount of Undrawn L/C Face Amounts at such time, to the extent that such amount of cash collateral has not been provided pursuant to Section 4.02 or 9.18(c)(ii)) to the Letter of Credit Provider, to be deposited by the Letter of Credit Provider into a cash collateral account in the name of the Letter of Credit Provider in accordance with Section 4.03(b) or (ii) other than with respect to Liquidity Reserve Letters of Credit, make arrangements satisfactory to the Letter of Credit Provider in its sole and absolute discretion with the Letter of Credit Provider (and, if the Letter of Credit Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) pursuant to Section 4.04 such that any Letters of Credit that remain outstanding as of the date that is ten (10) Business Days prior to the Commitment Termination Date shall cease to be deemed outstanding or to be deemed “Letters of Credit” for purposes of this Agreement as of the Commitment Termination Date.
(b) All amounts to be deposited in a cash collateral account pursuant to Section 4.02, Section 4.03(a) or Section 9.18(c)(ii) shall be held by the Letter of Credit Provider as collateral to secure the Issuer’s Reimbursement Obligations with respect to any outstanding Letters of Credit. The Letter of Credit Provider 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 deposit in Permitted Investments, which investments shall be made at the written direction, and at the risk and expense, of the Issuer (provided that if an Event of Default has occurred and is continuing, such investments shall be made solely at the option and sole discretion of the Letter of Credit Provider), such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account and all Class A-1-V Taxes on such amounts shall be payable by the Issuer. Moneys in such account shall automatically be applied by such Letter of Credit Provider to reimburse it for any Unreimbursed L/C Drawings. Upon expiration of all then-outstanding Letters of Credit and payment in full of all Unreimbursed L/C Drawings, any balance remaining in such account shall promptly be paid over (i) if the Base Indenture and any Series Supplement remain in effect, to the Trustee to be deposited into the applicable Collection Account and distributed in accordance with the terms of the Indenture and (ii) otherwise to the Issuer; provided that, upon an Investor ceasing to be a Defaulting Investor in accordance with Section 9.18(d), any amounts of cash collateral provided pursuant to Section 9.18(c)(ii) upon such Investor becoming a Defaulting Investor shall be released and applied as such amounts would have been applied had such Investor not become a Defaulting Investor.
Section 4.04. Alternative Arrangements with Respect to Letters of Credit. Notwithstanding any other provision of this Agreement or any Transaction Document, a Letter of Credit (other than a Liquidity Reserve Letter of Credit) shall cease to be deemed outstanding for all purposes of this Agreement and each other Transaction Document if and to the extent that provisions, in form and substance satisfactory to the Letter of Credit Provider (and, if the Letter of Credit Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) in its sole and absolute discretion, have been made with respect to such Letter of Credit such that the Letter of Credit Provider (and, if applicable, the L/C Issuing Bank) has agreed in writing, with a copy of such agreement delivered to the Series 2025-1 Class A-1-V Administrative Agent, the Servicer, the Indenture Trustee and the Issuer, that such Letter of Credit shall be deemed to be no longer outstanding hereunder, in which event such Letter of Credit shall cease to be a “Letter of Credit” as such term is used herein and in the Transaction Documents.
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Section 4.05. Recovery of Erroneous Payments. Without limitation of any other provision in this Agreement, if at any time the Series 2025-1 Class A-1-V Administrative Agent makes a payment hereunder in error to any Investor or Funding Agent (the “Credit Party”), whether or not in respect of an obligation due and owing by the Issuer at such time, where such payment is a Rescindable Amount, then in any such event, each Credit Party receiving a Rescindable Amount severally agrees to repay to the Series 2025-1 Class A-1-V Administrative Agent forthwith on demand the Rescindable Amount received by such Credit Party in immediately available funds in the currency so received, with interest thereon, for each day from and including the date such Rescindable Amount is received by it to but excluding the date of payment to the Series 2025-1 Class A-1-L Administrative Agent, at the greater of the federal funds rate and a rate determined by the Series 2025-1 Class A-1-V Administrative Agent in accordance with banking industry rules on interbank compensation. Each Credit Party irrevocably waives any and all defenses, including any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. The Series 2025-1 Class A-1-V Administrative Agent shall inform each Credit Party promptly upon determining that any payment made to such Credit Party comprised, in whole or in part, a Rescindable Amount.
ARTICLE V
THE SERIES 2025-1 CLASS A-1-V ADMINISTRATIVE AGENT AND THE
FUNDING AGENTS
Section 5.01. Authorization and Action of the Series 2025-1 Class A-1-V Administrative Agent. Each of the Investors and the Funding Agents hereby designates Bank of America, N.A., as the Series 2025-1 Class A-1-V Administrative Agent hereunder, and hereby authorizes the Series 2025-1 Class A-1-V Administrative Agent to take such actions and to exercise such powers as are delegated to the Series 2025-1 Class A-1-V Administrative Agent by the terms of this Agreement together with such powers as are reasonably incidental thereto. The Series 2025-1 Class A-1-V Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Investor or any Funding Agent, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on the part of the Series 2025-1 Class A-1-V Administrative Agent shall be read into this Agreement or otherwise exist for the Series 2025-1 Class A-1-V Administrative Agent. In performing its functions and duties hereunder, the Series 2025-1 Class A-1-V Administrative Agent shall act solely as agent for the Investors and the Funding Agents and does not assume nor shall it be deemed to have assumed any obligation or relationship of trust or agency with or for the Issuer or any of its successors or assigns. The provisions of this Article (other than the rights of the Issuer set forth in Section 5.07) are solely for the benefit of the Series 2025-1 Class A-1-V Administrative Agent, the Investors and the Funding Agents, and the Issuer shall not have any rights as a third party beneficiary of any such provisions. The Series 2025-1 Class A-1-V Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, exposes the Series 2025-1 Class A-1-V Administrative Agent to personal liability or that is contrary to this Agreement or any Requirement of Law. The appointment and authority of the Series 2025-1 Class A-1-V Administrative Agent hereunder shall terminate upon the indefeasible payment in full of the Series 2025-1 Class A-1-V Notes and all other amounts owed by the Issuer hereunder to the Series 2025-1 Class A-1-V Administrative Agent and all members of the Investor Groups and each Letter of Credit Provider (the “Aggregate Unpaids”) and termination in full of all Commitments.
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Section 5.02. Delegation of Duties. The Series 2025-1 Class A-1-V Administrative Agent may execute any of its duties under this Agreement by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The exculpatory provisions of this Article shall apply to any such agents or attorneys-in-fact and shall apply to each of their respective activities as the Series 2025-1 Class A-1-V Administrative Agent. The Series 2025-1 Class A-1-V Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it in good faith.
Section 5.03. Exculpatory Provisions. Neither the Series 2025-1 Class A-1-V Administrative Agent nor any of its directors, managers, officers, agents or employees shall be (a) liable for any action lawfully taken or omitted to be taken by it or them under or in connection with this Agreement (except for its, their or such Person’s own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and nonappealable judgment), or (b) responsible in any manner to any Investor or any Funding Agent for any recitals, statements, representations or warranties made by the Issuer or an Asset Entity contained in this Agreement or in any certificate, report, statement or other document referred to or provided for in, or received under or in connection with, this Agreement for the due execution, legality, value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other document furnished in connection herewith, or for any failure of the Issuer or an Asset Entity to perform its obligations hereunder, or for the satisfaction of any condition specified in Article VII. The Series 2025-1 Class A-1-V Administrative Agent shall not be under any obligation to any Investor or any Funding Agent to ascertain or to inquire as to the observance or performance of any of the agreements or covenants contained in, or conditions of, this Agreement, or to inspect the properties, books or records of the Issuer. The Series 2025-1 Class A-1-V Administrative Agent shall not be deemed to have knowledge of any Amortization Period or Event of Default unless a Responsible Officer of the Series 2025-1 Class A-1-V Administrative Agent has received notice in writing of such event from the Issuer, any Investor or any Funding Agent.
Section 5.04. Reliance. The Series 2025-1 Class A-1-V Administrative Agent shall in all cases be entitled to rely, and shall be fully protected in relying, upon any document or conversation 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), independent accountants and other experts selected by the Series 2025-1 Class A-1-V Administrative Agent. The Series 2025-1 Class A-1-V Administrative Agent shall in all cases be fully justified in failing or refusing to take any action under this Agreement or any other document furnished in connection herewith unless it shall first receive such advice or concurrence of any Investor or any Funding Agent as it deems appropriate or it shall first be indemnified to its satisfaction by any Investor or any Funding Agent; provided that unless and until the Series 2025-1 Class A-1-V Administrative Agent shall have received such advice, the Series 2025-1 Class A-1-V Administrative Agent, as applicable, may take or refrain from taking any action, as the Series 2025-1 Class A-1-V Administrative Agent, as applicable, shall deem advisable and in the best interests of the Investors and the Funding Agents. The Series 2025-1 Class A-1-V Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, in accordance with a request of Investor Groups holding more than 50% of the Commitments and such request and any action taken or failure to act pursuant thereto shall be binding upon the Investors and the Funding Agents.
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Section 5.05. Non-Reliance on the Series 2025-1 Class A-1-V Administrative Agent and Other Purchasers. Each of the Investors and the Funding Agents expressly acknowledges that neither the Series 2025-1 Class A-1-V Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by the Series 2025-1 Class A-1-V Administrative Agent hereafter taken, including, without limitation, any review of the affairs of the Issuer, shall be deemed to constitute any representation or warranty by the Series 2025-1 Class A-1-V Administrative Agent. Each of the Investors and the Funding Agents represents and warrants to the Series 2025-1 Class A-1-V Administrative Agent that it has and will, independently and without reliance upon the Series 2025-1 Class A-1-V Administrative Agent and based on such documents and information as it has deemed appropriate, made its own appraisal of, and investigation into, the business, operations, property, prospects, financial and other conditions and creditworthiness of the Issuer and made its own decision to enter into this Agreement.
Section 5.06. The Series 2025-1 Class A-1-V Administrative Agent in its Individual Capacity. The Series 2025-1 Class A-1-V Administrative Agent and any of its Affiliates may make loans to, accept deposits from, and generally engage in any kind of business with the Issuer or any Affiliate of the Issuer as though the Series 2025-1 Class A-1-V Administrative Agent were not the Series 2025-1 Class A-1-V Administrative Agent hereunder.
Section 5.07. Successor Series 2025-1 Class A-1-V Administrative Agent; Defaulting Class A-1-V Administrative Agent.
(a) The Series 2025-1 Class A-1-V Administrative Agent may, upon thirty (30) days’ notice to the Issuer and each of the Investors and the Funding Agents, and the Series 2025-1 Class A-1-V Administrative Agent will, upon the direction of Investor Groups holding 100% of the Commitments (excluding any Commitments held by Defaulting Investors), resign as the Series 2025-1 Class A-1-V Administrative Agent, as applicable. If the Series 2025-1 Class A-1-V Administrative Agent shall resign, then the Investor Groups holding more than (i) if no single Investor Group holds 50% or more of the Commitments, 50% of the Commitments (excluding any Commitments held by the resigning Series 2025-1 Class A-1-V Administrative Agent or its Affiliates, and if all Commitments are held by the resigning Series 2025-1 Class A-1-V Administrative Agent or its Affiliates, then the Issuer) or (ii) if a single Investor Group holds 50% or more of the Commitments, two thirds of the Commitments during such 30-day period (the “Required Investors”), shall appoint an Affiliate of a member of the Investor Groups as a successor Series 2025-1 Class A-1-V Administrative Agent, subject to the consent of the Issuer at all times other than while an Event of Default has occurred and is continuing (which consent of the Issuer shall not be unreasonably withheld or delayed); provided that the Commitment of any Defaulting Investor shall be disregarded in the determination of whether any threshold percentage of Commitments has been met under this Section 5.07(a). If for any reason, no successor Administrative Agent is appointed by the Investor Groups during such 30 day period, then effective upon the expiration of such 30 day period, the Issuer shall continue to make (or cause to be made) all payments in respect of the Aggregate Unpaids or under any fee letter delivered in connection herewith (including, without limitation, the Series 2025-1 Class A-1-V Notes Fee Letter and the Indenture Trustee Fee) directly to the Funding Agents or the Letter of Credit Provider, as applicable, and the Series 2025-1 Class A-1-V Administrative Agent and the Issuer for all purposes shall deal directly with the Funding Agents or any Letter of Credit Provider, as applicable, until such time, if any, as a successor Series 2025-1 Class A-1-V Administrative Agent is appointed as provided above, and the Issuer shall instruct the Indenture Trustee in writing accordingly. After the retiring Series 2025-1 Class A-1-V Administrative Agent’s resignation hereunder as the Series 2025-1 Class A-1-V Administrative Agent, as applicable, the provisions of Section 9.05 and this Article V shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Series 2025-1 Class A-1-V Administrative Agent under this Agreement.
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(b) The Issuer may, upon the occurrence of any of the following events with respect to the Series 2025-1 Class A-1-V Administrative Agent (any such event with respect to the Series 2025-1 Class A-1-V Administrative Agent, a “Defaulting Agent Event” of the Series 2025-1 Class A-1-V Administrative Agent) with the consent of Investor Groups holding more than (i) if no single Investor Group holds 50% or more of the Commitments, 50% of the Commitments or (ii) if a single Investor Group holds 50% or more of the Commitments, two thirds of the Commitments, remove the Series 2025-1 Class A-1-V Administrative Agent and, upon such removal, the Investor Groups holding more than 50% of the Commitments in the case of clause (i) above or two thirds of the Commitments in the case of clause (ii) above (provided that the Commitment of any Defaulting Investor shall be disregarded in the determination of whether any threshold percentage of Commitments has been met under this Section 5.07(b)) shall appoint an Affiliate of a member of the Investor Groups as a successor Series 2025-1 Class A-1-V Administrative Agent, subject to the consent of (x) the Issuer at all times other than while an Event of Default has occurred and is continuing (which consent of the Issuer shall not be unreasonably withheld or delayed) and (y) the Controlling Class Representative (which consent of the Controlling Class Representative shall not be unreasonably withheld or delayed): (i) an Event of Bankruptcy with respect to the Series 2025-1 Class A-1-V Administrative Agent; (ii) if the Series 2025-1 Class A-1-V Administrative Agent or an Affiliate thereof is also an Investor, any other event pursuant to which such Person becomes a Defaulting Investor; (iii) the failure by the Series 2025-1 Class A-1-V Administrative Agent to pay or remit any funds required to be remitted when due (in each case, if amounts are available for payment or remittance in accordance with the terms of this Agreement for application to the payment or remittance thereof) which continues for two (2) Business Days after such funds were required to be paid or remitted; (iv) any representation, warranty, certification or statement made by the Series 2025-1 Class A-1-V Administrative Agent under this Agreement or in any agreement, certificate, report or other document furnished by the Series 2025-1 Class A-1-V Administrative Agent proves to have been false or misleading in any material respect as of the time made or deemed made, and if such representation, warranty, certification or statement is susceptible of remedy in all material respects, is not remedied within thirty (30) calendar days after knowledge thereof or notice by the Issuer to the Series 2025-1 Class A-1-V Administrative Agent and if not susceptible of remedy in all material respects, upon notice by the Issuer to the Series 2025-1 Class A-1-V Administrative Agent, or (v) any act constituting the gross negligence, bad faith or willful misconduct of the Series 2025-1 Class A-1-V Administrative Agent. If for any reason no successor the Series 2025-1 Class A-1-V Administrative Agent is appointed by the Investor Groups within thirty (30) days of the removal of the Series 2025-1 Class A-1-V Administrative Agent pursuant to this clause (b), then effective upon the expiration of such 30-day period, the Issuer shall make all payments in respect of the Aggregate Unpaids or under any fee letter delivered in connection herewith (including, without limitation, the Series 2025-1 Class A-1-V Notes Fee Letter and the Indenture Trustee Fees) directly to the Funding Agents (pro rata in proportion to the respective Commitment Percentages of the Investor Groups represented by such Funding Agents) or the Letter of Credit Provider, as applicable, and the Series 2025-1 Class A-1-V Administrative Agent and the Issuer for all purposes shall deal directly with the Funding Agents or Letter of Credit Provider, as applicable, until such time, if any, as a successor Series 2025-1 Class A-1-V Administrative Agent is appointed as provided above, and the Issuer shall instruct the Indenture Trustee in writing accordingly. After the removal of the Series 2025-1 Class A-1-V Administrative Agent hereunder as the Series 2025-1 Class A-1-V Administrative Agent, the provisions of Section 9.05 and this Article V shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Series 2025-1 Class A-1-V Administrative Agent under this Agreement.
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(c) If a Defaulting Agent Event has occurred with respect to the Series 2025-1 Class A-1-V Administrative Agent and is continuing, the Issuer shall continue to make (or cause to be made) all payments in respect of the Aggregate Unpaids or under any fee letter delivered in connection herewith (including, without limitation, the Series 2025-1 Class A-1-V Notes Fee Letter and the Indenture Trustee Fees) directly to the Funding Agents (pro rata in proportion to the respective Commitment Percentages of the Investor Groups represented by such Funding Agents) or the Letter of Credit Provider, as applicable, the Series 2025-1 Class A-1-V Administrative Agent and the Issuer for all purposes may deal directly with the Funding Agents or the Letter of Credit Provider, as applicable.
Section 5.08. Authorization and Action of Funding Agents. Each Investor is hereby deemed to have designated and appointed its related Funding Agent set forth next to such Investor’s name on Schedule I (or identified as such Investor’s Funding Agent pursuant to any applicable Assignment and Assumption Agreement or Investor Group Supplement) as the agent of such Person hereunder, and hereby authorizes such Funding Agent to take such actions as agent on its behalf and to exercise such powers as are delegated to such Funding Agent by the terms of this Agreement together with such powers as are reasonably incidental thereto. Each Funding Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with the related Investor Group, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on the part of such Funding Agent shall be read into this Agreement or otherwise exist for such Funding Agent. In performing its functions and duties hereunder, each Funding Agent shall act solely as agent for the related Investor Group and does not assume nor shall it be deemed to have assumed any obligation or relationship of trust or agency with or for the Issuer, any of its successors or assigns or any other Person. Each Funding Agent shall not be required to take any action that exposes such Funding Agent to personal liability or that is contrary to this Agreement or any Requirement of Law. The appointment and authority of the Funding Agents hereunder shall terminate upon the indefeasible payment in full of the Aggregate Unpaids of the Investor Groups and the termination in full of all the Commitments.
Section 5.09. Delegation of Duties. Each Funding Agent may execute any of its duties under this Agreement by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Each Funding Agent shall not be responsible for the actions or any fraud, gross negligence, bad faith or willful misconduct of any agents or attorneys-in-fact selected by it in good faith.
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Section 5.10. Exculpatory Provisions. Each Funding Agent and its Affiliates, and each of their directors, officers, agents or employees shall not be (a) liable for any action lawfully taken or omitted to be taken by it or them under or in connection with this Agreement (except for its, their or such Person’s own gross negligence, bad faith or willful misconduct), or (b) responsible in any manner to the related Investor Group for any recitals, statements, representations or warranties made by the Issuer contained in this Agreement or in any certificate, report, statement or other document referred to or provided for in, or received under or in connection with, this Agreement, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other document furnished in connection herewith, or for any failure of the Issuer to perform its obligations hereunder, or for the satisfaction of any condition specified in Article VII. Each Funding Agent shall not be under any obligation to the related Investor Group to ascertain or to inquire as to the observance or performance of any of the agreements or covenants contained in, or conditions of, this Agreement, or to inspect the properties, books or records of the Issuer. Each Funding Agent shall not be deemed to have knowledge of any Amortization Period or Event of Default unless such Funding Agent has received notice of such event from the Issuer or any member of the related Investor Group.
Section 5.11. Reliance. Each Funding Agent shall in all cases be entitled to rely, and shall be fully protected in relying, upon any document or conversation 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), independent accountants and other experts selected by such Funding Agent. Each Funding Agent shall in all cases be fully justified in failing or refusing to take any action under this Agreement or any other document furnished in connection herewith unless it shall first receive such advice or concurrence of the related Investor Group as it deems appropriate or it shall first be indemnified to its satisfaction by the related Investor Group; provided that unless and until such Funding Agent shall have received such advice, such Funding Agent may take or refrain from taking any action, as such Funding Agent shall deem advisable and in the best interests of the related Investor Group. Each Funding Agent shall in all cases be fully protected in acting, or in refraining from acting, in accordance with a request of the related Investor Group and such request and any action taken or failure to act pursuant thereto shall be binding upon the related Investor Group.
Section 5.12. Non-Reliance on the Funding Agent and Other Purchasers. The related Investor Group expressly acknowledges that its Funding Agent and any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates has not made any representations or warranties to it and that no act by such Funding Agent hereafter taken, including, without limitation, any review of the affairs of the Issuer, shall be deemed to constitute any representation or warranty by such Funding Agent. The related Investor Group represents and warrants to such Funding Agent that it has and will, independently and without reliance upon such Funding Agent and based on such documents and information as it has deemed appropriate, made its own appraisal of, and investigation into, the business, operations, property, prospects, financial and other conditions and creditworthiness of the Issuer and made its own decision to enter into this Agreement.
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Section 5.13. The Funding Agent in its Individual Capacity. Each Funding Agent and any of its Affiliates may make loans to, accept deposits from, and generally engage in any kind of business with the Issuer or any Affiliate of the Issuer as though such Funding Agent were not a Funding Agent hereunder.
Section 5.14. Successor Funding Agent.
Each Funding Agent will, upon the direction of the related Investor Group, resign as such Funding Agent. If such Funding Agent shall resign, then the related Investor Group shall appoint an Affiliate of a member of the related Investor Group as a successor funding agent (it being understood that such resignation shall not be effective until such successor is appointed). After any retiring Funding Agent’s resignation hereunder as Funding Agent, subject to the limitations set forth herein, the provisions of Section 9.05 and this Article V shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Funding Agent under this Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01. The Issuer and the Asset Entities. The Issuer and the Asset Entities jointly and severally represent and warrant to each Investor and the Series 2025-1 Class A-1-V Administrative Agent, as of the date of this Agreement and as of the date of each Advance made hereunder, that:
(a) each of their representations and warranties made in favor of the Indenture Trustee or the Noteholders in the Indenture and the other Transaction Documents (other than a Transaction Document relating solely to a Series of Notes other than the Series 2025-1 Notes) including without limitation, the representations and warranties contained in Section 6.05 of the Base Indenture, is true and correct (i) if not qualified as to materiality or Material Adverse Effect, in all material respects and (ii) if qualified as to materiality or Material Adverse Effect, in all respects, in the case of each of the immediately preceding subclauses (i) and (ii), as of the Series 2025-1 Closing Date (unless stated to relate, or should reasonably be read to relate, solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(b) no Default, Event of Default, Manager Termination Event, Amortization Period, Cash Trap Condition or Cash Sweep Condition has occurred and is continuing;
(c) assuming the representations and warranties of each Investor set forth in Section 6.04 of this Agreement are true and correct, neither they nor or any of their Affiliates, have, directly or through an agent, engaged in any form of general solicitation or general advertising in connection with the offering of the Series 2025-1 Class A-1-V Notes under the Securities Act or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act including, but not limited to, articles, notices or other communications published in any newspaper, magazine, or similar medium or broadcast over television or radio or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising; provided that no representation or warranty is made with respect to the Investors and their Affiliates; and neither the Issuer nor any of its Affiliates has entered into any contractual arrangement with respect to the distribution of the Series 2025-1 Class A-1-V Notes, except for this Agreement and the other Transaction Documents, and the Issuer will not enter into any such arrangement;
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(d) neither they nor any of their Affiliates have, directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any “security” (as defined in the Securities Act) that is or will be integrated with the sale of the Series 2025-1 Class A-1-V Notes in a manner that would require the registration of the Series 2025-1 Class A-1-V Notes under the Securities Act;
(e) assuming the representations and warranties of each Investor set forth in Section 6.03 of this Agreement are true and correct, the offer and sale of the Series 2025-1 Class A-1-V Notes in the manner contemplated by this Agreement is a transaction exempt from the registration requirements of the Securities Act, and the Base Indenture and the Series 2025-1 Supplement are not required to be qualified under the Trust Indenture Act of 1939, as amended;
(f) none of the Obligors is, and after giving effect to the offering and sale of the Series 2025-1 Class A-2 Notes and the Series 2025-1 Class B Notes and the application of the proceeds therefrom as described under “Use of Proceeds” in the Offering Memorandum relating to the Series 2025-1 Class A-2 Notes and the Series 2025-1 Class B Notes will not be, an “investment company” as defined in Section 3(a)(1) of the Investment Company Act or a company “controlled” by an “investment company” within the meaning of the Investment Company Act and the rules and regulations of the SEC thereunder and is not relying on the exemption from the definition of “investment company” set forth in Section 3(c)(1) and/or Section 3(c)(7) of the Investment Company Act;
(g) the Issuer is not an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act of 1940, as amended (the “Investment Company Act”); and the Issuer does not constitute a “covered fund” within the meaning of the final regulations issued on December 10, 2013, implementing Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010), also known as the Volcker Rule (“Covered Fund”);
(h) the Series 2025-1 Class A-1-V Notes are “eligible assets” for purposes of Rule 3a-7 under the Investment Company Act;
(i) the Issuer has furnished to the Series 2025-1 Class A-1-V Administrative Agent and each Funding Agent true, accurate and complete copies of all other Transaction Documents (excluding Series Supplements and other Transaction Documents relating solely to a Series of Notes other than the Series 2025-1 Notes) to which they are a party as of the Series 2025-1 Closing Date, all of which Transaction Documents are in full force and effect as of the Series 2025-1 Closing Date and no terms of any such agreements or documents have been amended, modified or otherwise waived as of such date, other than such amendments, modifications or waivers about which the Issuer has informed each Funding Agent and each Letter of Credit Provider;
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(j) none of the Obligors, nor any controlled affiliate, director, officer, manager, member, agent, employee or other person acting on behalf of such Obligor, has: (i) made any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any domestic government official or “foreign official” (as defined in the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”)) or foreign government employee; (iii) violated or is in violation of any provision of any applicable law or regulation implementing the OECD Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions or any applicable provision of any applicable law or regulation implementing the OECD Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions or any applicable provision of the FCPA, the Bribery Act of 2010 of the United Kingdom (“UK Bribery Act”) or any other applicable anti-bribery statute or regulation of any other jurisdiction in which it operates its business, including, in each case, the rules and regulations thereunder; (iv) otherwise made any bribe, unlawful rebate, unlawful payoff, unlawful influence payment, unlawful kickback or other unlawful payment; or (v) received written notice of any investigation, proceeding or inquiry by any governmental agency, authority or body regarding any of the matters in clauses (i) through (iv) above, and the Obligors and the Obligor’s controlled affiliates have conducted their respective businesses in material compliance with the FCPA and UK Bribery Act and have instituted and maintain policies and procedures reasonably designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith;
(k) the operations of the Obligors and their respective subsidiaries are and have been conducted at all times in material compliance with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving any of the Obligors or their respective subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of any Obligor, threatened;
(l) none of the Obligors nor any of their respective subsidiaries nor any of their respective controlled affiliates, directors or officers, nor to the knowledge of the Obligors, any of their respective controlled affiliates, employees, agents or other persons acting on behalf of such relevant entity is currently the subject or, to the knowledge of such Obligor, the target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the U.S. Department of State, the United Nations Security Council, the European Union, any European Union member state, His Majesty’s Treasury of the United Kingdom (the “UK”), or other relevant sanctions authority (collectively, “Sanctions”); nor is such relevant entity located, organized or resident in a country or territory that is the target of Sanctions (including at the time of this Agreement, the Crimea region of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Kherson and Zaporizhzhia regions of Ukraine or any covered region of Ukraine identified pursuant to Executive Order 14065, Cuba, Iran and North Korea) (the “Sanctioned Countries”) or is owned or controlled by any individual or entity that currently is the subject or, to the knowledge of such Obligor, the target of any Sanctions; the Obligors and their respective subsidiaries are in material compliance with all applicable Sanctions; the Obligors and their respective subsidiaries: (i) have implemented and maintain in effect policies and procedures reasonably designed to ensure compliance with applicable Sanctions, (ii) have not received any written notice that any violation of Sanctions are being or may be alleged, and (iii) will not directly or knowingly indirectly use the proceeds of any Borrowing, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of or business with any person, or in any country or territory, that, at the time of such financing, is the target of any Sanctions, or in any other manner that would reasonably be expected to result in a violation by any person (including any person participating in the transaction whether as underwriter, advisor, investor or otherwise) of Sanctions; the Obligors and their respective subsidiaries will not directly or knowingly indirectly use the proceeds of any Borrowing, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of or business in Russia or Belarus in violation of Sanctions;
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(m) the information included in any Beneficial Ownership Certification delivered pursuant to the conditions of Section 8.01(h), if applicable, is true and correct in all material respects; provided that an updated Beneficial Ownership Certification may be delivered if any previously delivered Beneficial Ownership Certification ceases to be true and correct in all material respects; and
(n) as of the Series 2025-1 Closing Date, the Obligors are in compliance with the Financial Crimes Enforcement Network’s implementing regulations pursuant to the Corporate Transparency Act, as codified in 31 U.S.C. §5336 (the “Corporate Transparency Act”).
Section 6.02. U.S. Risk Retention Rules.
(a) The Parent represents and warrants to each Investor, the Arranger and the Series 2025-1 Class A-1-V Administrative Agent as of the date hereof that the Parent has complied, and is the appropriate entity to comply, with all requirements imposed on the sponsor of a securitization transaction in accordance with Regulation RR, 17 C.F.R. §246.1 et seq. (the “U.S. Risk Retention Rules”) implementing the credit risk retention requirements of Section 15G of the Exchange Act, in each case directly or (to the extent permitted by the U.S. Risk Retention Rules) through one or more “majority-owned affiliates” (as such term is defined in the U.S. Risk Retention Rules). On the Series 2025-1 Closing Date, the Parent will cause one or more majority-owned affiliates to hold an “eligible horizontal residual interest” (as such term is defined in the U.S. Risk Retention Rules) with respect to the securitization transaction contemplated by the Transaction Documents in an amount equal to at least 5% of the fair value of all the “ABS interests” (as such term is defined in the U.S. Risk Retention Rules) issued as part of the securitization transaction contemplated by the Transaction Documents, determined as of the Series 2025-1 Closing Date using a fair value measurement framework under United States generally accepted accounting principles (such interest, the “Retained Interest”). The Parent will comply or (to the extent permitted by the U.S. Risk Retention Rules) the Parent will cause one or more majority-owned affiliates to comply with all requirements imposed on the sponsor of a securitization transaction by the U.S. Risk Retention Rules for so long as those requirements are applicable. The Parent has determined such fair value of the Retained Interest based on its own valuation methodology, inputs and assumptions and is solely responsible therefor.
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Section 6.03. The Manager.
The Manager represents and warrants to each Investor and the Series 2025-1 Class A-1-V Administrative Agent as of the date hereof that no Manager Termination Event has occurred and is continuing and that its representations, warranties and covenants in the Transaction Documents to which it is a party are true, correct and complete subject to any materiality qualifier set forth therein as of the date on which such representations and warranties are made.
Section 6.04. Investors.
Each of the Investors represents and warrants to the Issuer, the Manager and the Series 2025-1 Class A-1-V Administrative Agent as of the date hereof (or, in the case of a successor or assign of an Investor, as of the subsequent date on which such successor or assign shall become or be deemed to become a party hereto) that:
(a) it has had an opportunity to discuss the Issuer’s and the Manager’s business, management and financial affairs, and the terms and conditions of the proposed purchase of the Series 2025-1 Class A-1-V Notes, with the Issuer and the Manager and their respective representatives;
(b) it is an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act and has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of investing in, and is able and prepared to bear the economic risk of investing in, the Series 2025-1 Class A-1-V Notes;
(c) it is purchasing the Series 2025-1 Class A-1-V Notes for its own account, or for the account of one or more “accredited investors” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act that meet the criteria described in clause (b) above and for which it is acting with complete investment discretion, for investment purposes only and not with a view to a distribution in violation of the Securities Act, subject, nevertheless, to the understanding that the disposition of its property shall at all times be and remain within its control, and neither it nor its Affiliates has engaged in any general solicitation or general advertising within the meaning of the Securities Act, or the rules and regulations promulgated thereunder, with respect to the Series 2025-1 Class A-1-V Notes;
(d) it understands that (i) the Series 2025-1 Class A-1-V Notes have not been and will not be registered or qualified under the Securities Act or any applicable state securities laws or the securities laws of any other jurisdiction and are being offered only in a transaction not involving any public offering within the meaning of the Securities Act and may not be resold or otherwise transferred unless so registered or qualified or unless an exemption from registration or qualification is available and an opinion of counsel shall have been delivered in advance to the Issuer, (ii) the Issuer is not required to register the Series 2025-1 Class A-1-V Notes under the Securities Act or any applicable state securities laws or the securities laws of any other jurisdiction, (iii) any permitted transferee hereunder must meet the criteria in clause (b) above and (iv) any transfer must comply with the provisions of Section 2.02 of the Base Indenture and Section 9.03 or 9.17, as applicable, of this Agreement;
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(e) it will comply with the requirements of Section 6.04(d), above, in connection with any transfer by it of the Series 2025-1 Class A-1-V Notes;
(f) it is not an EU/UK Retail Investor and understand that the offering or selling of the Series 2025-1 Class A-1-V Notes to an EU/UK Retail Investor may be unlawful under Regulation (EU) No 1286/2014 (as amended) (including as it forms part of domestic law in the UK by virtue of the EUWA);
(g) it has complied, and will comply, with all applicable provisions of the FSMA with respect to anything done by it in relation to the Series 2025-1 Class A-1-V Notes in, from or otherwise involving the UK, and it has only communicated or caused to be communicated, and it will only communicate or cause to be communicated, an invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of any Series 2025-1 Class A-1-V Notes, in circumstances in which section 21(1) of the FSMA does not apply to the Issuer or the other Obligors, and (B) it has not offered, sold or otherwise made available, and will not offer, sell or otherwise make available, any Series 2025-1 Class A-1-V Notes to any EU/UK Retail Investor;
(h) it understands that the Series 2025-1 Class A-1-V Notes (other than any Uncertificated Notes) will bear the legend set out in the form of Variable Funding Note attached as Exhibit A to the Series 2025-1 Supplement and be subject to the restrictions on transfer described in such legend;
(i) it will obtain for the benefit of the Issuer from any purchaser of the Series 2025-1 Class A-1-V Notes substantially the same representations and warranties contained in the foregoing paragraphs; and
(j) the acknowledgments and agreements of the Investor set forth in the form of Purchaser’s Letter set forth in Exhibit D attached hereto are true and correct with respect to the Investor as of the Series 2025-1 Closing Date without requiring the delivery of a Purchaser’s Letter by the Investor on the Series 2025-1 Closing Date.
ARTICLE VII
CONDITIONS
Section 7.01. Conditions to Issuance and Effectiveness. Each Investor will have no obligation to purchase the Series 2025-1 Class A-1-V Notes hereunder on the Series 2025-1 Closing Date, and the Commitments will not become effective, unless:
(a) the Base Indenture, the Series 2025-1 Supplement and the other Transaction Documents shall be in full force and effect;
(b) on the Series 2025-1 Closing Date, the Issuer shall have received (i) a letter, in form and substance reasonably satisfactory to the Funding Agents, from Fitch stating that the Series 2025-1 Class A-1-V Notes have received a rating of not less than “A-sf” and (ii) a letter, in form and substance reasonably satisfactory to the Funding Agents, from KBRA stating that the Series 2025-1 Class A-1-V Notes have received a rating of not less than “A- (sf)”; and
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(c) at the time of such issuance, the additional conditions set forth in Schedule III and all other conditions to the issuance of the Series 2025-1 Class A-1-V Notes under the Base Indenture and the Series 2025-1 Supplement shall have been satisfied or waived.
Section 7.02. Conditions to Initial Extensions of Credit. The election of each Conduit Investor to fund, and the obligation of each Committed Note Purchaser to fund, the initial Borrowing hereunder on or after the date hereof shall be subject to the satisfaction of the conditions precedent that (a) each Funding Agent shall have received a duly executed and authenticated Series 2025-1 Class A-1-V Note registered in its name or in such other name as shall have been directed by such Funding Agent and stating that the principal amount thereof shall not exceed the Maximum Investor Group Principal Amount of the related Investor Group (or, in the case of an Uncertificated Note, a Confirmation of Registration with respect thereto) and (b) the Issuer shall have paid all fees required to be paid by it under the Transaction Documents on the Series 2025-1 Closing Date, including the Series 2025-1 Class A-1-V Notes Upfront Fee.
Section 7.03. Conditions to Each Extension of Credit. The election of each Conduit Investor to fund, and the obligation of each Committed Note Purchaser to fund, any Borrowing on any day (including the initial Borrowing on or after the Series 2025-1 Closing Date, but excluding any Advances to repay L/C Obligations pursuant to Section 2.05(b), 2.06 or 2.07, as applicable) and the obligations of any Letter of Credit Provider to provide any Letter of Credit (including the initial one) respectively, shall be subject to the conditions precedent that on the date of such funding or provision, before and after giving effect thereto and to the application of any proceeds therefrom, the following statements shall be true (without regard to any waiver, amendment or other modification of this Section 7.03 or any definitions used herein consented to by the Controlling Class Representative unless Investors holding more than (i) if no single Investor Group holds 50% or more of the Commitments, 50% of the Commitments or (ii) if a single Investor Group holds 50% or more of the Commitments, two thirds of the Commitments (provided that the Commitment of any Defaulting Investor shall be disregarded in the determination of whether any threshold percentage of Commitments has been met under this Section 7.03) have consented to such waiver, amendment or other modification for purposes of this Section 7.03; provided, further, that if the second proviso to the first sentence of Section 9.01 is applicable to such waiver, amendment or other modification, then consent to such waiver, amendment or other modification from the Persons required by such second proviso shall also be required for purposes of this Section 7.03):
(a) no Default, Event of Default, Manager Termination Event, Amortization Period, Cash Trap Condition or Cash Sweep Condition will be in existence at the time of, or after giving effect to, such draw;
(b) after giving effect to such draw, the following conditions will be satisfied as of the last day of the calendar month immediately preceding the date of such draw:
(i) the Senior DSCR calculated giving pro forma effect to such draw is greater than or equal to 1.70x;
(ii) the Class A Leverage Ratio calculated giving pro forma effect to such draw does not exceed 6.25x; and
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(iii) the Series 2025-1 Class A-1-V Outstanding Principal Amount does not exceed the Series 2025-1 Class A-1-V Notes Maximum Principal Amount after giving effect to any reduction thereto pursuant to Section 2.05;
(c) all Series 2025-1 Class A-1-V Undrawn Fees and the Indenture Trustee Fees, together with all other amounts due and payable on or prior to the date of such draw pursuant to this Agreement, shall have been paid in full on or prior to such date;
(d) the Issuer shall have delivered or have been deemed to have delivered to the Funding Agents (with a copy to the Series 2025-1 Class A-1-V Administrative Agent and the Indenture Trustee):
(i) an executed advance request in the form of Exhibit A hereto with respect to such Borrowing (each such request, an “Advance Request” or a “Series 2025-1 Class A-1-V Advance Request”), no later than 12:00 p.m. (New York City Time) two (2) Business Days (or, with respect to the Series 2025-1 Closing Date, one (1) Business Day) prior to the date of such Borrowing (unless a shorter period is agreed upon by each of the Funding Agents), which date of Borrowing shall be a Business Day during the Commitment Term; and
(ii) a calculation of the conditions set forth in Section 7.03(b) in Microsoft excel format and any other information reasonably requested by the Funding Agents or the Series 2025-1 Class A-1-V Administrative Agent to confirm compliance with the conditions set forth in Section 7.03(b);
(e) the Issuer shall have furnished to the Series 2025-1 Class A-1-V Administrative Agent true, accurate and complete copies of all other Transaction Documents (excluding any Series Supplements and other Transaction Documents relating solely to a Series other than the Series 2025-1 Notes) to which the Manager, the Guarantor, the Issuer or any Asset Entity is a party as of the Series 2025-1 Closing Date that has not been previously delivered pursuant to Section 7.01(c), all of which Transaction Documents are in full force and effect as of the Series 2025-1 Closing Date and no terms of any such agreements or documents have been amended, modified or otherwise waived as of such date except as permitted under the Indenture;
(f) the representations and warranties of each of the Parent, the Manager and the Obligors set out in this Agreement are true and correct (i) if qualified as to materiality or Material Adverse Effect, in all respects and (ii) if not qualified as to materiality or Material Adverse Effect, in all material respects, as of the date of such draw, with the same effect as though made on that date (unless stated to relate, or should reasonably be read to relate, solely to an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date);
(g) each representation and warranty made by the Manager in any Transaction Document (other than a Transaction Document relating solely to a Series of Notes other than the Series 2025-1 Notes) to which the Manager is a party (including any representations and warranties made by it in its capacity as Manager) is true and correct (a) if not qualified as to materiality or Material Adverse Effect, in all material respects and (b) if qualified as to materiality or Material Adverse Effect, in all respects as of the date originally made and as of the date hereof (unless stated to relate, or should reasonably be read to relate, solely to an earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date);
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(h) the applicable Asset Entity shall have filed the applicable “transmitting utility” UCC financing statement in the applicable filing office of each jurisdiction the Fiber Networks are located in; and
(i) all conditions to such extension of credit or provision specified in Section 2.02 or 2.03 of this Agreement, as applicable, shall have been satisfied.
The giving of any notice pursuant to Section 2.03 shall constitute a representation and warranty by the Issuer and the Manager that all conditions precedent to such funding or provision have been satisfied or will be satisfied concurrently therewith.
Notwithstanding any other provision set forth in this Agreement, a Rating Agency Confirmation must be obtained in connection with any waiver of (a) and (b) above.
Section 7.04. Conditions to Extension of Series 2025-1 Class A-1-V Anticipated Repayment Date.
(a) The Series 2025-1 Class A-1-V Anticipated Repayment Date shall be the Payment Date occurring in December 2029 unless extended as provided below in this Section 7.04. The Series 2025-1 Class A-1-V Anticipated Repayment Date shall be the Anticipated Repayment Date for the Series 2025-1 Class A-1-V Notes.
(b) Extension Election. Subject to the conditions set forth in Section 7.04(c), the Issuer, or the Manager acting on behalf of the Issuer, shall have the option on or before the Payment Date occurring in December 2029 to elect (the “Series 2025-1 Class A-1-V Extension Election”) to extend the Series 2025-1 Class A-1-V Anticipated Repayment Date to the Payment Date occurring in December 2030 by delivering written notice to each of the Series 2025-1 Class A-1-V Administrative Agent, the Indenture Trustee and the Servicer to the effect that the conditions precedent to such Series 2025-1 Class A-1-V Extension Election set forth in Section 7.04(c) are satisfied as of the date of the notice and acknowledging that such conditions precedent to such Series 2025-1 Class A-1-V Extension Election set forth in Section 7.04(c) are required to be effective at the time of, and after giving effect to, such extension as a condition to the extension. Upon such extension, the Payment Date occurring in December 2030 shall become the Series 2025-1 Class A-1-V Anticipated Repayment Date.
(c) Conditions Precedent to Extension Election. It shall be a condition to the effectiveness of the Series 2025-1 Class A-1-V Extension Elections that, in the case of the Series 2025-1 Class A-1-V Extension Election, on the Payment Date occurring in December 2029, that:
(i) the Issuer, or the Manager acting on behalf of the Issuer, has delivered written notice to each of the Series 2025-1 Class A-1-V Administrative Agent, the Indenture Trustee and the Servicer in the manner provided in Section 7.04(b) not more than 120 days and not less than 60 days prior to the then-current Series 2025-1 Class A-1-V Anticipated Repayment Date;
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(ii) no Default, Event of Default, Manager Termination Event, Amortization Period, Cash Trap Condition or Cash Sweep Condition will be occurring and continuing at the time of or immediately following the exercise of such extension right;
(iii) either, (x) Rating Agency Confirmation and consent of each holder of Series 2025-1 Class A-1-V Notes is obtained or (y) after giving effect to such extension, the following conditions must be satisfied:
(A) the pro forma Senior DSCR as of the last day of the calendar month immediately preceding the date of such extension is greater than or equal to 1.70x;
(B) the pro forma Class A Leverage Ratio as of the last day of the calendar month immediately preceding the date of such extension does not exceed 6.25x; and
(C) the Class Principal Balance with respect to the Series 2025-1 Class A-1-V Notes does not exceed the Series 2025-1 Class A-1-V Notes Maximum Principal Amount after giving effect to any reduction thereto pursuant to Section 2.05;
(iv) the rating assigned to the Series 2025-1 Class A-1-V Notes by any Rating Agency has not been downgraded below “A- (sf)” by KBRA or “A-sf” by Fitch or withdrawn;
(v) all Series 2025-1 Class A-1-V Extension Fees, Series 2025-1 Class A-1-V Undrawn Fees, together with all other amounts due and payable on or prior to the date of such Class A-1-V Extension Election pursuant to this Agreement, shall have been paid in full on or prior to such date;
(vi) the representations and warranties of each of the Obligors and the Manager set out in this Agreement are true and correct (A) if qualified as to materiality or Material Adverse Effect, in all respects and (B) if not qualified as to materiality or Material Adverse Effect, in all material respects, as of the date of such extension, with the same effect as though made on that date (unless stated to relate, or should reasonably be read to relate, solely to an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date); and
(vii) each representation and warranty made by the Manager in any Transaction Document (other than a Transaction Document relating solely to a Series other than the Series 2025-1 Notes) to which the Manager is a party (including any representations and warranties made by it in its capacity as Manager) is true and correct (a) if not qualified as to materiality or Material Adverse Effect, in all material respects and (b) if qualified as to materiality or Material Adverse Effect, in all respects as of the date originally made and as of the date hereof (unless stated to relate, or should reasonably be read to relate, solely to an earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date).
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Any notice given pursuant to Section 7.04(b) shall be irrevocable; provided that if the conditions set forth in this Section 7.04(c) are not met as of the applicable extension date, the election set forth in such notice shall automatically be deemed ineffective. For the avoidance of doubt, no consent of the Indenture Trustee, the Servicer, the Series 2025-1 Class A-1-V Administrative Agent, the Controlling Class Representative or any Noteholder shall be necessary for the effectiveness of the Series 2025-1 Class A-1-V Extension Elections.
ARTICLE VIII
COVENANTS
Section 8.01. Covenants of the Manager, the Issuer and the Asset Entities. Each of the Manager, the Issuer and the Asset Entities jointly and severally covenants and agrees that, until the Series 2025-1 Class A-1-V Notes and all Aggregate Unpaids have been paid in full and the Commitments and the L/C Commitment have been terminated, it will:
(a) unless waived in writing in the manner provided in the Transaction Documents, duly and timely perform all of its covenants (both affirmative and negative) and obligations under each Transaction Document to which it is a party;
(b) not amend, modify, waive or give any approval, consent or permission under any provision of the Indenture or any other Transaction Document to which it is a party unless any such amendment, modification, waiver or other action is in writing and made in accordance with the terms of the Indenture or such other Transaction Document, as applicable;
(c) reasonably concurrently with the time any report, notice or other document is provided to the Rating Agencies and/or the Indenture Trustee, or caused to be provided, by the Issuer or the Manager under the Base Indenture (including, without limitation, under Section 7.02 thereof) or under the Series 2025-1 Supplement, provide to each of the Series 2025-1 Class A-1-V Administrative Agent and each Funding Agent with a copy of such report, notice or other document;
(d) once per calendar year, following reasonable prior notice from Funding Agents acting on behalf of Investor Groups holding more than 50% of the Commitments (the “Annual Inspection Notice”), and during regular business hours, permit any Funding Agent or any of its agents, representatives or permitted assigns, at the Issuer’s expense, access (as a group, and not individually unless only one such Person desires such access) to the offices of the Manager, the Guarantor, the Issuer and the Asset Entities, (i) to examine and make copies of and abstracts from all documentation relating to the Collateral on the same terms as are provided to the Indenture Trustee under Section 7.07 of the Base Indenture, and (ii) to visit the offices and properties of the Manager, the Guarantor, the Issuer and the Asset Entities for the purpose of examining such materials described in clause (i) above, and to discuss matters relating to the Collateral, or the administration and performance of the Base Indenture, the Series 2025-1 Supplement and the other Transaction Documents with any of the officers or employees or managers of the Manager, the Guarantor, the Issuer and/or any Asset Entity, as applicable, having knowledge of such matters; provided, however, that upon the occurrence and during the continuation of an Amortization Period or Event of Default, any Funding Agent or any of its agents, representatives or permitted assigns, at the Issuer’s expense may do any of the foregoing at any time during normal business hours and without advance notice; provided, further, that, in addition to any visits made pursuant to provision of an Annual Inspection Notice or during the continuation of an Amortization Period or Event of Default, any Funding Agent or any of its agents, representatives or permitted assigns, at their own expense, may do any of the foregoing at any time during normal business hours following reasonable prior notice with respect to the business of the Manager, the Guarantor, the Issuer and/or any Asset Entity;
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(e) not take, or cause to be taken, any action, including, without limitation, acquiring any margin stock (as such term is defined under the regulations of the Board of Governors of the Federal Reserve System, “Margin Stock”), that could cause the transactions contemplated by the Transaction Documents to fail to comply with the regulations of the Board of Governors of the Federal Reserve System, including Regulations T, U and X thereof;
(f) not permit any amounts owed with respect to the Series 2025-1 Class A-1-V Notes to be secured, directly or indirectly, by any Margin Stock in a manner that would violate the regulations of the Board of Governors of the Federal Reserve System, including Regulations T, U and X thereof;
(g) promptly provide such additional financial and other information with respect to the Transaction Documents (other than Series Supplements and Transaction Documents relating solely to a Series of Notes other than the Series 2025-1 Notes), the Manager, the Guarantor, the Issuer or the Asset Entities as any of the Funding Agents may from time to time reasonably request;
(h) promptly following any request therefor, provide information and documentation reasonably requested by the Series 2025-1 Class A-1-V Administrative Agent or any Investor for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation;
(i) if the Issuer acquires any direct or indirect wholly-owned subsidiaries following the date hereof, the Issuer shall cause such partly or wholly-owned subsidiary to become a party to this Agreement as an Asset Entity hereunder (in such capacity, an “Additional Asset Entity”) pursuant to a joinder agreement (a “Joinder Agreement”) delivered pursuant to Section 2.12(a) of the Base Indenture. Any Additional Asset Entity shall be an Asset Entity for all purposes of this Agreement on and after the effective date of the Joinder Agreement executed and delivered by such Additional Asset Entity and the other parties thereto including, without limitation, for purposes of the representations, warranties and covenants made by the Asset Entities hereunder;
(j) the Parent or (to the extent permitted by the U.S. Risk Retention Rules) one or more “majority-owned affiliates” (as defined in the U.S. Risk Retention Rules) acknowledges and agrees that the Parent will continue to comply with all requirements with respect to the securitization transaction contemplated by the Transaction Documents imposed on the sponsor of a securitization transaction by the U.S. Risk Retention Rules, including having made all disclosures required to be made to the Series 2025-1 Class A-1-V Noteholders on or prior to the date hereof as set forth in Part I of Schedule IV attached hereto and the additional disclosures required to be made in the first Manager Report to be delivered to the Series 2025-1 Class A-1-V Noteholders pursuant to the Base Indenture and the Series 2025-1 Supplement following the Series 2025-1 Closing Date set forth in Part II of Schedule IV attached hereto, for so long as those requirements are applicable, including holding the Retained Interest for the duration required in the U.S. Risk Retention Rules without any impermissible hedging, transfer or financing of the Retained Interest; and
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(k) the Issuer acknowledges and agrees that the Issuer is and will be solely responsible for compliance with the disclosure requirements of the U.S. Risk Retention Rules, including the contents of all such disclosures (including, without limitation, in Part I of Schedule IV attached hereto).
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendments.
(a) Subject to Section 3.04(b), no amendment to or waiver or other modification of any provision of this Agreement, nor consent to any departure therefrom by the Issuer or the Manager, shall in any event be effective unless the same shall be in writing and signed by the Issuer with the written consent of (A) the Series 2025-1 Class A-1-V Administrative Agent (acting at the direction of the Funding Agents) and (B) the Required Investors; provided that the Commitment of any Defaulting Investor shall be disregarded in the determination of whether such threshold percentage of Commitments has been met; provided, however, that, in addition, (i) the prior written consent of each affected Investor shall be required in connection with any amendment, modification or waiver that (x) increases the amount of the Commitment of such Investor, extends the Commitment Termination Date or the Series 2025-1 Class A-1-V Anticipated Repayment Date (other than pursuant to Section 7.04), modifies the conditions to funding the Commitment or otherwise subjects such Investor to any increased or additional duties or obligations hereunder or in connection herewith (it being understood and agreed that waivers or modifications of conditions precedent, covenants, Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Investor), (y) reduces the amount or delays the timing of payment of any principal, interest, fees or other amounts payable to such Investor hereunder or (z) would have an effect comparable to any of those set forth in Section 13.02 of the Base Indenture that require the consent of each Noteholder or each affected Noteholder; (ii) any amendment, modification or waiver that affects the rights or duties of the Series 2025-1 Class A-1-V Administrative Agent, any Letter of Credit Provider or the Funding Agents shall require the prior written consent of such affected Person; and (iii) the prior written consent of each Investor, the Series 2025-1 Class A-1-V Administrative Agent (acting on behalf of the Funding Agents), each Letter of Credit Provider and each Funding Agent shall be required in connection with any amendment, modification or waiver of this Section 9.01. Commitments (other than the Commitments of any Defaulting Investor) shall be deemed to be fully drawn for purposes of any provision of the Indenture or the other Transaction Documents relating to any vote, consent, direction or the like to be given by the Series 2025-1 Class A-1-V Noteholders as the Series 2025-1 Class A-1-V Noteholders or as Noteholders; such vote, consent, direction or the like shall be given by the Holders of the Series 2025-1 Class A-1-V Advance Notes only and not by the Holders of any 2025-1 Class A-1-V L/C Notes except to the extent that such vote, consent, direction or the like is to be given by each Required Investor and the Holders of any Series 2025-1 Class A-1-V L/C Notes would be affected thereby. In addition, the provisions of Section 6.01(a) (with respect to the reference to Section 6.05 of the Base Indenture) may not be amended or waived without confirmation from any Rating Agency that the rating of the commercial paper notes of each Conduit Investor then rated by it will not be reduced or withdrawn as a result thereof.
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(b) Each Committed Note Purchaser will notify the Issuer in writing whether or not it will consent to a proposed amendment, waiver or other modification of this Agreement and, if applicable, any condition to such consent, waiver or other modification. If a Committed Note Purchaser notifies the Issuer in writing that such Committed Note Purchaser either (I) will not consent to an amendment to or waiver or other modification of any provision of this Agreement or (II) conditions its consent to such an amendment, waiver or other modification of any provision of this Agreement upon the payment of an amendment fee, the Issuer may replace every member (but not any subset thereof) of such Committed Note Purchaser’s entire Investor Group by giving written notice to each member of such Investor Group designating one or more Persons that are willing and able to purchase each member of such Investor Group’s rights and obligations under this Agreement for a purchase price that with respect to each such member of such Investor Group will equal the amount owed to each such member of such Investor Group with respect to the Series 2025-1 Class A-1-V Advance Notes (whether arising under the Base Indenture, the Series 2025-1 Supplement, this Agreement, the Series 2025-1 Class A-1-V Advance Notes or otherwise). Upon receipt of such written notice, each member of such Investor Group shall assign its rights and obligations under this Agreement pursuant to and in accordance with Sections 9.17(a), (b) and (c), as applicable, in consideration for such purchase price and at the reasonable expense of the Issuer (including, without limitation, the reasonable documented fees and out-of-pocket expenses of counsel to each such member); provided, however, that no member of such Investor Group shall be obligated to assign any of its rights and obligations under this Agreement if the purchase price to be paid to such member is not at least equal to the amount owed to such member with respect to the Series 2025-1 Class A-1-V Advance Notes (whether arising under the Base Indenture, the Series 2025-1 Supplement, this Agreement, the Series 2025-1 Class A-1-V Notes or otherwise).
(c) The Issuer and the Investors shall negotiate any amendments, waivers, consents, supplements or other modifications to this Agreement or the other Transaction Documents that require the consent of the Investors in good faith. Pursuant to Section 9.05(a), the Investors shall be entitled to reimbursement by the Issuer for the reasonable expenses incurred by the Investors in reviewing and approving any such amendment, waiver, consent, supplement or other modification to this Agreement or any Transaction Document. The Issuer agrees to provide notice to each Investor Group of any amendment to this Agreement, regardless of whether the consent of such Investor is required for such amendment to become effective.
(d) Notwithstanding anything herein to the contrary, any amendment to this Agreement which has the effect of increasing the Series 2025-1 Class A-1-V Notes Maximum Principal Amount shall be deemed not to be an issuance of Additional Notes, but shall otherwise be subject to the satisfaction of the conditions set forth in clauses (B) and (C) of Section 2.12(d) of the Base Indenture.
Section 9.02. No Waiver; Remedies. Any waiver, consent or approval given by any party hereto shall be effective only in the specific instance and for the specific purpose for which given, and no waiver by a party of any breach or default under this Agreement shall be deemed a waiver of any other breach or default. No failure on the part of any party hereto to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder, or any abandonment or discontinuation of steps to enforce the right, power or privilege, preclude any other or further exercise thereof or the exercise of any other right. No notice to or demand on any party hereto in any case shall entitle such party to any other or further notice or demand in the same, similar or other circumstances. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
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Section 9.03. Binding on Successors and Assigns.
(a) This Agreement shall be binding upon, and inure to the benefit of, the Issuer, the Manager, the Investors, the Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and their respective successors and assigns; provided, however, that neither the Issuer nor the Manager may assign its rights or obligations hereunder or in connection herewith or any interest herein (voluntarily, by operation of law or otherwise) without the prior written consent of each Investor (other than any Defaulting Investor); provided further that nothing herein shall prevent the Issuer from assigning its rights (but none of its duties or liabilities) to the Indenture Trustee under the Base Indenture and the Series 2025-1 Supplement; and provided, further, that none of the Investors may transfer, pledge, assign, sell participations in or otherwise encumber its rights or obligations hereunder or in connection herewith or any interest herein except as permitted under Section 6.04 or Section 9.17 or this Section 9.03. Nothing expressed herein is intended or shall be construed to give any Person other than the Persons referred to in the preceding sentence any legal or equitable right, remedy or claim under or in respect of this Agreement except as provided in Section 9.16.
(b) Notwithstanding any other provision set forth in this Agreement, each Investor may at any time grant to one or more Program Support Providers a participating interest in or lien on such Investor’s interests in the Advances made hereunder and such Program Support Provider, with respect to its participating interest, shall be entitled to the benefits granted to such Investor under this Agreement. In addition, any Investor may at any time sell participations to any Person in all or a portion of such Investor’s rights and/or obligations under this Agreement, the Series 2025-1 Class A-1-V Notes and the Advances made thereunder and, in connection therewith, any other Transaction Documents to which it is a party, and such participant, with respect to its participating interest, shall be entitled to the benefits granted to such Investor under this Agreement; provided that (i) such Investor’s obligations under this Agreement shall remain unchanged, (ii) such Investor shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Issuer, the Series 2025-1 Class A-1-V Administrative Agent and each other Investor shall continue to deal solely and directly with such Investor in connection with such Investor’s rights and obligations under this Agreement; provided, further, that such participant shall not be entitled to receive any greater payment under Section 3.05, 3.07 or 3.08, with respect to any participation, than its participating Investor would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from Change in Law that occurs after the participant acquired the applicable participation. Each Investor that sells a participating interest shall, acting solely for this purpose as a nonfiduciary agent of the Issuer, maintain a register on which it enters the name and address of each related participant and the applicable portions of the Series 2025-1 Class A-1-V Outstanding Principal Amount (and stated interest) relating to such participant; provided that no Investor shall have any obligation to disclose all or any portion of such register to any Person except to the extent that such disclosure is necessary to establish that the relevant Series 2025-1 Class A-1-V Notes are in registered form under Treasury Regulations Section 5f.103-1(c) and Proposed Treasury Regulations Section 1.163-5(b) (or any successor version).
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(c) In addition to its rights under Section 9.17, each Conduit Investor may at any time assign its rights in the Series 2025-1 Class A-1-V Advance Notes (and its rights hereunder and under the Transaction Documents) to its related Committed Note Purchaser or, subject to Section 6.03 and Section 9.17(d), its related Program Support Provider or any Affiliate of any of the foregoing, in each case in accordance with the applicable provisions of the Indenture. Furthermore, each Conduit Investor may at any time grant a security interest in and lien on, all or any portion of its interests under this Agreement, its Series 2025-1 Class A-1-V Note and all Transaction Documents to (i) its related Committed Note Purchaser, (ii) its Funding Agent, (iii) any Program Support Provider who, at any time now or in the future, provides program liquidity or credit enhancement, including, without limitation, an insurance policy for such Conduit Investor relating to the Commercial Paper or the Series 2025-1 Class A-1-V Advance Notes, (iv) any other Person who, at any time now or in the future, provides liquidity or credit enhancement for the Conduit Investors, including, without limitation, an insurance policy relating to the Commercial Paper or the Series 2025-1 Class A-1-V Advance Notes, (v) any collateral trustee or collateral agent for any of the foregoing or (vi) a trustee or collateral agent for the benefit of the holders of the commercial paper notes or other senior indebtedness of such Conduit Investor appointed pursuant to such Conduit Investor’s program documents; provided, however, that any such security interest or lien shall be released upon assignment of its Series 2025-1 Class A-1-V Note to its related Committed Note Purchaser. Each Committed Note Purchaser may assign its Commitment, or all or any portion of its interest under its Series 2025-1 Class A-1-V Note, this Agreement and the Transaction Documents to any Person to the extent permitted by Section 9.17. Notwithstanding any other provisions set forth in this Agreement, each Committed Note Purchaser may at any time create a security interest in all or any portion of its rights under this Agreement, its Series 2025-1 Class A-1-V Note and the Transaction Documents in favor of any Federal Reserve Bank in accordance with Regulation A of the F.R.S. Board or any similar foreign entity.
Section 9.04. Survival of Agreement. All covenants, agreements, representations and warranties made herein and in the Series 2025-1 Class A-1-V Notes delivered pursuant hereto shall survive the making and the repayment of the Advances and the execution and delivery of this Agreement and the Series 2025-1 Class A-1-V Notes and shall continue in full force and effect until all interest on and principal of the Series 2025-1 Class A-1-V Notes, and all other amounts owed to the Investors, the Funding Agents and the Series 2025-1 Class A-1-V Administrative Agent hereunder and under the Series 2025-1 Supplement have been paid in full, all Letters of Credit have expired or terminated and the Commitments and the L/C Commitment have been terminated. In addition, the obligations of the Issuer and the Investors under Sections 3.05, 3.06, 3.07, 3.08, 9.05, 9.10 and 9.11 shall survive the termination of this Agreement.
Section 9.05. Payment of Costs and Expenses; Indemnification.
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(a) Payment of Costs and Expenses. The Obligors jointly and severally agree to pay (by depositing such amounts into the applicable account maintained pursuant to the Indenture be distributed subject to and in accordance with the Priority of Payments), on the Series 2025-1 Closing Date (if invoiced at least one (1) Business Day prior to such date) or on or before the next succeeding Payment Date immediately after written demand (in all other cases), all reasonable and documented out-of-pocket expenses of the Series 2025-1 Class A-1-V Administrative Agent, each initial Funding Agent, the Letter of Credit Provider and each L/C Issuing Bank and each initial Investor (including the reasonable fees and out-of-pocket expenses of one external counsel for the Series 2025-1 Class A-1-V Administrative Agent, if any, and one external counsel for the initial Investors (but excluding, for the avoidance of doubt, fees and expenses, whether allocated or otherwise, in respect of in-house counsel), as well as the fees and expenses of the Rating Agencies) in connection with (i) the negotiation, preparation, execution and delivery of this Agreement and of each other Transaction Document, including schedules and exhibits, whether or not the transactions contemplated hereby or thereby are consummated (including, without limitation, such reasonable and documented out-of-pocket expenses for the Committed Note Purchasers’ due diligence investigation, consultants’ fees and travel expenses and fees incurred on or before the Series 2025-1 Closing Date to the extent invoiced at least one (1) Business Day prior to such date), the administration of this Agreement and of each other Transaction Document and the taking of any other action (whether through negotiations, through any work-out, bankruptcy, restructuring or other legal or other proceeding (including, without limitation, preparation for and/or response to any subpoena or request for document production relating thereto) or otherwise) in respect of, or legal advice with respect to its rights or responsibilities under, this Agreement and of each other Transaction Document; and (ii) any amendments, waivers, consents, supplements or other modifications to this Agreement or any other Transaction Document as may from time to time hereafter be proposed by the Manager or the Obligors (the “Class A-1-V Amendment Expenses”). Each of the Issuer and the Asset Entities further jointly and severally agrees to pay, subject to and in accordance with the Priority of Payments, and to hold the Series 2025-1 Class A-1-V Administrative Agent, each Funding Agent and each Investor harmless from all liability for (x) any breach by the Issuer of its obligations under this Agreement, (y) all reasonable and documented out-of-pocket expenses incurred by the Series 2025-1 Class A-1-V Administrative Agent, such Funding Agent or such Investor including the reasonable fees and out-of-pocket expenses of counsel to each of the foregoing, including, for the avoidance of doubt, fees and expenses of in-house counsel, if any, in enforcing this Agreement or in connection with the negotiation of any restructuring or “work-out”, whether or not consummated, of the Transaction Documents and (z) any Non-Excluded Taxes that may be payable in connection with (1) the execution or delivery of this Agreement, (2) any Borrowing hereunder, (3) the issuance of the Series 2025-1 Class A-1-V Notes, (4) the issuance of any Letter of Credit hereunder or (5) the execution or delivery of any other Transaction Documents. Each of the Issuer and the Asset Entities also jointly and severally agrees to reimburse, subject to and in accordance with the Priority of Payments, the Series 2025-1 Class A-1-V Administrative Agent, such Funding Agent and Investor upon demand for all reasonable out-of-pocket expenses incurred by the Series 2025-1 Class A-1-V Administrative Agent, such Funding Agent and such Investor in connection with the enforcement of this Agreement or any other Transaction Documents. Notwithstanding the foregoing, other than in connection with a sale or assignment pursuant to Section 9.18(a), none of the Issuer nor the Asset Entities shall have any obligation to reimburse any Investor for any of the fees and/or expenses incurred by such Investor with respect to its sale or assignment of all or any part of its respective rights and obligations under this Agreement and the Series 2025-1 Class A-1-V Notes pursuant to Section 9.03 or Section 9.17.
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(b) Indemnification of the Investors. In consideration of the execution and delivery of this Agreement by the Investors, each of the Issuer and the Asset Entities hereby agrees to jointly and severally indemnify and hold each Investor, each Funding Agent and the Series 2025-1 Class A-1-V Administrative Agent (each in its capacity as such) and each of their respective affiliates, officers, directors, employees and agents (collectively, the “Indemnified Parties”) harmless (by depositing such amounts into the Collection Account to be distributed subject to and in accordance with the Priority of Payments) from and against any and all fees, actions, causes of action, suits, losses, liabilities and damages (other than Class A-1-V Taxes which shall be addressed in the manner set forth in Section 3.08), and reasonable and documented costs and expenses incurred in connection therewith (irrespective of whether any such Indemnified Party is a party to the action for which indemnification hereunder is sought and including, without limitation, any liability in connection with the offering and sale of the Series 2025-1 Class A-1-V Notes), including reasonable and documented attorneys’ fees and disbursements and those amounts in connection with any action, claim or suit brought to enforce the Indemnified Parties’ right to indemnification (collectively, the “Indemnified Liabilities” and the amounts payable to the Indemnified Parties pursuant to this Section 9.05(b) being referred to herein as the “Class A-1-V Indemnities”), incurred by the Indemnified Parties or any of them (whether in prosecuting or defending against such actions, suits or claims) to the extent resulting from, or arising out of, or relating to:
(i) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of any Advance or Letter of Credit; or
(ii) the entering into and performance of this Agreement and any other Transaction Document by any of the Indemnified Parties; or
(iii) any breach of a representation, warranty, covenant or agreement made by the Manager, the Issuer or the Asset Entities hereunder;
except for any such Indemnified Liabilities arising for the account of a particular Indemnified Party by reason of the relevant Indemnified Party’s gross negligence, bad faith or willful misconduct or breach of representations set forth herein as determined by a final, non-appealable judgment of a court of competent jurisdiction. If and to the extent that the foregoing undertaking may be unenforceable for any reason, each of the Issuer and the Asset Entities hereby jointly and severally agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities that is permissible under applicable law.
(c) Indemnification of the Series 2025-1 Class A-1-V Administrative Agent and each Funding Agent. In consideration of the execution and delivery of this Agreement by the Series 2025-1 Class A-1-V Administrative Agent and the related Funding Agent, each Committed Note Purchaser, ratably according to its respective Commitment, hereby agrees to indemnify and hold the Series 2025-1 Class A-1-V Administrative Agent and each of their respective affiliates, officers, directors, employees and agents (the “Series 2025-1 Class A-1-V Administrative Agent Indemnified Parties”) and such Funding Agent and each of its affiliates, officers, directors, employees and agents (collectively, the “Funding Agent Indemnified Parties,” and together with the Series 2025-1 Class A-1-V Administrative Agent Indemnified Parties, the “Applicable Agent Indemnified Parties”) harmless from and against any and all fees, actions, causes of action, suits, losses, liabilities and damages, and reasonable costs and expenses incurred in connection therewith (solely to the extent not reimbursed by or on behalf of the Issuer or the Asset Entities) (irrespective of whether any such Applicable Agent Indemnified Party is a party to the action for which indemnification hereunder is sought and including, without limitation, any liability in connection with the offering and sale of the Series 2025-1 Class A-1-V Notes), including reasonable attorneys’ fees and disbursements and those amounts in connection with any action, claim or suit brought to enforce the Applicable Agent Indemnified Parties’ right to indemnification (collectively, the “Applicable Agent Indemnified Liabilities”), incurred by the Applicable Agent Indemnified Parties or any of them (whether in prosecuting or defending against such actions, suits or claims) to the extent resulting from, or arising out of, or relating to the entering into and performance of this Agreement and any other Transaction Document by any of the Applicable Agent Indemnified Parties, except for any such Applicable Agent Indemnified Liabilities arising for the account of a particular Applicable Agent Indemnified Party by reason of the relevant Applicable Agent Indemnified Party’s gross negligence or willful misconduct. If and to the extent that the foregoing undertaking may be unenforceable for any reason, each Committed Note Purchaser, ratably according to its respective Commitment, hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Applicable Agent Indemnified Liabilities that is permissible under applicable law. The indemnity set forth in this Section 9.05(c) shall in no event include indemnification for consequential or indirect damages of any kind.
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Section 9.06. Characterization as Transaction Document; Entire Agreement. This Agreement shall be deemed to be a Transaction Document for all purposes of the Indenture and the other Transaction Documents. This Agreement, together with the Base Indenture, the Series 2025-1 Supplement, the documents delivered pursuant to Article VII and the other Transaction Documents, including the exhibits and schedules thereto, contains a final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof, superseding all previous oral statements and other writings with respect thereto.
Section 9.07. Notices. All notices, amendments, waivers, consents and other communications provided to any party hereto under this Agreement shall be in writing and addressed, delivered or transmitted to such party at its address, or e-mail address set forth below its signature hereto, in the case of the Issuer or the Manager, or on Schedule II attached hereto, in the case of the Investors, the Series 2025-1 Class A-1-V Administrative Agent and the Funding Agents, or in each case at such other address or e-mail address as may be designated by such party in a notice to the other parties. Any notice, if mailed and properly addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall be deemed given when received; any notice, if transmitted by e-mail, shall be deemed given when received.
Section 9.08. Severability of Provisions. Any covenant, provision, agreement or term of this Agreement that is prohibited or is held to be void or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of the prohibition or unenforceability without invalidating the remaining provisions of this Agreement.
Section 9.09. Tax Characterization(a). (a) Each party to this Agreement (i) acknowledges that it is the intent of the parties to this Agreement that, for accounting purposes and for all United States tax purposes, the Series 2025-1 Class A-1-V Notes will be treated as indebtedness, (ii) agrees to treat the Series 2025-1 Class A-1-V Notes for all such purposes as indebtedness and (iii) agrees that the provisions of the Transaction Documents shall be construed to further these intentions.
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(b) Each Series 2025-1 Class A-1-V Noteholder shall, acting solely for this purpose as an agent of the Issuer, maintain a register on which it enters the name and address of each related Investor (and, if applicable, Program Support Provider) and the applicable portions of the Series 2025-1 Class A-1-V Outstanding Principal Amount (and stated interest) with respect to such Series 2025-1 Class A-1-V Noteholder of each Investor (and, if applicable, Program Support Provider) that has an interest in such Series 2025-1 Class A-1-V Noteholder’s Series 2025-1 Class A-1-V Notes (the “Series 2025-1 Class A-1-V Notes Register”); provided that no Series 2025-1 Class A-1-V Noteholder shall have any obligation to disclose all or any portion of the Series 2025-1 Class A-1-V Notes Register to any Person except to the extent that such disclosure is necessary to establish that such Series 2025-1 Class A-1-V Notes are in registered form under Treasury Regulations Section 5f.103-1(c) and Proposed Treasury Regulations Section 1.163-5(b) (or any successor version). The entries in the Series 2025-1 Class A-1-V Notes Register shall be conclusive absent manifest error, and the Issuer, each Series 2025-1 Class A-1-V Noteholder and the Investors shall treat each Person whose name is recorded in the Series 2025-1 Class A-1-V Notes Register pursuant to the terms hereof as an Investor hereunder for all purposes of this Agreement. For the avoidance of doubt, the parties intend that any interest in or with respect to a Series 2025-1 Class A-1-V Note be treated as being issued and maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2), and 881(c)(2) of the Code and any regulations thereunder (and any successor provisions), including without limitation under Treasury Regulations Section 5f.103-1(c) and Proposed Treasury Regulations Section 1.163-5(b) (or any successor version), and the provisions of this Agreement shall be construed in a manner that gives effect to such intent.
Section 9.10. No Proceedings; Limited Recourse.
(a) The Obligors. Each of the parties hereto (other than the Issuer) hereby covenants and agrees that, prior to the date that is one year and one day after the payment in full of the last maturing Note issued by the Issuer pursuant to the Indenture, it will not institute against, or join with any other Person in instituting against, any Obligor, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings, under any federal or state bankruptcy or similar law and subject to any retained rights set forth therein; provided, however, that nothing in this Section 9.10(a) shall constitute a waiver of any right to indemnification, reimbursement or other payment from the Obligors pursuant to this Agreement, the Series 2025-1 Supplement, the Base Indenture or any other Transaction Document. In the event that an Investor (solely in its capacity as such) takes action in violation of this Section 9.10(a), each affected Obligor shall file or cause to be filed an answer with the bankruptcy court or otherwise properly contest or cause to be contested the filing of such a petition by any such Person against such Obligor or the commencement of such action and raise or cause to be raised the defense that such Person has agreed in writing not to take such action and should be estopped and precluded therefrom and such other defenses, if any, as its counsel advises that it may assert. Nothing contained herein shall preclude participation by an Investor in the assertion or defense of its claims in any such proceeding involving any Obligor. The obligations of the Issuer under this Agreement are solely the limited liability company or corporate, as the case may be, obligations of the Issuer.
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(b) The Conduit Investors. Each of the parties hereto hereby covenants and agrees that it will not, prior to the date that is one year and one day after the payment in full of all Commercial Paper or other debt securities or instruments issued by a Conduit Investor, institute against, or join with any other Person in instituting against, such Conduit Investor, any bankruptcy, reorganization, arrangement, insolvency, examination or liquidation proceedings, or other proceedings under any federal or state (or any other jurisdiction with authority over such Conduit Investor) bankruptcy or similar law. In the event that any such party takes action in violation of this Section 9.10(b), such related Conduit Investor may file an answer with the bankruptcy court or otherwise properly contest or cause to be contested the filing of such a petition by any such party against such Conduit Investor or the commencement of such action and raise or cause to be raised the defense that such party has agreed in writing not to take such action and should be estopped and precluded therefrom and such other defenses, if any, as its counsel advises that it may assert. Nothing contained herein shall preclude participation by any of the Obligors, the Manager or an Investor in assertion or defense of its claims in any such proceeding involving a Conduit Investor. The obligations of the Conduit Investors under this Agreement are solely the corporate obligations of the Conduit Investors. No recourse shall be had for the payment of any amount owing in respect of this Agreement, including any obligation or claim arising out of or based upon this Agreement, against any stockholder, employee, officer, agent, director, member, affiliate or incorporator (or Person similar to an incorporator under state business organization laws) of any Conduit Investor; provided, however, nothing in this Section 9.10(b) shall relieve any of the foregoing Persons from any liability that any such Person may otherwise have for its gross negligence, bad faith or willful misconduct.
(c) The parties hereto acknowledge and agree that any fees, costs, indemnified amounts or expenses payable by a Conduit Investor pursuant to this Agreement (“Conduit Investor Amounts”) shall be payable only in accordance with the order of priorities set forth in such Conduit Investor’s commercial paper program documents and no Conduit Investor shall have any obligation to pay any amount required to be paid by it hereunder in excess of any amount received pursuant to this Agreement or the Notes and available to such Conduit Investor after paying or making provision for the payment of its commercial paper notes; provided, however, that each Committed Note Purchaser shall pay any Conduit Investor Amounts, on behalf of any Conduit Investor in such Committed Note Purchaser’s Investor Group, as and when due hereunder, to the extent that such Conduit Investor is precluded by its commercial paper program documents from paying such Conduit Investor Amounts in accordance with this Agreement.
(d) Notwithstanding any provisions contained in this Agreement to the contrary, no Conduit Investor shall be obligated to pay any fees, costs, indemnified amounts or expenses due pursuant to this Agreement other than in accordance with the order of priorities set out in such Conduit Investor’s commercial paper program documents and all payment obligations of each Conduit Investor hereunder are contingent on the availability of funds received pursuant to this Agreement or the Notes and in excess of the amounts necessary to pay its commercial paper notes. Any such amount which any Conduit Investor does not pay pursuant to the operation of the preceding sentence shall not constitute a claim against or corporate obligation of such Conduit Investor for any such insufficiency unless and until funds received pursuant to this Agreement or the Notes and are available for the payment of such amounts as aforesaid.
(e) The provisions of this Section 9.10 shall survive the termination of this Agreement.
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Section 9.11. Confidentiality. Each Investor, Funding Agent and the Series 2025-1 Class A-1-V Administrative Agent agrees that it shall not disclose any Confidential Information to any Person without the prior written consent of the Manager and the Issuer, other than (a) to their Affiliates, and their Affiliates’ officers, directors, employees, managers, administrators, trustees, agents and advisors, including, without limitation, legal counsel and accountants (it being understood that the Person to whom such disclosure is made will be informed of the confidential nature of such Confidential Information and instructed to keep it confidential), (b) to actual or prospective assignees and participants, and then only on a confidential basis (after obtaining such actual or prospective assignee’s or participant’s agreement to keep such Confidential Information confidential in a manner substantially similar to this Section 9.11), (c) as requested by a Governmental Authority or self-regulatory organization or required by any law, rule or regulation or judicial process of which the Issuer or the Manager, as the case may be, has knowledge; provided that each Investor, Funding Agent and the Series 2025-1 Class A-1-V Administrative Agent may disclose Confidential Information as requested by a Governmental Authority or self-regulatory organization or required by any law, rule or regulation or judicial process of which the Issuer or the Manager, as the case may be, does not have knowledge if such Investor, Funding Agent or Series 2025-1 Class A-1-V Administrative Agent is prohibited by law, rule or regulation from disclosing such requirement to the Issuer or the Manager, as the case may be, (d) to (x) Program Support Providers and (y) any trustee or collateral agent for the benefit of the holders of the commercial paper notes or other senior indebtedness of a Conduit Investor appointed pursuant to such Conduit Investor’s program documents (after obtaining such Person’s agreement to keep such Confidential Information confidential in a manner substantially similar to this Section 9.11), (e) to any rating agency providing a rating for any Series or Class of Notes or any Conduit Investor’s debt, (f) to any Person acting as a placement agent, dealer or investor with respect to any Conduit Investor’s commercial paper (provided that any Confidential Information provided to any such placement agent, dealer or investor does not reveal the identity of the Issuer or any of their Affiliates and is confined to information of the type that is typically provided to such entities by asset-backed commercial paper conduits), (g) in the course of litigation with the Issuer or the Manager, (h) to any actual or potential insurer or reinsurer (it being understood that the Person to whom such disclosure is made will be informed of the confidential nature of such Confidential Information and instructed to keep it confidential) or (i) in accordance with its duties and obligations under this Agreement and the other Transaction Documents. For the avoidance of doubt, nothing in this Agreement shall prohibit any individual from communicating or disclosing information regarding suspected violations of laws, rules, or regulations to a governmental, regulatory, or self-regulatory authority without any notification to any party. For the avoidance of doubt, nothing in this Section 9.11 shall prohibit or impede any Person from voluntarily disclosing or providing information regarding suspected violations of laws, rules, or regulations to a Governmental Authority or self-regulatory authority without any notification to any Person.
“Confidential Information” means information that the Manager, the Guarantor, the Issuer or any Asset Entity furnishes to an Investor, but does not include (i) any such information that is or becomes generally available to the public other than as a result of a disclosure in violation of this Section 9.11 or a disclosure by a Person to which an Investor, a Funding Agent or the Series 2025-1 Class A-1-V Administrative Agent delivered such information, (ii) any such information that was in the possession of an Investor prior to its being furnished to such Investor by the Issuer or the Manager, or (iii) any such information that is or becomes available to an Investor from a source other than the Issuer or the Manager; provided that with respect to clauses (ii) and (iii) herein, such source is not (x) known to an Investor to be bound by a confidentiality agreement with the Issuer or the Manager, as the case may be, with respect to the information or (y) known to an Investor to be otherwise prohibited from transmitting the information by a contractual, legal or fiduciary obligation; provided, further, that Confidential Information shall not include any information relating to the Issuer’s performance of, a Default or Event of Default under, or furnished by the Issuer in connection with, this Agreement to the extent that information is used by an Investor or its affiliates, in connection with the exercise, waiver or amendment of its rights or obligations under, related to or arising out of this Agreement or other transactions that such Investor or its affiliates may have with the Issuer and its affiliates, including but not limited to any related hedges or hedging activities. Each Investor agrees that it will comply with all appliable laws and regulations in connection with the use of such information.
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Section 9.12. GOVERNING LAW; CONFLICTS WITH INDENTURE OR THE SERIES 2025-1 SUPPLEMENT. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS DOCUMENT. EACH OBLIGOR IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR UNITED STATES FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR IN RELATION TO THIS AGREEMENT. IN THE EVENT OF ANY CONFLICTS BETWEEN THIS AGREEMENT AND THE BASE INDENTURE OR THE SERIES 2025-1 SUPPLEMENT, THE BASE INDENTURE OR THE SERIES 2025-1 SUPPLEMENT, AS APPLICABLE,SHALL GOVERN.
Section 9.13. JURISDICTION. EACH OF THE PARTIES HERETO IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR UNITED STATES FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR IN RELATION TO THIS AGREEMENT.
Section 9.14. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO 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 AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 9.15. Counterparts. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such respective counterparts shall together constitute but one and the same instrument. Delivery of an executed counterpart of this Agreement in Portable Document Format (PDF) or by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement. The parties agree that this Agreement may be executed and delivered by electronic signatures and that the signatures appearing on this Agreement are the same as handwritten signatures for the purposes of validity, enforceability and admissibility. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form. Any document accepted, executed or agreed to in conformity with such laws will be binding on all parties hereto to the same extent as if it were physically executed and each party hereby consents to the use of any third party electronic signature capture service providers as may be reasonably chose by a signatory hereto. Neither this Agreement nor any term hereof may be amended, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of the amendment, waiver, discharge or termination is sought.
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Section 9.16. Third Party Beneficiary. The Indenture Trustee, the Servicer and the Back-up Manager are express third party beneficiaries of this Agreement.
Section 9.17. Assignment.
(a) Subject to Sections 6.04 and 9.17(d), any Committed Note Purchaser may at any time sell, pledge or assign all or any part of its rights and obligations under this Agreement, the Series 2025-1 Class A-1-V Advance Notes and, in connection therewith, any other Transaction Documents to which it is a party, with the prior written consent (not to be unreasonably withheld or delayed) of the Issuer to one or more financial institutions (an “Acquiring Committed Note Purchaser”) pursuant to an assignment and assumption agreement, substantially in the form of Exhibit B (the “Assignment and Assumption Agreement”), executed by such Acquiring Committed Note Purchaser, such assigning Committed Note Purchaser, the Funding Agent with respect to such assigning Committed Note Purchaser, Letter of Credit Provider and the Issuer and delivered to the Series 2025-1 Class A-1-V Administrative Agent; provided that, to the extent reasonably requested by an Acquiring Committed Note Purchaser that is a financial institution organized under the laws of the United Kingdom, the Issuer shall use commercially reasonable efforts to provide a risk retention letter agreement from the Parent, dated as of the date of such assignment, with respect to compliance by the Parent with Regulation (EU) 2017/2402, in form and substance satisfactory to the Funding Agent with respect to such Acquiring Committed Note Purchaser; provided, further, that no consent of the Issuer will be required for an assignment in whole or in part (i) to another Series 2025-1 Class A-1-V Noteholder or an Affiliate thereof, (ii) to an Approved Fund, (iii) to an Eligible Assignee; provided that any such assignment to an Eligible Assignee without the consent of the Issuer shall be of Commitments in an amount of at least $15 million, or (iv) if an Event of Default has occurred and is continuing. An “Eligible Assignee” shall mean a financial institution that is rated at least “BBB-” from S&P and/or has the equivalent rating of another “nationally-recognized statistical rating organization” registered with the SEC as of the date of the assignment that is not a Competitor. A “Competitor” shall mean any Person engaged primarily in the business of owning, and operating fiber conduit networks and other similar structures and other activities entered into in furtherance of the foregoing; provided that (i) a Person will not be a “Competitor” solely by virtue of such person or entity’s direct or indirect ownership of less than 5% of the equity interests in a “Competitor,” and (ii) a Person will not be a “Competitor” if such Person is a bank, financial institution, insurance company, or any other entity managed by registered investment advisors who regularly engage in making, purchasing or investing in commercial loans.
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(b) Without limiting the foregoing, subject to Sections 6.03 and 9.17(d), each Conduit Investor may assign all or a portion of the Investor Group Principal Amount with respect to such Conduit Investor and its rights and obligations under this Agreement, the Series 2025-1 Class A-1-V Advance Notes and, in connection therewith, any other Transaction Documents to which it is a party to a Conduit Assignee with respect to such Conduit Investor, without the prior written consent of the Issuer. Upon such assignment by a Conduit Investor to a Conduit Assignee, (i) such Conduit Assignee shall be the owner of the Investor Group Principal Amount or such portion thereof with respect to such Conduit Investor, (ii) the related administrative or managing agent for such Conduit Assignee will act as the Funding Agent for such Conduit Assignee hereunder, with all corresponding rights and powers, express or implied, granted to the Funding Agent hereunder or under the other Transaction Documents, (iii) such Conduit Assignee and its liquidity support provider(s) and credit support provider(s) and other related parties, in each case relating to the Commercial Paper and/or the Series 2025-1 Class A-1-V Advance Notes, shall have the benefit of all the rights and protections provided to such Conduit Investor herein and in the other Transaction Documents (including, without limitation, any limitation on recourse against such Conduit Assignee as provided in this paragraph), (iv) such Conduit Assignee shall assume all of such Conduit Investor’s obligations, if any, hereunder or under the Indenture or under any other Transaction Document with respect to such portion of the Investor Group Principal Amount and such Conduit Investor shall be released from such obligations, (v) all distributions in respect of the Investor Group Principal Amount or such portion thereof with respect to such Conduit Investor shall be made to the applicable Funding Agent on behalf of such Conduit Assignee, (vi) the definition of the term “CP Funding Rate” with respect to the portion of the Investor Group Principal Amount with respect to such Conduit Investor, as applicable, funded or maintained with commercial paper issued by such Conduit Assignee from time to time shall be determined in the manner set forth in the definition of “CP Funding Rate” applicable to such Conduit Assignee on the basis of the interest rate or discount applicable to Commercial Paper issued by or for the benefit of such Conduit Assignee (rather than any other Conduit Investor), (vii) the defined terms and other terms and provisions of this Agreement and the other Transaction Documents shall be interpreted in accordance with the foregoing, and (viii) if requested by the Funding Agent with respect to such Conduit Assignee, the parties will execute and deliver such further agreements and documents and take such other actions as the Funding Agent may reasonably request to evidence and give effect to the foregoing. No assignment by any Conduit Investor to a Conduit Assignee of all or any portion of the Investor Group Principal Amount with respect to such Conduit Investor shall in any way diminish the obligation of the Committed Note Purchasers in the same Investor Group as such Conduit Investor under Section 2.03 to fund any Borrowing not funded by such Conduit Investor or such Conduit Assignee.
(c) Subject to Sections 6.04 and 9.17(d), any Conduit Investor and the related Committed Note Purchaser(s) may at any time sell all or any part of their respective rights and obligations under this Agreement, the Series 2025-1 Class A-1-V Advance Notes and, in connection therewith, any other Transaction Documents to which it is a party, with the prior written consent (not to be unreasonably withheld or delayed) of the Issuer and Letter of Credit Provider to a multi-seller commercial paper conduit, whose commercial paper is rated at least “A-1” (or then equivalent grade) from S&P, and one or more financial institutions providing support to such multi-seller commercial paper conduit (an “Acquiring Investor Group”) pursuant to a transfer supplement, substantially in the form of Exhibit C (the “Investor Group Supplement”), executed by such Acquiring Investor Group, the Funding Agent with respect to such Acquiring Investor Group (including the Conduit Investor and the Committed Note Purchasers with respect to such Investor Group), such assigning Conduit Investor and the Committed Note Purchasers with respect to such Conduit Investor, the Funding Agent with respect to such assigning Conduit Investor and Committed Note Purchasers, Letter of Credit Provider, and the Issuer and delivered to the Series 2025-1 Class A-1-V Administrative Agent; provided that no consent of the Issuer shall be required for an assignment to another Committed Note Purchaser or any Affiliate of a Committed Note Purchaser and its related Conduit Investor or if an Event of Default has occurred and is continuing. For the avoidance of doubt, this Section 9.17(c) is intended to permit and provide for (i) assignments from a Committed Note Purchaser to a Conduit Investor in a different Investor Group and (ii) assignments from a Conduit Investor to a Committed Note Purchaser in a different Investor group, and, in each of (i) and (ii), Exhibit C shall be revised to reflect such assignments.
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(d) Any assignment of the Series 2025-1 Class A-1-V Notes shall be made in accordance with the applicable provisions of the Base Indenture and the Series 2025-1 Supplement.
(e) Subject to Sections 6.04 and 9.17(d), the Letter of Credit Provider may at any time assign all or any portion of its rights and obligations hereunder and under the Series 2025-1 Class A-1-V L/C Note with the prior written consent of the Issuer and the Series 2025-1 Class A-1-V Administrative Agent, which consent shall not be unreasonably withheld or delayed (it being agreed that withholding consent to a proposed assignment to any financial institution as to which any Letter of Credit would be an Ineligible Liquidity Reserve Letter of Credit shall not be deemed unreasonable) to a financial institution pursuant to an agreement with, and in form and substance reasonably satisfactory to, the Series 2025-1 Class A-1-V Administrative Agent and the Issuer, whereupon the assignor shall be released from its obligations hereunder to the extent so assigned; provided that no consent of the Issuer shall be required if an Amortization Period or an Event of Default has occurred and is continuing.
Section 9.18. Defaulting Investors.
(a) The Issuer may, at its sole expense and effort, upon notice to such Defaulting Investor and the Series 2025-1 Class A-1-V Administrative Agent, (i) require any Defaulting Investor to sell all of its rights, obligations and commitments under this Agreement, the Series 2025-1 Class A-1-V Notes and, in connection therewith, any other Transaction Documents to which it is a party, to an assignee; provided that (x) such assignment is made in compliance with Section 9.17 and (y) such Defaulting Investor shall have received from such assignee an amount equal to such Defaulting Investor’s Committed Note Purchaser Percentage of the related Investor Group Principal Amount of such Defaulting Investor and all accrued interest thereon, accrued fees and all other amounts payable to such Defaulting Investor hereunder or (ii) remove any Defaulting Investor as an Investor by paying to such Defaulting Investor an amount equal to such Defaulting Investor’s Committed Note Purchaser Percentage of the related Investor Group Principal Amount of such Defaulting Investor and all accrued interest thereon, accrued fees and all other amounts payable to such Defaulting Investor hereunder.
(b) In the event that a Defaulting Investor desires to sell all or any portion of it rights, obligations and commitments under this Agreement, the Series 2025-1 Class A-1-V Notes and, in connection therewith, any other Transaction Documents to which it is a party, to an unaffiliated third party assignee for an amount less than 100% (or, if only a portion of such rights, obligations and commitments are proposed to be sold, such portion) of such Defaulting Investor’s Committed Note Purchaser Percentage of the related Investor Group Principal Amount of such Defaulting Investor and all accrued interest thereon, accrued fees and all other amounts payable to such Defaulting Investor hereunder, such Defaulting Investor shall promptly notify the Issuer of the proposed sale (the “Sale Notice”). Each Sale Notice shall certify that such Defaulting Investor has received a firm offer from the prospective unaffiliated third party and shall contain the material terms of the proposed sale, including, without limitation, the purchase price of the proposed sale and the portion of such Defaulting Investor’s rights, obligations and commitments proposed to be sold. The Issuer and any of its Affiliates shall have an option for a period of three (3) Business Days from the date the Sale Notice is given to elect to purchase such rights, obligations and commitments at the same price and subject to the same material terms as described in the Sale Notice. The Issuer or any of its Affiliates may exercise such purchase option by notifying such Defaulting Investor before expiration of such three (3) Business Day period that it wishes to purchase all (but not a portion) of the rights, obligations and commitments of such Defaulting Investor proposed to be sold to such unaffiliated third party. If the Issuer or any of its Affiliates gives notice to such Defaulting Investor that it desires to purchase such, rights, obligations and commitments, the Issuer or such Affiliate shall promptly pay the purchase price to such Defaulting Investor. If the Issuer or any of its Affiliates does not respond to any Sale Notice within such three (3) Business Days period, the Issuer and its Affiliates shall be deemed not to have exercised such purchase option.
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(c) Notwithstanding anything to the contrary contained in this Agreement, if any Investor becomes a Defaulting Investor, then, until such time as such Investor is no longer a Defaulting Investor, to the extent permitted by applicable law:
(i) Such Defaulting Investor’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 9.01.
(ii) Any payment of principal, interest, fees or other amounts payable to the account of such Defaulting Investor (whether voluntary or mandatory, at maturity or otherwise) shall be applied (and the Issuer shall instruct the Indenture Trustee or the Series 2025-1 Class A-1-V Administrative Agent to apply such amounts) as follows: first, to the payment on a pro rata basis of any amounts owing by such Defaulting Investor to the Series 2025-1 Class A-1-V Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Investor to each Letter of Credit Provider hereunder; third, to provide cash collateral to the Letter of Credit Providers in an amount equal to the amount of Undrawn L/C Face Amounts at such time multiplied by the Commitment Percentage of such Defaulting Investor’s Investor Group multiplied by the Committed Note Purchaser Percentage of such Defaulting Investor; fourth, as the Issuer may request (so long as no Default or Event of Default exists), to the funding of any Advance in respect of which such Defaulting Investor has failed to fund its portion thereof as required by this Agreement, as determined by the Issuer; fifth, if so determined by the Series 2025-1 Class A-1-V Administrative Agent (acting at the direction of the Funding Agents) and the Issuer, to be held in a deposit account and released pro rata in order (x) to satisfy such Defaulting Investor’s potential future funding obligations with respect to Advances under this Agreement and (y) to provide cash collateral to the Letter of Credit Providers in an amount equal to the amount of any future Undrawn L/C Face Amounts multiplied by the Commitment Percentage of such Defaulting Investor’s Investor Group multiplied by the Committed Note Purchaser Percentage of such Defaulting Investor; sixth, to the payment of any amounts owing to the Investors or the Letter of Credit Provider as a result of any judgment of a court of competent jurisdiction obtained by any Investor against such Defaulting Investor as a result of such Defaulting Investor’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Issuer as a result of any judgment of a court of competent jurisdiction obtained by the Issuer against such Defaulting Investor as a result of such Defaulting Investor’s breach of its obligations under this Agreement; and eighth, to such Defaulting Investor or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Advances or any extensions of credit resulting from a drawing under any Letter of Credit that has not been reimbursed as an Advance pursuant to Section 2.07(a) in respect of which such Defaulting Investor has not fully funded its appropriate share, and (y) such Advances were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 7.03 were satisfied or waived, such payment shall be applied solely to pay the Advances of, and extensions of credit resulting from a drawing under any Letter of Credit that has not been reimbursed as an Advance pursuant to Section 2.07(a) owed to, all non-Defaulting Investors on a pro rata basis prior to being applied to the payment of any Advances of, participations required to be purchased pursuant to Section 2.08(a) owed to, such Defaulting Investor until such time as all Advances and funded and unfunded participations in Unreimbursed L/C Drawings are held by the Investors pro rata in accordance with the Commitments without giving effect to Section 9.18(c)(iii). Any payments, prepayments or other amounts paid or payable to a Defaulting Investor that are applied (or held) to pay amounts owed by a Defaulting Investor or to post cash collateral pursuant to this Section 9.18(c)(ii) shall be deemed paid to and redirected by such Defaulting Investor, and each Investor irrevocably consents hereto.
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(iii) All or any part of such Defaulting Investor’s participation in Unreimbursed L/C Drawings shall be reallocated among the non-Defaulting Investors pro rata based on their Commitments (calculated without regard to such Defaulting Investor’s Commitment) but only to the extent that (x) the conditions set forth in Section 7.03 are satisfied at the time of such reallocation (and, unless the Issuer shall have otherwise notified the Series 2025-1 Class A-1-V Administrative Agent at such time, the Issuer shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the product of (1) any non-Defaulting Investor’s related Investor Group Principal Amount on such date, multiplied by (2) such non-Defaulting Investor’s Committed Note Purchaser Percentage, to exceed such non-Defaulting Investor’s Commitment Amount. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Investor arising from that Investor having become a Defaulting Investor, including any claim of a non-Defaulting Investor as a result of such non-Defaulting Investor’s increased exposure following such reallocation.
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(d) If the Issuer, the Series 2025-1 Class A-1-V Administrative Agent (acting at the direction of the Funding Agents) and each Letter of Credit Provider agree in writing that an Investor is no longer a Defaulting Investor, the Issuer will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Investor will, to the extent applicable, purchase that portion of outstanding Advances of the other Investors or take such other actions as the Series 2025-1 Class A-1-V Administrative Agent (acting at the direction of the Funding Agents) may determine to be necessary to cause the Advances to be held pro rata by the Investors in accordance with their respective Commitments, whereupon such Investor will cease to be a Defaulting Investor; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Issuer while that Investor was a Defaulting Investor; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Investor to Investor will constitute a waiver or release of any claim of any party hereunder arising from that Investor’s having been a Defaulting Investor.
Section 9.19. No Fiduciary Duties. Each of the Manager and the Obligors acknowledge and agree that in connection with the transaction contemplated in this Agreement, or any other services the Investors may be deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Investors: (a) no fiduciary or agency relationship between any of the Manager, the Obligors and any other person, on the one hand, and the Investors or any of their respective Affiliates (or any agent, adviser or representative of any of the foregoing), on the other, exists; (b) the Investors are not acting as advisor, expert or otherwise, to the Manager or the Obligors, and such relationship between any of the Manager or the Obligors, on the one hand, and the Investors or any of their respective affiliates (or any agent, adviser or representative of any of the foregoing), on the other, is entirely and solely commercial, based on arms-length negotiations; (c) any duties and obligations that the Investors may have to the Manager and any of the Obligors shall be limited to those duties and obligations specifically stated herein; (d) the Investors and their respective affiliates (or any agent, adviser or representative of any of the foregoing) may have interests that differ from those of the Manager or any of the Obligors; and (e) the Manager and the Obligors have consulted their own legal and financial advisors to the extent they deemed appropriate. Each of the Manager and the Obligors hereby waive any claims that Manager or the Obligors may have against the Investors with respect to any breach of fiduciary duty in connection with the Series 2025-1 Class A-1-V Notes.
Section 9.20. No Guarantee by the Manager. The execution and delivery of this Agreement by the Manager shall not be construed as a guarantee or other credit support by the Manager of the obligations of the Obligors hereunder. The Manager shall not be liable in any respect for any obligation of the Obligors hereunder or any violation by any Obligor of its covenants, representations and warranties or other agreements and obligations hereunder.
Section 9.21. Term; Termination of Agreement. This Agreement shall terminate upon the earliest to occur of (x) the permanent reduction of the Series 2025-1 Class A-1-V Notes Maximum Principal Amount to zero in accordance with Section 2.05(a), termination and return of all Letters of Credit and payment in full of all monetary obligations in respect of the Series 2025-1 Class A-1-V Notes, (y) the payment in full of all monetary obligations in respect of the Series 2025-1 Class A-1-V Notes on or after the Series 2025-1 Class A-1-V Anticipated Repayment Date (as may be extended from time to time pursuant to Section 7.04) and termination and return of all Letters of Credit and (z) the satisfaction and discharge of the Base Indenture and the Series 2025-1 Supplement pursuant to Article IX of the Base Indenture.
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Section 9.22. Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Transaction 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 Transaction Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Transaction 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.
For purposes of this Section 9.22:
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“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).
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“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.
“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.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form 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.
“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.
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Section 9.23. Obligations of the Asset Entities; Designation of Manager as Representative and Agent.
(a) Each Asset Entity agrees that it is jointly and severally liable for, and absolutely and unconditionally guarantees to each Investor, each Funding Agent and the Series 2025-1 Class A-1-V Administrative Agent the prompt payment of all obligations under the Series 2025-1 Class A-1-V Notes and all other amounts owed by the Issuer hereunder to each Investor, each Funding Agent and the Series 2025-1 Class A-1-V Administrative Agent, and the prompt performance of all agreements under the Transaction Documents.
(b) The Issuer hereby designates the Manager as its representative and agent on its behalf for the purposes of issuing requests for Borrowing and giving instructions with respect to the disbursement of the proceeds of the Advances (and such proceeds may be advanced hereunder at such direction), giving and receiving all other notices and consents hereunder or under any of the Series 2025-1 Class A-1-V Notes and taking all other actions (including in respect of compliance with covenants) on behalf of the Issuer hereunder or under any Series 2025-1 Class A-1-V Notes. The Manager hereby accepts such appointment. Each Investor, each Funding Agent and the Series 2025-1 Class A-1-V Administrative Agent may regard any notice or other communication pursuant to any Transaction Document from the Manager as a notice or communication from the Issuer, and may give any notice or communication required or permitted to be given to the Issuer hereunder to the Manager on behalf of the Issuer. The Issuer agrees that each notice, election, representation and warranty, covenant, agreement and undertaking made on its behalf by the Manager will be deemed for all purposes to have been made by the Issuer and shall be binding upon and enforceable against the Issuer to the same extent as if the same had been made directly by the Issuer.
Section 9.24. Patriot Act. In accordance with the USA PATRIOT Act, to help fight the funding of terrorism and money laundering activities, any Investor may obtain, verify and record information that identifies individuals or entities that establish a relationship with such Investor. Such Investor may ask for the name, address, tax identification number and other information that will allow it to identify the individual or entity who is establishing the relationship or opening the account. Such Investor may also ask for formation documents such as articles of incorporation, an offering memorandum, or other identifying documents to be provided.
Section 9.25. Limitation. The Series 2025-1 Class A-1-V Administrative Agent shall be entitled to the same benefits, protections and immunities afforded to the Indenture Trustee under the Transaction Documents.
Section 9.26. Recognition of U.S. Special Resolution Regimes.
(a) In the event that any Investor that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Investor of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
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(b) In the event that any Investor that is a Covered Entity or a BHC Act Affiliate of such Investor becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Investor are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section 9.26:
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized officers and delivered as of the day and year first above written.
SHENTEL ISSUER LLC,
as the Issuer
By: _________________________________
Name:
Title:
SHENTEL ASSET ENTITY I LLC,
as an Asset Entity
By: _________________________________
Name:
Title:
SHENTEL ASSET ENTITY II LLC,
as an Asset Entity
By: _________________________________
Name:
Title:
SHENTEL BROADBAND OPERATIONS LLC,
as the Manager
By: _________________________________
Name:
Title:
Shentel 2025-1
Class A-1-V Note Purchase Agreement
SHENTEL BROADBAND OPERATIONS LLC,
as the Parent
By: _________________________________
Name:
Title:
The Issuer, any Asset Entity and the Manager at the following address:
500 Shentel Way
Edinburg, Virginia 22824
Attention: Chief Financial Officer
Email: Jim.Volk@emp.shentel.com
with a copy to (same address): General Counsel
Shentel 2025-1
Class A-1-V Note Purchase Agreement
BANK OF AMERICA, N.A.,
as the Series 2025-1 Class A-1-V Administrative Agent
By: _________________________________
Name:
Title:
Shentel 2025-1
Class A-1-V Note Purchase Agreement
BANK OF AMERICA, N.A.,
as Committed Note Purchaser
By: _________________________________
Name:
Title:
BANK OF AMERICA, N.A.,
as related Funding Agent
By: _________________________________
Name: Title:
Shentel 2025-1
Class A-1-V Note Purchase Agreement
MORGAN STANLEY BANK, N.A.,
as Committed Note Purchaser
By: _________________________________
Name: Title:
MORGAN STANLEY BANK, N.A.,
as related Funding Agent
By: _________________________________
Name: Title:
Shentel 2025-1
Class A-1-V Note Purchase Agreement
CITIZENS BANK, N.A.,
as Committed Note Purchaser
By: _________________________________
Name: Title:
CITIZENS BANK, N.A.,
as related Funding Agent
By: _________________________________
Name: Title:
Shentel 2025-1
Class A-1-V Note Purchase Agreement
TRUIST BANK,
as Committed Note Purchaser
By: _________________________________
Name: Title:
TRUIST BANK,
as related Funding Agent
By: _________________________________
Name: Title:
Shentel 2025-1
Class A-1-V Note Purchase Agreement
SCHEDULE I TO CLASS A-1-V
NOTE PURCHASE AGREEMENT
INVESTOR GROUPS AND COMMITMENTS
| Investor Group / Funding Agent | Maximum Investor Group Principal Amount | Conduit Investor (if any) | Committed Note Purchaser(s) | Commitment Amount | Commitment Percentage | Wire Instructions | ||
|---|---|---|---|---|---|---|---|---|
| Bank of America, N.A. | $65,000,000 | N/A | Bank of America, N.A. | $65,000,000 | 37.14% | Bank: Bank of America N.A.<br><br> <br>ABA: 026009593<br><br> <br>Account Name: BANA USD – LOAN TRADE SUPPORT<br><br> <br>Acct. No.: 325077102522<br><br> <br>Ref.: Shentel Issuer LLC | ||
| Morgan Stanley Bank, N.A. | $30,000,000 | N/A | Morgan Stanley Bank, N.A. | $30,000,000 | 17.14% | TO: CITIBANK, N.A.<br><br> <br>NEW YORK, NY 10043<br><br> <br>VIA: ABA # 021-000-089<br><br> <br>ACCOUNT NAME: MORGAN STANLEY BANK, NA<br><br> <br>ACCOUNT NUMBER: 3044-0947<br><br> <br>REF: Shentel Issuer LLC<br><br> <br>ATTN: MORGAN STANLEY LOAN SERVICING | ||
| Citizens Bank, N.A. | $50,000,000 | N/A | Citizens Bank, N.A. | $50,000,000 | 28.57% | Bank: Citizens Bank, N.A.<br><br> <br>ABA#: 011500120<br><br> <br>Account Name: Commercial Loan Participation Purchase Account<br><br> <br>Account Number: 0026693003<br><br> <br>Attention: Janice Falter or Marnie McGee<br><br> <br>Reference: Shentel Issuer LLC | ||
| Truist Bank | $30,000,000 | N/A | Truist Bank | $30,000,000 | 17.14% | Bank: Truist Bank<br><br> <br>Account Name: Agency Services Operating Account<br><br> <br>ABA Routing Number: 053101121<br><br> <br>Account Number: 1000022220783<br><br> <br>Ref: Shentel 2025-1 - VFN<br><br> <br>Attention: Karen Weich | 404-813-9293 | Agency.Services@Truist.com |
Schedule I
SCHEDULE II TO CLASS A-1-V
NOTE PURCHASE AGREEMENT
NOTICE ADDRESSES FOR LENDER PARTIES AND AGENTS
Conduit Investors
N/A
Committed Note Purchasers
Bank of America, N.A.
Bank of America, N.A.
One Bryant Park, 11th Floor
New York, New York 10036
Attention: Carl W. Anderson
Telephone: (646) 855-4242
Email: carl.w.anderson@bofa.com; thomas.luccioni@bofa.com; maurice.palma@bofa.com; michael.kerbrat@bofa.com; claire.zhang@bofa.com; sean.c.walsh@bofa.com; judith.e.helms@bofa.com; christi.thomas@bofa.com; dg.sfg-treasury@bofa.com
Morgan Stanley Bank, N.A.
Morgan Stanley Bank, N.A.
1585 Broadway, 4^th^ Floor
New York, NY 10036
Attention: Dhruv Singh
Telephone: 212-762-3146
Email: Dhruv.Singh@morganstanley.com
Citizens Bank, N.A.
Citizens Bank, N.A.
600 Washington Blvd
Stamford, CT 06901
Attention: Gordon Wong
Telephone: 203-900-6681
Email: gordon.wong@citizensbank.com
Truist Bank
Truist Bank
214 N. Tryon Street, 14th Floor
Charlotte, NC 28202
Attention: Rich Zell
Telephone: (980) 333-6575
Email: rich.zell@truist.com
Schedule II-1
Funding Agents
Bank of America, N.A.
Bank of America, N.A.
One Bryant Park, 11th Floor
New York, New York 10036
Attention: Carl W. Anderson
Telephone: (646) 855-4242
Email: carl.w.anderson@bofa.com; thomas.luccioni@bofa.com; maurice.palma@bofa.com; michael.kerbrat@bofa.com; claire.zhang@bofa.com; sean.c.walsh@bofa.com; judith.e.helms@bofa.com; christi.thomas@bofa.com; dg.sfg-treasury@bofa.com
Morgan Stanley Bank, N.A.
Morgan Stanley Bank, N.A.
1585 Broadway, 4^th^ Floor
New York, NY 10036
Attention: Dhruv Singh
Telephone: 212-762-3146
Email: Dhruv.Singh@morganstanley.com
Citizens Bank, N.A.
Citizens Bank, N.A.
600 Washington Blvd
Stamford, CT 06901
Attention: Gordon Wong
Telephone: 203-900-6681
Email: gordon.wong@citizensbank.com
Truist Bank
Truist Bank
214 N. Tryon Street, 14th Floor
Charlotte, NC 28202
Attention: Rich Zell
Telephone: (980) 333-6575
Email: rich.zell@truist.com
Schedule II-2
Series 2025-1 Class A-1-V Administrative Agent
Bank of America, N.A.
Bank of America, N.A.
One Bryant Park, 11th Floor
New York, New York 10036
Attention: Carl W. Anderson
Telephone: (646) 855-4242
Email: carl.w.anderson@bofa.com; thomas.luccioni@bofa.com; maurice.palma@bofa.com; michael.kerbrat@bofa.com; claire.zhang@bofa.com; sean.c.walsh@bofa.com; judith.e.helms@bofa.com; christi.thomas@bofa.com; dg.sfg-treasury@bofa.com
Schedule II-3
SCHEDULE III TO CLASS A-1-V
NOTE PURCHASE AGREEMENT
ADDITIONAL CLOSING CONDITIONS
The following are the additional conditions to initial issuance and effectiveness referred to in Section 7.01(c):
(a) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of the Transaction Documents, and all other legal matters relating to the Transaction Documents and the transactions contemplated thereby, shall be reasonably satisfactory in all material respects to the Funding Agents, and the Parent, the Manager, the Guarantor, the Issuer and the Asset Entities shall have furnished to the Funding Agents all documents and information that the Funding Agents or their counsel may reasonably request to enable them to pass upon such matters.
(b) Simpson Thacher & Bartlett LLP, as counsel to the Parent, the Manager, the Guarantor, the Issuer and the Asset Entities, shall have furnished to the Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and the Investors written opinions that are customary for transactions of this type, and including with respect to certain corporate, securities and Investment Company Act matters, security interest matters and tax matters, and in each case reasonably satisfactory in form and substance to counsel to the Funding Agents, addressed to the Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and Investors and dated the Series 2025-1 Closing Date.
(c) Richards, Layton & Finger, P.A., as counsel to the Parent, the Manager, the Guarantor, the Issuer and the Asset Entities, shall have furnished to the Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and the Investors written opinions that are customary for transactions of this type, including with respect to security interest matters and “non-consolidation” matters and “true contribution” matters, and reasonably satisfactory in form and substance to counsel to the Funding Agents, addressed to the Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and Investors and dated the Series 2025-1 Closing Date.
(d) Richards, Layton & Finger, P.A., as special counsel to the Parent, the Manager, the Guarantor, the Issuer and the Asset Entities, shall have furnished to the Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and the Investors written opinions that are customary for transactions of this type, including with respect to what law would govern the determination of which entities have authority to file a voluntary bankruptcy petition on behalf of the Obligors and the Guarantor, reasonably satisfactory in form and substance to counsel to the Funding Agents, addressed to the Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and Investors and dated the Series 2025-1 Closing Date.
(e) Mintz, Levin, Cohn, Glovsky and Popeo, P.C., as counsel to the Indenture Trustee, shall have furnished to the Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and the Investors written opinions that are customary for transactions of this type, reasonably satisfactory in form and substance to counsel to the Funding Agents, addressed to the Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and Investors and dated the Series 2025-1 Closing Date.
Schedule III-1
(f) Seward & Kissel LLP, as counsel to the Servicer, shall have furnished to the Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and the Investors written opinions that are customary for transactions of this type, reasonably satisfactory in form and substance to counsel to the Funding Agents, addressed to the Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and Investors and dated the Series 2025-1 Closing Date.
(g) Andrascik & Tita LLC, as counsel to the Back-Up Manager, shall have furnished to the Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and the Investors written opinions that are customary for transactions of this type, reasonably satisfactory in form and substance to counsel to the Funding Agents, addressed to the Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and Investors and dated the Series 2025-1 Closing Date.
(h) Hunton Andrews Kurth LLP, as special Virginia counsel to the Parent, the Manager, the Guarantor, the Issuer and the Asset Entities shall have furnished written opinions that are customary for transactions of this type with respect to certain security interest matters, reasonably satisfactory in form and substance to counsel to the Funding Agents, addressed to the Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and Investors and dated as of the Series 2025-1 Closing Date.
(i) Lape Mansfield Nakasian & Gibson, LLC, as special Ohio counsel to the Parent, the Manager, the Guarantor, the Issuer and the Asset Entities shall have furnished written opinions that are customary for transactions of this type with respect to certain security interest matters, reasonably satisfactory in form and substance to counsel to the Funding Agents, addressed to the Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and Investors and dated as of the Series 2025-1 Closing Date.
(j) Stevens & Lee P.C., as special Pennsylvania counsel to the Parent, the Manager, the Guarantor, the Issuer and the Asset Entities shall have furnished written opinions that are customary for transactions of this type with respect to certain security interest matters, reasonably satisfactory in form and substance to counsel to the Funding Agents, addressed to the Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and Investors and dated as of the Series 2025-1 Closing Date.
(k) In-house counsel to the Parent, the Manager, the Guarantor, the Issuer and the Asset Entities, shall have furnished to the Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and the Investors, an opinion that is customary for transactions of this type, reasonably satisfactory in form and substance to counsel to the Funding Agents, addressed to the Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and the Investors and dated the Series 2025-1 Closing Date.
(l) The Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and the Investors shall have received copies of any opinions of counsel to the Obligors supplied to the Rating Agencies relating to certain matters with respect to the Series 2025-1 Notes. Any such opinions shall be dated the Series 2025-1 Closing Date and addressed to the Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and the Investors or accompanied by reliance letters addressed to the Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and the Investors.
Schedule III-2
(m) Each of the Manager, the Guarantor, the Issuer and the Asset Entities shall have furnished or caused to be furnished to the Funding Agents a certificate signed by two managers or officers of the chief financial officer of the Manager, the Guarantor, the Issuer and the Asset Entities, or other officers reasonably satisfactory to the Funding Agents, dated as of the Series 2025-1 Closing Date, as to such matters as the Funding Agents may reasonably request, including, without limitation, a statement that:
(i) the representations, warranties and agreements of the Manager, the Guarantor, the Issuer and the Asset Entities, as applicable, in any other Transaction Document to which any of the Manager, the Guarantor, the Issuer and the Asset Entities, as applicable, is a party are true and correct (A) if qualified as to materiality, in all respects, and (B) if not so qualified, in all material respects, on and as of the Series 2025-1 Closing Date (unless stated to relate, or should reasonably be read to relate, solely to an earlier date, in which case such representations and warranties shall be true and correct (x) if qualified as to materiality, in all respects, and (y) if not so qualified, in all material respects, as of such earlier date), and the Manager, the Guarantor, the Issuer and the Asset Entities, as applicable, has complied in all material respects with all its agreements contained herein and in any other Transaction Document to which it is a party and satisfied all the conditions on its part to be performed or satisfied hereunder or thereunder at or prior to the Series 2025-1 Closing Date; and
(ii) there shall exist at and as of the Series 2025-1 Closing Date no condition that would constitute an “Event of Default” (or an event that with notice or the lapse of time, or both, would constitute an “Event of Default”) under, and as defined in, the Indenture or a material breach under any of the Transaction Documents as in effect at the Series 2025-1 Closing Date (or an event that with notice or lapse of time, or both, would constitute such a material breach).
(n) The Manager, the Issuer and the Asset Entities shall have executed and delivered the Management Agreement, and the Funding Agents shall have received a duly executed copy thereof.
(o) The Servicer and the Indenture Trustee shall have executed and delivered the Servicing Agreement, and the Funding Agents shall have received a duly executed copy thereof.
(p) The Back-Up Manager, the Manager, the Issuer, the Asset Entities and the Indenture Trustee shall have executed and delivered the Back-Up Management Agreement, and the Funding Agents shall have received a duly executed copy thereof.
(q) The Issuer, the Asset Entities and the Indenture Trustee shall have executed and delivered the Indenture and the Series 2025-1 Supplement, and the Funding Agents shall have received a duly executed copy thereof.
Schedule III-3
(r) The Series 2025-1 Class A-1-V Notes shall have been duly executed and delivered by the Issuer and duly authenticated by the Indenture Trustee (or, in the case of Uncertificated Notes, registered by the Indenture Trustee), and the Funding Agents shall have received duly executed copies thereof.
(s) Each other Transaction Documents (excluding any Series Supplements and other Transaction Documents relating solely to a Series other than the Series 2025-1 Notes) shall have been duly executed and delivered by the respective parties thereto, and the Funding Agents shall have received duly executed copies thereof.
(t) Each of the Transaction Documents shall be in full force and effect.
(u) The Manager, the Guarantor, the Issuer and the Asset Entities shall have furnished to the Funding Agents a certificate, in form and substance reasonably satisfactory to the Funding Agents and dated as of the Series 2025-1 Closing Date, of the chief financial officer of such entity (or other officers reasonably satisfactory to the Funding Agents) that such entity will be Solvent (as defined below) immediately after the consummation of the transactions contemplated by this Agreement; provided that in the case of each Asset Entity, the liabilities of the other Obligors with respect to debts, liabilities and obligations for which such Asset Entity is jointly and severally liable shall be taken into account. As used herein, “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the relevant entity are not less than the total amount required to pay the probable liabilities of such entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured, (ii) the relevant entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business, (iii) assuming the completion of the transactions contemplated by the Transaction Documents, the relevant entity is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature, (iv) the relevant entity is not engaged in any business or transaction, and is not about to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such entity is engaged, and (v) the relevant entity is not a defendant in any civil action that would reasonably be likely to result in a judgment that such entity is or would become unable to satisfy. In computing the amount of such contingent liabilities at any time, it is intended that such liabilities will be computed at the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
(v) None of the transactions contemplated by this Agreement shall be subject to an injunction (temporary or permanent) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or (to the knowledge of the Issuer or the Manager) overtly threatened against the Manager, the Guarantor, the Issuer, the Asset Entities, any Investor or the Series 2025-1 Class A-1-V Administrative Agent that would reasonably be expected to adversely impact the issuance of the Series 2025-1 Notes and the Guarantee or any Investor’s or the Series 2025-1 Class A-1-V Administrative Agent’s activities in connection therewith or any other transactions contemplated by the Transaction Documents.
Schedule III-4
(w) The representations and warranties of each of the Parent, the Manager and each Obligor contained in the Transaction Documents to which it is a party will be true and correct (i) if qualified as to materiality, in all respects, and (ii) if not so qualified, in all material respects, as of the Series 2025-1 Closing Date (unless stated to relate, or should reasonably be read to relate, solely to an earlier date, in which case such representations and warranties shall be true and correct (x) if qualified as to materiality, in all respects, and (y) if not so qualified, in all material respects, as of such earlier date).
(x) The Issuer shall have delivered $489,142,000 of the Series 2025-1 Class A-2 Notes and $78,263,000 of the Series 2025-1 Class B Notes to the initial purchasers of such Notes on the Series 2025-1 Closing Date.
(y) On or prior to the Series 2025-1 Closing Date, the Manager, the Guarantor, the Issuer and the Asset Entities shall have furnished to the Funding Agents such further certificates and documents as the Funding Agents may reasonably request.
(z) The Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and the Investors shall have received evidence reasonably satisfactory to the Funding Agents that the Accounts have been established in accordance with the Transaction Documents.
(aa) The Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and the Investors shall have received evidence reasonably satisfactory to the Funding Agents that the Collateral will be free and clear of all Liens (other than Permitted Encumbrances) on the Series 2025-1 Closing Date after giving effect to the repayment of the indebtedness under the Existing Credit Documents on the Series 2025-1 Closing Date.
(bb) The Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and the Investors shall have received evidence reasonably satisfactory to the Funding Agents and their counsel that, on or reasonably following the Series 2025-1 Closing Date, all UCC-1 financing statements required to be filed on or prior to the Series 2025-1 Closing Date pursuant to the Transaction Documents have been or are being filed at or prior to the Series 2025-1 Closing Date.
(cc) On or before the Series 2025-1 Closing Date, the organizational documents of the Obligors shall have been amended to limit their purpose and to add certain provisions consistent with current rating agency criteria for special purpose subsidiaries and copies of such documents shall have been furnished to the Funding Agents and shall be reasonably satisfactory to the Funding Agents.
(dd) Simpson Thacher & Bartlett LLP, as counsel to the Parent, the Manager, the Guarantor, the Issuer and the Asset Entities, shall have furnished to the Funding Agents, the Series 2025-1 Class A-1-V Administrative Agent and the Investors, a memorandum with respect to certain risk retention matters relating to the U.S. Risk Retention Rules, in form and substance reasonably satisfactory to counsel to the Funding Agents, addressed to the Manager and dated the Series 2025-1 Closing Date.
(ee) Each of the Transaction Parties shall have provided information and documentation reasonably requested by any Committed Note Purchaser for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act and 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”).
Schedule III-5
All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Funding Agents.
Schedule III-6
SCHEDULE IV TO CLASS A-1-V
NOTE PURCHASE AGREEMENT
U.S. RISK RETENTION DISCLOSURE
I. U.S. Risk Retention Disclosure on or prior to the Series 2025-1 Closing Date.
Shentel Broadband Communications LLC (as used in this Schedule IV, the “Parent”) hereby makes the following disclosure to the Series 2025-1 Class A-1-V Noteholders as of the date hereof pursuant to Regulation RR, 17 C.F.R. Part 246 (the “U.S. Risk Retention Rules”):
A. Parent to Hold an Eligible Horizontal Residual Interest.
The U.S. Risk Retention Rules require the “sponsor” of a “securitization transaction” (or a “majority-owned affiliate” of the sponsor) (each as defined in the U.S. Risk Retention Rules) to retain an economic interest in the credit risk of securitized assets in accordance with the requirements of the U.S. Risk Retention Rules. While the Parent believes there is some uncertainty as to whether the issuance of the Series 2025-1 Notes requires compliance with the U.S. Risk Retention Rules, the Parent intends to comply with the requirements of the U.S. Risk Retention Rules. The Parent, as sponsor of the securitization transaction involving the Series 2025-1 Term Notes, intends to retain an “eligible horizontal residual interest” (as defined in the U.S. Risk Retention Rules, an “EHRI”) through the Guarantor, a majority-owned affiliate, in the form of the a class of membership interests in the Issuer classified pursuant the Amended and Restated Limited Liability Company Agreement of the Issuer, to be dated as of the Series 2025-1 Closing Date (the “Issuer LLC Agreement”), as Series 2025-1 Class R Interests (the “U.S. Retained Interest”), in accordance with the U.S. Risk Retention Rules. An EHRI is defined under the U.S. Risk Retention Rules as, with respect to any securitization transaction, an ABS Interest in the issuing entity: (1) that is an interest in a single class or multiple classes in the issuing entity, provided that each interest meets, individually or in the aggregate, all of the requirements of this definition; (2) with respect to which, on any payment date or allocation date on which the issuing entity has insufficient funds to satisfy its obligation to pay all contractual interest or principal due, any resulting shortfall will reduce amounts payable to the eligible horizontal residual interest prior to any reduction in the amounts payable to any other ABS Interest, whether through loss allocation, operation of the priority of payments, or any other governing contractual provision (until the amount of such ABS Interest is reduced to zero); and (3) that, with the exception of any non-economic REMIC (as defined in 26 U.S.C. 860D) residual interest, has the most subordinated claim to payments of both principal and interest by the issuing entity.
An “ABS Interest” is defined under the U.S. Risk Retention Rules as: (1) any type of interest or obligation issued by an issuing entity, whether or not in certificated form, including a security, obligation, beneficial interest or residual interest (other than (i) a non-economic residual interest issued by a REMIC or (ii) an uncertificated regular interest in a REMIC that is held by another REMIC, where both REMICs are part of the same structure and a single REMIC in that structure issues ABS Interests to investors), payments on which are primarily dependent on the cash flows of the collateral owned or held by the issuing entity; and (2) does not include common or preferred stock, limited liability interests, partnership interests, trust certificates, or similar interests that: (i) are issued primarily to evidence ownership of the issuing entity; and (ii) the payments, if any, on which are not primarily dependent on the cash flows of the collateral held by the issuing entity; and (3) does not include the right to receive payments for services provided by the holder of such right, including servicing, trustee services and custodial services.
A-1
Under the U.S. Risk Retention Rules, the EHRI must have a fair value equal to at least 5% of the fair value of all ABS Interests (including the EHRI itself) in the Issuer issued as part of the securitization transaction. Such fair value is determined as of the closing date for the securitization transaction using a fair value measurement framework under GAAP. The Issuer’s ABS Interests issued as part of the Issuer’s securitization transaction are (i) the Series 2025-1 Notes, (ii) the Series 2025-1 Class A-1-V Commitment, (iii) the Series 2025-1 Class A-1-L Commitment and (iv) the U.S. Retained Interest.
Under the U.S. Risk Retention Rules, the sponsor (or a majority-owned affiliate of the sponsor) is required to retain the EHRI until the latest of (i) the second anniversary of the Series 2025-1 Closing Date, (ii) the date on which the total unpaid principal balance (if applicable) of the securitized assets that collateralize this securitization transaction has been reduced to 33% of the total unpaid principal balance of such securitized assets as of the Series 2025-1 Cut-Off Date, and (iii) the date the sum of (x) the aggregate principal amount of the Series 2025-1 Term Notes, (y) the Series 2025-1 Class A-1-V Commitment Amount and (z) the principal amount of the U.S. Retained Interest has been reduced to 33% or less of the sum of (1) the initial aggregate principal amount of the Series 2025-1 Term Notes as of the Series 2025-1 Closing Date, (2) the Series 2025-1 Class A-1-V Commitment Amount as of the Series 2025-1 Closing Date and (3) the principal amount of the U.S. Retained Interest as of the Series 2025-1 Closing Date (such latest date, the “Sunset Date”). None of the sponsor or any of its majority-owned affiliates may sell, transfer, hedge or pledge the EHRI during this period other than as permitted by the U.S. Risk Retention Rules. The Guarantor is a direct wholly-owned subsidiary of the Parent, and thus is a majority-owned affiliate of the Parent under the U.S. Risk Retention Rules.
As described more fully below, the fair value of the U.S. Retained Interest on the Series 2025-1 Closing Date will be at least 5% of the fair value of all ABS Interests of the Issuer issued as part of the securitization transaction involving the issuance of the Series 2025-1 Term Notes on the Series 2025-1 Closing Date.
| B. | Terms of the U.S. Retained Interest |
|---|
The U.S. Retained Interest will be issued pursuant to the Issuer LLC Agreement in an initial notional principal amount of $40,400,000. The U.S. Retained Interest will have the benefit of a preferred payment (the “Class R Preferred Return”) payable pursuant to the terms of the Issuer LLC Agreement equal to 10.75% per annum of the notional principal amount of the U.S. Retained Interest. Pursuant to the Issuer LLC Agreement, the U.S. Retained Interest will represent the right to receive certain distributions of funds from the Issuer not otherwise needed to make payments or deposits under the Transaction Documents, and will have the right to receive any cash distributed by the Issuer in respect of its limited liability company interests prior to any member of the Issuer, up to an amount equal to the sum of (i) any accrued and unpaid the Class R Preferred Return as of the date of such distribution and (ii) on and after the Sunset Date, the outstanding notional principal amount of the U.S. Retained Interest.
A-2
The payment of the Class R Preferred Return and the principal amount of the U.S. Retained Interest will be made solely with funds released to the Issuer pursuant to priority (xxiii) of the Priority of Payments and thus will be fully subordinated to the Notes. The holder of the U.S. Retained Interest will not receive any payments in respect of the U.S. Retained Interest on any Payment Date on which the Issuer has insufficient funds to satisfy in full all of its other obligations payable on such Payment Date with respect to the Notes. It is expected that the Issuer will issue additional Class R Interests pursuant to the Issuer LLC Agreement in connection with future issuances of Notes in order to comply with the U.S. Risk Retention Rules.
| C. | Fair Value of ABS Interests, Key Inputs and Assumptions and Valuation Methodology |
|---|
The fair value of all of the ABS Interests of the Issuer issued as part of the Issuer’s securitization transaction is determined using a GAAP fair value measurement framework with both observable and unobservable inputs. Under GAAP, the significance of inputs in measuring fair value are reflected in a hierarchy, with Level 1 inputs favored over Level 2 inputs and Level 2 inputs favored over Level 3 inputs.
| · | Level 1 inputs include quoted prices for identical instruments and are the most observable, |
|---|---|
| · | Level 2 inputs include quoted prices for similar instruments and observable inputs such as interest rates and yield curves, and |
| --- | --- |
| · | Level 3 inputs include data not observable in the market and reflect management judgment about the assumptions market participants would use in pricing the instrument. |
| --- | --- |
The pre-closing determination of the fair value of the Series 2025-1 Notes is categorized within Level 2 of the hierarchy, reflecting inputs derived from prices of similar instruments. The post-closing determination of the fair value of the Series 2025-1 Notes will be categorized within Level 1 of the hierarchy. The fair value of the U.S. Retained Interest is categorized within Level 3 of the hierarchy, as many of the inputs to the fair value calculation for the U.S. Retained Interest are generally not observable.
In determining the fair value of the ABS Interests of the Issuer issued in connection with the securitization transaction, the Parent and the Issuer used the inputs and assumptions set forth below:
| · | The sum of (1) the initial principal amount of the Series 2025-1 Term Notes will be $567,405,000, (2) the Series 2025-1 Class A-1-V Commitment Amount will be $175,000,000 and (3) the Series 2025-1 Class A-1-L Commitment Amount will be $25,000,000 (provided that such amount may be decreased upon pricing of the Series 2025-1 Term Notes); |
|---|---|
| · | The full amount of (x) the Series 2025-1 Class A-1-V Commitment Amount and (y) the Series 2025-1 Class A-1-L Commitment Amount will each be drawn and outstanding as of the Series 2025-1 Closing Date and the fair value of the Series 2025-1 Class A-1-V Notes and the Series 2025-1 Class A-1-L Notes is equal to 100% of the initial principal amount thereof; |
| --- | --- |
A-3
| · | The range of interest rates on the Series 2025-1 Term Notes will be as set forth in the table below; |
|---|---|
| · | The Series 2025-1 Term Notes will be issued by the Issuer, and acquired by third party investors, at a price equal to approximately 100% of the initial principal amount thereof; and |
| --- | --- |
| · | The initial notional principal amount of the U.S. Retained Interest on the Series 2025-1 Closing Date will be $40,400,000 which will be issued at a price equal to approximately 100% of the initial principal amount thereof. |
| --- | --- |
The Parent believes, based on Level 3 inputs, that a 10.50% to 10.75% yield to maturity is appropriate for the U.S. Retained Interest in order for it to be marketable to third parties. The Parent believes that the U.S. Retained Interest, with a rate of Class R Interest Preferred Return as set forth above, will have a fair value of $40,400,000. The Parent determined the fair value based on its review of cash flow model runs, which demonstrated that a holder of the U.S. Retained Interest would obtain a 10.50% to 10.75% yield to maturity under various modest growth, zero-growth and downside stress cases related to cash flow from the Fiber Networks and the related Customer Agreements, and whether or not the Issuer repays existing Notes in full on or prior to the related Anticipated Repayment Date (i.e., whether the Notes are refinanced at their respective Anticipated Repayment Dates or are repaid (if at all) pursuant to the priority of payments out of cash flow generated by the Fiber Networks and related Customer Agreements). The cash flow model runs assumed transaction parameters (principal balances, priority of payment terms, and asset revenues and expenses) as detailed in this Schedule IV.
The Parent believes that the inputs and assumptions described above include the inputs and assumptions that could have a material impact on the fair value calculation or would be material to a prospective Noteholder’s ability to evaluate the fair value calculation. The fair value of each of the Series 2025-1 Notes and the U.S. Retained Interest was calculated based on the assumptions described above, which are intended solely for the purpose of determining these fair values in accordance with the requirements of the U.S. Risk Retention Rules and should not be relied upon by prospective Noteholders for any other purpose. Prospective Noteholders should be sure that they understand these assumptions when considering the fair value calculation.
Based on the foregoing, the Series 2025-1 Notes and the U.S. Retained Interest will have a fair value (expressed as a dollar amount as a percentage of the fair value of all ABS Interest issued by the Issuer as part of the securitization transaction) as follows:
| Series/Class of Notes | Range of Note Rates/Preferred Returns | Initial Principal Balance/Initial Notional Principal Amount ^(1)^ | Fair Value | Fair Value (as a percentage)^(2)^ | ||||||
|---|---|---|---|---|---|---|---|---|---|---|
| Series 2025-1, Class A-1-V | (3 | ) | $ | 175,000,000 | $ | 175,000,000 | 21.66 | % | ||
| Series 2025-1, Class A-1-L | (4 | ) | 25,000,000 | 25,000,000 | 3.09 | % | ||||
| Series 2025-1, Class A-2 | 5.15% to 5.40% | 489,142,000 | 489,142,000 | 60.55 | % | |||||
| Series 2025-1, Class B | 5.69% to 5.94% | 78,263,000 | 78,263,000 | 9.69 | % | |||||
| Class R Interest | 10.50% to 10.75% | 40,400,000 | 40,400,000 | 5.00 | % | |||||
| Total | $ | 807,805,000 | $ | 807,805,000 | 100.0 | % |
___________________
(1) Assumes that the Series 2025-1 Class A-1-V Commitment Amount and the Series 2025-1 Class A-1-L Commitment Amount (provided that such amount may be decreased upon pricing of the Series 2025-1 Term Notes) are each fully drawn.
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(2) Totals and/or percentages may not add up due to rounding.
(3) The Note Rate for the Series 2025-1 Class A-1-V Notes will be determined in accordance with the Series 2025-1 Class A-1-V Note Purchase Agreement and will generally equal a base rate, SOFR rate or CP funding rate, as applicable, plus a spread equal to 1.75%.
(4) The Note Rate for the Series 2025-1 Class A-1-L Notes will be determined in accordance with the Series 2025-1 Class A-1-L Note Purchase Agreement and will generally equal the Prime Rate plus a spread equal to 3.00%.
The fair value of the EHRI is required to be at least 5% of the fair value of all ABS Interests of the Issuer issued as part of the securitization transaction.
II. U.S. Risk Retention Disclosure following the Series 2025-1 Closing Date.
The initial monthly report delivered by the Manager after the Series 2025-1 Closing Date will include the following information:
| · | the fair value on the Series 2025-1 Closing Date (expressed as a percentage of the fair value of all of the ABS Interests of the Issuer issued as part of the securitization transaction and as a dollar amount) of the U.S. Retained Interest based on actual sale prices and finalized Note sizes; |
|---|---|
| · | the fair value on the Series 2025-1 Closing Date (expressed as a percentage of the fair value of all of the ABS Interests of the Issuer issued as part of the securitization transaction and as a dollar amount) of the U.S. Retained Interest that the sponsor (or majority-owned affiliate of the sponsor) is required to retain; and |
| --- | --- |
| · | to the extent the valuation methodology or any of the key inputs and assumptions that were used in calculating the fair value or range of fair values disclosed herein materially differs from the methodology or key inputs and assumptions used to calculate the fair value as of the Series 2025-1 Closing Date as set forth in such monthly report, descriptions of those material differences. |
| --- | --- |
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EXHIBIT A TO CLASS A-1-V
NOTE PURCHASE AGREEMENT
ADVANCE REQUEST
SHENTEL ISSUER LLC,
SECURED FIBER NETWORK REVENUE VARIABLE FUNDING NOTES,
SERIES 2025-1, CLASS A-1-V
TO:
Bank of America, N.A.
One Bryant Park, 11th Floor
New York, New York 10036
Attention: Carl W. Anderson
Telephone: (646) 855-4242
Email: carl.w.anderson@bofa.com; thomas.luccioni@bofa.com; maurice.palma@bofa.com; michael.kerbrat@bofa.com; claire.zhang@bofa.com; sean.c.walsh@bofa.com; judith.e.helms@bofa.com; christi.thomas@bofa.com; dg.sfg-treasury@bofa.com
Morgan Stanley Bank, N.A.
1585 Broadway, 4^th^ Floor
New York, NY 10036
Attention: Dhruv Singh
Telephone: 212-762-3146
Email: Dhruv.Singh@morganstanley.com
Citizens Bank, N.A.
600 Washington Blvd
Stamford, CT 06901
Attention: Gordon Wong
Telephone: 203-900-6681
Email: gordon.wong@citizensbank.com
Truist Bank
214 N. Tryon Street, 14th Floor
Charlotte, NC 28202
Attention: Rich Zell
Telephone: (980) 333-6575
Email: rich.zell@truist.com
Citibank, N.A.
as Indenture Trustee
388 Greenwich Street
New York, New York 10013
A-1
Attention: Agency & Trust – Shentel, Series 2025-1
Telephone: (888) 855-9695
Email: call (888) 855-9695 to obtain
Re.: SHENTEL ISSUER LLC; Series 2025-1 Class A-1-V Notes
Ladies and Gentlemen:
This Advance Request is delivered to you pursuant to Section 2.03 of that certain Series 2025-1 Class A-1-V Note Purchase Agreement, dated as of December 5, 2025 (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof, the “Series 2025-1 Class A-1-V Note Purchase Agreement”; terms defined therein being used herein as therein defined) among Shentel Issuer LLC, as the Issuer, the Asset Entities party thereto, Shentel Broadband Operations LLC, as the Manager, the Conduit Investors, the Committed Note Purchasers for each Investor Group, the Funding Agents, and Bank of America, N.A., as the Series 2025-1 Class A-1-V Administrative Agent.
Unless otherwise defined herein or as the context otherwise requires, terms used herein have the meaning assigned thereto under or as provided in the Recitals and Section 1.01 of the Series 2025-1 Class A-1-V Note Purchase Agreement.
The undersigned hereby requests that Advances be made in the aggregate principal amount of $ on , 20___.
[IF THE ISSUER IS ELECTING TERM SOFR RATE FOR THESE ADVANCES ON THE DATE MADE IN ACCORDANCE WITH SECTION 3.01(b) OF THE CLASS A-1-V NOTE PURCHASE AGREEMENT, ADD THE FOLLOWING SENTENCE: The undersigned hereby elects that the Advances that are not funded at the CP Rate by an Eligible Conduit Investor shall be SOFR Advances.]
The undersigned hereby acknowledges that the delivery of this Advance Request and the acceptance by the undersigned of the proceeds of the Advances requested hereby constitute a representation and warranty by the undersigned that, on the date of such Advances, and before and after giving effect thereto and to the application of the proceeds therefrom, all conditions set forth in Section 7.03 of the Series 2025-1 Class A-1-V Note Purchase Agreement and below have been satisfied and all statements set forth in Section 6.01 of the Series 2025-1 Class A-1-V Note Purchase Agreement are true and correct:
(a) no Default, Event of Default, Manager Termination Event, Amortization Period, Cash Trap Condition or Cash Sweep Condition will be in existence at the time of, or after giving effect to, such draw;
(b) after giving effect to such draw, the following conditions will be satisfied as of the last day of the calendar month immediately preceding the date of such draw:
(i) the Senior DSCR calculated giving pro forma effect to such draw is greater than or equal to 1.70x;
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(ii) the Class A Leverage Ratio calculated giving pro forma effect to such draw does not exceed 6.25x; and
(iii) the Series 2025-1 Class A-1-V Outstanding Principal Amount does not exceed the Series 2025-1 Class A-1-V Notes Maximum Principal Amount after giving effect to any reduction thereto pursuant to Section 2.05 of the Series 2025-1 Class A-1-V Note Purchase Agreement.
The undersigned agrees that if prior to the time of the Advances requested hereby any matter certified to herein by it will not be true and correct at such time as if then made, it will immediately so notify both you and each Investor. Except to the extent, if any, that prior to the time of the Advances requested hereby you and each Investor shall receive written notice to the contrary from the undersigned, each matter certified to herein shall be deemed once again to be certified as true and correct at the date of such Advances as if then made.
Please wire transfer the proceeds of the Advances to the Series 2025-1 Class A-1-V Advance Account for further distribution by the Series 2025-1 Class A-1-V Administrative Agent from the Series 2025-1 Class A-1-V Advance Account to the Issuer pursuant to the following instructions:
[insert payment instruction for payment to Issuer]
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The undersigned has caused this Advance Request to be executed and delivered, and the certification and warranties contained herein to be made, by its duly authorized officer this ____ day of __________, 20___.
SHENTEL BROADBAND OPERATIONS LLC, as the Manager on behalf of the Issuer
By: _____________________________
Name:
Title:
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EXHIBIT B TO CLASS A-1-V
NOTE PURCHASE AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of [ ], among [ ] (the “Transferor”), each purchaser listed as an Acquiring Committed Note Purchaser on the signature pages hereof (each, an “Acquiring Committed Note Purchaser”), the Funding Agent with respect to such Acquiring Committed Note Purchaser listed on the signature pages hereof (each, a “Funding Agent”), and the Issuer.
W I T N E S S E T H:
WHEREAS, this Assignment and Assumption Agreement is being executed and delivered in accordance with Section 9.17(a) of that certain Series 2025-1 Class A-1-V Note Purchase Agreement, dated as of December 5, 2025 (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof, the “Series 2025-1 Class A-1-V Note Purchase Agreement”; terms defined therein being used herein as therein defined) among Shentel Issuer LLC, as the Issuer, the Asset Entities party thereto, Shentel Broadband Operations LLC, as the Manager, the Conduit Investors, the Committed Note Purchasers for each Investor Group, the Funding Agents, and Bank of America, N.A., as the Series 2025-1 Class A-1-V Administrative Agent;
WHEREAS, each Acquiring Committed Note Purchaser (if it is not already an existing Committed Note Purchaser) wishes to become a Committed Note Purchaser party to the Series 2025-1 Class A-1-V Note Purchase Agreement; and
WHEREAS, the Transferor is selling and assigning to each Acquiring Committed Note Purchaser, [all] [a portion of] its rights, obligations and commitments under the Series 2025-1 Class A-1-V Note Purchase Agreement, the Series 2025-1 Class A-1-V Notes and each other Transaction Document to which it is a party with respect to the percentage of its Commitment Amount specified on Schedule I attached hereto;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Upon the execution and delivery of this Assignment and Assumption Agreement by each Acquiring Committed Note Purchaser, each related Funding Agent, the Transferor and, to the extent required by Section 9.17(a) of the Series 2025-1 Class A-1-V Note Purchase Agreement, the Issuer (the date of such execution and delivery, the “Transfer Issuance Date”), each Acquiring Committed Note Purchaser shall be a Committed Note Purchaser party to the Series 2025-1 Class A-1-V Note Purchase Agreement for all purposes thereof.
The Transferor acknowledges receipt from each Acquiring Committed Note Purchaser of an amount equal to the purchase price, as agreed between the Transferor and such Acquiring Committed Note Purchaser (the “Purchase Price”), in respect of the portion being purchased by such Acquiring Committed Note Purchaser (such Acquiring Committed Note Purchaser’s “Purchased Percentage”) of (i) the Transferor’s Commitment under the Series 2025-1 Class A-1-V Note Purchase Agreement and (ii) the Transferor’s Committed Note Purchaser Percentage of the related Investor Group Principal Amount. The Transferor hereby irrevocably sells, assigns and transfers to each Acquiring Committed Note Purchaser, without recourse, representation or warranty, and each Acquiring Committed Note Purchaser hereby irrevocably purchases, takes and assumes from the Transferor, such Acquiring Committed Note Purchaser’s Purchased Percentage of (x) the Transferor’s Commitment under the Series 2025-1 Class A-1-V Note Purchase Agreement and (y) the Transferor’s Committed Note Purchaser Percentage of the related Investor Group Principal Amount.
B-1
The Transferor has made arrangements with each Acquiring Committed Note Purchaser with respect to [(i)] the portion, if any, to be paid, and the date or dates for payment, by the Transferor to such Acquiring Committed Note Purchaser of any program fees, undrawn facility fee, structuring and commitment fees or other fees (collectively, the “Fees”) [heretofore received] by the Transferor pursuant to Section 3.02 of the Series 2025-1 Class A-1-V Note Purchase Agreement prior to the Transfer Issuance Date [and (ii) the portion, if any, to be paid, and the date or dates for payment, by such Acquiring Committed Note Purchaser to the Transferor of Fees or [ ] received by such Acquiring Committed Note Purchaser pursuant to the Series 2025-1 Supplement from and after the Transfer Issuance Date].
From and after the Transfer Issuance Date, amounts that would otherwise be payable to or for the account of the Transferor pursuant to the Series 2025-1 Supplement or the Series 2025-1 Class A-1-V Note Purchase Agreement shall, instead, be payable to or for the account of the Transferor and the Acquiring Committed Note Purchasers, as the case may be, in accordance with their respective interests as reflected in this Assignment and Assumption Agreement, whether such amounts have accrued prior to the Transfer Issuance Date or accrue subsequent to the Transfer Issuance Date.
Each of the parties to this Assignment and Assumption Agreement agrees that at any time and from time to time upon the written request of any other party, it will execute and deliver such further documents and do such further acts and things as such other party may reasonably request in order to effect the purposes of this Assignment and Assumption Agreement.
B-2
By executing and delivering this Assignment and Assumption Agreement, the Transferor and each Acquiring Committed Note Purchaser confirm to and agree with each other and the other parties to the Series 2025-1 Class A-1-V Note Purchase Agreement as follows: (i) other than the representation and warranty that it is the legal and beneficial owner of the interest being assigned hereby free and clear of any adverse claim, the Transferor makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Series 2025-1 Supplement, the Series 2025-1 Class A-1-V Note Purchase Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Indenture, the Series 2025-1 Class A-1-V Notes, the Transaction Documents or any instrument or document furnished pursuant thereto; (ii) the Transferor makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Issuer or the performance or observance by the Issuer of any of the Issuer’s obligations under the Indenture, the Series 2025-1 Class A-1-V Note Purchase Agreement, the Transaction Documents or any other instrument or document furnished pursuant hereto; (iii) each Acquiring Committed Note Purchaser confirms that it has received a copy of the Base Indenture, the Series 2025-1 Supplement, the Series 2025-1 Class A-1-V Note Purchase Agreement and such other Transaction Documents and other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption Agreement; (iv) each Acquiring Committed Note Purchaser will, independently and without reliance upon the Series 2025-1 Class A-1-V Administrative Agent, the Transferor, the Funding Agent or any other Investor Group and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Series 2025-1 Class A-1-V Note Purchase Agreement; (v) each Acquiring Committed Note Purchaser appoints and authorizes the Series 2025-1 Class A-1-V Administrative Agent to take such action and to exercise such powers under the Series 2025-1 Class A-1-V Note Purchase Agreement as are delegated to the Series 2025-1 Class A-1-V Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto, all in accordance with Article V of the Series 2025-1 Class A-1-V Note Purchase Agreement; (vi) each Acquiring Committed Note Purchaser appoints and authorizes its related Funding Agent to take such action as agent on its behalf and to exercise such powers under the Series 2025-1 Class A-1-v Note Purchase Agreement as are delegated to such Funding Agent by the terms thereof, together with such powers as are reasonably incidental thereto, all in accordance with Article V of the Series 2025-1 Class A-1-V Note Purchase Agreement; (vii) each Acquiring Committed Note Purchaser agrees that it will perform in accordance with their terms all of the obligations that by the terms of the Series 2025-1 Class A-1-V Note Purchase Agreement are required to be performed by it as an Acquiring Committed Note Purchaser; and (viii) each Acquiring Committed Note Purchaser hereby represents and warrants to the Issuer and the Manager that: (A) it has had an opportunity to discuss the Issuer’s and the Manager’s business, management and financial affairs, and the terms and conditions of the proposed purchase, with the Issuer, and the Manager and their respective representatives; (B) it is an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act and has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of investing in, and is able and prepared to bear the economic risk of investing in, the Series 2025-1 Class A-1-V Notes; (C) it is purchasing the Series 2025-1 Class A-1-V Notes for its own account, or for the account of one or more “accredited investors” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act that meet the criteria described in clause (viii)(B) above and for which it is acting with complete investment discretion, for investment purposes only and not with a view to distribution, subject, nevertheless, to the understanding that the disposition of its property shall at all times be and remain within its control, and neither it nor its Affiliates has engaged in any general solicitation or general advertising within the meaning of the Securities Act with respect to the Series 2025-1 Class A-1-V Notes; (D) it understands that (I) the Series 2025-1 Class A-1-V Notes have not been and will not be registered or qualified under the Securities Act or any applicable state securities laws or the securities laws of any other jurisdiction and are being offered only in a transaction not involving any public offering within the meaning of the Securities Act and may not be resold or otherwise transferred unless so registered or qualified or unless an exemption from registration or qualification is available and an opinion of counsel shall have been delivered in advance to the Issuer, (II) the Issuer is not required to register the Series 2025-1 Class A-1-V Notes, (III) any permitted transferee hereunder must meet the criteria described under clause (viii)(B) above and (IV) any transfer must comply with the provisions of Section 2.02 of the Base Indenture and Section 9.03 or 9.17, as applicable, of the Series 2025-1 Class A-1-V Note Purchase Agreement; (E) it will comply with the requirements of clause (viii)(D) above in connection with any transfer by it of the Series 2025-1 Class A-1-V Notes; (F) it is not an EU/UK Retail Investor and understands that the offering or selling of the Series 2025-1 Class A-1-V Notes to an EU/UK Retail Investor may be unlawful under Regulation (EU) No 1286/2014 (as amended) (including as it forms part of domestic law in the UK by virtue of the EUWA) (G) it understands that the Series 2025-1 Class A-1-V Notes (other than any Uncertificated Notes) will bear the legend set out in the form of Series 2025-1 Class A-1-V Notes attached to the Series 2025-1 Supplement and be subject to the restrictions on transfer described in such legend; (H) it will obtain for the benefit of the Issuer from any purchaser of the Series 2025-1 Class A-1-V Notes substantially the same representations and warranties contained in the foregoing paragraphs; and (I) it has executed a Purchaser’s Letter substantially in the form of Exhibit D to the Series 2025-1 Class A-1-V Note Purchase Agreement.
B-3
Schedule I hereto sets forth (i) the Purchased Percentage for each Acquiring Committed Note Purchaser, (ii) the revised Commitment Amounts of the Transferor and each Acquiring Committed Note Purchaser, and (iii) the revised Maximum Investor Group Principal Amounts for the Investor Groups of the Transferor and each Acquiring Committed Note Purchaser (it being understood that if the Transferor was part of a Conduit Investor’s Investor Group and the Acquiring Committed Note Purchaser is intended to be part of the same Investor Group, there will not be any change to the Maximum Investor Group Principal Amount for that Investor Group) and (iv) administrative information with respect to each Acquiring Committed Note Purchaser and its related Funding Agent.
This Assignment and Assumption Agreement and all matters arising under or in any manner relating to this Assignment and Assumption Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without giving effect to any choice of law or conflict provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York, and the obligations, rights and remedies of the parties hereto shall be determined in accordance with such law.
ALL PARTIES HEREUNDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ON THE SERIES 2025-1 CLASS A-1-V NOTE PURCHASE AGREEMENT, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS ASSIGNMENT AND ASSUMPTION AGREEMENT OR THE SERIES 2025-1 CLASS A-1-V NOTE PURCHASE AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE PARTIES IN CONNECTION HEREWITH OR THEREWITH. ALL PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE RECEIVED FULL AND SIGNIFICANT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR ALL PARTIES TO ENTER INTO THIS ASSIGNMENT AND ASSUMPTION AGREEMENT.
B-4
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption Agreement to be executed by their respective duly authorized officers as of the date first set forth above.
[ ], as Transferor
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title:
[ ], as Acquiring Committed Note Purchaser
By: _____________________________
Name:
Title:
[ ], as Funding Agent
By: _____________________________
Name:
Title:
B-5
CONSENTED AND ACKNOWLEDGED BY THE ISSUER:
SHENTEL ISSUER LLC,
as the Issuer
By: _____________________________
Name:
Title:
B-6
SCHEDULE I TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
LIST OF ADDRESSES FOR NOTICES
AND OF COMMITMENT AMOUNTS
| [____________________], as Transferor<br><br> <br><br><br> <br>Prior Commitment Amount: $[ | ] | |
|---|---|---|
| Revised Commitment Amount: | $[ | ] |
| Prior Maximum Investor Group | ||
| Principal Amount: $[ | ] | |
| Revised Maximum Investor | ||
| Group Principal Amount: $[ | ] | |
| Related Conduit Investor<br><br> <br>(if applicable) [ | ] | |
| [ | ], as |
Acquiring Committed Note Purchaser Address:
Attention:
Telephone:
Email:
Purchased Percentage of Transferor’s Commitment: [ ]%
Prior Commitment Amount: $[ ]
Revised Commitment Amount: $[ ]
Prior Maximum Investor Group
Principal Amount: $[ ]
B-7
Revised Maximum Investor Group Principal Amount: $[ ]
Related Conduit Investor (if applicable) [ ]
[_____________________], as related Funding Agent
Address:
Attention:
Telephone:
Email:
B-8
EXHIBIT C TO CLASS A-1-V
NOTE PURCHASE AGREEMENT
[FORM OF INVESTOR GROUP SUPPLEMENT], dated as of [ ] (this “Investor Group Supplement”), among (i) [ ] (the “Transferor Investor Group”), (ii) [ ] (the “Acquiring Investor Group”), (iii) the Funding Agent with respect to the Acquiring Investor Group listed on the signature pages hereof (each, a “Funding Agent”), and (iv) the Issuer.
W I T N E S S E T H:
WHEREAS, this Investor Group Supplement is being executed and delivered in accordance with Section 9.17(c) of that certain Series 2025-1 Class A-1-V Note Purchase Agreement, dated as of December 5, 2025 (as amended, supplemented, amended and restated or otherwise modified from time to time, the “Series 2025-1 Class A-1-V Note Purchase Agreement”; terms defined therein being used herein as therein defined) among Shentel Issuer LLC, as the Issuer, the Asset Entities party thereto, Shentel Broadband Operations LLC, as the Manager, the Conduit Investors, the Committed Note Purchasers for each Investor Group, the Funding Agents, and Bank of America, N.A., as the Series 2025-1 Class A-1-V Administrative Agent;
WHEREAS, the Acquiring Investor Group wishes to become a Conduit Investor and [a] Committed Note Purchaser**[s]** with respect to such Conduit Investor under the Series 2025-1 Class A-1-V Note Purchase Agreement; and
WHEREAS, the Transferor Investor Group is selling and assigning to the Acquiring Investor Group [all] [a portion of] its respective rights, obligations and commitments under the Series 2025-1 Class A-1-V Note Purchase Agreement, the Series 2025-1 Class A-1-V Notes and each other Transaction Document to which it is a party with respect to the percentage of its Commitment Amount specified on Schedule I attached hereto;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Upon the execution and delivery of this Investor Group Supplement by the Acquiring Investor Group, each related Funding Agent with respect thereto, the Transferor Investor Group and, to the extent required by Section 9.17(c) of the Series 2025-1 Class A-1-V Note Purchase Agreement (the date of such execution and delivery, the “Transfer Issuance Date”) the Issuer, the Conduit Investor and the Committed Note Purchaser**[s]** with respect to the Acquiring Investor Group shall be parties to the Series 2025-1 Class A-1-V Note Purchase Agreement for all purposes thereof.
The Transferor Investor Group acknowledges receipt from the Acquiring Investor Group of an amount equal to the purchase price, as agreed between the Transferor Investor Group and the Acquiring Investor Group (the “Purchase Price”), of the portion being purchased by the Acquiring Investor Group (the Acquiring Investor Group’s “Purchased Percentage”) of (i) the aggregate Commitment**[s]** of the Committed Note Purchaser**[s]** included in the Transferor Investor Group under the Series 2025-1 Class A-1-V Note Purchase Agreement and (ii) the aggregate related Committed Note Purchaser Percentage**[s]** of the related Investor Group Principal Amount. The Transferor Investor Group hereby irrevocably sells, assigns and transfers to the Acquiring Investor Group, without recourse, representation or warranty, and the Acquiring Investor Group hereby irrevocably purchases, takes and assumes from the Transferor Investor Group, such Acquiring Investor Group’s Purchased Percentage of (x) the aggregate Commitment**[s]** of the Committed Note Purchaser**[s]** included in the Transferor Investor Group under the Series 2025-1 Class A-1-V Note Purchase Agreement and (y) the aggregate related Committed Note Purchaser Percentage**[s]** of the related Investor Group Principal Amount.
C-1
The Transferor Investor Group has made arrangements with the Acquiring Investor Group with respect to (i) the portion, if any, to be paid, and the date or dates for payment, by the Transferor Investor Group to such Acquiring Investor Group of any program fees, undrawn facility fee, structuring and commitment fees or other fees (collectively, the “Fees”) [heretofore received] by the Transferor Investor Group pursuant to Section 3.02 of the Series 2025-1 Class A-1-V Note Purchase Agreement prior to the Transfer Issuance Date [and (ii) the portion, if any, to be paid, and the date or dates for payment, by such Acquiring Investor Group to the Transferor Investor Group of Fees or [ ] received by such Acquiring Investor Group pursuant to the Series 2025-1 Supplement from and after the Transfer Issuance Date].
From and after the Transfer Issuance Date, amounts that would otherwise be payable to or for the account of the Transferor Investor Group pursuant to the Series 2025-1 Supplement or the Series 2025-1 Class A-1-V Note Purchase Agreement shall, instead, be payable to or for the account of the Transferor Investor Group and the Acquiring Investor Group, as the case may be, in accordance with their respective interests as reflected in this Investor Group Supplement, whether such amounts have accrued prior to the Transfer Issuance Date or accrue subsequent to the Transfer Issuance Date.
Each of the parties to this Investor Group Supplement agrees that at any time and from time to time upon the written request of any other party, it will execute and deliver such further documents and do such further acts and things as such other party may reasonably request in order to effect the purposes of this Investor Group Supplement.
The Acquiring Investor Group has executed and delivered to the Issuer (with a copy to the Indenture Trustee) a Purchaser’s Letter substantially in the form of Exhibit D to the Series 2025-1 Class A-1-V Note Purchase Agreement.
C-2
By executing and delivering this Investor Group Supplement, the Transferor Investor Group and the Acquiring Investor Group confirm to and agree with each other and the other parties to the Series 2025-1 Class A-1-V Note Purchase Agreement as follows: (i) other than the representation and warranty that it is the legal and beneficial owner of the interest being assigned hereby free and clear of any adverse claim, the Transferor Investor Group makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Series 2025-1 Supplement, the Series 2025-1 Class A-1-V Note Purchase Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Indenture, the Series 2025-1 Class A-1-V Notes, the Transaction Documents or any instrument or document furnished pursuant thereto; (ii) the Transferor Investor Group makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Issuer or the performance or observance by the Issuer of any of the Issuer’s obligations under the Base Indenture, the Series 2025-1 Supplement, the Series 2025-1 Class A-1-V Note Purchase Agreement, the Transaction Documents or any other instrument or document furnished pursuant hereto; (iii) the Acquiring Investor Group confirms that it has received a copy of the Base Indenture, the Series 2025-1 Supplement, the Series 2025-1 Class A-1-V Note Purchase Agreement and such other Transaction Documents and other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Investor Group Supplement; (iv) the Acquiring Investor Group will, independently and without reliance upon the Series 2025-1 Class A-1-V Administrative Agent, the Transferor Investor Group, the Funding Agents or any other Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Series 2025-1 Class A-1-V Note Purchase Agreement; (v) the Acquiring Investor Group appoints and authorizes the Series 2025-1 Class A-1-V Administrative Agent to take such action and to exercise such powers under the Series 2025-1 Class A-1-V Note Purchase Agreement as are delegated to the Series 2025-1 Class A-1-V Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto, all in accordance with Article V of the Series 2025-1 Class A-1-V Note Purchase Agreement; (vi) each member of the Acquiring Investor Group appoints and authorizes its related Funding Agent, listed on Schedule I hereto, to take such action as agent on its behalf and to exercise such powers under the Series 2025-1 Class A-1-V Note Purchase Agreement as are delegated to such Funding Agent by the terms thereof, together with such powers as are reasonably incidental thereto, all in accordance with Article V of the Series 2025-1 Class A-1-V Note Purchase Agreement; (vii) each member of the Acquiring Investor Group agrees that it will perform in accordance with their terms all of the obligations that by the terms of the Series 2025-1 Class A-1-V Note Purchase Agreement are required to be performed by it as a member of the Acquiring Investor Group; and (viii) each member of the Acquiring Investor Group hereby represents and warrants to the Issuer and the Manager that: (A) it has had an opportunity to discuss the Issuer’s and the Manager’s business, management and financial affairs, and the terms and conditions of the proposed purchase, with the Issuer and the Manager and their respective representatives; (B) it is an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act and has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of investing in, and is able and prepared to bear the economic risk of investing in, the Series 2025-1 Class A-1-V Notes; (C) it is purchasing the Series 2025-1 Class A-1-V Notes for its own account, or for the account of one or more “accredited investors” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act that meet the criteria described in clause (viii)(B) above and for which it is acting with complete investment discretion, for investment purposes only and not with a view to distribution, subject, nevertheless, to the understanding that the disposition of its property shall at all times be and remain within its control, and neither it nor its Affiliates has engaged in any general solicitation or general advertising within the meaning of the Securities Act with respect to the Series 2025-1 Class A-1-V Notes; (D) it understands that (I) the Series 2025-1 Class A-1-V Notes have not been and will not be registered or qualified under the Securities Act or any applicable state securities laws or the securities laws of any other jurisdiction and are being offered only in a transaction not involving any public offering within the meaning of the Securities Act and may not be resold or otherwise transferred unless so registered or qualified or unless an exemption from registration or qualification is available and an opinion of counsel shall have been delivered in advance to the Issuer, (II) the Issuer is not required to register the Series 2025-1 Class A-1-V Notes, (III) any permitted transferee hereunder must meet the criteria described under clause (viii)(B) above and (IV) any transfer must comply with the provisions of Section 2.02 of the Base Indenture and Section 9.03 or 9.17, as applicable, of the Series 2025-1 Class A-1-V Note Purchase Agreement; (E) it will comply with the requirements of clause (viii)(D) above in connection with any transfer by it of the Series 2025-1 Class A-1-V Notes; (F) it is not an EU/UK Retail Investor and understand that the offering or selling of the Series 2025-1 Class A-1-V Notes to an EU/UK Retail Investor may be unlawful under Regulation (EU) No 1286/2014 (as amended) (including as it forms part of assimilated law in the UK by virtue of the EUWA) (G) it understands that the Series 2025-1 Class A-1-V Notes (other than any Uncertificated Notes) will bear the legend set out in the form of Series 2025-1 Class A-1-V Notes attached to the Series 2025-1 Supplement and be subject to the restrictions on transfer described in such legend; (H) it will obtain for the benefit of the Issuer from any purchaser of the Series 2025-1 Class A-1-V Notes substantially the same representations and warranties contained in the foregoing paragraphs; and (I) it has executed a Purchaser’s Letter substantially in the form of Exhibit D to the Series 2025-1 Class A-1-V Note Purchase Agreement.
C-3
Schedule I hereto sets forth (i) the Purchased Percentage for the Acquiring Investor Group, (ii) the revised Commitment Amounts of the Transferor Investor Group and the Acquiring Investor Group, and (iii) the revised Maximum Investor Group Principal Amounts for the Transferor Investor Group and the Acquiring Investor Group and (iv) administrative information with respect to the Acquiring Investor Group and its related Funding Agent.
This Investor Group Supplement and all matters arising under or in any manner relating to this Investor Group Supplement shall be governed by, and construed in accordance with, the laws of the State of New York without giving effect to any choice of law or conflict provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other that the State of New York, and the obligations, rights and remedies of the parties hereto shall be determined in accordance with such law.
ALL PARTIES HEREUNDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ON THE SERIES 2025-1 CLASS A-1-V NOTE PURCHASE AGREEMENT, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS INVESTOR GROUP SUPPLEMENT OR THE SERIES 2025-1 CLASS A-1-V NOTE PURCHASE AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE PARTIES IN CONNECTION HEREWITH OR THEREWITH. ALL PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE RECEIVED FULL AND SIGNIFICANT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR ALL PARTIES TO ENTER INTO THIS INVESTOR GROUP SUPPLEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Investor Group Supplement to be executed by their respective duly authorized officers as of the date first set forth above.
C-4
[ ], as Transferor Investor Group
By: ________________________________
Name:
Title
[ ], as Acquiring Investor Group
By: ________________________________
Name:
Title:
[ ], as Funding Agent
By: ________________________________
Name:
Title
C-5
CONSENTED AND ACKNOWLEDGED
BY THE ISSUER:
SHENTEL ISSUER LLC,
as the Issuer
By: ________________________________
Name:
Title:
C-6
SCHEDULE I TO
INVESTOR GROUP SUPPLEMENT
LIST OF ADDRESSES FOR NOTICES
AND OF COMMITMENT AMOUNTS
[____________________], as Transferor Investor Group
Prior Commitment Amount: $[ ]
Revised Commitment Amount: $[ ]
Prior Maximum Investor Group
Principal Amount: $[ ]
Revised Maximum Investor
Group Principal Amount: $[ ]
[_______________________], as Acquiring Investor Group
Address:
Attention:
Telephone:
Email:
Purchased Percentage of
Transferor Investor Group’s Commitment: [_______]%
Prior Commitment Amount: $[________]
Revised Commitment Amount: $[______]
Prior Maximum Investor Group
Principal Amount: $[________]
Revised Maximum Investor
Group Principal Amount: $[_______]
[_________________________________], as related Funding Agent
C-7
Address:
Attention:
Telephone:
Email:
C-8
EXHIBIT D TO CLASS A-1-V
NOTE PURCHASE AGREEMENT
[FORM OF PURCHASER’S LETTER]
[INVESTOR]
[INVESTOR ADDRESS]
Attention: [INVESTOR CONTACT] [Date]
Ladies and Gentlemen:
Reference is hereby made to that certain Series 2025-1 Class A-1-V Note Purchase Agreement, dated as of December 5, 2025 (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof, the “Series 2025-1 Class A-1-V Note Purchase Agreement”; terms defined therein being used herein as therein defined) among Shentel Issuer LLC, as the Issuer, the Asset Entities party thereto, Shentel Broadband Operations LLC, as the Manager, the Conduit Investors, the Committed Note Purchasers for each Investor Group, the Funding Agents, and Bank of America, N.A., as the Series 2025-1 Class A-1-V Administrative Agent, relating to the offer and sale (the “Offering”) of up to $175,000,000 of Secured Fiber Network Revenue Variable Funding Notes, Series 2025-1, Class A-1-V (the “Series 2025-1 Class A-1-V Notes”) of the Issuer. The Offering will not be required to be registered with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Act”) under an exemption from registration granted in Section 4(a)(2) of the Act and Regulation D promulgated under the Act. Unless otherwise defined herein, capitalized terms have the definitions ascribed to them in the Series 2025-1 Class A-1-V Note Purchase Agreement. Please confirm with us your acknowledgement and agreement with the following:
| (a) | You are an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act (an “Accredited Investor”) and have sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of investing in, and are able and prepared to bear the economic risk of investing in, the Series 2025-1 Class A-1-V Notes. |
|---|---|
| (b) | you are not an EU/UK Retail Investor and understand that the offering or selling of the Series 2025-1 Class A-1-V Notes to an EU/UK Retail Investor may be unlawful under Regulation (EU) No 1286/2014 (as amended) (including as it forms part of domestic law in the UK by virtue of the EUWA); |
| --- | --- |
| (c) | you have complied, and will comply, with all applicable provisions of the FSMA with respect to anything done by you in relation to the Series 2025-1 Class A-1-V Notes in, from or otherwise involving the UK, and you have only communicated or caused to be communicated, and will only communicate or cause to be communicated, an invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received in connection with the issue or sale of any Series 2025-1 Class A-1-V Notes, in circumstances in which section 21(1) of the FSMA does not apply to the Issuer or the other Obligors, and (B) you have not offered, sold or otherwise made available, and will not offer, sell or otherwise make available, any Series 2025-1 Class A-1-V Notes to any EU/UK Retail Investor; |
| --- | --- |
D-1
| (b) | None of the Issuer or its Affiliates (i) has provided you with any information with respect to the Issuer, the Series 2025-1 Class A-1-V Notes or the Offering other than the information contained in the Series 2025-1 Class A-1-V Note Purchase Agreement, or (ii) makes any representation as to the credit quality of the Issuer or the merits of an investment in the Series 2025-1 Class A-1-V Notes. The Issuer has not provided you with any legal, business, tax or other advice in connection with the Offering or your possible purchase of the Series 2025-1 Class A-1-V Notes. |
|---|---|
| (c) | You acknowledge that you have completed your own diligence investigation of the Issuer and the Series 2025-1 Class A-1-V Notes and have had sufficient access to the agreements, documents, records, officers and directors of the Issuer to make your investment decision related to the Series 2025-1 Class A-1-V Notes. You further acknowledge that you have had an opportunity to discuss the Issuer’s and the Manager’s business, management and financial affairs, and the terms and conditions of the proposed purchase, with the Issuer and the Manager and their respective representatives. |
| --- | --- |
| (d) | The Funding Agents may currently or in the future own securities issued by, or have business relationships (including, among others, lending, depository, risk management, advisory and banking relationships) with, the Issuer and its affiliates, and the Funding Agents will manage such security positions and business relationships as it determines to be in their respective best interests, without regard to the interests of the holders of the Series 2025-1 Class A-1-V Notes. |
| --- | --- |
| (e) | You are purchasing the Series 2025-1 Class A-1-V Notes for your own account, or for the account of one or more Persons who are Accredited Investors and who meet the criteria described in paragraph (a) above and for whom you are acting with complete investment discretion, for investment purposes only and not with a view to a distribution (but without prejudice to our right at all times to sell or otherwise dispose of the Series 2025-1 Class A-1-V Notes in accordance with clause (f) below) in violation of the Securities Act, subject, nevertheless, to the understanding that the disposition of your property shall at all times be and remain within your control, and neither you nor your Affiliates has engaged in any general solicitation or general advertising within the meaning of the Act, or the rules and regulations promulgated thereunder with respect to the Series 2025-1 Class A-1-V Notes. You confirm that, to the extent you are purchasing the Series 2025-1 Class<br>A-1-V Notes for the account of one or more other Persons, (i) you have been duly authorized to make the representations, warranties, acknowledgements and agreements set forth herein on their behalf and (ii) the provisions of this letter constitute legal, valid and binding obligations of you and any other Person for whose account you are acting. |
| --- | --- |
D-2
| (f) | You understand that (i) the Series 2025-1 Class A-1-V Notes have not been and will not be registered or qualified under the Act or any applicable state securities laws or the securities laws of any other jurisdiction and are being offered only in a transaction not involving any public offering within the meaning of the Act and may not be resold or otherwise transferred unless so registered or qualified or unless an exemption from registration or qualification is available and an opinion of counsel shall have been delivered in advance to the Issuer, (ii) the Issuer is not required to register the Series 2025-1 Class A-1-V Notes, (iii) any permitted transferee under the Series 2025-1 Class A-1-V Note Purchase Agreement must be an Accredited Investor and (iv) any transfer must comply with the provisions of Section 2.02 of the Base Indenture and Section 9.03 or 9.17 of the Series 2025-1 Class A-1-V Note Purchase Agreement, as applicable. |
|---|---|
| (g) | You will comply with the requirements of paragraph (f) above in connection with any transfer by you of the Series 2025-1 Class A-1-V Notes. |
| --- | --- |
| (h) | You understand that the Series 2025-1 Class A-1-V Notes (other than any Uncertificated Notes) will bear the legend set out in the form of the Series 2025-1 Class A-1-V Notes attached to the Series 2025-1 Supplement and be subject to the restrictions on transfer described in such legend. |
| --- | --- |
| (i) | Either (i) you are not acquiring, holding or subsequently disposing of the Series 2025-1 Class A-1-V Notes for or on behalf of, or with the assets of, any plan, account or other arrangement that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or provisions under any Similar Law (as defined in the Indenture) or (ii) your purchase and holding of the Series 2025-1 Class A-1-V Notes will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or a violation of any applicable Similar Law. |
| --- | --- |
This letter agreement will be governed by and construed in accordance with the laws of the State of New York without giving effect to any choice of law or conflict provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other that the State of New York.
You understand that the Issuer will rely upon this letter agreement in connection with the Offering. You agree to notify the Issuer (with a copy to the Indenture Trustee) promptly in writing if any of your representations, acknowledgements or agreements herein cease to be accurate and complete. You irrevocably authorize the Issuer to produce this letter to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters set forth herein.
SHENTEL ISSUER LLC, as the Issuer
By: ______________________________
Name:
Title:
D-3
Agreed and Acknowledged:
[INVESTOR]
By: ______________________________
Name:
Title:
D-4
EXHIBIT E TO CLASS A-1-V
NOTE PURCHASE AGREEMENT
[FORM OF VOLUNTARY DECREASE]
TO: Citibank, N.A.,
as Indenture Trustee
388 Greenwich Street
New York, New York 10013
Attention: Agency & Trust – Shentel, Series 2025-1
Telephone: (888) 855-9695
Email: call (888) 855-9695 to obtain
Bank of America, N.A.,
as Series 2025-1 Class A-1-V Administrative Agent
as Funding Agent
One Bryant Park, 11th Floor
New York, New York 10036
Attention: Carl W. Anderson
Telephone: (646) 855-4242
Email: carl.w.anderson@bofa.com; thomas.luccioni@bofa.com; maurice.palma@bofa.com; michael.kerbrat@bofa.com; claire.zhang@bofa.com; sean.c.walsh@bofa.com; judith.e.helms@bofa.com; christi.thomas@bofa.com; dg.sfg-treasury@bofa.com
Morgan Stanley Bank, N.A.,
as Funding Agent
1585 Broadway, 4^th^ Floor
New York, NY 10036
Attention: Dhruv Singh
Telephone: 212-762-3146
Email: Dhruv.Singh@morganstanley.com
Citizens Bank, N.A.,
as Funding Agent
600 Washington Blvd
Stamford, CT 06901
Attention: Gordon Wong
Telephone: 203-900-6681
Email: gordon.wong@citizensbank.com
Truist Bank,
as Funding Agent
214 N. Tryon Street, 14th Floor
Charlotte, NC 28202
Attention: Rich Zell
Telephone: (980) 333-6575
Email: rich.zell@truist.com
E-1
Drivetrain Agency Services, LLC
as Servicer
410 Park Avenue, Suite 900
New York, NY 10022
Attention: Tim Daileader
Email: tdaileader@drivetrainllc.com
Ladies and Gentlemen:
Reference is made to (a) that certain Series 2025-1 Class A-1-V Note Purchase Agreement, dated as of December 5, 2025 (as amended, supplemented, amended and restated or otherwise modified from time to time, the “Series 2025-1 Class A-1-V Note Purchase Agreement”), by and among Shentel Issuer LLC (the “Issuer”), Shentel Asset Entity I LLC (“Asset Entity I”), Shentel Asset Entity II LLC (“Asset Entity II” and, together with the Issuer and Asset Entity I, the “Obligors”), Shentel Broadband Operations LLC (the “Manager”), the Conduit Investors, the Committed Note Purchasers, the Funding Agents and Bank of America, N.A. as Series 2025-1 Class A-1-V Administrative Agent (in such capacity, the “Administrative Agent”) and (b) that certain Series 2025-1 Supplement, dated as of December 5, 2025 (the “Series 2025-1 Supplement”) to the Base Indenture, dated as of December 5, 2025 (the “Base Indenture”), by and between the Obligors and Citibank, N.A., as Indenture Trustee (in such capacity, the “Trustee”). Unless otherwise defined herein or as the context otherwise requires, terms used herein have the meaning assigned thereto under or as provided in the Series 2025-1 Class A-1-V Note Purchase Agreement or the Series 2025-1 Supplement.
Pursuant to Section 2.02(d) of the Series 2025-1 Class A-1-V Note Purchase Agreement, the undersigned hereby gives the Trustee, the Series 2025-1 Class A-1-V Administrative Agent, the Funding Agents and the Servicer notice of a Voluntary Decrease and directs that the following amounts be paid on [ ] (the “Voluntary Decrease Date”).
Principal: $ ____________
Interest: $ ____________
Breakage Amount (if any): $ ____________
In furtherance of the above, the Trustee is hereby directed to distribute such amounts from the Collection Account not later than the Voluntary Decrease Date to [________] at account number [________].
E-2
For the avoidance of doubt, this repayment is a repayment and is not a permanent reduction in the Series 2025-1 Class A-1-V Notes Maximum Principal Amount.
E-3
The undersigned has executed and delivered this payment direction on the ____ day of _____, _____.
[ ], as Manager on behalf of the Issuer
By: __________________________________
Name:
Title:
E-4
Exhibit 10.2
CREDIT AGREEMENT
Dated as of December 5, 2025
among
Shentel Broadband Operations LLC,
as the Borrower,
Shentel Broadband Holding Inc.,
as Holdco and a Guarantor,
CERTAIN SUBSIDIARIES OF HOLDCO PARTY HERETO,
as Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swingline Lender and
L/C Issuer,
and
THE LENDERS PARTY HERETO
BOFA SECURITIES, INC.,
CITIZENS BANK, N.A.,
FIFTH THIRD BANK, NATIONAL ASSOCIATION,
TRUIST SECURITIES, INC.,
and
MORGAN STANLEY SENIOR FUNDING, INC.,
as Joint Lead Arrangers
BOFA SECURITIES, INC.,
CITIZENS BANK, N.A.,
and
FIFTH THIRD BANK, NATIONAL ASSOCIATION,
as Joint Bookrunners
TABLE OF CONTENTS
| Page | ||
|---|---|---|
| Page | ||
| Article I DEFINITIONS AND ACCOUNTING TERMS | 1 | |
| 1.01 | Defined Terms | 1 |
| 1.02 | Other Interpretive Provisions | 43 |
| 1.03 | Accounting Terms | 44 |
| 1.04 | Rounding | 45 |
| 1.05 | Times of Day | 46 |
| 1.06 | Letter of Credit Amounts | 46 |
| 1.07 | Interest Rates | 46 |
| 1.08 | UCC Terms | 46 |
| 1.09 | Limited Condition Transactions | 46 |
| Article II COMMITMENTS AND CREDIT EXTENSIONS | 47 | |
| 2.01 | Loans | 47 |
| 2.02 | Borrowings, Conversions and Continuations of Loans | 48 |
| 2.03 | Letters of Credit | 50 |
| 2.04 | Swingline Loans | 58 |
| 2.05 | Prepayments | 61 |
| 2.06 | Termination or Reduction of Commitments | 62 |
| 2.07 | Repayment of Loans | 63 |
| 2.08 | Interest and Default Rate | 63 |
| 2.09 | Fees | 64 |
| 2.1 | Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate | 65 |
| 2.11 | Evidence of Debt | 65 |
| 2.12 | Payments Generally; Administrative Agent’s Clawback | 66 |
| 2.13 | Sharing of Payments by Lenders | 68 |
| 2.14 | Cash Collateral | 69 |
| 2.15 | Defaulting Lenders | 70 |
| 2.16 | Increase in Revolving Facility; Incremental Term Loans | 72 |
| Article III TAXES, YIELD PROTECTION AND ILLEGALITY | 76 | |
| 3.01 | Taxes | 76 |
| 3.02 | Illegality | 80 |
| 3.03 | Inability to Determine Rates | 81 |
| 3.04 | Increased Costs | 83 |
| 3.05 | Compensation for Losses | 84 |
| 3.06 | Mitigation Obligations; Replacement of Lenders | 84 |
| 3.07 | Survival | 85 |
| Article IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS | 85 | |
| 4.01 | Conditions of Initial Credit Extension | 85 |
| 4.02 | Conditions to all Credit Extensions | 88 |
| Article V REPRESENTATIONS AND WARRANTIES | 89 | |
| 5.01 | Organization and Qualification | 89 |
| 5.02 | Compliance with Laws | 89 |
| 5.03 | Title to Properties | 89 |
ii
| 5.04 | Investment Company Act | 90 |
|---|---|---|
| 5.05 | Default | 90 |
| 5.06 | Subsidiaries and Owners | 90 |
| 5.07 | Power and Authority; Validity and Binding Effect | 90 |
| 5.08 | No Conflict; Material Contracts; Consents | 90 |
| 5.09 | Litigation | 91 |
| 5.1 | Financial Statements | 91 |
| 5.11 | Margin Stock | 92 |
| 5.12 | Full Disclosure | 92 |
| 5.13 | Taxes | 92 |
| 5.14 | Intellectual Property; Other Rights | 93 |
| 5.15 | Liens in the Collateral | 93 |
| 5.16 | Insurance | 93 |
| 5.17 | Employee Benefits Compliance | 93 |
| 5.18 | Environmental Matters | 94 |
| 5.19 | Communications Regulatory Matters | 94 |
| 5.2 | Solvency | 95 |
| 5.21 | Qualified ECP Guarantor | 95 |
| 5.22 | Reserved | 95 |
| 5.23 | Labor Matters | 95 |
| 5.24 | Anti-Corruption; Anti-Terrorism and Sanctions | 96 |
| 5.25 | The Parent and Holdco’s Status as a Holding Company | 96 |
| 5.26 | Senior Debt | 96 |
| 5.27 | Affected Financial Institutions | 96 |
| 5.28 | Covered Entities | 96 |
| 5.29 | Beneficial Ownership Certification | 97 |
| 5.3 | Outbound Investment Rules | 97 |
| Article VI AFFIRMATIVE COVENANTS | 97 | |
| 6.01 | Reporting Requirements | 97 |
| 6.02 | Preservation of Existence, Etc | 101 |
| 6.03 | Preservation of Licenses | 101 |
| 6.04 | Payment of Liabilities, Including Taxes, Etc | 101 |
| 6.05 | Maintenance of Insurance | 102 |
| 6.06 | Maintenance of Properties | 102 |
| 6.07 | Visitation Rights | 102 |
| 6.08 | Keeping of Records and Books of Account | 103 |
| 6.09 | Compliance with Laws | 103 |
| 6.1 | Further Assurances | 104 |
| 6.11 | Cash Management | 105 |
| 6.12 | Use of Proceeds | 105 |
| 6.13 | Material Contracts; ABS Direction Letters | 105 |
| 6.14 | Benefit Plan Compliance | 105 |
| 6.15 | Anti-Corruption Laws; Sanctions | 106 |
| 6.16 | Post-Closing Deliveries | 106 |
| Article VII NEGATIVE COVENANTS | 106 | |
| 7.01 | Indebtedness | 106 |
| 7.02 | Liens | 107 |
| 7.03 | Affiliate Transactions | 107 |
| 7.04 | Contingent Obligations | 108 |
| 7.05 | Investments | 108 |
iii
| 7.06 | Dividends and Related Distributions | 109 |
|---|---|---|
| 7.07 | Liquidations, Mergers, Consolidations, Acquisitions | 110 |
| 7.08 | Dispositions of Assets or Subsidiaries | 110 |
| 7.09 | Use of Proceeds | 112 |
| 7.1 | Subsidiaries and Partnerships | 112 |
| 7.11 | Continuation of or Change in Business | 112 |
| 7.12 | Fiscal Year | 112 |
| 7.13 | Issuance of Equity Interests | 112 |
| 7.14 | Changes in Organization Documents | 113 |
| 7.15 | Negative Pledges; Other Inconsistent Agreements | 113 |
| 7.16 | Material Contracts; ABS Indenture Documentation | 113 |
| 7.17 | Management Fees | 114 |
| 7.18 | Holding Company Covenants | 114 |
| 7.19 | Anti-Corruption; Anti-Terrorism; Sanctions | 115 |
| 7.2 | Financial Covenants | 115 |
| 7.21 | Outbound Investment Rules | 115 |
| Article VIII EVENTS OF DEFAULT AND REMEDIES | 115 | |
| 8.01 | Events of Default | 115 |
| 8.02 | Remedies upon Event of Default | 118 |
| 8.03 | Application of Funds | 119 |
| Article IX ADMINISTRATIVE AGENT | 120 | |
| 9.01 | Appointment and Authority | 120 |
| 9.02 | Rights as a Lender | 120 |
| 9.03 | Exculpatory Provisions | 121 |
| 9.04 | Reliance by Administrative Agent | 122 |
| 9.05 | Delegation of Duties | 122 |
| 9.06 | Resignation of Administrative Agent | 122 |
| 9.07 | Non-Reliance on Administrative Agent, the Arrangers and the Other Lenders | 124 |
| 9.08 | No Other Duties, Etc | 124 |
| 9.09 | Administrative Agent May File Proofs of Claim; Credit Bidding | 125 |
| 9.1 | Collateral and Guaranty Matters | 126 |
| 9.11 | Secured Cash Management Agreements and Secured Hedge Agreements | 127 |
| 9.12 | Certain ERISA Matters | 127 |
| 9.13 | Recovery of Erroneous Payments | 128 |
| Article X CONTINUING GUARANTY | 128 | |
| 10.01 | Guaranty | 128 |
| 10.02 | Rights of Lenders | 129 |
| 10.03 | Certain Waivers | 129 |
| 10.04 | Obligations Independent | 130 |
| 10.05 | Subrogation | 130 |
| 10.06 | Termination; Reinstatement | 130 |
| 10.07 | Stay of Acceleration | 130 |
| 10.08 | Condition of Borrower | 130 |
| 10.09 | Appointment of Borrower | 131 |
| 10.1 | Right of Contribution | 131 |
| 10.11 | Keepwell | 131 |
| Article XI MISCELLANEOUS | 131 | |
| 11.01 | Amendments, Etc | 131 |
iv
| 11.02 | Notices; Effectiveness; Electronic Communications | 134 |
|---|---|---|
| 11.03 | No Waiver; Cumulative Remedies; Enforcement | 136 |
| 11.04 | Expenses; Indemnity; Damage Waiver | 136 |
| 11.05 | Payments Set Aside | 138 |
| 11.06 | Successors and Assigns | 138 |
| 11.07 | Treatment of Certain Information; Confidentiality | 144 |
| 11.08 | Right of Setoff | 145 |
| 11.09 | Interest Rate Limitation | 145 |
| 11.1 | Integration; Effectiveness | 146 |
| 11.11 | Survival of Representations and Warranties | 146 |
| 11.12 | Severability | 146 |
| 11.13 | Replacement of Lenders | 146 |
| 11.14 | Governing Law; Jurisdiction; Etc | 148 |
| 11.15 | Waiver of Jury Trial | 149 |
| 11.16 | Subordination | 149 |
| 11.17 | No Advisory or Fiduciary Responsibility | 149 |
| 11.18 | Electronic Execution; Electronic Records; Counterparts | 150 |
| 11.19 | USA Patriot Act Notice | 151 |
| 11.2 | Acknowledgement and Consent to Bail-In of Affected Financial Institutions | 151 |
| 11.21 | Acknowledgement Regarding Any Supported QFCs | 152 |
| 11.22 | ENTIRE AGREEMENT | 152 |
v
SCHEDULES
| Schedule 1.01(a) | Certain Addresses for Notices |
|---|---|
| Schedule 1.01(b) | Commitments and Applicable Percentages |
| --- | --- |
| Schedule 1.01(c) | Minority Investments of Loan Parties |
| --- | --- |
| Schedule 1.01(d) | Existing Liens |
| --- | --- |
| Schedule 1.01(e) | Existing Letters of Credit |
| --- | --- |
| Schedule 2.03 | L/C Commitments |
| --- | --- |
| Schedule 2.04 | Swingline Commitments |
| --- | --- |
| Schedule 5.01 | Jurisdiction of Organization |
| --- | --- |
| Schedule 5.06 | Subsidiaries |
| --- | --- |
| Schedule 5.08 | Governmental Authorizations |
| --- | --- |
| Schedule 5.17 | ERISA Events |
| --- | --- |
| Schedule 6.16 | Post-Closing Deliveries |
| --- | --- |
| Schedule 7.05 | Existing Investments |
| --- | --- |
| Schedule 11.06 | Voting Participants |
| --- | --- |
EXHIBITS
| Exhibit A | Form of Master Subordinated Intercompany Note and Allonge |
|---|---|
| Exhibit B | Form of Assignment and Assumption |
| --- | --- |
| Exhibit C | Form of Compliance Certificate |
| --- | --- |
| Exhibit D | Form of Guarantor Joinder |
| --- | --- |
| Exhibit E | Form of Loan Notice |
| --- | --- |
| Exhibit F | Form of Negative Pledge Agreement |
| --- | --- |
| Exhibit G | Form of Revolving Note |
| --- | --- |
| Exhibit H | Form of Secured Party Designation Notice |
| --- | --- |
| Exhibit I | Form of Solvency Certificate |
| --- | --- |
| Exhibit J | Form of Swingline Loan Notice |
| --- | --- |
| Exhibit K | Forms of U.S. Tax Compliance Certificates |
| --- | --- |
| Exhibit L | Form of Notice of Loan Prepayment |
| --- | --- |
vi
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of December 5, 2025, among SHENTEL BROADBAND OPERATIONS LLC, a Delaware limited liability company (the “Borrower”), Shentel Broadband Holding Inc., a Delaware corporation (“Holdco”), the other Guarantors (defined herein), the Lenders (defined herein), and BANK OF AMERICA, N.A., as Administrative Agent, Swingline Lender and L/C Issuer.
PRELIMINARY STATEMENTS:
WHEREAS, the Loan Parties (as hereinafter defined) have requested that the Lenders, the Swingline Lender and the L/C Issuer make loans and other financial accommodations to the Loan Parties.
WHEREAS, the Lenders, the Swingline Lender and the L/C Issuer have agreed to make such loans and other financial accommodations to the Loan Parties on the terms and subject to the conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
Article I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms.
As used in this Agreement, the following terms shall have the meanings set forth below:
“ABS Asset Entities” means the “Asset Entities” (as defined in the ABS Base Indenture).
“ABS Asset Entity I” means Shentel Asset Entity I LLC, a Delaware limited liability company.
“ABS Asset Entity II” means Shentel Asset Entity II LLC, a Delaware limited liability company.
“ABS Base Indenture” means that certain Base Indenture, dated as of the Closing Date, among the ABS Issuer, as the issuer, the ABS Asset Entity I, the ABS Asset Entity II, and the ABS Indenture Trustee (as such agreement is in effect on the Closing Date, but subject to any amendments, restatements, supplements, waivers, modifications, terminations, cancellations, revocations and consents that are permitted pursuant to Section 7.16).
“ABS Direction Letter” means each of the ABS Direction Letter (ABS Entities) and the ABS Direction Letter (ABS Indenture Trustee).
“ABS Direction Letter (ABS Entities)” means that certain letter agreement from the Borrower and the ABS Guarantor to the ABS Guarantor and the ABS Issuer, pursuant to which (a) the Borrower and the ABS Guarantor direct the ABS Issuer and the ABS Guarantor to make distributions of all available funds to the Borrower, and (b) the Borrower and the ABS Guarantor direct that all such available funds received by the Borrower be remitted to the collection account specified therein.
“ABS Direction Letter (ABS Indenture Trustee)” means that certain letter agreement from the ABS Guarantor and the ABS Issuer to the ABS Indenture Trustee, pursuant to which (a) the ABS Guarantor and the ABS Issuer direct the ABS Indenture Trustee to make distributions of all available funds to the Borrower, and (b) the ABS Guarantor and the ABS Issuer direct that all such available funds received by the Borrower be remitted to the collection account specified therein.
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“ABS Entity” means each of (a) the ABS Guarantor, (b) the ABS Issuer, (c) the ABS Asset Entity I, (d) the ABS Asset Entity II, and (e) any other ABS Asset Entities.
“ABS Entity Agreements” means, collectively, (a) the ABS Obligor Access Agreements, (b) the ABS Non-Securitization Entity Access Agreements, and (c) any other material agreement between any ABS Entity, on the one hand, and any Loan Party and/or any Subsidiary, on the other hand.
“ABS Fiber Network Assets” means the “Fiber Network Assets” (as defined in the ABS Base Indenture).
“ABS Guarantor” means Shentel Guarantor LLC, a Delaware limited liability company.
“ABS Indenture” means the ABS Base Indenture, as supplemented by the ABS Indenture Initial Series Supplement, as further supplemented pursuant to any other ABS Indenture Series Supplement (to the extent such ABS Indenture Series Supplement is permitted pursuant to Section 7.16), and as may be further amended, restated, amended and restated, extended, replaced, supplemented or otherwise modified from time to time (in each case, to the extent any such amendment, restatement, amendment and restatement, extension, replacement, supplement or other modification is permitted pursuant to Section 7.16).
“ABS Indenture Documentation” means, collectively, (a) the ABS Indenture, (b) the ABS Entity Agreements, (c) the other ABS Transaction Documents, and (d) any other material agreements entered into in connection the ABS Transactions.
“ABS Indenture Initial Series Supplement” means that certain Series 2025-1 Indenture Supplement, dated as of the Closing Date, among the ABS Issuer, as the issuer, the ABS Asset Entity I, the ABS Asset Entity II, and the ABS Indenture Trustee (as such agreement is in effect on the Closing Date, but subject to any amendments, restatements, supplements, waivers, modifications, terminations, cancellations, revocations and consents that are permitted pursuant to Section 7.16).
“ABS Indenture Series Supplement” means any “Series Supplement” (as defined in the ABS Base Indenture).
“ABS Indenture Trustee” means Citibank, N.A., in its capacity as the indenture trustee under the ABS Indenture.
“ABS Intercompany Transaction Exception” means that neither any Loan Party nor any Subsidiary shall (a) contribute, or otherwise make any Investment in, any ABS Fiber Network Asset in, or Dispose of any ABS Fiber Network Asset to, any ABS Entity or (b) contribute to, or otherwise make any Investment in, any ABS Entity, in each case, unless (i) no Default has occurred and is continuing or would result therefrom, and (ii) upon giving Pro Forma Effect to such transaction, the Loan Parties would be in compliance with the financial covenants set forth in Sections 7.20(a) and (b) as of the most recent fiscal quarter end for which the Borrower was required to deliver financial statements pursuant to Section 6.01(a) or (b).
“ABS Issuer” means Shentel Issuer LLC, a Delaware limited liability company.
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“ABS Non-Securitization Entity Access Agreement” means any “Non-Securitization Entity Access Agreement” (as defined in the ABS Base Indenture).
“ABS Obligor Access Agreements” means the “Obligor Access Agreements” (as defined in the ABS Base Indenture).
“ABS Transaction Documents” means the “Transaction Documents” (as defined in the ABS Base Indenture).
“ABS Transactions” means the entering into by the ABS Entities of the ABS Indenture Documentation, the issuance by the ABS Issuer of the Series 2025-1 Notes under the ABS Indenture Documentation, and any transactions arising out of, or relating to, the transactions contemplated by the ABS Indenture Documentation (including any organizational restructuring or transferring of assets of the Parent and its Subsidiaries (including the ABS Entities) in connection therewith).
“ABS Trigger Event or Condition” means the occurrence or existence of any “Event of Default” (as defined in the ABS Base Indenture), any “Manager Termination Event” (as defined in the ABS Base Indenture), any “Servicer Termination Event” (as defined in the ABS Base Indenture), any “Amortization Period” (as defined in the ABS Base Indenture), any “ARD Period” (as defined in the ABS Indenture), any “Cash Trap Condition” (as defined in the ABS Base Indenture) or any “Cash Sweep Condition” (as defined in the ABS Base Indenture).
“Additional Secured Obligations” means (a) all obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements and (b) all costs and expenses incurred in connection with enforcement and collection of the foregoing, including the fees, charges and disbursements of counsel, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, expenses and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, expenses and fees are allowed claims in such proceeding; provided, that, Additional Secured Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor.
“Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
“Administrative Agent’sOffice” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 1.01(a), or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in substantially the form approved by the Administrative Agent.
“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 through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Aggregate Commitments” means the Commitments of all the Lenders.
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“Agreement” means this Credit Agreement, including all schedules, exhibits and annexes hereto.
“Anti-Corruption Laws” means any Laws of any Governmental Authority concerning or relating to bribery or corruption.
“Anti-Terrorism Laws” means any Laws of any Governmental Authority concerning or relating to financing terrorism, “know your customer” or money laundering.
“Applicable Law” means, as to any Person, any applicable Law binding upon such Person or to which such a Person is subject.
“Applicable Percentage” means (a) in respect of any Incremental Term Facility, with respect to any Incremental Term Lender at any time, the percentage (carried out to the ninth decimal place) of the Incremental Term Facility represented by (i) on or prior to the closing date for such Incremental Term Facility or at any time during the availability period for such Facility, such Incremental Term Lender’s Incremental Term Commitment at such time and (ii) thereafter, the outstanding principal amount of such Incremental Term Lender’s Incremental Term Loans at such time, and (b) in respect of the Revolving Facility, with respect to any Revolving Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Facility represented by such Revolving Lender’s Revolving Commitment at such time, subject to adjustment as provided in Section 2.15. If the Commitment of all of the Lenders to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the Commitments have expired, then the Applicable Percentage of each Lender in respect of the applicable Facility shall be determined based on the Applicable Percentage of such Lender in respect of such Facility most recently in effect, giving effect to any subsequent assignments and to any Lender’s status as a Defaulting Lender at the time of determination. The Applicable Percentage of each Lender in respect of each Facility is set forth opposite the name of such Lender on Schedule 1.01(b) or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto or in any documentation executed by such Lender pursuant to Section 2.16, as applicable.
“Applicable Rate” means (a) with respect to the Incremental Term Loans made pursuant to any Incremental Term Loan Lender Joinder Agreement, the percentage(s) per annum set forth in such Incremental Term Loan Lender Joinder Agreement, and (b) with respect to Revolving Loans, Swingline Loans, Letter of Credit Fees and the commitment fee pursuant to Section 2.09(a) for any day, the rate per annum set forth below opposite the applicable Level then in effect (based on the Total Net Leverage Ratio), it being understood that the Applicable Rate for (i) Revolving Loans that are Base Rate Loans shall be the percentage set forth under the column “Base Rate”, (ii) Revolving Loans that are Term SOFR Loans shall be the percentage set forth under the column “Term SOFR & Letter of Credit Fee”, (iii) the Letter of Credit Fee shall be the percentage set forth under the column “Term SOFR & Letter of Credit Fee” and (iv) the commitment fee pursuant to Section 2.09(a) shall be the percentage set forth under the column “Commitment Fee”:
| Level | Total Net Leverage Ratio | Term SOFR & Letter of Credit Fee | Base Rate | Commitment Fee |
|---|---|---|---|---|
| 1 | > 2.00 to 1.0 | 3.00% | 2.00% | 0.40% |
| 2 | < 2.00 to 1.0 but<br><br>> 1.00 to 1.0 | 2.75% | 1.75% | 0.35% |
| 3 | < 1.00 to 1.0 | 2.50% | 1.50% | 0.30% |
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Any increase or decrease in the Applicable Rate resulting from a change in the Total Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.01(c); provided, however, that, if a Compliance Certificate is not delivered when due in accordance with Section 6.01(c), then, upon the request of the Required Lenders, Level 1 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and in each case shall remain in effect until the first Business Day following the date on which such Compliance Certificate is delivered.
Notwithstanding anything to the contrary contained in this definition, (x) the Applicable Rate in effect from the Closing Date until the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.01(c) for the first full fiscal quarter ending after the Closing Date shall be determined based upon Level 3 and (y) the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b). Any adjustment in the Applicable Rate shall be applicable to all Credit Extensions then existing or subsequently made or issued.
“Applicable Revolving Percentage” means with respect to any Revolving Lender at any time, such Revolving Lender’s Applicable Percentage in respect of the Revolving Facility at such time.
“Appropriate Lender” means, at any time, (a) with respect to any Facility, a Lender that has a Commitment with respect to such Facility or holds a Loan under such Facility at such time, (b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued pursuant to Section 2.03, the Revolving Lenders and (c) with respect to the Swingline Sublimit, (i) the Swingline Lender and (ii) if any Swingline Loans are outstanding pursuant to Section 2.04(a), the Revolving Lenders.
“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.
“Arranger” means each of (a) BofA Securities, in its capacities as a joint lead arranger and a joint bookrunner, (b) Citizens Bank, N.A., in its capacities as a joint lead arranger and a joint bookrunner, (c) Fifth Third Bank, National Association, in its capacities as a joint lead arranger and a joint bookrunner, (d) Truist Securities, Inc., in its capacity as a joint lead arranger, and (e) Morgan Stanley Senior Funding, Inc., in its capacity as a joint lead arranger.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit B or any other form (including an electronic documentation form generated by use of an electronic platform) approved by the Administrative Agent.
“Auto-Extension Letter ofCredit” has the meaning specified in Section 2.03(b).
“Auxiliary License” means any License to provide (a) fixed point to point microwave, (b) millimeter wave (70/80/90 GHz Service), (c) microwave industrial pool or (d) aviation auxiliary, the loss of which, individually or collectively with one or more other Licenses, would not reasonably be expected to result in a Material Adverse Effect.
“Availability Period” means in respect of the Revolving Facility, the period from and including the Closing Date to the earliest of (a) the Revolving Facility Maturity Date, (b) the date of termination of the Revolving Commitments pursuant to Section 2.06, and (c) the date of termination of the Revolving Commitment of each Revolving Lender to make Revolving Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.
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“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, rule, regulation 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).
“Bank of America” means Bank of America, N.A. and its successors.
“Bankruptcy Code” means title 11 of the United States Code.
“Base Rate” means for any day a fluctuating rate of interest per annum equal to the highest of (a) the Federal Funds Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate,” and (c) Term SOFR plus 1.00%, subject to the interest rate floors set forth therein; provided, that, if the Base Rate shall be less than 1.00%, such rate shall be deemed 1.00% for purposes of this Agreement. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Board” means the Board of Governors of the Federal Reserve System of the United States.
“BofA Securities” means BofA Securities, Inc.
“Borrower” has the meaning specified in the introductory paragraph hereto.
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“Borrower Materials” has the meaning specified in Section 6.01.
“Borrowing” means a Revolving Borrowing, a Swingline Borrowing or an Incremental Term Borrowing, as the context may require.
“Business” has the meaning specified in Section 5.18(b).
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located.
“Cable Television Consent” means any approval, consent, order or other authorization issued by the applicable PUC or other Governmental Authority of the State of West Virginia, the State of Maryland or the Commonwealth of Pennsylvania with respect to the execution, delivery or performance by Shenandoah Cable of its obligations under this Agreement and the other Loan Documents to which it is a party, including the Guaranty set forth in Article X and the pledge of assets and granting of Liens pursuant to the Security Agreement.
“Capital Lease” means, for any Person, any lease of real or personal property that is required to be capitalized under GAAP or that is treated as an operating lease under regulations applicable to such Person and its Subsidiaries but that otherwise would be required to be capitalized under GAAP, and for the purposes of this Agreement, the amount of any Capital Lease obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP, subject to Section 1.03(b).
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuer or Swingline Lender (as applicable) or the Lenders, as Collateral for L/C Obligations, the Obligations in respect of Swingline Loans, or obligations of the Revolving Lenders to fund participations in respect of L/C Obligations or Swingline Loans (as the context may require), (a) cash or deposit account balances, (b) backstop letters of credit entered into on terms, from issuers and in amounts reasonably satisfactory to the Administrative Agent and the applicable L/C Issuer, and/or (c) if the Administrative Agent and the applicable L/C Issuer or Swingline Lender shall agree, in their sole discretion, other credit support, in each case, in Dollars and pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the L/C Issuer or the Swingline Lender (as applicable). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such Cash Collateral and other credit support.
“Cash Equivalents” means:
(a) marketable direct obligations issued or unconditionally guaranteed by the United States or issued by any agency or instrumentality thereof and backed by the full faith and credit of the United States or if not so backed, then having a rating of at least A+ from S&P’s and at least A1 from Moody’s, in each case maturing within two (2) years from the date of acquisition thereof;
(b) commercial paper maturing no more than 180 days from the date issued and, at the time of acquisition, having a rating of at least A-1 from S&P’s or at least P-1 from Moody’s;
(c) certificates of deposit or bankers’ acceptances maturing within one year from the date of issuance thereof issued by, or overnight reverse repurchase agreements from, any commercial bank organized under the Laws of the United States or any state thereof or the District of Columbia and, in any case, having combined capital and surplus in an amount not less than $500,000,000;
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(d) money market or mutual funds whose investments are limited to those types of investments described in clauses (a) through (c) above; and
(e) time deposits maturing no more than 30 days from the date of creation thereof with commercial banks having membership in the Federal Deposit Insurance Corporation in amounts at any one such institution not exceeding the lesser of $250,000 or the maximum amount of insurance applicable to the aggregate amount of the Loan Party’s deposits at such institution.
“Cash Management Agreement” means any agreement that is not prohibited by the terms hereof to provide treasury or cash management services, including deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.
“Cash Management Bank” means any Person in its capacity as a party to a Cash Management Agreement that, (a) at the time it enters into a Cash Management Agreement with a Loan Party or any Subsidiary, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Cash Management Agreement with a Loan Party or any Subsidiary, in each case, in its capacity as a party to such Cash Management Agreement (even if such Person ceases to be a Lender or such Person’s Affiliate ceases to be a Lender); provided, however, that, for any of the foregoing to be included as a “Secured Cash Management Agreement” on any date of determination by the Administrative Agent, the applicable Cash Management Bank (other than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the Administrative Agent prior to such date of determination.
“CFC” means a Person that is a controlled foreign corporation under Section 957 of the Code in which the Borrower or any Loan Party is a United States shareholder within the meaning of Section 951(b) of the Code.
“Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.
“Change of Control” means:
(a) any Person or group of Persons (within the meaning of Sections 13(d) or 14(a) of the Exchange Act) shall have acquired beneficial ownership (either within the meaning of Rules 13d-3 and 13d-5 promulgated by the SEC under the Exchange Act or by reason of such Person or group of Persons having the right to acquire such beneficial ownership, whether exercisable immediately or with the passage of time (each, an “Option Right”)) of 30% or more of the voting Equity Interests of the Parent entitled to vote for members of the board of directors or equivalent governing body of the Parent on a fully diluted basis, taking into account any Option Rights as though such rights have been exercised;
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(b) the occurrence of (x) any consolidation or merger of the Parent in which the Parent is not the continuing or surviving Person or pursuant to which common shares of the Parent will be converted into cash, securities or other property or (y) any sale, lease, exchange or other transfer (in one transaction or a series of transactions) of all or substantially all of the assets of the Parent;
(c) within a period of twenty-four (24) consecutive calendar months, individuals who were (x) directors of the Parent on the first day of such period or (y) new directors of the Parent whose nomination or election to the board of directors of the Parent was approved by at least a majority of directors who were either directors on the first day of such period or whose nomination or election was previously so approved shall cease to constitute a majority of the board of directors of the Parent;
(d) Holdco shall cease to directly own, beneficially and of record, 100% of the issued and outstanding Equity Interests of the Borrower;
(e) the Parent shall cease to directly own, beneficially and of record, 100% of the issued and outstanding Equity Interests (other than the Preferred Stock) of Holdco;
(f) the Borrower shall cease to directly own, beneficially and of record, 100% of the issued and outstanding Equity Interests of the ABS Guarantor;
(g) the ABS Guarantor shall cease to directly own, beneficially and of record, 100% of the issued and outstanding Equity Interests of the ABS Issuer; or
(h) the ABS Issuer shall cease to directly or indirectly own, beneficially and of record, 100% of the issued and outstanding Equity Interests of each ABS Entity (other than the ABS Guarantor or the ABS Issuer).
“Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans or Incremental Term Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving Commitment or an Incremental Term Commitment.
“Closing Date” means December 5, 2025.
“CME” means CME Group Benchmark Administration Limited.
“CoBank” means CoBank, ACB, a federally chartered instrumentality of the United States.
“CoBank Equities” means any of the stock, patronage refunds issued in the form of stock or otherwise constituting allocated units, patronage surplus (including any such surplus accrued by CoBank for the account of the Borrower) and other equities in CoBank acquired by the Borrower in connection with, or because of the existence of, the Borrower’s patronage loan from CoBank (or its affiliate), including under the Existing Credit Agreement, and the proceeds of any of the foregoing.
“Code” means the Internal Revenue Code of 1986.
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“Collateral” means all of the “Collateral” referred to in the Collateral Documents and all of the other property that is or is intended under the terms of the Collateral Documents to be subject to Liens in favor of the Administrative Agent for the benefit of the Secured Parties.
“Collateral Documents” means, collectively, the Security Agreement, each Negative Pledge Agreement, each Guarantor Joinder, each of the collateral assignments, security agreements, pledge agreements, control agreements or other similar agreements delivered to the Administrative Agent pursuant to Section 6.10, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.
“Commitment” means an Incremental Term Commitment or a Revolving Commitment, as the context may require.
“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.
“Communication” means this Agreement, any Loan Document and any document, any amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to any Loan Document.
“Communications Act” means the Communications Act of 1934 and the rules and regulations of the FCC thereunder.
“Communications Systems” means a system or business (a) providing (or capable of providing) voice, data, Internet access or video transport, connection, monitoring services or other communications and/or information services (including cable television), through any means or medium, (b) providing (or capable of providing) facilities, marketing, management, technical and financial (including call rating) or other services to companies providing such transport, connection, monitoring service or other communications and/or information services or (c) that is (or that is capable of) constructing, creating, developing or marketing communications-related network equipment, software and other devices for use in any system or business described above.
“Compliance Certificate” means a certificate of the Borrower, signed by a Financial Officer of the Borrower, substantially in the form of Exhibit C.
“Conforming Changes” means, with respect to the use, administration of or any conventions associated with SOFR or any proposed Successor Rate or Term SOFR, as applicable, any conforming changes to the definition of “Base Rate”, the definition of “SOFR”, the definition of “Term SOFR” and the definition of “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definition of “Business Day” and the definition of “U.S. Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).
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“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated” means, when used with reference to financial statements or financial statement items of any Person, such statements or items on a consolidated basis in accordance with applicable principles of consolidation under GAAP.
“Consolidated Adjusted EBITDA” means, for any period, on a Consolidated basis, the result of (i) the sum, without duplication, of each of the following for such period:
(1) net income or deficit, as the case may be;
(2) total interest expense (including non-cash interest);
(3) depreciation and amortization expense;
(4) income taxes;
(5) losses from the disposal or impairment of property and equipment and other long-term assets, including goodwill, intangibles and spectrum;
(6) losses on sales of assets (excluding sales in the ordinary course of business);
(7) the amount of any proceeds of any business interruption insurance policy representing the earnings for such period that such proceeds are intended to replace (whether or not then received so long as such Person in good faith expects to receive such proceeds within the next two (2) fiscal quarters (it being understood that to the extent not actually received within such period, to the extent previously added back to net income in determining Consolidated Adjusted EBITDA for a prior fiscal quarter such reimbursement amounts so added back but not so received shall be deducted in calculating Consolidated Adjusted EBITDA for the fiscal quarter immediately following such two (2) fiscal quarter period));
(8) the sum of (a) the actual amount of unusual or non-recurring fees, costs and expenses paid or to be paid in connection with any Permitted Acquisition or other Investment, any Disposition, any recapitalization, any merger, consolidation or amalgamation, any option buyout or any incurrence, repayment, refinancing, amendment or modification of Indebtedness (including any amortization or write-off of debt issuance or deferred financing costs, premiums and prepayment penalties), in each case, including any transaction proposed and not consummated, including severance costs, termination fees, accelerated rent payments, restructuring costs, deferred compensation, retention bonuses and signing bonuses and expenses, stock based compensation expenses, contract termination costs, integration and facilities closing costs, one-time expenses relating to enhanced accounting functions, one-time expenses relating to the implementation of accounting changes promulgated under GAAP, and professional fees for advisors, legal, accounting and other such professional services, whether or not classified as restructuring expenses on the Consolidated financial statements of the Parent and (b) pro forma effect of “run rate” cost savings, operating expense reductions, other operating improvements and initiatives and synergies related to any of the transactions described in the foregoing clause (i)(8)(a) that are projected by a Financial Officer of the Borrower in good faith to be reasonably anticipated to be realizable within eighteen (18) months after the consummation of such transaction (which will be added to Consolidated Adjusted EBITDA as so projected until fully realized, and calculated on a Pro Forma Basis, as though such cost savings, operating expense reductions, other operating improvements and initiatives and synergies had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided, that, with respect to this clause (i)(8) such unusual or non-recurring fees, costs and expenses and cost savings, operating expense reductions, other operating improvements and initiatives or synergies are reasonably identifiable and factually supportable (in the reasonable determination of a Financial Officer of the Borrower); provided, further, that, the aggregate amount of such unusual or non-recurring fees, costs and cost savings, operating expense reductions, other operating improvements, initiatives and synergies added back pursuant to this clause (i)(8) in any period of four consecutive fiscal quarters shall not exceed twenty-five percent (25%) of Consolidated Adjusted EBITDA calculated on a Pro Forma Basis for the period of four (4) consecutive fiscal quarters ending as of the last day of the most recently ended fiscal quarter for which the Loan Parties were required to deliver financial statements pursuant to Section 6.01(a) or Section 6.01(b) (calculated prior to giving effect to such add-backs added pursuant to this clause (i)(8));
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(9) losses incurred from the expansion into new markets within eighteen (18) months of such expansion in an amount not to exceed fifteen percent (15%) of Consolidated Adjusted EBITDA calculated on a Pro Forma Basis for the period of four (4) consecutive fiscal quarters ending as of the last day of the most recently ended fiscal quarter for which the Loan Parties were required to deliver financial statements pursuant to Section 6.01(a) or Section 6.01(b) (calculated prior to giving effect to such add-backs added pursuant to this clause (i)(9));
(10) any other non-cash expenses, charges (including the amount of any compensation deduction as the result of any grant of Equity Interests in the Borrower to employees, directors or officers of the Borrower or any of its Subsidiaries), losses, or infrequent, unusual or extraordinary items reducing net income for such period to the extent such non-cash items do not represent a cash item in any future period, including non-cash adjustments due to changes in accounting; and
(11) any fees and expenses (including legal fees and expenses) related to the Facilities and this Agreement and the other Loan Documents paid during such period;
provided, that, the items specified above in clauses (i)(2) through (i)(11) (other than clause (i)(8)) shall only be included to the extent such items reduce net income of the Parent; provided, further, that, the aggregate amount of all add-backs with respect to clauses (i)(8) and (i)(9) shall not exceed thirty percent (30%) of Consolidated Adjusted EBITDA (calculated prior to giving effect to clauses (i)(8) and (i)(9));
minus (ii) to the extent included in calculating net income or deficit, the sum of each of the following for such period:
(1) interest income;
(2) non-cash dividends;
(3) equity in earnings from unconsolidated Minority Investments;
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(4) gains from the disposal of property and equipment and other long-term assets, including goodwill, intangibles and spectrum;
(5) gains on sales of assets (excluding sales in the ordinary course of business); and
(6) any other non-cash gains, non-cash income or extraordinary items increasing net income.
For the purposes of calculating compliance with any test or financial covenant under this Agreement for any period, if at any time during such period Holdco or any Subsidiary shall have made any Material Acquisition or Material Disposition, the Consolidated Adjusted EBITDA for such period shall be calculated on a Pro Forma Basis to give effect to such Material Acquisition or Material Disposition.
“Contingent Obligations” means, as applied to any Person, any direct or indirect liability of that Person: (a) with respect to any Indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid, performed or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; (b) with respect to any letter of credit issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings; or (c) under any foreign exchange contract, currency swap agreement, interest rate swap agreement or other similar agreement or arrangement designed to alter the risks of that Person arising from fluctuations in currency values or interest rates. Contingent Obligations shall also include (i) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligations of another, (ii) obligations to make take-or-pay or similar payments if required regardless of the nonperformance by any other party or parties to an agreement, and (iii) any liability of such Person for the obligations of another through any agreement to purchase, repurchase or otherwise acquire such obligation or any property constituting security therefor, to provide funds for the payment or discharge of such obligation or to maintain the solvency, financial condition or any balance sheet item or level of income of another. The amount of any Contingent Obligation at any time shall be equal to the amount of the obligations so guaranteed or otherwise supported or, if not a fixed and determined amount, the maximum amount so guaranteed at such time.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. Without limiting the generality of the foregoing, a Person shall be deemed to be “controlled by” a Person if such Person holds, directly or indirectly, power to vote ten percent (10%) or more of the securities having ordinary voting power for the election of directors of such other Person. “Controlling” and “Controlled” have meanings correlative thereto.
“Covered Entity” means any of the following: (a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“Daily Simple SOFR” with respect to any applicable determination date means the SOFR published on such date on the Federal Reserve Bank of New York’s website (or any successor source).
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“Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means (a) with respect to any Obligation for which a rate is specified, a rate per annum equal to two percent (2%) in excess of the rate otherwise applicable thereto and (b) with respect to any Obligation for which a rate is not specified or available, a rate per annum equal to the Base Rate plus the Applicable Rate for Revolving Loans that are Base Rate Loans plus two percent (2%), in each case, to the fullest extent permitted by Applicable Law.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender” means, subject to Section 2.15(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, the L/C Issuer or the Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided, that, such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided, that, a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower, the L/C Issuer, the Swingline Lender and each other Lender promptly following such determination.
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“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property or asset by any Person.
“Disqualified Stock” means any Equity Interest of any Person that is or, upon the passage of time or the occurrence of any event may become, an obligation of such Person to redeem, purchase, retire, defease or otherwise make any payment (other than, for the avoidance of doubt, an option exercise price payable to such Person) in respect of such Equity Interest in consideration other than any additional Equity Interest (other than Disqualified Stock), if such obligation matures or has the potential to mature sooner than one year after the then-Latest Maturity Date. Notwithstanding the foregoing: (a) any Equity Interests issued to any employee or to any plan for the benefit of employees of Holdco or its Subsidiaries or by any such plan to such employees shall not constitute Disqualified Stock of the Borrower solely because they may be required to be repurchased by the Borrower or any Subsidiary in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability and (b) any class of Equity Interests of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of Equity Interests that are not Disqualified Stock shall not be deemed to be Disqualified Stock.
“Dollar” and “$” mean lawful money of the United States.
“Domestic Subsidiary” means any Subsidiary that is organized and existing under the Laws of the United States or any state, commonwealth or territory thereof or under the Laws of the District of Columbia.
“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.
“Electronic Record” and “ElectronicSignature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time.
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 11.06 (subject to such consents, if any, as may be required under Section 11.06(b)(iii)).
“Environmental Laws” means any and all federal, state, local and foreign Laws and any consent decrees, concessions, permits, grants, franchises, licenses, agreements or other restrictions of a Governmental Authority or common Law causes of action relating to: (a) protection of the environment or natural resources from, or emissions, discharges, releases or threatened releases of, Hazardous Materials in the environment including ambient air, surface, water, ground water or land; (b) the generation, handling, use, labeling, disposal, transportation, reclamation and remediation of Hazardous Materials; (c) human health as affected by Hazardous Materials; (d) the protection of endangered or threatened species; and (e) the protection of environmentally sensitive areas.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of any Loan Party or any Subsidiary of any Loan Party resulting from or based upon: (a) violation of any Environmental Law; (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 into the environment; or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
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“Equity Interests” means, collectively, (a) all securities, whether certificated or uncertificated, and all other stock units, (b) all of the issued and outstanding shares, interests or other equivalents of capital stock of any corporation, whether voting or non-voting and whether common or preferred, (c) all partnership, joint venture, limited liability company or other equity interests in any Person not a corporation, (d) all options, warrants and other rights to acquire, and all securities convertible into, any of the foregoing, (e) all rights to receive interest, income, dividends, distributions, returns of capital and other amounts (whether in cash, securities, property, or a combination thereof) with respect to any of the foregoing and (f) all additional stock, warrants, options, securities, interests and other property, paid or payable or distributed or distributable, with respect to any of the foregoing.
“Equity Issuance” means any issuance or sale by Holdco or any of its Subsidiaries of any Equity Interests at any time on or after the Closing Date.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) which is a member of a controlled group or under common control with any Loan Party within the meaning of Sections 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code or Section 302 of ERISA).
“ERISA Event” means (a) a “reportable event” (under Section 4043 of ERISA and regulations thereunder) with respect to a Pension Plan (excluding those for which the provision for 30-day notice to the PBGC has been waived); (b) a withdrawal by a Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by a Loan Party or any ERISA Affiliate from a Multiemployer Plan; (d) the filing of a notice of intent to terminate, the treatment of an amendment to a Pension Plan or a Multiemployer Plan as a termination under Section 4041(c) or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan; (e) an event or condition that constitutes grounds or that could reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (f) an event or condition that results or could reasonably be expected to result in any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, to a Loan Party or any ERISA Affiliate; (g) with respect to any Pension Plan, the failure to satisfy the minimum funding standards under the Plan Funding Rules (whether or not waived); (h) with respect to any Pension Plan, the occurrence of any event that would result in the imposition of any limitation under Section 436 of the Code or Section 206(g) of ERISA, determined without regard to any contribution made or the provision of security under Section 436 of the Code or Section 206(g) of ERISA to avoid the imposition of the limitation; (i) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of the Plan Funding Rules; and (j) any transaction that could subject any Loan Party or any ERISA Affiliate to liability under Section 4069 or 4212(c) of ERISA.
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“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.
“Event of Default” has the meaning specified in Section 8.01.
“Excluded Assets” means:
(a) any fee-owned real property;
(b) all real property leasehold interests;
(c) motor vehicles and other assets subject to certificates of title;
(d) any application for registration of a trademark filed in the United States Patent and Trademark Office pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. §1051, prior to the filing of a “Statement of Use” pursuant to Section 1(d) of the Lanham Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Lanham Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal Law;
(e) the Equity Interests of any Loan Party in any Foreign Subsidiary, to the extent such equity interests are not required to be pledged pursuant to the Foreign Equity Pledge Requirements;
(f) any item of real or personal, tangible or intangible, property (including Licenses issued by the FCC and any applicable PUC) to the extent and only for so long as the creation, attachment or perfection of the security interest granted in the Loan Documents by any Loan Party in its right, title and interest in such item of property is prohibited by Applicable Law or is permitted only with the consent (that has not been obtained) of a Governmental Authority (including the FCC and any applicable PUC);
(g) any property subject to a Lien pursuant to a permitted purchase money security interest or Capital Lease, in each case, to the extent and only for so long as the applicable purchase money security agreement, Capital Lease or other applicable documentation contains a term that restricts, prohibits, or requires a consent (that has not been obtained) of a Person (other than any Loan Party or any Subsidiary or Affiliate of a Loan Party) to, the creation, attachment or perfection of the security interest and such restriction, prohibition and/or requirement of consent is not rendered ineffective by Applicable Law (after giving effect to the applicable anti-assignment provisions of the UCC);
(h) any item of real or personal, tangible or intangible, property (other than any Equity Interests owned by any Loan Party) to the extent and only for so long as the creation, attachment or perfection of the security interest granted in the Loan Documents by any Loan Party in its right, title and interest in such item of property (i) would give any other Person (other than any Loan Party or any Subsidiary of a Loan Party) the right to terminate its obligations with respect to such item of property or (ii) would cause such property to become void or voidable if a security interest therein was created, attached or perfected;
(i) any item of real or personal, tangible or intangible, property (other than any Equity Interests owned by any Loan Party) to the extent and only for so long as such property is subject to a contract that contains a term that restricts, prohibits, or requires a consent (that has not been obtained) of a Person (other than any Loan Party or any Subsidiary or Affiliate of a Loan Party) to, the creation, attachment or perfection of the security interest granted in the Loan Documents and any such restriction, prohibition and/or requirement of consent is not rendered ineffective by Applicable Law (after giving effect to the applicable anti-assignment provisions of the UCC);
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(j) the Equity Interests in any Minority Investment (other than the Equity Interest of any other Loan Party);
(k) the Equity Interests in any ABS Entity;
(l) any margin stock (within the meaning of Regulation U of the Board), including the CoBank Equities; and
(m) any other asset that the Administrative Agent and the Borrower reasonably determine that the costs to the Borrower of perfecting a Lien on such asset exceeds the relative benefit afforded to the Secured Parties thereby;
provided, that, if at any time the creation, attachment or perfection of the security interest granted pursuant to the Loan Documents in any of the property subject to clauses (f) through (j) of this definition of “Excluded Assets” shall be permitted or consent in respect thereof shall have been obtained, then the applicable Loan Party shall at such time be deemed to have granted a security interest in such property (and such security interest will attach immediately without further action); provided, further, that, the rights to receive, and any interest in, all proceeds of, or monies or other consideration received or receivable from or attributable to the sale, transfer, lease, assignment or other Disposition of any of the Excluded Assets (to the extent a direct security interest in such property or proceeds from the sale, transfer, lease, assignment or other Disposition of such property shall not have already been granted) shall attach immediately and be subject to the security interest granted pursuant to the Loan Documents in favor of the Administrative Agent for the benefit of the Secured Parties.
“Excluded Subsidiary” means: (a) any Regulated Subsidiary; provided, that, the exclusion set forth in this clause (a) shall only apply to the extent such Subsidiary is prohibited (but only for so long as such prohibition exists) from pledging its assets as security for, or prohibited (but only for so long as such prohibition exists) from providing a guaranty of, the Secured Obligations, in each case, without the consent of the applicable PUC or similar regulatory or other Governmental Authority; (b) any Foreign Subsidiary; (c) any Immaterial Subsidiary; provided, that, the Borrower may, at its option, designate any Immaterial Subsidiary as a Guarantor so long as such Immaterial Subsidiary is organized under the Laws of the United States, any state thereof, or the District of Columbia; and (d) any other Subsidiary (other than the Borrower or Holdco) with respect to which the Administrative Agent and the Borrower jointly determine the burden, cost, tax or regulatory consequences of such Subsidiary becoming a Guarantor is excessive in view of the benefits obtained by the Secured Parties therefrom.
“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a Lien to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation 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 Section 10.11 and any other “keepwell”, 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 Guaranty of such Guarantor, or grant by such Guarantor of a Lien, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one Swap Contract, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swap Contracts for which such Guaranty or Lien is or becomes excluded in accordance with the first sentence of this definition.
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“Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 11.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Sections 3.01(b) or (d), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(f) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.
“Existing Credit Agreement” means that certain Credit Agreement, dated as of July 1, 2021, by and among each of the Borrower, the guarantors party thereto, the lenders party thereto, and CoBank, in its capacities as the administrative agent, a letter of credit issuer and a swing line lender.
“Existing Letter of Credit” means each letter of credit existing on the Closing Date and set forth on Schedule 1.01(e).
“Facility” means an Incremental Term Facility or the Revolving Facility, as the context may require.
“Facility Termination Date” means the date as of which all of the following shall have occurred: (a) the Aggregate Commitments have terminated, (b) all Obligations have been paid in full (other than contingent indemnification obligations), and (c) all Letters of Credit have terminated or expired (other than Letters of Credit as to which other arrangements with respect thereto reasonably satisfactory to the Administrative Agent and the L/C Issuer shall have been made).
“Farm Credit Lender” means a federally-chartered Farm Credit System lending institution organized under the Farm Credit Act of 1971.
“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.
“FATCA” means Sections 1471 through 1474 of the Code, as of the Closing Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code, as of Closing Date (or any amended or successor version described above) and any intergovernmental agreement (and related fiscal or regulatory legislation, or related official rules or practices) implementing the foregoing.
“FCC” means the Federal Communications Commission.
“Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the Federal Funds Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
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“Fee Letter” means each of (a) the letter agreement, dated April 9, 2025, among Holdco, the Borrower and BofA Securities and (b) the letter agreement, dated as of the Closing Date, among Holdco, the Borrower and Bank of America.
“Financial Officer” means, with respect to the Borrower, (a) the chief financial officer, chief executive officer, any principal accounting officer or the controller of the Borrower, in each case, to the extent such officer is a Responsible Officer of the Borrower (or, to the extent that the Borrower does not have any officers, the chief financial officer, chief executive officer, any principal accounting officer or the controller of the authorized member or manager of the Borrower), and (b) any other officer of the Borrower designated by written notice from the Borrower to the Administrative Agent, to the extent that such officer is (i) a Responsible Officer of the Borrower, and (ii) employed in a position involving responsibility for the management of the financial affairs or the presentation of financial statements of the Parent and its Subsidiaries required hereunder.
“Foreign Equity Pledge Requirements” means the requirements to grant the Administrative Agent, for the benefit of the Secured Parties, valid and perfected first-priority Liens and security interests in sixty-five percent (65%) of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and one hundred percent (100%) of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by such Loan Party.
“Foreign Lender” means a Lender that is not a U.S. Person.
“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary or that is a FSHCO and treated as a disregarded entity for federal income tax purposes.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Fronting Exposure” means, at any time there is a Defaulting Lender that is a Revolving Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s Applicable Revolving Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s Applicable Revolving Percentage of Swingline Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof.
“FSHCO” means any Subsidiary substantially all of the assets of which constitute the Equity Interests of CFCs.
“Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“GAAP” means generally accepted accounting principles in the United States set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the accounting profession) including, without limitation, the FASB Accounting Standards Codification, that are applicable to the circumstances as of the date of determination, consistently applied and subject to Section 1.03.
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“Governmental Authority” means the government of the United States or any other nation, or of 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), including the FCC and any applicable PUC.
“Guarantee” means, with respect to any Person, without duplication, any obligation, contingent or otherwise, of such Person pursuant to which such Person has directly or indirectly guaranteed or had the economic effect of guaranteeing any Indebtedness or other obligation or liability of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of any such Person (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or liability (whether arising by virtue of partnership arrangements, by agreement to keep well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement condition or otherwise), (b) to purchase or lease property or services for the purpose of assuring another Person’s payment or performance of any Indebtedness or other obligations or liabilities, (c) to maintain the working capital of such Person to permit such Person to pay such Indebtedness or other obligations or liabilities or (d) entered into for the purpose of assuring in any other manner the obligee of such Indebtedness or other obligation or liability of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, that, the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business. Unless otherwise specified, the amount of any Guarantee shall be deemed to be the lesser of the principal amount of the Indebtedness or other obligations or liabilities guaranteed and still outstanding and the maximum amount for which the guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guarantee.
“Guaranteed Obligations” has the meaning set forth in Section 10.01.
“Guarantor Joinder” means a guarantor joinder agreement substantially in the form of Exhibit D executed and delivered in accordance with the provisions of Section 6.10.
“Guarantors” means, collectively, (a) Holdco, (b) the Subsidiaries of Holdco as are or may from time to time become parties to this Agreement pursuant to Section 6.10, and (c) with respect to Additional Secured Obligations owing by any Loan Party or any of its Subsidiaries and any Swap Obligation of a Specified Loan Party (determined before giving effect to Sections 10.01 and 10.11) under the Guaranty, the Borrower.
“Guaranty” means, collectively, the Guarantee made by the Guarantors under Article X in favor of the Secured Parties, together with each other guaranty delivered pursuant to Section 6.10.
“Hazardous Materials” means (a) any explosive or radioactive substances, materials or wastes and (b) any hazardous or toxic substances, materials or wastes, defined or regulated as such in or under, or that could reasonably be expected to give rise to liability under, any applicable Environmental Law, including asbestos, polychlorinated biphenyls, urea-formaldehyde insulation, gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products.
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“Hedge Bank” means any Person in its capacity as a party to a Swap Contract that, (a) at the time it enters into a Swap Contract not prohibited under Articles VI or VII, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Swap Contract not prohibited under Articles VI or VII, in each case, in its capacity as a party to such Swap Contract (even if such Person ceases to be a Lender or such Person’s Affiliate ceases to be a Lender); provided, that*,* in the case of a Secured Hedge Agreement with a Person who is no longer a Lender (or Affiliate of a Lender), such Person shall be considered a Hedge Bank only through the stated termination date (without extension or renewal) of such Secured Hedge Agreement; provided, further, that, for any of the foregoing to be included as a “Secured Hedge Agreement” on any date of determination by the Administrative Agent, the applicable Hedge Bank (other than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the Administrative Agent prior to such date of determination.
“Hedge Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s) and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).
“Holdco” has the meaning specified in the introductory paragraph hereto.
“Immaterial Subsidiary” means, as of any date of determination, a Subsidiary of Holdco (other than the Borrower) which (a) for the period of four (4) consecutive fiscal quarters ending as of the last day of the most recently ended fiscal quarter for which the Loan Parties were required to deliver financial statements pursuant to Section 6.01(a) or Section 6.01(b), does not have revenues greater than five percent (5%) of the Consolidated revenues of the Parent and its Subsidiaries for such period, and (b) as of the last day of the most recently ended fiscal quarter for which the Loan Parties were required to deliver financial statements pursuant to Section 6.01(a) or Section 6.01(b), does not have total assets greater than five percent (5%) of the Consolidated total assets of the Parent and its Subsidiaries as of such date; provided, that, if (i) for the period of four (4) consecutive fiscal quarters ending as of the last day of the most recently ended fiscal quarter for which the Loan Parties were required to deliver financial statements pursuant to Section 6.01(a) or Section 6.01(b), Immaterial Subsidiaries, in the aggregate, account for more than ten percent (10%) of the Consolidated revenues of the Parent and its Subsidiaries for such period, or (ii) as of the last day of the most recently ended fiscal quarter for which the Loan Parties were required to deliver financial statements pursuant to Section 6.01(a) or Section 6.01(b), Immaterial Subsidiaries, in the aggregate, account for more than ten percent (10%) of the Consolidated total assets of the Parent and its Subsidiaries as of such date, then, in either such case, within the time period required by Section 6.10, the Borrower shall cause one or more of such Immaterial Subsidiaries to become Guarantors such that, as a result thereof, the foregoing limits set forth in this proviso are not exceeded.
“Incremental Amount” means, as of any date of determination, an amount equal to the greater of (a) $50,000,000, and (b) an amount equal to fifty percent (50%) of Consolidated Adjusted EBITDA of the Parent and its Subsidiaries calculated on a Pro Forma Basis for the period of four (4) consecutive fiscal quarters ending as of the last day of the most recently ended fiscal quarter for which the Loan Parties were required to deliver financial statements pursuant to Section 6.01(a) or Section 6.01(b).
“Incremental Term Borrowing” means a borrowing consisting of one or more simultaneous Incremental Term Loans of the same Type and under the same Incremental Term Facility and, in the case of Term SOFR Loans, having the same Interest Period, made by each of the Incremental Term Lenders under such Incremental Term Facility pursuant to this Agreement.
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“Incremental Term Commitment” means, as to each Incremental Term Lender with respect to an Incremental Term Facility, its obligation to make Incremental Term Loans with respect to such Incremental Term Facility pursuant to an Incremental Term Loan Lender Joinder Agreement; provided, that, at any time after the funding of an Incremental Term Facility, determination of “Required Lenders” shall include the Outstanding Amount of all Incremental Term Loans with respect to such Incremental Term Facility.
“Incremental Term Facility” means, at any time, with respect to any Incremental Term Loan Lender Joinder Agreement, the aggregate principal amount of all Incremental Term Loans made by Incremental Term Lenders pursuant to such Incremental Term Loan Lender Joinder Agreement that are outstanding at such time.
“Incremental Term Lender” means each of the Persons identified as an “Incremental Term Lender” in an Incremental Term Loan Lender Joinder Agreement, together with their respective successors and assigns.
“Incremental Term Loan” means an advance made by an Incremental Term Lender under an Incremental Term Facility.
“Incremental Term Loan Lender Joinder Agreement” means a joinder agreement, in form and substance acceptable to the Administrative Agent, executed and delivered in accordance with the provisions of Section 2.16.
“Incremental Term Loan Maturity Date” with respect to any Incremental Term Facility, shall be as set forth in the applicable Incremental Term Loan Lender Joinder Agreement for such Incremental Term Facility; provided, that, if any such Incremental Term Loan Maturity Date is not a Business Day, such Incremental Term Loan Maturity Date shall be the next preceding Business Day.
“Incremental Term Note” means a promissory note made by the Borrower in favor of an Incremental Term Lender evidencing Incremental Term Loans made by such Incremental Term Lender, in form and substance acceptable to the Administrative Agent.
“Indebtedness” means, with respect to any Person, without duplication: (a) all indebtedness for borrowed money; (b) that portion of obligations with respect to Capital Leases or other capitalized agreements that is properly classified as a liability on a balance sheet in conformity with GAAP; (c) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money; (d) any obligation owed for all or any part of the deferred purchase price of property or services (except trade payables arising in the ordinary course of business); (e) all obligations created or arising under any conditional sale or other title retention agreement; (f) all indebtedness secured by any Lien on any property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person, but only to the extent of the fair value of such property or asset; (g) all obligations of such Person under take-or-pay or similar arrangements or under commodities agreements; (h) net obligations of such Person under any Swap Contract (calculated as of any date of determination as the Hedge Termination Value thereof as of such date); (i) the maximum amount of all standby letters of credit issued or bankers’ acceptance facilities created for the account of such Person and, without duplication, all drafts drawn thereunder (to the extent unreimbursed); (j) the principal balance outstanding under any Synthetic Lease Obligation; (k) with respect to the Indebtedness of any partnership or unincorporated joint venture in which such Person is a general partner or joint venturer, the lesser of (i) the amount of such Indebtedness and (ii) such Person’s actual liability for such Indebtedness; (l) obligations with respect to principal under Contingent Obligations with respect to the repayment of money or the deferred purchase price of property, whether or not then due and payable (calculated as the maximum amount of such principal); and (m) obligations under partnership, organizational or other agreements to fund capital contributions or other equity calls with respect to any Person or Investment or to redeem, repurchase or otherwise make payments in respect of any Equity Interests of any Person; provided, however, that, notwithstanding the foregoing, in no event shall the Preferred Stock or any obligations thereunder be considered Indebtedness for any purpose under this Agreement or any other Loan Document.
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“Indemnified Taxes” means all (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitee” has the meaning specified in Section 11.04(b).
“Information” has the meaning specified in Section 11.07(a).
“Insolvency Proceeding” means, with respect to any Person, (a) a case, action or proceeding with respect to such Person (i) before any court or any other Governmental Authority under any Debtor Relief Law now or hereafter in effect or (ii) for the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator, conservator (or similar official) of any Loan Party or otherwise relating to the liquidation, dissolution, winding-up or relief of such Person or (b) any general assignment for the benefit of creditors, composition, marshaling of assets for creditors, or other, similar arrangement in respect of such Person’s creditors generally or any substantial portion of its creditors undertaken under any Debtor Relief Law now or hereafter in effect.
“Intellectual Property” has the meaning set forth in the Security Agreement.
“Interest Coverage Ratio” means, as of any date of determination, the ratio of (a) the total of (i) Consolidated Adjusted EBITDA of the Parent and its Subsidiaries for the period of four (4) consecutive fiscal quarters ending as of the last day of the most recently ended fiscal quarter for which the Loan Parties were required to deliver financial statements pursuant to Section 6.01(a) or Section 6.01(b), minus (ii) the aggregate amount of all taxes paid (or required to be paid) in cash by the Parent and its Subsidiaries during such period, to (b) Consolidated interest charges of the Parent and its Subsidiaries for the period of four (4) consecutive fiscal quarters of the Parent most recently completed on or prior to such date; provided, that, for purposes of calculating the Consolidated interest charges in clause (b) of this definition, (i) as of the end of the first full fiscal quarter ending after the Closing Date, Consolidated interest charges shall be the actual amount of Consolidated interest charges for the period of one fiscal quarter then ended multiplied by four (4), (ii) as of the end of the second full fiscal quarter ending after the Closing Date, Consolidated interest charges shall be the actual amount of Consolidated interest charges for the period of two fiscal quarters then ended multiplied by two (2) and (iii) as of the end of the third full fiscal quarter ending after the Closing Date, Consolidated interest charges shall be the actual amount of Consolidated interest charges for the period of three fiscal quarters then ended multiplied by one and one-third (1 1/3).
“Interest Payment Date” means, (a) as to any Term SOFR Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided, however, that, if any Interest Period for a Term SOFR Loan exceeds three (3) months, the respective dates that fall every three (3) months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan or Swingline Loan, the last Business Day of each March, June, September and December and the Maturity Date of the Facility under which such Loan was made (with Swingline Loans being deemed made under the Revolving Facility for purposes of this definition).
“Interest Period” means, as to each Term SOFR Loan, the period commencing on the date such Term SOFR Loan is disbursed or converted to or continued as a Term SOFR Loan and ending on the date one (1), three (3) or six (6) months thereafter, as selected by the Borrower in its Loan Notice, or such other period that is twelve months or less requested by the Borrower and consented to by all the Lenders and the Administrative Agent (in the case of each requested Interest Period, subject to availability); provided, that:
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(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless, in the case of a Term SOFR Loan, such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period pertaining to a Term SOFR Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c) no Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made.
“Interest Rate Hedge” means a Swap Contract entered into by the Loan Parties or their Subsidiaries in order to provide protection to, or minimize the impact upon, the Loan Parties and/or their Subsidiaries of increasing floating rates of interest applicable to Indebtedness.
“Investment” means, with respect 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 of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a line of business, division or business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment but giving effect to any returns or distributions of capital or repayment of principal actually received in case by such Person with respect thereto.
“IRS” means the United States Internal Revenue Service.
“ISP” means the International Standby Practices, International Chamber of Commerce Publication No. 590 (or such later version thereof as may be in effect at the applicable time).
“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.
“Latest Maturity Date” means, at any date of determination, the latest of the Revolving Facility Maturity Date and the then-latest Incremental Term Loan Maturity Date.
“Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law, including the Licenses, and including the Communications Act, all applicable PUC Laws and all Environmental Laws.
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“L/C Advance” means, with respect to each Revolving Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Revolving Percentage.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Borrowing.
“L/C Commitment” means, with respect to the L/C Issuer, the commitment of the L/C Issuer to issue Letters of Credit hereunder. The initial amount of the L/C Issuer’s L/C Commitment is set forth on Schedule 2.03 (or, with respect to CoBank in its capacity as the L/C Issuer for the Existing Letters of Credit, the stated amount of the Existing Letters of Credit in effect on the Closing Date (subject to Section 1.06)). The L/C Commitment of the L/C Issuer may be modified from time to time by agreement between the L/C Issuer and the Borrower, and notified to the Administrative Agent.
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
“L/C Issuer” means (a) Bank of America, in its capacity as issuer of Letters of Credit hereunder, or any successor thereof that is an issuer of Letters of Credit hereunder and (b) solely with respect to the Existing Letters of Credit, CoBank, in its capacity as issuer of the Existing Letters of Credit. References to the L/C Issuer herein, in the other Loan Documents, and in any other instruments, documents or agreements executed in connection herewith and the other Loan Documents shall, as the context may require (including with respect to any particular Letter of Credit, L/C Credit Extension, or L/C Obligations), mean the applicable L/C Issuer, each L/C Issuer, any L/C Issuer, or all L/C Issuers, as the context may require.
“L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts (including all L/C Borrowings). For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. 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 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“LCT Test Date” has the meaning specified in Section 1.09.
“Lender” means each of the Persons identified as a “Lender” on the signature pages hereto, each other Person that becomes a “Lender” in accordance with this Agreement and, their successors and assigns and, unless the context requires otherwise, includes the Swingline Lenders.
“Lender Party” and “LenderRecipient Party” means collectively, the Lenders, the Swingline Lender and the L/C Issuer.
“Lending Office” means, as to the Administrative Agent, the L/C Issuer or any Lender, the office or offices of such Person described as such in such Person’s Administrative Questionnaire, or such other office or offices as such Person may from time to time notify the Borrower and the Administrative Agent; which office may include any Affiliate of such Person or any domestic or foreign branch of such Person or such Affiliate.
“Letter of Credit” means any letter of credit issued hereunder, and shall include the Existing Letters of Credit. A Letter of Credit may be a commercial letter of credit or a standby letter of credit.
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“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.
“Letter of Credit Fee” has the meaning specified in Section 2.03(l).
“Letter of Credit Sublimit” means, as of any date of determination, an amount equal to the lesser of (a) $10,000,000 and (b) the Revolving Facility. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Facility.
“Licenses” means any cable television franchise or any wireline telephone, cellular telephone, microwave, personal communications, commercial mobile radio service, broadband or other telecommunications license, authorization, registration, certificate, waiver, certificate of compliance, franchise (including cable television and telecommunications franchise), approval, right of way, material filing, exemption, order, or permit, whether for the acquisition, construction or operation of any Communications System, including the lease of any spectrum (and attendant rights and obligations), or to otherwise provide the services related to any Communications System, granted or issued by the FCC or any applicable PUC or other Governmental Authority.
“Lien” means any mortgage, deed of trust, pledge, hypothecation, collateral assignment, lien (statutory or otherwise), security interest, charge or other encumbrance or security arrangement of any nature whatsoever, whether voluntarily or involuntarily given, including any conditional sale or title retention arrangement, and any assignment or deposit arrangement intended as, or having the effect of, security.
“Limited Condition Transaction” means a Permitted Acquisition or other Investment permitted pursuant to Section 7.05 that is not conditioned on the availability of, or on obtaining, third party financing.
“Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of an Incremental Term Loan, a Revolving Loan or a Swingline Loan.
“Loan Documents” means, collectively, this Agreement, the Notes, the Guaranty, the Collateral Documents, each Fee Letter, each Issuer Document, each Incremental Term Loan Lender Joinder Agreement, each Guarantor Joinder, each ABS Direction Letter, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.14 and all other certificates, agreements, documents and instruments executed and delivered, in each case, by or on behalf of any Loan Party pursuant to the foregoing (but specifically excluding any Secured Hedge Agreement or any Secured Cash Management Agreement) and any amendments, modifications or supplements thereto or to any other Loan Document or waivers hereof or to any other Loan Document; provided, however, that, for purposes of Section 11.01, “Loan Documents” shall mean this Agreement, the Guaranty and the Collateral Documents.
“Loan Notice” means a notice of (a) a Borrowing (other than a Swingline Borrowing), (b) a conversion of Loans (other than Swingline Loans) from one Type to the other, or (c) a continuation of Term SOFR Loans, pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
“Loan Parties” means, collectively, the Borrower and each Guarantor.
“Master Agreement” has the meaning set forth in the definition of “Swap Contract.”
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“Master Subordinated Intercompany Note” means a master intercompany note, substantially in the form of Exhibit A hereto, evidencing Indebtedness among the Loan Parties and delivered by the Loan Parties to the Administrative Agent on the Closing Date.
“Material Acquisition” means any acquisition of property or series of related acquisitions of property that (a) constitutes assets comprising all or substantially all of an operating line of business, division or business unit or constitutes all or substantially all of the Equity Interests of a Person and (b) involves the payment of consideration by Holdco and its Subsidiaries in excess of $10,000,000.
“Material Adverse Effect” means (a) a material adverse effect upon the business, result of operations, properties, assets or financial condition of the Loan Parties and the Subsidiaries, taken as a whole, or (b) the impairment of any Liens in favor of the Administrative Agent, of the ability of the Loan Parties and the Subsidiaries to perform their material obligations under any Loan Document or of the Administrative Agent or any Lender to enforce any material provision of any Loan Document or collect any of the Secured Obligations. In determining whether any individual event would reasonably be expected to have a Material Adverse Effect, notwithstanding that such event does not of itself have such effect, a Material Adverse Effect shall be deemed to have occurred if the cumulative effect of such event and all other then-existing events would reasonably be expected to have a Material Adverse Effect.
“Material Contract” means any contract or agreement, written or oral, of any Loan Party or any of its respective Subsidiaries the failure to comply with which would reasonably be expected to have a Material Adverse Effect.
“Material Disposition” means any Disposition or series of related Dispositions that yields gross proceeds to Holdco and its Subsidiaries in excess of $10,000,000.
“Material Indebtedness” means Indebtedness (other than the Obligations) in an aggregate principal amount in excess of $15,000,000.
“Material License” means all Licenses (a) issued by the FCC or any PUC, (b) required for the operation of any Communications System in the manner in which such Communications System is operating or (c) material to the value of the assets of any Loan Party or Subsidiary of any Loan Party but excluding any Auxiliary License.
“Maturity Date” means the Revolving Facility Maturity Date or an Incremental Term Loan Maturity Date, as the context may require.
“Maximum Rate” has the meaning specified in Section 11.09.
“Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 103% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time and (b) otherwise, an amount determined by the Administrative Agent and the L/C Issuer in their sole discretion.
“Minority Investment” means any Person in whom any Loan Party owns any Equity Interests to the extent such Person does not constitute a Subsidiary of a Loan Party. As of the Closing Date, each of the Minority Investments of the Loan Parties are set forth on Schedule 1.01(c).
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
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“Multiemployer Plan” means any employee benefit plan that is subject to Title IV of ERISA and that is of the type described in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to make contributions, during the preceding five plan years has made or been obligated to make contributions, or has any liability.
“Negative Pledge Agreement” means each Negative Pledge Agreement executed and delivered by a Regulated Subsidiary that is an Excluded Subsidiary in favor of the Administrative Agent for the benefit of the Secured Parties, in substantially the form of Exhibit F hereto.
“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected Lenders, or all Lenders or all affected Lenders in a Facility, in accordance with the terms of Section 11.01 and (b) has been approved by the Required Lenders (or the Required Class Lenders for such Facility).
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Note” means an Incremental Term Note or a Revolving Note, as the context may require.
“Notice of Loan Prepayment” means a notice of prepayment with respect to a Loan, which shall be substantially in the form of Exhibit L or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer.
“Obligations” means (a) all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, or Letter of Credit and (b) all costs and expenses incurred in connection with enforcement and collection of the foregoing, including the fees, charges and disbursements of counsel, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, expenses and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof pursuant to any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, expenses and fees are allowed claims in such proceeding; provided, that, without limiting the foregoing, the Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor.
“Organization Documents” means, (a) with respect to any corporation, the charter or 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 limited liability company agreement (or equivalent or comparable documents with respect to any non-U.S. jurisdiction); (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 (or equivalent or comparable documents with respect to any non-U.S. jurisdiction) and (d) with respect to all entities, 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 (or equivalent or comparable documents with respect to any non-U.S. jurisdiction).
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
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“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).
“Outbound Investment Rules” shall mean the regulations administered and enforced, together with any related public guidance issued, by the United States Treasury Department under U.S. Executive Order 14105 of August 9, 2023, as of Closing Date and as codified at 31 C.F.R. § 850.101 et seq.
“Outstanding Amount” means (a) with respect to Incremental Term Loans, Revolving Loans and Swingline Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any Borrowings and prepayments or repayments of Incremental Term Loans, Revolving Loans and Swingline Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.
“Parent” means Shenandoah Telecommunications Company, a Virginia corporation.
“Participant” has the meaning specified in Section 11.06(d).
“Participant Register” has the meaning specified in Section 11.06(d).
“Patriot Act” has the meaning specified in Section 11.19.
“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA.
“Pension Plan” means any Plan that is subject to Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code, and that any Loan Party or any ERISA Affiliate sponsors, maintains, or contributes to or is required to contribute to or with respect to which any Loan Party or any ERISA Affiliate otherwise has any obligation or liability (including any contingent liability).
“Perfection and Diligence Certificate” means the collateral questionnaire executed and delivered by a Responsible Officer of each Loan Party and Shenandoah Telephone to the Administrative Agent on the Closing Date.
“Permitted Acquisition” means any acquisition by any Loan Party (x) of all or substantially all of the Equity Interests of any Person, (y) of all or substantially all the assets of, or any line of business or division or business unit of, any other Person or (z) of any Minority Investment; provided, that:
(a) after giving effect to such Investment, the Loan Parties shall continue to be in compliance with the requirements set forth in Section 7.11;
(b) the Administrative Agent shall receive in accordance with the requirements of Section 6.10, all documents and other deliveries (if any) reasonably required by the Administrative Agent to have a first-priority perfected security interest (subject to Permitted Liens) in the assets, Person or Minority Investment acquired or created in such Investment, together with all opinions of counsel, certificates, resolutions and other documents required by Section 6.10, in form and substance reasonably acceptable to the Administrative Agent;
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(c) subject to Section 1.09, no Default shall exist or would exist immediately after giving effect to such Investment;
(d) the aggregate amount of the consideration (including, in the case of consideration consisting of assets, the fair market value of the assets) paid or incurred by any Loan Party or any Subsidiary of any Loan Party in connection with Minority Investments shall not exceed $150,000,000 over the term of the Facilities;
(e) (i) any Person acquired will be a direct or indirect wholly-owned Domestic Subsidiary of the Borrower immediately after such Investment, (ii) any assets being acquired (other than a de minimis amount of assets in relation to the assets being acquired) are located within the United States, and (iii) any Minority Investment being acquired will be in a Person who is organized or formed and existing under the Laws of the United States or any state, commonwealth or territory thereof or under the Laws of the District of Columbia and whose assets are located within the United States; and
(f) subject to Section 1.09, if the aggregate amount of the consideration (including, in the case of consideration consisting of assets, the fair market value of the assets) paid or incurred by any Loan Party or any Subsidiary of any Loan Party in connection with such Investment exceeds $10,000,000, then the Borrower shall have provided to the Administrative Agent a certificate of a Financial Officer of the Borrower (supported by reasonably detailed calculations) certifying that, after giving effect to such Investment, the Loan Parties shall be in compliance with the covenants set forth in Section 7.20, calculated on a Pro Forma Basis for the period of four (4) consecutive fiscal quarters ending as of the last day of the most recently ended fiscal quarter for which the Loan Parties were required to deliver financial statements pursuant to Sections 6.01(a) or (b).
“Permitted Liens” means the following:
(a) Liens for taxes, assessments or similar charges and levies of any Governmental Authority not yet due or which are being diligently contested in good faith by appropriate and lawful proceedings that suspend enforcement of such Liens and for which adequate reserves or other appropriate provisions in accordance with GAAP have been set aside on such Loan Party’s or Subsidiary’s books;
(b) pledges or deposits made in the ordinary course of business in connection with worker’s compensation, unemployment insurance, old-age pensions or other social security programs, other than any Lien imposed by ERISA;
(c) Liens of mechanics, repairmen, materialmen, warehousemen, carriers, suppliers, landlords or other like Liens that are incurred in the ordinary course of business and either (i) secure obligations that are not overdue by more than 60 days, (ii) are being diligently contested in good faith by appropriate and lawful proceedings that suspend enforcement of such Liens and for which adequate reserves or other appropriate provisions in accordance with GAAP have been set aside on such Loan Party’s or Subsidiary’s books or (iii) do not in the aggregate materially detract from the value of the property or asset subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
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(d) pledges or deposits made in the ordinary course of business to secure performance of bids, tenders, trade contracts (other than Indebtedness) or leases, not in excess of the aggregate amount due thereunder, or to secure statutory obligations, or surety, appeal, performance or other similar bonds required in the ordinary course of business;
(e) pledges and deposits in the ordinary course of business securing liability for reimbursement of indemnification obligations of insurance carriers providing property, casualty, liability or other insurance to the Borrower or any Subsidiary;
(f) encumbrances consisting of zoning restrictions, easements, right-of-way or other encumbrances, title defects and restrictions on the use of real property that do not in the aggregate materially detract from the value of the property or asset subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(g) Liens in favor of the Administrative Agent for the benefit of the Secured Parties or otherwise securing the Secured Obligations;
(h) judgment Liens arising solely as a result of the existence of judgments, awards, decrees, orders or attachments that do not constitute an Event of Default;
(i) cash collateralization of Letters of Credit issued by Person(s) other than the L/C Issuer; provided, that, the aggregate amount of such cash collateralizations, together with the Loan Parties and their respective Subsidiaries’ reimbursement obligations under such Letters of Credit, does not exceed $2,500,000 in the aggregate at any one time;
(j) Liens securing purchase money security interests or Capital Leases permitted under Section 7.01(d); provided, that, such Liens do not at any time encumber any property other than the property purchased, leased or otherwise acquired with the proceeds of such Indebtedness;
(k) 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;
(l) Liens of the Loan Parties or their respective Subsidiaries existing as of the Closing Date set forth on Schedule 1.01(d), and any refinancing thereof; provided, that, (i) the property covered thereby is unchanged, (ii) the amount secured or benefited thereby is not increased, (iii) the direct or any contingent obligor with respect thereto is not changed and (iv) any renewal or extension of the obligations secured thereby is Indebtedness permitted under Section 7.01;
(m) Liens solely on any cash earnest money deposits made in connection with any letter of intent or purchase agreement with respect to any Investment permitted under Section 7.05;
(n) purported Liens evidenced by the filing of precautionary UCC financing statements relating solely to operating leases or consignment or bailee arrangements entered into in the ordinary course of business;
(o) rights of setoff or banker’s lien upon deposits of cash in favor of banks or other depository institutions arising as a matter of law;
(p) leases, licenses, subleases or sublicenses granted to others in the ordinary course of business which do not (i) interfere in any material respect with the business of the applicable Person or (ii) secure any Indebtedness;
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(q) Liens arising (i) out of conditional sale, title retention, consignment or similar arrangements for the sale of any assets or property in the ordinary course of business and permitted by this Agreement or (ii) by operation of Law under Article 2 of the UCC in the ordinary course of business, covering only the goods sold and securing only the unpaid purchase price for such goods and related expenses;
(r) Liens granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent such secured Indebtedness is permitted;
(s) customary rights of first refusal and tag, drag and similar rights in joint venture agreements;
(t) Liens in favor of collecting banks arising under Section 4-210 of the UCC or, with respect to collecting banks located in the State of New York, under Section 4-208 of the UCC;
(u) additional Liens of the Excluded Subsidiaries not otherwise permitted by this definition that (i) do not materially impair the use of such asset in the operation of the business of such Excluded Subsidiary and (ii) do not secure outstanding obligations in excess of $500,000 in the aggregate for all such Liens at any time;
(v) pledges or other Liens granted in the ordinary course of business in favor of credit card processing companies on deposit accounts functioning as reserve or settlement accounts pursuant to agreements therewith in connection with the provision of credit card processing services for customer payments;
(w) Liens (i) encumbering initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and (ii) that are contractual rights of setoff or rights of pledge relating to (A) purchase orders and other agreements entered into with customers of the Borrower or any of its Subsidiaries in the ordinary course of business or (B) pooled deposit or sweep accounts of Borrower or any of its Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower or any of its Subsidiaries;
(x) Liens (i) on cash advances in favor of the seller of any property to be acquired in a Permitted Acquisition, to be applied against the purchase price for such Permitted Acquisition, and (ii) consisting of an agreement to Dispose of any property in a Disposition permitted hereunder;
(y) assignment of, and sales or Liens on, accounts receivables or rights in respect of any thereof in connection with Dispositions permitted hereunder;
(z) Liens on any property subject to any sale-leaseback transaction permitted hereunder and general intangibles related thereto;
(aa) non-consensual restrictions on transfer imposed by a Governmental Authority;
(bb) security given to a utility company or any municipality or other Governmental Authority when required by such utility or authority in connection with the operations of the applicable Loan Party;
(cc) condemnation or eminent domain proceedings affecting any real property;
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(dd) the statutory Lien of CoBank in the CoBank Equities;
(ee) Liens arising in connection with the grant to the ABS Asset Entities of non-exclusive licenses and rights of access to, and use of, the ABS Fiber Network Assets pursuant to and in accordance with the terms and conditions of the ABS Obligor Access Agreements; and
(ff) other Liens on assets securing Indebtedness or other obligations in an aggregate principal amount at any time outstanding not to exceed the greater of (x) $10,000,000 and (y) fifteen percent (15%) of Consolidated Adjusted EBITDA of the Parent and its Subsidiaries calculated on a Pro Forma Basis for the period of four (4) consecutive fiscal quarters ending as of the last day of the most recently ended fiscal quarter for which the Loan Parties were required to deliver financial statements pursuant to Section 6.01(a) or Section 6.01(b).
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including any Pension Plan but excluding any Multiemployer Plan) that any Loan Party or any ERISA Affiliate sponsors, maintains, or contributes to or is required to contribute to or with respect to which any Loan Party or any ERISA Affiliate otherwise has any obligation or liability.
“Plan Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans set forth in Sections 412, 430 and 436 of the Code and Sections 206, 302, 303 and 305 of ERISA.
“Platform” has the meaning specified in Section 6.01.
“Pledged Equity” has the meaning specified in the Security Agreement.
“Preferred Stock” means the participating exchangeable preferred stock issued by Holdco prior to the Closing Date.
“Prior Security Interest” means a valid and enforceable perfected first-priority security interest in and to the Collateral that is subject only to Permitted Liens which have first-priority by operation of Applicable Law.
“Pro Forma Basis” and “ProForma Effect” means, for purposes of calculating compliance with any test or financial covenant under this Agreement for any period, that the applicable Class of any Incremental Term Facility or Permitted Acquisition (and all Classes of any Incremental Term Facility or Permitted Acquisition that have been consummated during the applicable period), or the applicable Material Acquisition or Material Disposition, and the following transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable period of measurement in such test or covenant: (a) income statement items (whether positive or negative) attributable to the property or Person subject to such Class of an Incremental Term Facility, Permitted Acquisition, Material Acquisition or Material Disposition, (i) in the case of Material Disposition shall be excluded, and (ii) in the case of a Permitted Acquisition or a Material Acquisition, shall be included, (b) any retirement of Indebtedness and (c) any Indebtedness incurred or assumed by the Parent or any of its Subsidiaries, 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 which is or would be in effect with respect to such Indebtedness as at the relevant date of determination; provided, that, the foregoing pro forma adjustments may be applied to any such test or financial covenant solely to the extent that such adjustments give effect to events that are (x) attributable to such transaction and (y) factually supportable in a manner reasonably satisfactory to the Administrative Agent.
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“Pro Forma Compliance” means, with respect to any transaction, that such transaction does not cause, create or result in a Default after giving Pro Forma Effect, based upon the results of operations for the most recently completed period of measurement to (a) such transaction and (b) all other transactions which are contemplated or required to be given Pro Forma Effect hereunder that have occurred on or after the first day of the relevant period of measurement.
“Properties” has the meaning specified in Section 5.18(a).
“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 6.01.
“PUC” means any state, provincial or other local public utility commission, local franchising authority, or similar regulatory agency or body that exercises jurisdiction over the rates, terms or services or the ownership, construction or operation of any Communications System (and its related facilities) or over Persons who own, construct or operate a Communications System, in each case by reason of the nature or type of the services, operations or business subject to regulation and not pursuant to laws and regulations of general applicability to Persons conducting business in any such jurisdiction.
“PUC Laws” means all relevant statutes of any applicable state, rules, regulations, orders, directives and published policies of, and all Laws administered by, any PUC asserting jurisdiction over any Loan Party or any Subsidiary of any Loan Party.
“Purchase Money Security Interest” means any Lien upon tangible personal property securing loans to any Loan Party or Subsidiary of any Loan Party or deferred payments by such Loan Party or Subsidiary for the purchase of such tangible personal property.
“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 specified in Section 11.21.
“Qualified ECP Guarantor” means, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Recipient” means the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder.
“Register” has the meaning specified in Section 11.06(c).
“Regulated Subsidiary” means any Subsidiary of the Parent (other than Holdco or the Borrower) that is a regulated Subsidiary of the Parent. On the Closing Date, the only Regulated Subsidiary is Shenandoah Telephone.
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“Regulation U” means Regulation U of the FRB, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors, consultants, service providers and representatives of such Person and of such Person’s Affiliates.
“Release” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying, injection or leaching into ambient air, indoor air, surface water, groundwater, drinking water, soil, surface and subsurface strata, and natural resources such as wetland, flora and fauna, or into, from or through any building, structure or facility.
“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Incremental Term Loans or Revolving Loans, a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swingline Loan, a Swingline Loan Notice.
“Required Class Lenders” means, at any time with respect to any Class of Loans or Commitments, Lenders having Total Credit Exposures with respect to such Class representing more than fifty percent (50%) of the Total Credit Exposures of all Lenders of such Class. The Total Credit Exposure of any Defaulting Lender with respect to such Class shall be disregarded in determining Required Class Lenders at any time.
“Required Lenders” means, at any time, Lenders (including Voting Participants) having Total Credit Exposures representing more than fifty percent (50%) of the Total Credit Exposures of all Lenders at such time. The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time; provided, that, the amount of any participation in any Swingline Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swingline Lender or the L/C Issuer, as the case may be, in making such determination; provided, further, that, this definition is subject to Section 3.03.
“Required Revolving Lenders” means, at any time, Revolving Lenders (including Voting Participants) having Total Revolving Exposures representing more than fifty percent (50%) of the Total Revolving Exposures of all Revolving Lenders. The Total Revolving Exposure of any Defaulting Lender shall be disregarded in determining Required Revolving Lenders at any time; provided, that, the amount of any participation in any Swingline Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Revolving Lender that is the Swingline Lender or the L/C Issuer, as the case may be, in making such determination; provided, further, that, this definition is subject to Section 3.03.
“Rescindable Amount” has the meaning as specified in Section 2.12(b)(ii).
“Resignation Effective Date” has the meaning set forth in Section 9.06(a).
“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, chief financial officer, treasurer, assistant treasurer, any principal accounting officer or controller of a Loan Party, solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01(b), the secretary or any assistant secretary of a Loan Party and, solely for purposes of notices given pursuant to Article II, any other officer of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent. 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. To the extent requested by the Administrative Agent, each Responsible Officer will provide an incumbency certificate and to the extent requested by the Administrative Agent, appropriate authorization documentation, in form and substance reasonably satisfactory to the Administrative Agent.
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“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of Holdco or any 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 such Equity Interest, or on account of any return of capital to Holdco’s stockholders (or equivalent).
“Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Loans of the same Type and, in the case of Term SOFR Loans, having the same Interest Period made by each of the Revolving Lenders pursuant to Section 2.01(a).
“Revolving Commitment” means, as to each Revolving Lender, its obligation to (a) make Revolving Loans to the Borrower pursuant to Section 2.01(a), (b) purchase participations in L/C Obligations, and (c) purchase participations in Swingline Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 1.01(b) under the caption “Revolving Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The Revolving Commitments of all of the Revolving Lenders on the Closing Date shall be $175,000,000.
“Revolving Exposure” means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Loans and such Lender’s participation in L/C Obligations and Swingline Loans at such time.
“Revolving Facility” means, at any time, the aggregate amount of the Revolving Lenders’ Revolving Commitments at such time.
“Revolving Facility Maturity Date” means December 5, 2030; provided, that, if such date is not a Business Day, the Revolving Facility Maturity Date shall be the next preceding Business Day.
“Revolving Lender” means, at any time, (a) so long as any Revolving Commitment is in effect, any Lender that has a Revolving Commitment at such time or (b) if the Revolving Commitments have terminated or expired, any Lender that has a Revolving Loan or a participation in L/C Obligations or Swingline Loans at such time.
“Revolving Loan” has the meaning specified in Section 2.01(a).
“Revolving Note” means a promissory note made by the Borrower in favor of a Revolving Lender evidencing Revolving Loans or Swingline Loans, as the case may be, made by such Revolving Lender, substantially in the form of Exhibit G.
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“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., and any successor thereto.
“Sanctioned Country” means, at any time, a country, territory or sector that is, or whose government is, the target of any Sanctions or that is, or whose government is, the target of any list-based or territorial or sectorial Sanctions.
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by any (i) Governmental Authority of the United States, Canada, the United Kingdom or any member of the European Union, (ii) the United Nations Security Council, (iii) the European Union, (iv) any political subdivision of any of the foregoing or (v) any other Governmental Authority having (or claiming to have) jurisdiction at such time over any of the following Persons or any of their assets: any Loan Party, any Subsidiary or Affiliate of any Loan Party, any Secured Party, any Participant or any Subsidiary or Affiliate of any Secured Party or Participant, (b) any Person operating, organized or resident in a Sanctioned Country in violation of Sanctions, (c) any Person that is otherwise subject to any Sanctions or (d) any Person, directly or indirectly, fifty percent (50%) or more in the aggregate owned by, otherwise controlled by, or acting for the benefit or on behalf of, any Person or Persons described in clause (a), (b) or (c) of this definition.
“Sanctions” means any economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by any (a) Governmental Authority of the United States, Canada, the United Kingdom or any member of the European Union, (b) the United Nations Security Council, (c) the European Union, (d) any political subdivision of any of the foregoing or (e) any other Governmental Authority having (or claiming to have) jurisdiction at such time over any of the following Persons or any of their assets: any Loan Party, any Subsidiary or Affiliate of any Loan Party, any Secured Party, any Participant or any Subsidiary or Affiliate of any Secured Party or Participant.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Secured Cash Management Agreement” means any Cash Management Agreement between any Loan Party and/or any of its Subsidiaries and any Cash Management Bank.
“Secured Hedge Agreement” means any interest rate, currency, foreign exchange, or commodity Swap Contract required by or not prohibited under Article VI or VII between any Loan Party and/or any of its Subsidiaries and any Hedge Bank.
“Secured Obligations” means all Obligations and all Additional Secured Obligations.
“Secured Parties” means, collectively, the Administrative Agent, the Lenders, the L/C Issuer, the Hedge Banks, the Cash Management Banks, the Indemnitees and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05.
“Secured Party Designation Notice” means a notice from any Lender or an Affiliate of a Lender substantially in the form of Exhibit H.
“Security Agreement” means the security and pledge agreement, dated as of the Closing Date, executed in favor of the Administrative Agent by each of the Loan Parties.
“Shenandoah Cable” means Shenandoah Cable Television LLC, a Virginia limited liability company.
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“Shenandoah Telephone” means Shenandoah Telephone Company, a Virginia corporation.
“SOFR” means the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor administrator).
“Solvency Certificate” means a solvency certificate in substantially in the form of Exhibit I.
“Solvent” means, with respect to any Person on any date of determination, that such Person, on a Consolidated basis with its respective Subsidiaries, (a) owns and will own assets, the present fair value of which is greater than the total amount of liabilities, including, contingent liabilities, of such Person and its Subsidiaries, (b) owns and will own assets, the present fair saleable value of which is greater than the amount that will be required to pay the probable liabilities of the then existing debts and liabilities of such Person and its Subsidiaries as they become absolute and matured considering all financing alternatives and potential asset sales reasonably available to such Person and its Subsidiaries, (c) has capital that is not unreasonably small in relation to its business as presently conducted or after giving effect to any contemplated transactions, (d) does not intend to, and does not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they become due and (e) has not incurred, and will not incur, any obligation under the Agreement or any other Loan Document and such Person and its Subsidiaries have not made and will not make any conveyance pursuant to or in connection therewith, with actual intent to hinder, delay or defraud either existing or future creditors of such Person or its Subsidiaries.
“Specified Event of Default” means any Event of Default pursuant to Section 8.01(a) or Section 8.01(n).
“Specified Loan Party” means any Loan Party that is not then an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to Section 10.11).
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of Voting Stock is at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” (a) shall refer to a Subsidiary or Subsidiaries of the Parent and (b) shall exclude each ABS Entity.
“Subsidiary Equity Interests” has the meaning specified in Section 5.06.
“Successor Rate” has the meaning specified in Section 3.03(b).
“Supported QFC” has the meaning specified in Section 11.21.
“Swap Contract” 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.
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“Swap Obligations” means with respect to any Guarantor any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swingline Borrowing” means a borrowing of a Swingline Loan pursuant to Section 2.04.
“Swingline Commitment” means, as to any Lender (a) the amount set forth opposite such Lender’s name on Schedule 2.04 or (b) if such Lender has entered into an Assignment and Assumption or has otherwise assumed a Swingline Commitment after the Closing Date, the amount set forth for such Lender as its Swingline Commitment in the Register maintained by the Administrative Agent pursuant to Section 11.06(c).
“Swingline Lender” means Bank of America, in its capacity as provider of Swingline Loans, or any successor swingline lender hereunder.
“Swingline Loan” has the meaning specified in Section 2.04(a).
“Swingline Loan Notice” means a notice of a Swingline Borrowing pursuant to Section 2.04(b), which shall be substantially in the form of Exhibit J or such other form as approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
“Swingline Sublimit” means an amount equal to the lesser of (a) $10,000,000 and (b) the Revolving Facility. The Swingline Sublimit is part of, and not in addition to, the Revolving Facility.
“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, for tax purposes or otherwise upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term SOFR” means:
(a) for any Interest Period with respect to a Term SOFR Loan, the rate per annum equal to the Term SOFR Screen Rate two (2) U.S. Government Securities Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided, that, if the rate is not published prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR Screen Rate on the first (1^st^) U.S. Government Securities Business Day immediately prior thereto; and
(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the Term SOFR Screen Rate two (2) U.S. Government Securities Business Days prior to such date with a term of one month commencing that day; provided, that, if the rate is not published prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR Screen Rate on the first (1^st^) U.S. Government Securities Business Day immediately prior thereto;
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provided, that, if the Term SOFR determined in accordance with either of the foregoing clause (a) or clause (b) of this definition would otherwise be less than zero, the Term SOFR shall be deemed zero for purposes of this Agreement.
“Term SOFR Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of Term SOFR.
“Term SOFR Screen Rate” means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to the Administrative Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).
“Threshold Amount” means $15,000,000.
“Total Credit Exposure” means, as to any Lender at any time, the unused Commitments, Revolving Exposure and Outstanding Amount of all Incremental Term Loans of such Lender at such time.
“Total Debt” means, as of any date of determination, the aggregate principal amount of all Indebtedness (other than the net termination obligations of such Person under any Swap Contract, calculated as of any date as if such agreement or arrangement were terminated as of such date and, to the extent related to or supporting such net termination obligations, as described in clauses (k), (l) and (m) of the definition of Indebtedness), of the Parent and its Subsidiaries on a Consolidated basis.
“Total Net Leverage Ratio” means, as of any date of determination, the ratio of (a) the total of (i) Total Debt as of such date minus (ii) the Unrestricted Cash Amount to (b) Consolidated Adjusted EBITDA of the Parent and its Subsidiaries for the period of four (4) consecutive fiscal quarters ending as of the last day of the most recently ended fiscal quarter for which the Loan Parties were required to deliver financial statements pursuant to Section 6.01(a) or Section 6.01(b).
“Total Revolving Exposure” means, as to any Revolving Lender at any time, the unused Revolving Commitments and Revolving Exposure of such Revolving Lender at such time.
“Total Revolving Outstandings” means, as of any date of determination, the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans and L/C Obligations as of such date.
“Transactions” means, collectively, (a) the entering into of the Loan Documents, the obtaining of the Revolving Facility pursuant to the terms and conditions of the Loan Documents, and any initial Credit Extension of the Revolving Facility, (b) the entering into by the ABS Entities of the ABS Indenture Documentation and the other ABS Transactions to be consummated on or about the Closing Date, (c) the repayment in full of all obligations of the Parent and its Subsidiaries arising under or in connection with the loan documentation entered into in connection with the Existing Credit Agreement, the termination of all commitments with respect thereto, and the termination and release of all guarantees and security interests relating thereto, (d) any other transactions consummated in connection with any of the foregoing, and (e) the payment of all fees, costs and expenses in connection with the foregoing.
“Type” means, with respect to a Revolving Loan or an Incremental Term Loan, its character as a Base Rate Loan or a Term SOFR Loan.
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“UCC” means the Uniform Commercial Code as in effect in the State of New York; provided, that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
“UCP” means the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 600 (or such later version thereof as may be in effect at the applicable time).
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to 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.
“United States” and “U.S.” mean the United States of America.
“Unreimbursed Amount” has the meaning specified in Section 2.03(f).
“Unrestricted Cash Amount” means, as of any date of determination, the amount of unrestricted cash and Cash Equivalents of the Parent and its Subsidiaries in an amount not to exceed an amount equal to fifty percent (50%) of Consolidated Adjusted EBITDA of the Parent and its Subsidiaries for the period of four (4) consecutive fiscal quarters ending as of the last day of the most recently ended fiscal quarter for which the Loan Parties were required to deliver financial statements pursuant to Section 6.01(a) or Section 6.01(b) to the extent (a) not appearing (or required to appear) as “restricted” on a Consolidated balance sheet of the Parent and its Subsidiaries prepared in accordance with GAAP and (b) not subject to any Liens, other than (i) Liens in favor of the Administrative Agent, or (ii) Liens permitted pursuant to clauses (b), (o) and (t) of the definition of “Permitted Liens”. It is understood and agreed that, for purposes of any calculation in connection with determining the permissibility of any incurrence of Indebtedness, the identifiable proceeds of such Indebtedness shall not qualify for inclusion in the Unrestricted Cash Amount for the purposes of such calculation.
“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Person” means (a) solely for purposes of Section 5.30 and Section 7.21, any United States citizen, lawful permanent resident, entity organized under the laws of the United States or any jurisdiction within the United States, including any foreign branch of any such entity, or any person in the United States, and (b) for all other purposes, any Person that is a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“U.S. Special Resolution Regimes” has the meaning specified in Section 11.21.
“U.S. Tax ComplianceCertificate” has the meaning specified in Section 3.01(f)(ii)(B)(3).
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“Voting Participant” has the meaning specified in Section 11.06(d).
“Voting Participant Notice” has the meaning specified in Section 11.06(d).
“Voting Stock” means, with respect to any Person, Equity Interests issued by such Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right to so vote has been suspended by the happening of such contingency.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years (and/or portion thereof) 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.
“Write-Down and ConversionPowers” 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.
1.02 Other Interpretive Provisions.
With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) 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, (i) any definition of or reference to any agreement, instrument or other document (including the Loan Documents and any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, amended and restated, modified, extended, restated, replaced or supplemented from time to time (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Preliminary Statements, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory rules, regulations, orders and provisions consolidating, amending, replacing or interpreting such law and any reference to any law, rule or regulation shall, unless otherwise specified, refer to such law, rule or regulation as amended, modified, extended, restated, replaced or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
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(b) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”
(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
(d) Any reference herein to a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
1.03 Accounting Terms.
(a) Generally. 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 applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the financial statements referred to in Section 5.10, except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, (i) Indebtedness of the Parent and its Subsidiaries shall be deemed to be carried at one hundred percent (100%) of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470–20 on financial liabilities shall be disregarded and (ii) all liability amounts shall be determined excluding any liability relating to any operating lease, all asset amounts shall be determined excluding any right-of-use assets relating to any operating lease, all amortization amounts shall be determined excluding any amortization of a right-of-use asset relating to any operating lease, and all interest amounts shall be determined excluding any deemed interest comprising a portion of fixed rent payable under any operating lease, in each case to the extent that such liability, asset, amortization or interest pertains to an operating lease under which the covenantor or a member of its consolidated group is the lessee and would not have been accounted for as such under GAAP as in effect on December 31, 2015. Prior to the delivery of financial statements pursuant to Section 6.01(b) for the fiscal year ending December 31, 2025, any calculation or other determination to be made pursuant to this Agreement by reference to the most recent financial statements delivered pursuant to Sections 6.01(a) or (b) shall be calculated or determined, as applicable, by reference to the financial statements of the Parent and its Subsidiaries for the fiscal quarter ended September 30, 2025 (but, for the avoidance of doubt, on a Pro Forma Basis after giving effect to the consummation of the ABS Transactions and subject to reconciliation to remove the ABS Entities from such financial statements in the manner required pursuant to Section 6.01(d)).
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(b) Changes in GAAP. If at any time any change in GAAP or in the application of GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, 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 change in GAAP or in the application thereof (subject to the approval of the Required Lenders); provided, that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP or in the application thereof.
(c) Consolidation of Variable Interest Entities. All references herein to Consolidated financial statements of Parent and its Subsidiaries or to the determination of any amount for the Parent and its Subsidiaries on a Consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that the Parent is required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as defined herein.
(d) Pro Forma Calculations. Notwithstanding anything to the contrary contained herein, all calculations of the Total Net Leverage Ratio, Consolidated Adjusted EBITDA of the Parent and its Subsidiaries and the Interest Coverage Ratio shall be made on a Pro Forma Basis with respect to all Material Acquisitions and all Material Dispositions occurring during the applicable period of measurement to which such calculation relates, and/or subsequent to the end of such period of measurement but not later than the date of such calculation; provided, that, notwithstanding the foregoing, when calculating the Total Net Leverage Ratio, Consolidated Adjusted EBITDA of the Parent and its Subsidiaries and/or the Interest Coverage Ratio for purposes of (i) determining compliance with Section 7.20, or (ii) the Applicable Rate, in each case, any Material Acquisition and any Material Disposition and any related adjustment contemplated in the definition of “Pro Forma Basis” that occurred subsequent to the end of the applicable period of measurement shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with any financial covenant set forth in Section 7.20, (A) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending March 31, 2026, such Pro Forma Compliance shall be determined by reference to the maximum Total Net Leverage Ratio and/or the minimum Interest Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01(a) or Section 6.01(b), and (B) in the case of any such compliance required prior to the delivery referred to in clause (A) above, such Pro Forma Compliance shall be determined by reference to the maximum Total Net Leverage Ratio and/or the minimum Interest Coverage Ratio, as applicable, permitted for the fiscal quarter ending March 31, 2026.
(e) Financial Calculations. For purposes of the financial covenants set forth in Section 7.20 (including all component definitions used in connection with the calculation or determination of any such financial covenants), and for purposes of any financial covenant calculations to be made pursuant to or in connection with the Loan Documents, it is understood and agreed that such covenants, definitions, calculations and/or determinations, as applicable, shall be made with respect to the Parent and its Subsidiaries (excluding, for the avoidance of doubt, any ABS Entity).
1.04 Rounding.
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Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
1.05 Times of Day.
Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
1.06 Letter of Credit Amounts.
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, however, that, with respect to any Letter of Credit that, by its terms or the terms of any Issuer 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.
1.07 Interest Rates.
The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to any reference rate referred to herein or with respect to any rate (including, for the avoidance of doubt, the selection of such rate and any related spread or other adjustment) that is an alternative or replacement for or successor to any such rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or the effect of any of the foregoing, or of any Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions or other activities that affect any reference rate referred to herein, or any alternative, successor or replacement rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or any related spread or other adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any reference rate referred to herein or any alternative, successor or replacement rate (including, without limitation, any Successor Rate) **(**or any component of any of the foregoing), 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 other action or omission related to or affecting the selection, determination, or calculation of any rate (or component thereof) provided by any such information source or service.
1.08 UCC Terms.
Terms defined in the UCC in effect on the Closing Date and not otherwise defined herein shall, unless the context otherwise indicates, have the meanings provided by those definitions. Subject to the foregoing, the term “UCC” refers, as of any date of determination, to the UCC then in effect.
1.09 Limited Condition Transactions. Notwithstanding anything to the contrary herein, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including any Total Net Leverage Ratio test or any Interest Coverage Ratio test), (ii) the absence of a Default, or (iii) a determination as to whether the representations and warranties contained in Article II and Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection
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herewith or therewith, shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect), in each case in connection with the consummation of a Limited Condition Transaction, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrower, upon either (A) the execution of the definitive agreement with respect to such Limited Condition Transaction, or (B) the consummation of such Limited Condition Transaction (the applicable date referred to above for such Limited Condition Transaction, an “LCTTest Date”), after giving effect to the relevant Limited Condition Transaction and related incurrence of Indebtedness, on a Pro Forma Basis; provided, that, notwithstanding the foregoing, in connection with any Limited Condition Transaction: (x) (I) the conditions set forth in clause (c)(i)(A) (and, for the avoidance of doubt and, if applicable, clause (c) of the definition of “Permitted Acquisition”) shall be satisfied if (1) no Default shall have occurred and be continuing as of the applicable LCT Test Date; and (2) no Specified Event of Default shall have occurred and be continuing at the time of consummation of such Limited Condition Transaction; and (II) the conditions set forth in clause (c)(i)(B) (and, for the avoidance of doubt and, if applicable, clause (f) of the definition of “Permitted Acquisition”) shall be satisfied if the Loan Parties shall not be in violation of the covenants contained in Section 7.20 after giving effect to the relevant Investment and related incurrence of Indebtedness, on a Pro Forma Basis, as determined on the applicable LCT Test Date (and, if applicable, as demonstrated by the certificate of a Financial Officer of the Borrower delivered on such LCT Test Date and the calculations and financial statements required to be attached thereto); and (y) if the proceeds of Incremental Term Loans advanced under an Incremental Term Facility established pursuant to Section 2.16(b) are being used to finance such Limited Condition Transaction, then (I) the conditions set forth in clause (viii)(A)(II)(x) of the proviso to Section 2.16(b) and Section 4.02(a) shall be required to be satisfied at the time of closing of the Limited Condition Transaction and funding of such Incremental Term Loans but may be subject to customary “SunGard” or “certain funds” conditionality and the representations and warranties required may be limited to customary “specified representations” and such other representations and warranties as may be required by the applicable lenders providing such Incremental Term Loans; and (II) the conditions set forth in clauses (iv) and (viii)(A)(II)(y) of the proviso to Section 2.16(b) and Section 4.02(b) shall, if and to the extent the lenders providing such Incremental Term Loans so agree, be satisfied if (1) no Default shall have occurred and be continuing as of the applicable LCT Test Date; and (2) no Specified Event of Default shall have occurred and be continuing at the time of the funding of such Incremental Term Loans in connection with the consummation of such Limited Condition Transaction. For the avoidance of doubt, if any of such ratios or amounts for which compliance was determined or tested as of the LCT Test Date are thereafter exceeded as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated Adjusted EBITDA of the Parent and its Subsidiaries), at or prior to the consummation of the relevant Limited Condition Transaction, such ratios or amounts will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining whether the relevant Limited Condition Transaction is permitted to be consummated or taken.
Article II
COMMITMENTS AND CREDIT EXTENSIONS
2.01 Loans.
(a) Revolving Borrowings. Subject to the terms and conditions set forth herein, each Revolving Lender severally agrees to make loans (each such loan, a “Revolving Loan”) to the Borrower, in Dollars, from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Commitment; provided, however, that, after giving effect to any Revolving Borrowing, (i) the Total Revolving Outstandings shall not exceed the Revolving Facility, and (ii) the Revolving Exposure of any Lender shall not exceed such Revolving Lender’s Revolving Commitment. Within the limits of each Revolving Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow Revolving Loans, prepay under Section 2.05, and reborrow under this Section 2.01(a). Revolving Loans may be Base Rate Loans or Term SOFR Loans, as further provided herein; provided, however, that, any Revolving Borrowings made on the Closing Date or any of the three (3) Business Days following the Closing Date shall be made as Base Rate Loans unless the Borrower delivers a funding indemnity letter in form and substance reasonably satisfactory to the Administrative Agent not less than three (3) Business Days prior to the date of such Revolving Borrowing.
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(b) Incremental Term Loans. Subject to Section 2.16, on the effective date of any Incremental Term Loan Lender Joinder Agreement or during the availability period provided for in any Incremental Term Loan Lender Joinder Agreement, each Incremental Term Lender party to such Incremental Term Loan Lender Joinder Agreement severally agrees to make a term loan to the Borrower in the amount of its respective Incremental Term Commitment with respect to such Incremental Term Facility as set forth in such Incremental Term Loan Lender Joinder Agreement; provided, however, that, after giving effect to such advances, the Outstanding Amount of such Incremental Term Loans shall not exceed the aggregate amount of the Incremental Term Commitments set forth in the applicable Incremental Term Loan Lender Joinder Agreement of the applicable Incremental Term Lenders. Each Incremental Term Borrowing shall consist of Incremental Term Loans made simultaneously by the Incremental Term Lenders in accordance with their respective Applicable Percentage of the applicable Incremental Term Facility. Incremental Term Borrowings prepaid or repaid may not be reborrowed. Incremental Term Loans may be Base Rate Loans or Term SOFR Loans, as further provided herein.
2.02 Borrowings, Conversions and Continuations of Loans.
(a) Notice of Borrowing. Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Term SOFR Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by: (i) telephone or (ii) a Loan Notice; provided, that, any telephonic notice must be confirmed immediately by delivery to the Administrative Agent of a Loan Notice. Each such Loan Notice must be received by the Administrative Agent not later than 11:00 a.m. (A) two (2) Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Term SOFR Loans or of any conversion of Term SOFR Loans to Base Rate Loans, and (B) on the requested date of any Borrowing of Base Rate Loans; provided, however, that, if the Borrower wishes to request Term SOFR Loans having an Interest Period other than one, three or six months in duration as provided in the definition of “Interest Period,” the applicable notice must be received by the Administrative Agent not later than 11:00 a.m. four (4) Business Days prior to the requested date of such Borrowing, conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the Lenders of such request and determine whether the requested Interest Period is acceptable to all of them. Not later than 11:00 a.m., three (3) Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the Lenders and the Administrative Agent. Each Borrowing of, conversion to or continuation of Term SOFR Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof (or, in connection with any conversion or continuation of an Incremental Term Loan, if less, the entire principal thereof then outstanding). Except as provided in Sections 2.03(f) and 2.04(c), each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof (or, in connection with any conversion or continuation of an Incremental Term Loan, if less, the entire principal thereof then outstanding). Each Loan Notice and each telephonic notice shall specify (I) the applicable Facility and whether the Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of Loans, as the case may be, under such Facility, (II) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (III) the principal amount of Loans to be borrowed, converted or continued, (IV) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (V) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Loan in a Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Term SOFR Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Term SOFR Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month. Notwithstanding anything to the contrary herein, a Swingline Loan may not be converted to a Term SOFR Loan.
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(b) Advances. Following receipt of a Loan Notice for a Facility, the Administrative Agent shall promptly notify each Appropriate Lender of the amount of its Applicable Percentage under such Facility of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Appropriate Lender of the details of any automatic conversion to Base Rate Loans described in Section 2.02(a). In the case of a Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower; provided, however, that, if, on the date a Loan Notice with respect to a Revolving Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Revolving Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings, and second, shall be made available to the Borrower as provided above.
(c) Term SOFR Loans. Except as otherwise provided herein, a Term SOFR Loan may be continued or converted only on the last day of an Interest Period for such Term SOFR Loan. During the existence of a Default, no Loans may be requested as, converted to or continued as Term SOFR Loans without the consent of the Required Lenders, and the Required Lenders may demand that any or all of the outstanding Term SOFR Loans be converted immediately to Base Rate Loans.
(d) Interest Rates. Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the absence of manifest error.
(e) Interest Periods. After giving effect to all Revolving Borrowings, all conversions of Revolving Loans from one Type to the other, and all continuations of Revolving Loans as the same Type, there shall not be more than seven (7) Interest Periods in effect in respect of the Revolving Facility.
(f) Cashless Settlement Mechanism. Notwithstanding anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all or the portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative Agent and such Lender.
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(g) Conforming Changes. With respect to SOFR or Term SOFR, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document; provided, that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrower and the Lenders reasonably promptly after such amendment becomes effective.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment. Subject to the terms and conditions set forth herein, in addition to the Loans provided for in Section 2.01, the Borrower may request that the L/C Issuer, in reliance on the agreements of the Revolving Lenders set forth in this Section 2.03, issue, at any time and from time to time during the Availability Period, Letters of Credit denominated in Dollars for its own account or the account of any of its Subsidiaries in such form as is acceptable to the Administrative Agent and the L/C Issuer in its reasonable determination. Letters of Credit issued hereunder shall constitute utilization of the Revolving Commitments. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto and deemed L/C Obligations, and from and after the Closing Date, shall be subject to and governed by the terms and conditions hereof.
(b) Notice of Issuance, Amendment, Extension, Reinstatement or Renewal.
(i) To request the issuance of a Letter of Credit (or the amendment of the terms and conditions, extension of the terms and conditions, extension of the expiration date, or reinstatement of amounts paid, or renewal of an outstanding Letter of Credit), the Borrower shall deliver (or transmit by electronic communication, if arrangements for doing so have been approved by the L/C Issuer) to the L/C Issuer and to the Administrative Agent not later than 11:00 a.m. at least two (2) Business Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be, a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, extended, reinstated or renewed, and specifying the date of issuance, amendment, extension, reinstatement or renewal (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with Section 2.03(d)), the amount of such Letter of Credit, the name and address of the beneficiary thereof, the purpose and nature of the requested Letter of Credit and such other information as shall be necessary to prepare, amend, extend, reinstate or renew such Letter of Credit. If requested by the L/C Issuer, the Borrower also shall submit a letter of credit application and reimbursement agreement on the L/C Issuer’s standard form in connection with any request for a Letter 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 and reimbursement agreement or other agreement submitted by the Borrower to, or entered into by the Borrower with, the L/C Issuer relating to any Letter of Credit, the terms and conditions of this Agreement shall control.
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(ii) If the Borrower so requests in any applicable Letter of Credit Application (or the amendment of an outstanding Letter of Credit), the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-ExtensionLetter of Credit”); provided, that, any such Auto-Extension Letter of Credit shall permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon by the Borrower and the L/C Issuer at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Revolving Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiration date not later than the date permitted pursuant to Section 2.03(d); provided, that, the L/C Issuer shall not (A) permit any such extension if (1) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its extended form under the terms hereof (except that the expiration date may be extended to a date that is no more than one (1) year from the then-current expiration date) or (2) it has received notice (which may be in writing or by telephone (if promptly confirmed in writing)) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent that the Required Revolving Lenders have elected not to permit such extension or (B) be obligated to permit such extension if it has received notice (which may be in writing or by telephone (if promptly confirmed in writing)) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Revolving Lender or the Borrower that one or more of the applicable conditions set forth in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(c) Limitations on Amounts, Issuance and Amendment. A Letter of Credit shall be issued, amended, extended, reinstated or renewed only if (and upon issuance, amendment, extension, reinstatement or renewal of each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, extension, reinstatement or renewal (w) the aggregate amount of the outstanding Letters of Credit issued by the L/C Issuer shall not exceed its L/C Commitment, (x) the aggregate L/C Obligations shall not exceed the Letter of Credit Sublimit, (y) the Revolving Exposure of any Lender shall not exceed its Revolving Commitment and (z) the Total Revolving Exposure shall not exceed the total Revolving Commitments.
(i) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing the Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;
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(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, the Letter of Credit is in an initial stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(D) any Revolving Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral reasonably satisfactory to the L/C Issuer (in its sole discretion), with the Borrower or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.15(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(ii) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.
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(d) Expiration Date. Each Letter of Credit shall have a stated expiration date no later than the earlier of (i) the date twelve (12) months after the date of the issuance of such Letter of Credit (or, in the case of any extension of the expiration date thereof, whether automatic or by amendment, twelve months after the then-current expiration date of such Letter of Credit) and (y) the date that is five (5) Business Days prior to the Revolving Facility Maturity Date.
(e) Participations.
(i) By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount or extending the expiration date thereof), and without any further action on the part of the applicable L/C Issuer or the Lenders, the L/C Issuer hereby grants to each Revolving Lender, and each Revolving Lender hereby acquires from the L/C Issuer, a participation in such Letter of Credit equal to such Lender’s Applicable Revolving Percentage of the aggregate amount available to be drawn under such Letter of Credit. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to this Section 2.03(e)(i) in respect of Letters of Credit is absolute, unconditional and irrevocable and shall not be affected by any circumstance whatsoever, including any amendment, extension, reinstatement or renewal of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Revolving Commitments.
(ii) In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely, unconditionally and irrevocably agrees to pay to the Administrative Agent, for account of the L/C Issuer, such Lender’s Applicable Revolving Percentage of each L/C Borrowing made by the L/C Issuer not later than 1:00 p.m. on the Business Day specified in the notice provided by the Administrative Agent to the Revolving Lenders pursuant to Section 2.03(f) until such L/C Borrowing is reimbursed by the Borrower or at any time after any reimbursement payment is required to be refunded to the Borrower for any reason, including after the Revolving Facility Maturity Date. Such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each such payment shall be made in the same manner as provided in Section 2.02 with respect to Loans made by such Lender (and Section 2.02 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this Section 2.03), and the Administrative Agent shall promptly pay to the L/C Issuer the amounts so received by it from the Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to Section 2.03(f), the Administrative Agent shall distribute such payment to the L/C Issuer or, to the extent that the Revolving Lenders have made payments pursuant to this Section 2.03(e) to reimburse the L/C Issuer, then to such Lenders and the L/C Issuer as their interests may appear. Any payment made by a Lender pursuant to this Section 2.03(e) to reimburse the L/C Issuer for any L/C Borrowing shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such L/C Borrowing.
(iii) Each Revolving Lender further acknowledges and agrees that its participation in each Letter of Credit will be automatically adjusted to reflect such Revolving Lender’s Applicable Revolving Percentage of the aggregate amount available to be drawn under such Letter of Credit at each time such Revolving Lender’s Revolving Commitment is amended pursuant to the operation of Section 2.16(a), as a result of an assignment in accordance with Section 11.06 or otherwise pursuant to this Agreement.
(iv) If any Revolving Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(e), then, without limiting the other provisions of this Agreement, the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included in the relevant Revolving Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this Section 2.03(e)(iv) shall be conclusive absent manifest error.
(f) Reimbursement. If the L/C Issuer shall make any L/C Borrowing in respect of a Letter of Credit, the Borrower shall reimburse the L/C Issuer in respect of such L/C Borrowing by paying to the Administrative Agent an amount equal to such L/C Borrowing not later than 12:00 noon on (i) the Business Day that the Borrower receives notice of such L/C Borrowing, if such notice is received prior to 10:00 a.m. or (ii) the Business Day immediately following the day that the Borrower receives such notice, if such notice is not received prior to such time, provided that, if such L/C Borrowing is not less than $1,000,000, the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.02 or Section 2.04 that such payment be financed with a Borrowing of Base Rate Loans or Swingline Loan 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 Borrowing of Base Rate Loans or Swingline Loan. If the Borrower fails to make such payment when due, the Administrative Agent shall notify each Revolving Lender of the applicable L/C Borrowing, the payment then due from the Borrower in respect thereof (the “Unreimbursed Amount”) and such Lender’s Applicable Revolving Percentage thereof. Promptly upon receipt of such notice, each Revolving Lender shall pay to the Administrative Agent its Applicable Revolving Percentage of the Unreimbursed Amount pursuant to Section 2.03(e)(ii), subject to the amount of the unutilized portion of the aggregate Revolving Commitments. Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(f) may be given by telephone if immediately confirmed in writing; provided, that, the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
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(g) Obligations Absolute. The Borrower’s obligation to reimburse L/C Borrowings as provided in Section 2.03(f) shall be 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 this Agreement, any other Loan Document or any Letter of Credit, or any term or provision herein or therein;
(ii) the existence of any claim, counterclaim, setoff, defense or other right that the Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement in such draft or other document being untrue or inaccurate in any respect;
(iv) waiver by the L/C Issuer of any requirement that exists for the L/C Issuer’s protection and not the protection of the Borrower or any waiver by the L/C Issuer which does not in fact materially prejudice the Borrower;
(v) payment by the L/C Issuer under a Letter of Credit against presentation of a draft or other document that does not comply strictly with the terms of such Letter of Credit; 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 2.03, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder.
(h) Examination. The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will immediately notify the L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.
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(i) Liability. None of the Administrative Agent, the Lenders, the L/C Issuer, or any of their Related Parties shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit by the L/C Issuer 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, any error in translation or any consequence arising from causes beyond the control of the L/C Issuer; provided, that, the foregoing shall not be construed to excuse the L/C Issuer from liability to the Borrower to the extent of any direct damages (as opposed to consequential 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 the L/C Issuer’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 the L/C Issuer (as finally determined by a court of competent jurisdiction), the L/C Issuer shall be deemed to have exercised care in each such determination, and that:
(i) the L/C Issuer may replace a purportedly lost, stolen, or destroyed original Letter of Credit or missing amendment thereto with a certified true copy marked as such or waive a requirement for its presentation;
(ii) the L/C Issuer may accept documents that appear on their face to be in substantial compliance with the terms of a Letter of Credit without responsibility for further investigation, regardless of any notice or information to the contrary, and may make payment upon presentation of documents that appear on their face to be in substantial compliance with the terms of such Letter of Credit and without regard to any non-documentary condition in such Letter of Credit;
(iii) the L/C Issuer shall have the right, in its sole discretion, to decline to accept such documents and to make such payment if such documents are not in strict compliance with the terms of such Letter of Credit; and
(iv) this sentence shall establish the standard of care to be exercised by the L/C Issuer when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof (and the parties hereto hereby waive, to the extent permitted by Applicable Law, any standard of care inconsistent with the foregoing).
Without limiting the foregoing, none of the Administrative Agent, the Lenders, the L/C Issuer, or any of their Related Parties shall have any liability or responsibility by reason of (A) any presentation that includes forged or fraudulent documents or that is otherwise affected by the fraudulent, bad faith, or illegal conduct of the beneficiary or other Person, (B) the L/C Issuer declining to take-up documents and make payment, (C) against documents that are fraudulent, forged, or for other reasons by which that it is entitled not to honor, (D) following a Borrower’s waiver of discrepancies with respect to such documents or request for honor of such documents or (E) the L/C Issuer retaining proceeds of a Letter of Credit based on an apparently applicable attachment order, blocking regulation, or third-party claim notified to the L/C Issuer.
(j) Applicability of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued by it (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the UCP shall apply to each commercial Letter of Credit. Notwithstanding the foregoing, the L/C Issuer shall not be responsible to the Borrower for, and the L/C Issuer’s rights and remedies against the Borrower shall not be impaired by, any action or inaction of the L/C Issuer required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the L/C Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade – International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.
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(k) Benefits. the L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (i) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (ii) as additionally provided herein with respect to the L/C Issuer.
(l) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the account of each Revolving Lender in accordance with its Applicable Revolving Percentage a Letter of Credit fee (the “Letter of Credit Fee”) (i) for each commercial Letter of Credit equal to the Applicable Rate times the maximum stated amount of such Letter of Credit and (ii) for each standby Letter of Credit equal to the Applicable Rate times the daily amount available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any standby Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. Letter of Credit Fees shall be (x) payable on the first Business Day following the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit and (y) accrued through and including the last day of each calendar quarter in arrears. If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under or the maximum stated amount of, as applicable, each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Revolving Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.
(m) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The Borrower shall pay directly to the L/C Issuer for its own account a fronting fee (i) with respect to each commercial Letter of Credit, at a rate equal to the percentage separately agreed upon between the Borrower and the L/C Issuer, computed on the maximum stated amount of such Letter of Credit, and payable upon the issuance thereof, (ii) with respect to any amendment of a commercial Letter of Credit increasing the amount of such Letter of Credit, at a rate separately agreed between the Borrower and the L/C Issuer, computed on the amount of such increase, and payable upon the effectiveness of such amendment, and (iii) with respect to each standby Letter of Credit, at the rate per annum equal to the percentage separately agreed upon between the Borrower and the L/C Issuer, computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears (such fronting fee shall be due and payable no later than the tenth Business Day after the end of each March, June, September and December in the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Revolving Facility Maturity Date and thereafter on demand). For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. In addition, the Borrower shall pay directly to the L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
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(n) Disbursement Procedures. The L/C Issuer for any Letter of Credit shall, within the time allowed by Applicable Laws or the specific terms of the Letter of Credit following its receipt thereof, examine all documents purporting to represent a demand for payment under such Letter of Credit. the L/C Issuer shall promptly after such examination notify the Administrative Agent and the Borrower in writing of such demand for payment if the L/C Issuer has made or will make an L/C Borrowing thereunder; provided, that, any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse the L/C Issuer and the Lenders with respect to any such L/C Borrowing.
(o) Interim Interest. If the L/C Issuer for any standby Letter of Credit shall make any L/C Borrowing, then, unless the Borrower shall reimburse such L/C Borrowing in full on the date such L/C Borrowing is made, the unpaid amount thereof shall bear interest, for each day from and including the date such L/C Borrowing is made to but excluding the date that the Borrower reimburses such L/C Borrowing, at the rate per annum then applicable to Base Rate Loans; provided, that, if the Borrower fails to reimburse such L/C Borrowing when due pursuant to clause (f) of this Section 2.03, then Section 2.08(b) shall apply. Interest accrued pursuant to this clause (o) shall be for account of the L/C Issuer, except that interest accrued on and after the date of payment by any Lender pursuant to clause (f) of this Section 2.03 to reimburse the L/C Issuer shall be for account of such Lender to the extent of such payment.
(p) Replacement of the L/C Issuer. The L/C Issuer may be replaced at any time by written agreement between the Borrower, the Administrative Agent, the replaced L/C Issuer and the successor L/C Issuer. The Administrative Agent shall notify the Lenders of any such replacement of the L/C Issuer. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced L/C Issuer pursuant to Section 2.03(m). From and after the effective date of any such replacement, (i) the successor L/C Issuer shall have all the rights and obligations of an L/C Issuer under this Agreement with respect to Letters of Credit to be issued by it thereafter and (ii) references herein to the term “L/C Issuer” shall be deemed to include such successor or any previous L/C Issuer, or such successor and all previous L/C Issuer, as the context shall require. After the replacement of the L/C Issuer hereunder, the replaced L/C Issuer shall remain a party hereto and shall continue to have all the rights and obligations of an L/C Issuer under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.
(q) Cash Collateralization.
(i) If any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives notice from the Administrative Agent or the Required Revolving Lenders (or, if the maturity of the Loans has been accelerated, Revolving Lenders with L/C Obligations representing at least 66-2/3% of the total L/C Obligations) demanding the deposit of Cash Collateral pursuant to this clause (q), the Borrower shall immediately deposit into an account established and maintained on the books and records of the Administrative Agent (the “Collateral Account”) an amount in cash equal to 103% of the total L/C Obligations 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 Section 8.01(n). 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. In addition, and without limiting the foregoing or Section 2.03(d), if any L/C Obligations remain outstanding after the expiration date specified in said clause (d), the Borrower shall immediately deposit into the Collateral Account an amount in cash equal to 103% of such L/C Obligations as of such date plus any accrued and unpaid interest thereon.
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(ii) The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over the Collateral 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 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 the Collateral Account. Moneys in the Collateral Account shall be applied by the Administrative Agent to reimburse the L/C Issuer for L/C Borrowings for which it has not been reimbursed, together with related fees, costs, and customary processing charges, and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the L/C Obligations at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders with L/C Obligations representing 66-2/3% of the total L/C Obligations), be applied to satisfy other obligations of the Borrower under this Agreement. If the Borrower is required to provide an amount of Cash Collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three (3) Business Days after all Events of Default have been cured or waived.
(r) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the Borrower shall be obligated to reimburse, indemnify and compensate the L/C Issuer hereunder for any and all drawings under such Letter of Credit as if such Letter of Credit had been issues solely for the account of the Borrower. The Borrower irrevocably waives any and all defenses that might otherwise be available to it as a guarantor or surety of any or all of the obligations of such Subsidiary in respect of such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.
(s) Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.
2.04 Swingline Loans.
(a) The Swingline. Subject to the terms and conditions set forth herein, the Swingline Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, may in its sole discretion make loans to the Borrower (each such loan, a “SwinglineLoan”). Each such Swingline Loan may be made, subject to the terms and conditions set forth herein, to the Borrower, in Dollars, from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swingline Sublimit; provided, however, that, (i) after giving effect to any Swingline Loan, (A) the Total Revolving Outstandings shall not exceed the Revolving Facility at such time, (B) the Revolving Exposure of any Revolving Lender at such time shall not exceed such Lender’s Revolving Commitment and (C) the aggregate amount of all Swingline Loans outstanding shall not exceed the Swingline Commitment of the Swingline Lender, (ii) the Borrower shall not use the proceeds of any Swingline Loan to refinance any outstanding Swingline Loan, and (iii) the Swingline Lender shall not be under any obligation to make any Swingline Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swingline Loan shall bear interest only at a rate based on the Base Rate plus the Applicable Rate. Immediately upon the making of a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Revolving Lender’s Applicable Revolving Percentage times the amount of such Swingline Loan.
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(b) Borrowing Procedures. Each Swingline Borrowing shall be made upon the Borrower’s irrevocable notice to the Swingline Lender and the Administrative Agent, which may be given by: (i) telephone or (ii) a Swingline Loan Notice; provided, that, any telephonic notice must be confirmed immediately by delivery to the Swingline Lender and the Administrative Agent of a Swingline Loan Notice. Each such Swingline Loan Notice must be received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (A) the amount to be borrowed, which shall be a minimum of $100,000, and (B) the requested date of the Borrowing (which shall be a Business Day). Promptly after receipt by the Swingline Lender of any Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Revolving Lender) prior to 2:00 p.m. on the date of the proposed Swingline Borrowing (1) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(a), or (2) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the Swingline Lender may, make the amount of its Swingline Loan available to the Borrower.
(c) Refinancing of Swingline Loans.
(i) The Swingline Lender at any time in its sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes the Swingline Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount equal to such Lender’s Applicable Revolving Percentage of the amount of Swingline Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Facility and the conditions set forth in Section 4.02. The Swingline Lender shall furnish the Borrower with a copy of the applicable Loan Notice promptly after delivering such notice to the Administrative Agent. Each Revolving Lender shall make an amount equal to its Applicable Revolving Percentage of the amount specified in such Loan Notice available to the Administrative Agent in immediately available funds for the account of the Swingline Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Revolving Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
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(ii) Notwithstanding anything to the contrary in the foregoing, if for any reason any Swingline Loan cannot be refinanced by such a Revolving Borrowing in accordance with Section 2.04(c)(i) (including, without limitation, the failure to satisfy the conditions set forth in Section 4.02), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Revolving Lenders fund its risk participation in the relevant Swingline Loan and each Revolving Lender’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.
(iii) If any Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swingline Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swingline Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included in the relevant Revolving Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of the Swingline Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (c)(iii) shall be conclusive absent manifest error.
(iv) Each Revolving Lender’s obligation to make Revolving Loans or to purchase and fund risk participations in Swingline Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that, each Revolving Lender’s obligation to make Revolving Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the Borrower of a Loan Notice). No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swingline Loans, together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Revolving Lender has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment on account of such Swingline Loan, the Swingline Lender will distribute to such Revolving Lender its Applicable Revolving Percentage thereof in the same funds as those received by the Swingline Lender.
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(ii) If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the Swingline Lender in its discretion), each Revolving Lender shall pay to the Swingline Lender its Applicable Revolving Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(e) Interest for Account of Swingline Lender. The Swingline Lender shall be responsible for invoicing the Borrower for interest on the Swingline Loans. Until each Revolving Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such Revolving Lender’s Applicable Revolving Percentage of any Swingline Loan, interest in respect of such Applicable Revolving Percentage shall be solely for the account of the Swingline Lender.
(f) Payments Directly to Swingline Lender. The Borrower shall make all payments of principal and interest in respect of the Swingline Loans directly to the Swingline Lender.
2.05 Prepayments.
(a) Optional.
(i) The Borrower may, upon notice to the Administrative Agent pursuant to delivery to the Administrative Agent of a Notice of Loan Prepayment, at any time or from time to time voluntarily prepay any Incremental Term Loans and Revolving Loans in whole or in part without premium or penalty subject to Section 3.05; provided, that, unless otherwise agreed by the Administrative Agent, (A) such notice must be received by the Administrative Agent not later than 11:00 a.m. (1) three (3) Business Days prior to any date of prepayment of Term SOFR Loans and (2) on the date of prepayment of Base Rate Loans; (B) any prepayment of Term SOFR Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (C) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Term SOFR Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s Applicable Percentage in respect of the relevant Facility). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided, that, any Notice of Loan Prepayment delivered pursuant to this Section 2.05(a)(i) in connection with any proposed refinancing of any Facility may be, if expressly so stated in such Notice of Loan Prepayment, contingent upon the consummation of such refinancing, and (x) the date of prepayment specified in such Notice of Loan Prepayment may be amended from time to time by notice from the Borrower to the Administrative Agent and/or (y) such Notice of Loan Prepayment may be revoked by the Borrower in the event such refinancing is not consummated (provided, further, that, neither the extension of the date of prepayment as specified in the foregoing clause (x) nor the revocation of such Notice of Loan Prepayment as specified in the foregoing clause (y) shall relieve the Borrower from its obligations in respect thereof under Section 3.05). Any prepayment of any Term SOFR Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Each prepayment of the outstanding Incremental Term Loans pursuant to this Section 2.05(a) shall be applied to any then-existing Incremental Term Loans on a pro rata basis (provided, that, any Incremental Term Loan Lender Joinder Agreement may provide that the Incremental Term Loans under such Incremental Term Facility may participate in voluntary prepayments on a less than prorata (but not greater than pro rata) basis) and, in each case, applied to the principal repayment installments of each such Incremental Term Facility as required pursuant to the applicable Incremental Term Loan Lender Joinder Agreement. Subject to Section 2.15, such prepayments shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of each of the relevant Facilities.
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(ii) The Borrower may, upon notice to the Swingline Lender pursuant to delivery to the Swingline Lender of a Notice of Loan Prepayment (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swingline Loans in whole or in part without premium or penalty; provided, that, unless otherwise agreed by the Swingline Lender, (A) such notice must be received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal amount of $100,000 or a whole multiple of $100,000 in excess hereof (or, if less, the entire principal thereof then outstanding). Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(b) Mandatory. If for any reason the Total Revolving Outstandings at any time exceed the Revolving Facility at such time, the Borrower shall immediately prepay Revolving Loans, Swingline Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that, the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b) unless, after the prepayment of the Revolving Loans and Swingline Loans, the Total Revolving Outstandings exceed the Revolving Facility at such time.
Prepayments pursuant to this Section 2.05(b) shall be applied first to Base Rate Loans and then to Term SOFR Loans in direct order of Interest Period maturities. All prepayments under this Section 2.05(b) shall be subject to Section 3.05, but otherwise without premium or penalty, and shall be accompanied by interest on the principal amount prepaid through the date of prepayment.
2.06 Termination or Reduction of Commitments.
(a) Optional. The Borrower may, upon notice to the Administrative Agent, terminate the Revolving Facility, the Letter of Credit Sublimit or the Swingline Sublimit, or from time to time permanently reduce the Revolving Facility, the Letter of Credit Sublimit or the Swingline Sublimit; provided, that, (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five (5) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii) the Borrower shall not terminate or reduce (A) the Revolving Facility if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Outstandings would exceed the Revolving Facility, (B) the Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit, or (C) the Swingline Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Swingline Loans would exceed the Swingline Sublimit. Notwithstanding the foregoing, any termination notice delivered pursuant to this Section 2.06(a) in connection with any proposed refinancing of the Revolving Facility or another transaction may be, if expressly so stated in such termination notice, contingent upon the consummation of such refinancing or such other transaction, and (x) the date of termination specified in such termination notice may be amended from time to time by notice from the Borrower to the Administrative Agent and/or (y) such termination notice may be revoked by the Borrower in the event such refinancing or such other transaction is not consummated (provided, that, in connection with the extension of the date of termination as specified in the foregoing clause (x) or the revocation of such termination notice as specified in the foregoing clause (y), the Borrower shall pay any costs and expenses of the Administrative Agent and each Lender incurred in connection therewith).
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(b) Mandatory. If after giving effect to any reduction or termination of Revolving Commitments under this Section 2.06, the Letter of Credit Sublimit or the Swingline Sublimit exceeds the Revolving Facility at such time, the Letter of Credit Sublimit or the Swingline Sublimit, as the case may be, shall be automatically reduced by the amount of such excess.
(c) Application of Commitment Reductions; Payment of Fees. The Administrative Agent will promptly notify the Lenders of any termination or reduction of the Letter of Credit Sublimit, Swingline Sublimit or the Revolving Commitment under this Section 2.06. Upon any reduction of the Revolving Commitments, the Revolving Commitment of each Revolving Lender shall be reduced by such Lender’s Applicable Revolving Percentage of such reduction amount. All fees in respect of the Revolving Facility accrued until the effective date of any termination of the Revolving Facility shall be paid on the effective date of such termination.
2.07 Repayment of Loans.
(a) Incremental Term Loans. The Borrower shall repay the outstanding principal amount of all Incremental Term Loans in the installments, on the dates and in the amounts set forth in the applicable Incremental Term Loan Lender Joinder Agreement for the Incremental Term Facility under which such Incremental Term Loans were made (as such installments may hereafter be adjusted as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.05), unless accelerated sooner pursuant to Section 8.02.
(b) Revolving Loans. The Borrower shall repay to the Revolving Lenders on the Revolving Facility Maturity Date the aggregate principal amount of all Revolving Loans outstanding on such date.
(c) Swingline Loans. The Borrower shall repay each Swingline Loan on the earlier to occur of (i) the date ten (10) Business Days after such Loan is made and (ii) the Revolving Facility Maturity Date.
2.08 Interest and Default Rate.
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(a) Interest. Subject to the provisions of Section 2.08(b), (i) each Term SOFR Loan shall bear interest on the outstanding principal amount thereof for each Interest Period from the applicable Borrowing date at a rate per annum equal to Term SOFR for such Interest Period plus the Applicable Rate; (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable Borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate; and (iii) each Swingline Loan shall bear interest on the outstanding principal amount thereof from the applicable Borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate. To the extent that any calculation of interest or any fee required to be paid under this Agreement shall be based on (or result in) a calculation that is less than zero, such calculation shall be deemed zero for purposes of this Agreement.
(b) Default Rate.
(i) If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by Applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by the Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by Applicable Laws.
(iii) Upon the request of the Required Lenders, while any Event of Default exists (including a payment default), all outstanding Obligations (including Letter of Credit Fees) may accrue at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by Applicable Laws.
(iv) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(c) Interest Payments. Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
2.09 Fees.
In addition to certain fees described in clauses (l) and (m) of Section 2.03:
(a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the account of each Revolving Lender in accordance with its Applicable Revolving Percentage, a commitment fee equal to the Applicable Rate times the actual daily amount by which the Revolving Facility exceeds the sum of (i) the Outstanding Amount of Revolving Loans and (ii) the Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section 2.15. For the avoidance of doubt, the Outstanding Amount of Swingline Loans shall not be counted towards or considered usage of the Revolving Facility for purposes of determining the commitment fee. The commitment fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period. The commitment fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.
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(b) Other Fees.
(i) The Borrower shall pay to the Administrative Agent and BofA Securities for their own respective account fees in the amounts and at the times specified in the Fee Letters. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
(ii) The Borrower shall pay to the Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.
(a) Computation of Interest and Fees. All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to Term SOFR) 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 three hundred sixty (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 2.12(a), bear interest for one (1) 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.
(b) Financial Statement Adjustments or Restatements. If, as a result of any restatement of or other adjustment to the financial statements of the Parent and its Subsidiaries or for any other reason, the Borrower, or the Lenders determine that (i) the Total Net Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Total Net Leverage Ratio would have resulted in higher pricing for such period, the Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders or the L/C Issuer, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code, automatically and without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This clause (b) shall not limit the rights of the Administrative Agent, any Lender or the L/C Issuer, as the case may be, under any provision of this Agreement to payment of any Obligations hereunder at the Default Rate or under Article VIII. The Borrower’s obligations under this clause (b) shall survive the termination of the Aggregate Commitments and the repayment of all other Obligations hereunder.
2.11 Evidence of Debt.
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(a) Maintenance of Accounts. The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender in the ordinary course of business. The Administrative Agent shall maintain the Register in accordance with Section 11.06(c). The accounts or records maintained by each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the Register, the Register shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
(b) Maintenance of Records. In addition to the accounts and records referred to in Section 2.11(a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swingline Loans. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
2.12 Payments Generally; Administrative Agent’s Clawback.
(a) General. All payments to be made by the Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage in respect of the relevant Facility (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. Subject to Section 2.07(a) and as otherwise specifically provided for in this Agreement, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(b)
(i) Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Term SOFR Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such 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 Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, 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 and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, 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 (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
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(ii) Payments by Borrower; Presumptions by Administrative Agent. 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 L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the L/C Issuer, as the case may be, the amount due. With respect to any payment that the Administrative Agent makes for the account of the Lenders or the L/C Issuer hereunder as to which the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”): (1) the Borrower has not in fact made such payment; (2) the Administrative Agent has made a payment in excess of the amount so paid by the Borrower (whether or not then owed); or (3) the Administrative agent has for any reason otherwise erroneously made such payment; then each of the Appropriate Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender or the L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (b) shall be conclusive, absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
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(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and Swingline Loans and to make payments pursuant to Section 11.04(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 11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and 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 11.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(f) Pro Rata Treatment. Except to the extent otherwise provided herein: (i) each Borrowing (other than Swingline Borrowings) shall be made from the Appropriate Lenders, each payment of fees under Section 2.09 and Section 2.03(l) and (m) shall be made for account of the Appropriate Lenders, and each termination or reduction of the amount of the Commitments shall be applied to the respective Commitments of the Lenders, pro rata according to the amounts of their respective Commitments; (ii) each Borrowing shall be allocated pro rata among the Lenders according to the amounts of their respective Commitments (in the case of the making of Revolving Loans) or their respective Loans that are to be included in such Borrowing (in the case of conversions and continuations of Loans); (iii) each payment or prepayment of principal of Loans by the Borrower shall be made for account of the Appropriate Lenders pro rata in accordance with the respective unpaid principal amounts of the Loans held by them; and (iv) each payment of interest on Loans by the Borrower shall be made for account of the Appropriate Lenders pro rata in accordance with the amounts of interest on such Loans then due and payable to the respective Appropriate Lenders.
(g) Insufficient Funds. If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, toward payment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and L/C Borrowings then due to such parties.
2.13 Sharing of Payments by Lenders.
If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any of the Facilities due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (b) Obligations in respect of any of the Facilities owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time, then, in each case under clauses (a) and (b) above, the Lender receiving such greater proportion shall (A) notify the Administrative Agent of such fact, and (B) purchase (for cash at face value) participations in the Loans and sub-participations in L/C Obligations and Swingline Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of Obligations in respect of the Facilities then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be, provided, that:
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(i) if any such participations or sub-participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or sub-participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section 2.13 shall not be construed to apply to (A) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (B) the application of Cash Collateral provided for in Section 2.14, or (C) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or sub-participations in L/C Obligations or Swingline Loans to any assignee or participant, other than an assignment to any Loan Party or any Affiliate thereof (as to which the provisions of this Section 2.13 shall apply).
Each Loan Party 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 such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.
2.14 Cash Collateral.
(a) Obligation to Cash Collateralize. At any time there shall exist a Defaulting Lender, within one Business Day following the written request of the Administrative Agent or the L/C Issuer (with a copy to the Administrative Agent), the Borrower shall Cash Collateralize the L/C Issuer’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.15(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount.
(b) Grant of Security Interest. The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the Lenders, and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as Collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.14(c). If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent or the L/C Issuer as herein provided or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (determined in the case of Cash Collateral provided pursuant to Section 2.15(a)(v), after giving effect to Section 2.15(a)(v) and any Cash Collateral provided by the Defaulting Lender). All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts at Bank of America. The Borrower shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral.
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(c) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.14 or Sections 2.03, 2.05, 2.15 or 8.02 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Revolving Lender that is a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein.
(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Revolving Lender (or, as appropriate, its assignee following compliance with Section 11.06(b)(vi))) or (ii) the determination by the Administrative Agent and the L/C Issuer that there exists excess Cash Collateral; provided, however, that, (A) any such release shall be without prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred under the Loan Documents and the other applicable provisions of the Loan Documents, and (B) the Person providing Cash Collateral and the L/C Issuer may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.
2.15 Defaulting Lenders.
(a) Adjustments. Notwithstanding anything to the contrary contained in this Agreement, 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 the definition of “Required Lenders” and Section 11.01.
(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 11.08 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 such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the L/C Issuer or the Swingline Lender hereunder; third, to Cash Collateralize the L/C Issuer’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.14; fourth, as the Borrower may request (so long as no Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (A) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (B) Cash Collateralize the L/C Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.14; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise as may be required under the Loan Documents in connection with any Lien conferred thereunder or directed by a court of competent jurisdiction; provided, that, if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.15(a)(v). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.15(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
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(iii) Certain Fees.
(A) Fees. No Defaulting Lender shall be entitled to receive any fee payable under Section 2.09(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).
(B) Letter of Credit Fees. Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Applicable Revolving Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.14.
(C) Defaulting Lender Fees. With respect to any fee payable under Section 2.09(a) or any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrower shall (1) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (2) pay to the L/C Issuer the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such L/C Issuer’s Fronting Exposure to such Defaulting Lender, and (3) not be required to pay the remaining amount of any such fee.
(iv) Reallocation of Applicable Revolving Percentages to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in L/C Obligations and Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Revolving Percentages (calculated without regard to such Defaulting Lender’s Revolving Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment. Subject to Section 11.20, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
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(v) Cash Collateral, Repayment of Swingline Loans. If the reallocation described in clause (a)(v) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under Applicable Law, (A) first, prepay Swingline Loans in an amount equal to the Swingline Lender’s Fronting Exposure and (B) second, Cash Collateralize the L/C Issuer’s Fronting Exposure in accordance with the procedures set forth in Section 2.14.
(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, the Swingline Lender and the L/C Issuer agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with their Revolving Commitments (without giving effect to Section 2.15(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided, that, no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(c) New Swingline Loans/Letters of Credit. So long as any Revolving Lender is a Defaulting Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan and (ii) the L/C Issuer shall not be required to issue, extend, increase, reinstate or renew any letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.
2.16 Increase in Revolving Facility; Incremental Term Loans.
The Borrower may, at any time and from time to time, upon prior written notice to the Administrative Agent, increase the Revolving Facility (but not the Letter of Credit Sublimit or the Swingline Sublimit) and/or establish one or more Incremental Term Facilities, by a maximum aggregate amount for all such increases in the Revolving Facility and all such Incremental Term Facilities not to exceed the Incremental Amount; provided, that, the Borrower may not establish more than two (2) such increases in the Revolving Facility and/or Incremental Term Facilities during the term of this Agreement. In addition to compliance with the foregoing requirements, any increase in the Revolving Facility pursuant to this Section 2.16 shall comply with the provision of Section 2.16(a); and the establishment of any Incremental Term Facility pursuant to this Section 2.16 shall comply with the provisions of Section 2.16(b).
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(a) Increase in Revolving Facility. Any increase in the Revolving Facility may be established with additional Revolving Commitments from any Revolving Lender and/or new Revolving Commitments from any Eligible Assignee selected by the Borrower and acceptable to the Administrative Agent, the Swingline Lender and each L/C Issuer; provided, that:
(i) any such increase shall be in a minimum principal amount of $5,000,000 and in integral multiples of $1,000,000 in excess thereof;
(ii) no Default shall exist and be continuing at the time of any such increase;
(iii) (A) no existing Lender shall be under any obligation to increase its Revolving Commitment or otherwise participate in such increase and any such decision whether to increase its Revolving Commitment or otherwise participate in such increase shall be in such Lender’s sole and absolute discretion, and (B) the increase by any existing Lender of its Revolving Commitment in connection with this Section 2.16(a), any existing Lender that is providing a new Revolving Commitment in connection with this Section 2.16(a), and any financial institution that will become a new Lender in connection with any such increase in connection with this Section 2.16(a), in each case, shall be subject to the consent, if any, of any party whose consent would be required under Section 11.06(b) in connection with an assignment;
(iv) (A) any new Lender participating in such increase shall join this Agreement by executing such joinder documents as are required by the Administrative Agent and/or (B) any existing Lender participating in such increase shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(v) as a condition precedent to such increase, the Borrower shall have delivered to the Administrative Agent (A) a certificate of each Loan Party dated as of the date of such increase signed by a Responsible Officer of each such Loan Party (I) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (II) in the case of the Borrower, certifying that, before and after giving effect to such increase, (x) the representations and warranties contained in Article II and Article V and the other Loan Documents or which are contained in any document furnished at any time under or in connection herewith or therewith are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date, and (y) no Default exists, and (B) if requested by the Administrative Agent, an opinion or opinions of counsel for the Loan Parties, dated as of the date of effectiveness of any such increase and addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(vi) a Financial Officer of the Borrower shall have delivered to the Administrative Agent a certificate (which certificate shall include reasonably detailed calculations to demonstrate satisfaction of such condition) demonstrating that, upon giving Pro Forma Effect to such increase in the Revolving Facility (and assuming for such calculation that such increase is fully drawn), the Loan Parties would be in compliance with the financial covenants set forth in Sections 7.20(a) and (b) as of the most recent fiscal quarter end for which the Loan Parties were required to deliver financial statements pursuant to Section 6.01(a) or (b) (it being understood and agreed that for purposes of calculating such Total Net Leverage Ratio, the identifiable proceeds of such increase in the Revolving Facility shall not qualify for inclusion in the Unrestricted Cash Amount for purposes of the definition of “Total Net Leverage Ratio”);
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(vii) such increase in the Revolving Facility shall be on the same terms and conditions as the Revolving Facility; and
(viii) Schedule 1.01(b) shall be deemed revised to include any increase in the Revolving Facility pursuant to this Section 2.16(a) and to include thereon any Person that becomes a Lender pursuant to this Section 2.16(a).
Upon each increase to the Revolving Facility pursuant to this Section 2.16(a), each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of such increase and each such increasing Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in such Letters of Credit and/or Swingline Loans held by each Revolving Lender (including each such increasing Lender), as applicable, will equal such Revolving Lender’s Applicable Revolving Percentage of the aggregate outstanding L/C Obligations and Swingline Loans. Additionally, if any Revolving Loans are outstanding at the time any increase to the Revolving Facility is effected pursuant to this Section 2.16(a), the applicable Revolving Lenders immediately after effectiveness of such increase to the Revolving Facility shall purchase and assign at par such amounts of the Revolving Loans outstanding at such time as the Administrative Agent may require such that each Revolving Lender holds its Applicable Revolving Percentage of all Revolving Loans outstanding immediately after giving effect to all such assignments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) Institution of Incremental Term Facilities. The Borrower may, at any time, upon prior written notice to the Administrative Agent, institute an Incremental Term Facility; provided, that:
(i) the Borrower (in consultation and coordination with the Administrative Agent) shall obtain commitments for the amount of such Incremental Term Facility from existing Lenders or Eligible Assignees, which Lenders shall join in this Agreement as Incremental Term Lenders by executing an Incremental Term Loan Lender Joinder Agreement;
(ii) no existing Lender shall be under any obligation to become an Incremental Term Lender and any such decision whether to become an Incremental Term Lender shall be in such Lender’s sole and absolute discretion;
(iii) such Incremental Term Facility shall be in a minimum aggregate principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof;
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(iv) subject to Section 1.09, no Default shall exist and be continuing on the date of effectiveness of any Incremental Term Facility;
(v) the Incremental Term Loan Maturity Date for such Incremental Term Facility shall be as set forth in the Incremental Term Loan Lender Joinder Agreement relating to such Incremental Term Facility; provided, that, such date shall not be earlier than the then-Latest Maturity Date;
(vi) the scheduled principal amortization payments under such Incremental Term Facility shall be as set forth in the Incremental Term Loan Lender Joinder Agreement relating to such Incremental Term Facility; provided, that, the Weighted Average Life to Maturity of the Incremental Term Loans made under such Incremental Term Facility shall not be shorter than the then-remaining Weighted Average Life to Maturity of any Incremental Term Loans under any then-existing Incremental Term Facility;
(vii) all other terms, provisions and covenants of such Incremental Term Facility (except to the extent permitted by Sections 2.16(b)(v) and (vi) above and excluding pricing, rate floors, discounts, fees and optional prepayment premiums) shall be on terms and conditions reasonably satisfactory to the Administrative Agent; provided, that, it is understood and agreed that the following shall be reasonably satisfactory to the Administrative Agent: (A) covenants or other provisions applicable only to periods after the then-Latest Maturity Date, (B) to the extent required by the Incremental Term Lenders providing any Incremental Term Facility, covenants or other provisions that are not set forth in the Loan Documents at the time of incurrence of such Incremental Term Facility, so long as such covenants or other provisions are added to the Loan Documents for the benefit of the Administrative Agent and the Lenders at the time of the incurrence of such Incremental Term Facility, and (C) to the extent required by the Incremental Term Lenders providing any Incremental Term Facility, customary call protection, customary “MFN” protection, customary borrower buy-back provisions, customary amend-and-extend provisions, amendment provisions permitting customary “repricing” transactions, provisions permitting customary refinancing facilities, and mandatory prepayments (provided, that, to the extent any mandatory prepayment is required in connection with the establishment of an Incremental Term Facility, such mandatory prepayment shall be applied ratably to any other then-existing tranche of term loans under any other then-existing Incremental Term Facility);
(viii) as a condition precedent to such institution, the Borrower shall have delivered to the Administrative Agent (A) a certificate of each Loan Party dated as of the date of such institution signed by a Responsible Officer of each such Loan Party (I) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such institution, and (II) subject to Section 1.09, in the case of the Borrower, certifying that, before and after giving effect to such institution, (x) the representations and warranties contained in Article II and Article V and the other Loan Documents or which are contained in any document furnished at any time under or in connection herewith or therewith are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the date of such institution, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date, and (y) no Default exists and (B) if requested by the Administrative Agent, an opinion or opinions of counsel for the Loan Parties, dated as of the date of effectiveness of any such Incremental Term Facility and addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
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(ix) a Financial Officer of the Borrower shall have delivered to the Administrative Agent a certificate (which certification shall include reasonably detailed calculations to demonstrate satisfaction of such condition) demonstrating that, subject to Section 1.09, upon giving Pro Forma Effect to such Incremental Term Facility, the Loan Parties would be in compliance with the financial covenants set forth in Sections 7.20(a) and (b) as of the most recent fiscal quarter end for which the Loan Parties were required to deliver financial statements pursuant to Section 6.01(a) or (b) (it being understood and agreed that for purposes of calculating such Total Net Leverage Ratio, the identifiable proceeds of such Incremental Term Facility shall not qualify for inclusion in the Unrestricted Cash Amount for the purposes of the definition of “Total Net Leverage Ratio”); and
(x) Schedule 1.01(b) shall be deemed revised to include such Incremental Term Facility pursuant to this Section 2.16(b) and to include thereon any Person that becomes an Incremental Term Lender pursuant to this Section 2.16(b).
(c) In the case of each of Section 2.16(a) and Section 2.16(b), (i) no Person shall Guarantee the Obligations incurred in connection with such increase or Incremental Term Facility unless such Person is a Loan Party, and (ii) such increase or Incremental Term Facility shall rank pari passu in right of payment with the Obligations and in respect of the Collateral.
Article III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Defined Terms. For purposes of this Section 3.01, the term “Applicable Law” includes FATCA and the term “Lender” includes the L/C Issuer.
(b) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Laws. If any Applicable Laws (as determined in the good faith discretion of an applicable withholding agent) require the deduction or withholding of any Tax from any such payment by the applicable withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.
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(c) Payment of Other Taxes by the Loan Parties. The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(d) Tax Indemnifications.
(i) Each of the Loan Parties shall, and does hereby, jointly and severally indemnify each Recipient, and shall make payment in respect thereof within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. Each of the Loan Parties shall also, and does hereby, jointly and severally indemnify the Administrative Agent, and shall make payment in respect thereof within ten (10) days after demand therefor, for any amount which a Lender for any reason fails to pay indefeasibly to the Administrative Agent as required pursuant to Section 3.01(d)(ii) below.
(ii) Each Lender shall, and does hereby, severally indemnify and shall make payment in respect thereof within ten (10) days after demand therefor, (A) the Administrative Agent against any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (B) the Administrative Agent and the Loan Parties, as applicable, against any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.06(d) relating to the maintenance of a Participant Register and (C) the Administrative Agent and the Loan Parties, as applicable, against any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent or a Loan Party in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this clause (d)(ii).
(e) Evidence of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority, as provided in this Section 3.01, 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 any return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(f) Status of Lenders; Tax Documentation.
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(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W–9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W–8BEN–E (or W–8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W–8BEN–E (or W–8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2) executed copies of IRS Form W–8ECI;
(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit K–1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W–8BEN–E (or W–8BEN, as applicable); or
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(4) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W–8IMY, accompanied by IRS Form W–8ECI, IRS Form W–8BEN–E (or W–8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit K–2 or Exhibit K–3, IRS Form W–9, and/or other certification documents from each beneficial owner, as applicable; provided, that, if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit K–4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies (or originals, as required) of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for the purposes of this clause (f)(ii)(D), “FATCA” shall include any amendments made to FATCA after the Closing Date.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
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(g) Treatment of Certain Refunds. Unless required by Applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the account of such Lender. If any Recipient determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 3.01, it shall pay to such Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that each Loan Party, upon the request of the Recipient, agrees to repay the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (g), in no event will the applicable Recipient be required to pay any amount to such Loan Party pursuant to this clause (g) the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This clause (g) shall not be construed to require any Recipient to make available its tax returns (or any other information relating to its Taxes that it deems confidential) to any Loan Party or any other Person.
(h) Survival. Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all other Obligations.
3.02 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 or its Lending Office to make, maintain or fund or charge interest with respect to any Credit Extension, or to determine or charge interest rates based upon SOFR or Term SOFR, then, upon notice thereof by such Lender to the Borrower (through the Administrative Agent), (i) any obligation of such Lender to make or continue Term SOFR Loans or to convert Base Rate Loans to Term SOFR Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Term SOFR component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Term SOFR component of the Base Rate, in each case 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, (A) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Term SOFR Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Term SOFR component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Term SOFR Loan to such day, or immediately, if such Lender may not lawfully continue to maintain such Term SOFR Loans and (B) if such notice asserts the illegality of such Lender determining or charging interest rates based upon SOFR, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Term SOFR 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 SOFR. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 3.05.
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3.03 Inability to Determine Rates.
(a) If in connection with any request for a Term SOFR Loan or a conversion of Base Rate Loans to Term SOFR Loans or a continuation of any of such Loans, as applicable, (i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (A) no Successor Rate has been determined in accordance with Section 3.03(b), and the circumstances under clause (i) of Section 3.03(b) or the Scheduled Unavailability Date has occurred or (B) adequate and reasonable means do not otherwise exist for determining Term SOFR for any requested Interest Period with respect to a proposed Term SOFR Loan or in connection with an existing or proposed Base Rate Loan or (ii) the Administrative Agent or the Required Lenders determine that for any reason that Term SOFR for any requested Interest Period with respect to a proposed Term SOFR Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Term SOFR Loans or to convert Base Rate Loans to Term SOFR Loans shall be suspended (to the extent of the affected Term SOFR Loans or Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Term SOFR component of the Base Rate, the utilization of the Term SOFR component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (or, in the case of a determination by the Required Lenders described in clause (ii) of this Section 3.03(a), until the Administrative Agent upon instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (i) the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Term SOFR Loans (to the extent of the affected Term SOFR Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein and (ii) any outstanding Term SOFR Loans shall be deemed to have been converted to Base Rate Loans immediately at the end of their respective applicable Interest Period.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, but without limiting Sections 3.03(a), if the Administrative Agent determines (which determination shall be conclusive and binding upon all parties hereto absent manifest error), or the Borrower or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to the Borrower) that the Borrower or Required Lenders (as applicable) have determined (which determination likewise shall be conclusive and binding upon all parties hereto absent manifest error), that:
(i) adequate and reasonable means do not exist for ascertaining one-month, three-month and six-month interest periods of Term SOFR including because the Term SOFR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(ii) CME or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which one-month, three-month and six-month interest periods of Term SOFR or the Term SOFR Screen Rate shall or will no longer be representative or made available, or permitted to be used for determining the interest rate of U.S. dollar denominated syndicated loans, or shall or will otherwise cease, provided, that, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent, that will continue to provide such representative interest periods of Term SOFR after such specific date (the latest date on which one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer representative or available permanently or indefinitely, the “Scheduled UnavailabilityDate”);
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then, on a date and time determined by the Administrative Agent (any such date, the “Term SOFR Replacement Date”), which date shall be at the end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated and, solely with respect to clause (ii) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any Loan Document with Daily Simple SOFR for any payment period for interest calculated that can be determined by the Administrative Agent, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document (the “Successor Rate”).
If the Successor Rate is Daily Simple SOFR, all interest payments will be payable on a quarterly basis.
Notwithstanding anything to the contrary herein, (i) if the Administrative Agent determines that Daily Simple SOFR is not available on or prior to the Term SOFR Replacement Date or (ii) if the events or circumstances of the type described in Section 3.03(b)(i) or (ii) have occurred with respect to the Successor Rate then in effect, then in each case, the Administrative Agent and the Borrower may amend this Agreement solely for purpose of replacing Term SOFR or any then current Successor Rate in accordance with this Section 3.03 at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar Dollar denominated credit facilities syndicated and agented in the United States for such alternative benchmark and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar Dollar denominated credit facilities syndicated and agented in the United States for such benchmark. For the avoidance of doubt, any such proposed rate and adjustments, shall constitute a “SuccessorRate”. Any such amendment shall become effective at 5:00 p.m. on the fifth (5^th^) Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders object to such amendment.
The Administrative Agent will promptly (in one or more notices) notify the Borrower and each Lender of the implementation of any Successor Rate.
Any Successor Rate shall be applied in a manner consistent with market practice; provided, that, to the extent such market practice is not administratively feasible for the Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.
Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than zero, the Successor Rate will be deemed to be zero for the purposes of this Agreement and the other Loan Documents.
In connection with the implementation of a Successor Rate, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement; provided, that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrower and the Lenders reasonably promptly after such amendment becomes effective.
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(c) For purposes of this Section 3.03, those Lenders that either have not made, or do not have an obligation under this Agreement to make, the relevant Loans in Dollars shall be excluded from any determination of Required Lenders.
3.04 Increased Costs.
(a) Increased Costs Generally. 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 or participated in by, any Lender or the L/C Issuer;
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the L/C Issuer any other condition, cost or expense affecting this Agreement or Term SOFR Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such Lender’s or the L/C Issuer’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction suffered.
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(c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its holding company, as the case may be, as specified in Section 3.04(a) or (b) and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate within ten (10) days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation; provided, that, the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of this Section 3.04 for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Lender or the L/C Issuer, 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 the L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine (9) month period referred to above shall be extended to include the period of retroactive effect thereof).
3.05 Compensation for Losses.
Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower; or
(c) any assignment of a Term SOFR Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 11.13;
including any loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
3.06 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation under Section 3.04, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender, the L/C Issuer, or any Governmental Authority for the account of any Lender or the L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then at the request of the Borrower, such Lender or the L/C Issuer shall, as applicable, use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender or the L/C Issuer, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender or the L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or the L/C Issuer, as the case may be. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or the L/C Issuer in connection with any such designation or assignment.
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(b) Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 3.06(a), the Borrower may replace such Lender in accordance with Section 11.13.
3.07 Survival.
All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate Commitments, repayment of all other Obligations hereunder, resignation of the Administrative Agent and the Facility Termination Date.
Article IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension.
The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) Execution of Credit Agreement; Loan Documents. The Administrative Agent shall have received (i) counterparts of this Agreement, executed by a Responsible Officer of each Loan Party and a duly authorized officer of each Lender, each L/C Issuer and the Swingline Lender, (ii) for the account of each Lender requesting a Note, a Note executed by a Responsible Officer of the Borrower, (iii) counterparts of the Security Agreement, the Negative Pledge Agreements and each other Collateral Document to be executed and delivered on the Closing Date, executed by a Responsible Officer of the applicable Loan Parties (or Regulated Subsidiary) and a duly authorized officer of each other Person party thereto, as applicable, (iv) counterparts of each ABS Direction Letter executed by a duly authorized officer of each Person party thereto and (v) counterparts of any other Loan Document to be executed and delivered on the Closing Date, executed by a Responsible Officer of the applicable Loan Party and a duly authorized officer of each other Person party thereto.
(b) Officer’s Certificate. The Administrative Agent shall have received a certificate of a Responsible Officer of each Loan Party dated the Closing Date, certifying as to the Organization Documents of each Loan Party and each Regulated Subsidiary (which, to the extent filed with a Governmental Authority, shall be certified as of a recent date by such Governmental Authority), the resolutions of the governing body of each Loan Party and each Regulated Subsidiary, the good standing, existence or its equivalent of each Loan Party and each Regulated Subsidiary and of the incumbency (including specimen signatures) of the Responsible Officers of each Loan Party and each Regulated Subsidiary.
(c) Legal Opinions of Counsel. The Administrative Agent shall have received an opinion or opinions (including, if requested by the Administrative Agent, local counsel opinions) of counsel for the Loan Parties, dated the Closing Date and addressed to the Administrative Agent and the Lenders, in form and substance acceptable to the Administrative Agent.
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(d) Financial Statements; Pro Forma Balance Sheet. The Administrative Agent and the Lenders shall have received (i) audited financial statements of the Parent and its Subsidiaries for the fiscal year ending December 31, 2024 (such fiscal year being the “PriorFiscal Year”), (ii) quarterly financial statements of the Parent and its Subsidiaries for each fiscal quarter of the Parent ending after the Prior Fiscal Year and prior to the Closing Date for which quarterly financial statements are available prior to the Closing Date, (iii) an annual budget and projections prepared by management of the Borrower, in form and substance reasonably satisfactory to BofA Securities, and (iv) a balance sheet of the Parent and its Subsidiaries (for the avoidance of doubt eliminating the accounts of the ABS Entities from such balance sheet), based on the most recent quarterly financial statements referred to in clause (ii) above, giving effect to the Transactions on a Pro Forma Basis, each in form and substance satisfactory to each of them.
(e) Personal Property Collateral. The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent:
(i) (A) searches of UCC filings in the jurisdiction of incorporation or formation, as applicable, of each Loan Party and each jurisdiction where any Collateral is located or where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens and (B) tax lien and judgment searches;
(ii) searches of ownership of Intellectual Property in the appropriate governmental offices and such patent/trademark/copyright filings as requested by the Administrative Agent in order to perfect the Administrative Agent’s security interest in the Intellectual Property;
(iii) completed UCC financing statements (including any necessary transmitting utility filings) for each appropriate jurisdiction as is necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the Collateral;
(iv) stock or membership certificates, if any, evidencing the Pledged Equity and undated stock or transfer powers duly executed in blank (or arrangements satisfactory to the Administrative Agent for delivery thereof); in each case to the extent such Pledged Equity is certificated;
(v) to the extent required to be delivered, filed, registered or recorded pursuant to the terms and conditions of the Collateral Documents, all instruments, documents and chattel paper in the possession of any of the Loan Parties, together with allonges or assignments as may be necessary or appropriate to create and perfect the Administrative Agent’s and the Lenders’ security interest in the Collateral; and
(vi) a duly completed Perfection and Diligence Certificate.
(f) Insurance. The Administrative Agent shall have received certificates of insurance and endorsements of insurance evidencing insurance coverage in effect on the Closing Date and meeting the requirements set forth in Section 6.05.
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(g) Solvency Certificate. The Administrative Agent shall have received a Solvency Certificate signed by a Financial Officer of the Borrower certifying that, after giving effect to the Transactions, the Borrower is, and the Loan Parties and their respective Subsidiaries on a Consolidated basis are, Solvent.
(h) Material Adverse Effect. There shall not have occurred since December 31, 2024 any event or condition that has had or would be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect.
(i) No Litigation. There shall be no action, suit, proceeding or investigation pending against, or threatened in writing against, any Loan Party or any subsidiary of any Loan Party or any of their respective properties, including the Licenses, in any court or before any arbitrator of any kind or before or by any other governmental authority (including the FCC and any applicable PUC) that would reasonably be expected to result in a Material Adverse Effect.
(j) Loan Notice; Authorization for Disbursement. The Administrative Agent shall have received (i) a Loan Notice with respect to the Loans to be made on the Closing Date, if any, and (ii) an executed letter (which may include execution of a closing invoice or funds flow) from the Borrower authorizing the disbursement of the proceeds of any such extension of credit in accordance with the instructions set forth in such letter (or such closing invoice or funds flow, as applicable).
(k) Existing Indebtedness. All existing Indebtedness of the Parent and its Subsidiaries (including any such Indebtedness arising under or in connection with the loan documentation entered into in connection with the Existing Credit Agreement, but excluding any such Indebtedness that is permitted by the Loan Documents on the Closing Date) shall be repaid in full, all commitments with respect thereto shall be terminated, and all guarantees, Liens and security interests related thereto shall be terminated. The Administrative Agent shall have received customary payoff letters evidencing the satisfaction of the condition precedent set forth in this clause (k).
(l) Anti-Money-Laundering; Beneficial Ownership. The Administrative Agent and each Lender shall have completed a due diligence investigation of the Parent and its Subsidiaries in scope, and with results, satisfactory to the Administrative Agent or such Lender, including (i) U.S. Department of Treasury Office of Foreign Assets Control, Foreign Corrupt Practices Act and “know your customer” due diligence, and (ii) all business and legal due diligence with respect to the Transactions. The Loan Parties shall have provided to the Administrative Agent and each Lender the documentation and other information requested by the Administrative Agent or such Lender in order to comply with Applicable Law, including the Patriot Act. If the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to the Borrower.
(m) Consents. The Administrative Agent shall have received (i) evidence that all board of directors (or equivalent), governmental, shareholder (or equivalent) and third party consents, subordinations, waivers and approvals necessary in connection with the Loan Documents and the consummation of the Transactions (including any required material permits and authorizations of all applicable Governmental Authorities, including the FCC and all applicable PUCs) have been obtained and are in full force and effect and (ii) (A) a true, correct and complete copy of any required Cable Television Consent, (B) a certification that the Administrative Agent, in consultation with the Borrower, has determined that no Cable Television Consent is required, or (C) a certification that a dismissal or other similar action has been entered by the applicable PUC with respect to any Cable Television Consent that the applicable Loan Party has submitted an application for to the applicable PUC.
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(n) Fees and Expenses. The Administrative Agent and the Lenders shall have received all fees and expenses, if any, owing pursuant to the Fee Letters and Section 2.09. The Borrower shall have paid all expenses of BofA Securities and the Administrative Agent required to be reimbursed by the Borrower prior to or on the Closing Date (including the reasonable and documented fees, charges and disbursements of counsel to BofA Securities and the Administrative Agent (directly to such counsel if requested by BofA Securities and the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided, that, such estimate shall not thereafter preclude a final settling of accounts between the Borrower, on the one hand, and BofA Securities and the Administrative Agent, on the other hand)).
(o) ABS Transactions. The Administrative Agent shall have received evidence that the ABS Transactions to be consummated on or around the Closing Date have been (or will be, substantially simultaneously with the Closing Date) consummated.
(p) Officer’s Closing Certificate. The Administrative Agent shall have received a certificate signed by a Financial Officer of the Borrower certifying (i) that the conditions set forth in clauses (h), (i), (m), and (o) above and, immediately after giving effect to the Transactions to occur on the Closing Date, Sections 4.02(a) and (b) have been satisfied, (ii) that, upon giving effect to the consummation of the Transactions on a Pro Forma Basis, the Loan Parties would be in compliance with the financial covenants set forth in Section 7.20 as of the last day of the fiscal quarter of the Parent most recently ended on or prior to the Closing Date for which financial statements are available (which certification shall include reasonably detailed calculations to demonstrate satisfaction of such condition), (iii) as to the organizational structure of the Parent and its Subsidiaries after giving effect to the consummation of the ABS Transactions and (iv) that the copies of the ABS Indenture Documentation (which, where applicable, shall be the fully executed versions of such documents) delivered to the Administrative Agent prior to the Closing Date are the true, correct and complete copies of the ABS Indenture Documentation as in effect on the Closing Date.
Without limiting the generality of the provisions of Section 9.03(c) or Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
4.02 Conditions to all Credit Extensions.
The obligation of each Lender and the L/C Issuer to honor any Request for Credit Extension (other than a Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of Term SOFR Loans) is subject to the following conditions precedent:
(a) Representations and Warranties. The representations and warranties of the Borrower and each other Loan Party contained in Article II, Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall (i) with respect to representations and warranties that contain a materiality qualification, be true and correct on and as of the date of such Credit Extension and (ii) with respect to representations and warranties that do not contain a materiality qualification, be true and correct in all material respects on and as of the date of such Credit Extension, in each case, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date.
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(b) Default. No Default shall exist or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(c) Request for Credit Extension. The Administrative Agent and, if applicable, the L/C Issuer or the Swingline Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
Each Request for Credit Extension (other than a Loan Notice requesting only a conversion of Loans to the other Type or a continuation of Term SOFR Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.
Article V
REPRESENTATIONS AND WARRANTIES
Each Loan Party represents and warrants to the Administrative Agent and the Lenders, as of the date made or deemed made, that:
5.01 Organization and Qualification.
As of the Closing Date, each Loan Party and each Subsidiary of each Loan Party is a corporation, partnership or limited liability company or other entity as identified on Schedule 5.01. Each Loan Party and each Subsidiary of each Loan Party (a) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization or incorporation, (b) has the lawful power to own or lease its properties and to engage in the business it presently conducts or proposes to conduct, and (c) is duly licensed or qualified and in good standing in each jurisdiction where the property owned or leased by it or the nature of the business transacted by it or both makes such licensing or qualification necessary except, in the case of this clause (c), where the failure to be so duly licensed, qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect.
5.02 Compliance with Laws.
Each Loan Party and each Subsidiary of each Loan Party is in compliance with all Applicable Laws in all jurisdictions in which any Loan Party or Subsidiary of any Loan Party is presently or currently foresees that it will be doing business except where the failure to do so would not reasonably be expected to result in a Material Adverse Effect.
5.03 Title to Properties.
Each Loan Party and each Subsidiary of each Loan Party (a) has good and sufficient title to or valid fee or leasehold interests in all properties, assets and other rights that it purports to own or lease, other than where the failure to have such good and sufficient title to, or valid fee or leasehold interest in, such properties, assets and other rights would not reasonably be expected to result in a Material Adverse Effect, and (b) owns or leases all of its other properties free and clear of all Liens except Permitted Liens.
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5.04 Investment Company Act.
None of the Loan Parties or Subsidiaries of any Loan Party is an “investment company” registered or required to be registered under the Investment Company Act of 1940 or under the “control” of an “investment company” as such terms are defined in the Investment Company Act of 1940.
5.05 Default.
No Default exists or is continuing.
5.06 Subsidiaries and Owners.
Schedule 5.06 sets forth, as of the Closing Date (a) the legal name of each of the ABS Entities and the legal name of each of the Parent’s Subsidiaries and, in each case, the amount, percentage and type of Equity Interests of such Subsidiary (the “Subsidiary Equity Interests”) held by the Parent or any Subsidiary of the Parent, and (b) any options, warrants or other rights outstanding to purchase any such Equity Interests referred to in clause (a). The Parent and each Subsidiary of the Parent has good and marketable title to all of the Subsidiary Equity Interests it purports to own, free and clear in each case of any Lien other than the Lien of the Administrative Agent pursuant to the Security Agreement and all such Subsidiary Equity Interests have been validly issued, fully paid and nonassessable (or, in the case of a partnership, limited liability company or similar Equity Interest, not subject to any capital call or other additional capital requirement).
5.07 Power and Authority; Validity and Binding Effect.
(a) Each Loan Party and each Subsidiary of each Loan Party has the full power to enter into, execute, deliver and carry out this Agreement and the other Loan Documents to which it is a party, to incur the Indebtedness contemplated by the Loan Documents and to perform its obligations under the Loan Documents to which it is a party, and all such actions have been duly authorized by all necessary proceedings on its part.
(b) This Agreement and each of the other Loan Documents (i) has been duly and validly executed and delivered by each Loan Party and (ii) constitutes, or will constitute, legal, valid and binding obligations of each Loan Party that is or will be a party thereto, enforceable against such Loan Party in accordance with its terms, subject only to limitations on enforceability imposed by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and general equitable principles.
5.08 No Conflict; Material Contracts; Consents.
(a) Neither the execution and delivery of this Agreement or the other Loan Documents by any Loan Party nor the consummation of the transactions herein or therein contemplated nor the compliance with the terms and provisions hereof or thereof by any of them will (i) contravene the terms and conditions of the Organization Documents of any Loan Party or any Subsidiary of any Loan Party, (ii) conflict with, constitute a default under or result in any breach of (A) any Material Indebtedness of any Loan Party or any Subsidiary of any Loan Party, (B) any ABS Indenture Documentation, or (C) any Material Contract (not subject to clause (ii)(A) or clause (ii)(B) of this Section 5.08(a)) to which any Loan Party or any of its Subsidiaries is a party or by which it or any of its Subsidiaries is bound or to which it or any of its Subsidiaries is subject, in each case as set forth in this clause (a)(ii), except where such conflict, default or breach would not reasonably be expected to have a Material Adverse Effect, (iii) violate any Applicable Law or any order, writ, judgment, injunction or decree to which any Loan Party or any of its Subsidiaries is a party or by which it or any of its Subsidiaries or any of its respective property is bound or to which it or any of its Subsidiaries is subject, in each case as set forth in this clause (a)(iii), except where such violation would not reasonably be expected to have a Material Adverse Effect, or (iv) result in the creation or enforcement of any Lien, charge or encumbrance whatsoever upon any property (now or hereafter acquired) of any Loan Party or any of its Subsidiaries (other than Permitted Liens). None of the Loan Parties or their Subsidiaries or their respective property is bound by any contractual obligation (including without limitation pursuant to any Material Contract or any ABS Indenture Documentation), or subject to any restriction in any of its Organization Documents, or any requirement of Law that would reasonably be expected to result in a Material Adverse Effect.
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(b) No consent, approval, exemption, order or authorization of, or a registration or filing with, any Governmental Authority or any other Person is required by any Law or any agreement (including any Material Contract or any ABS Indenture Documentation) in connection with (i) the execution, delivery and carrying out of this Agreement or any other Loan Document, other than as provided in Schedule 5.08, (ii) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, other than as provided in Schedule 5.08, (iii) the perfection of the Prior Security Interest of the Administrative Agent and the Secured Parties created under the Collateral Documents (other than the filing of UCC financing statements (including any transmitting utility financing statements), and filings with the United States Patent and Trademark Office or the United States Copyright Office), other than as provided in Schedule 5.08, or (iv) the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents or the remedies of any Secured Party in respect of the Collateral pursuant to the Collateral Documents (except approvals of the FCC or any applicable PUC with respect to any assignment or transfer of control of a License or Communications System), in each case except (A) those which have been duly obtained on or before the Closing Date, taken, given or made and are in full force and effect, and (B) such consents, approvals, exemptions, orders, authorizations, registrations, or filings the failure of which to obtain or make, as applicable would not reasonably be expected to result in a Material Adverse Effect. Each of the Material Contracts is in full force and effect, and no Loan Party has received any notice of termination, revocation or other cancellation (before any scheduled date of termination) in respect thereof.
5.09 Litigation.
There are no actions, suits, proceedings or investigations pending or, to the knowledge of any Responsible Officer of any Loan Party or any Subsidiary of any Loan Party, threatened in writing against any Loan Party or any Subsidiary of any Loan Party or any of their respective properties, including the Licenses, at law or in equity before any Governmental Authority that individually or in the aggregate (i) would reasonably be expected to result in a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Loan Document. None of the Loan Parties or any Subsidiaries of any Loan Party is in violation of any order, writ, injunction or any decree of any Governmental Authority that would reasonably be expected to result in a Material Adverse Effect.
5.10 Financial Statements.
(a) Audited Financial Statements. The audited financial statements delivered on or before the Closing Date and thereafter most recently delivered in accordance with Section 6.01(b) (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present in all material respects the financial condition of the Parent and its Subsidiaries (or the Parent and its Subsidiaries (including the ABS Entities)) as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein.
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(b) Unaudited Financial Statements. The unaudited financial statements delivered on or before the Closing Date and thereafter most recently delivered in accordance with Section 6.01(a) (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present in all material respects the financial condition of the Parent and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.
(c) Accuracy of Financial Statements. As of the Closing Date, neither the Parent nor any of its Subsidiaries has any material liabilities, contingent or otherwise, or forward or long-term commitments that are not disclosed in the financial statements delivered pursuant to Section 4.01(d) or in the notes thereto, and except as disclosed therein there are no unrealized or anticipated losses from any commitments of the Parent or any Subsidiary of the Borrower that would reasonably be expected to result in a Material Adverse Effect.
(d) Material Adverse Effect. Since December 31, 2024, no circumstance or event, or series of circumstances or events, has occurred resulting in a Material Adverse Effect.
5.11 Margin Stock.
None of the Loan Parties nor any Subsidiaries of any Loan Party engages or intends to engage principally, or as one of its important activities, in the business of extending credit for the purpose, immediately, incidentally or ultimately, of purchasing or carrying margin stock (within the meaning of Regulation U, T or X as promulgated by the Board). No part of the proceeds of any Credit Extension has been used, whether directly or indirectly, and whether immediately or incidentally or ultimately, for any purpose that results in a violation of the provisions of Regulation U. None of the Loan Parties nor any Subsidiary of any Loan Party holds or intends to hold margin stock in such amounts that more than 25% of the reasonable value of the assets of any Loan Party or Subsidiary of any Loan Party are or will be represented by margin stock.
5.12 Full Disclosure.
Neither this Agreement nor any other Loan Document, nor any certificate, statement, agreement or other documents furnished to the Administrative Agent or any Lender in connection herewith or therewith (other than projections and budgets), contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein and therein, in light of the circumstances under which they were made, not materially misleading. Any projections or budgets provided by or on behalf of the Loan Parties or their respective Subsidiaries have been prepared by management in good faith and based on assumptions believed by management to be reasonable at the time the projections or budgets were prepared, it being understood that the projections or budgets as to future events are not to be viewed as fact and that actual results during the period or periods covered by the projections or budgets may differ materially from such projected results.
5.13 Taxes.
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All federal, state, local and other material tax returns required to have been filed with respect to each Loan Party and each Subsidiary of each Loan Party have been filed, and payment or adequate provision has been made for the payment of all material taxes, fees, assessments and other governmental charges that have or may become due pursuant to said returns or to assessments received, except (a) to the extent that such taxes, fees, assessments and other charges are being contested in good faith by appropriate proceedings diligently conducted and for which such reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made or (b) as would not reasonably be expected to result in a Material Adverse Effect.
5.14 Intellectual Property; Other Rights.
Each Loan Party and each Subsidiary of each Loan Party owns or possesses all the Intellectual Property and all service marks, trade names, domain names, licenses, registrations, franchises, permits and other rights necessary to own and operate its properties and to carry on its business as presently conducted and planned to be conducted by such Loan Party or Subsidiary, without known possible, alleged or actual conflict with the rights of others except as would not reasonably be expected to result in a Material Adverse Effect.
5.15 Liens in the Collateral.
Subject only to Permitted Liens, the Liens in the Collateral granted to the Administrative Agent for the benefit of the Secured Parties pursuant to the Collateral Documents on or after the Closing Date constitute and will continue to constitute Prior Security Interests in and to the Collateral.
5.16 Insurance.
The properties of each Loan Party and each of its Subsidiaries are insured pursuant to policies and other bonds that are valid and in full force and effect and that provide coverage satisfying the requirements set forth in Section 6.05(a).
5.17 Employee Benefits Compliance.
(a) Each Plan is in compliance with its terms and the applicable provisions of ERISA, the Code and other federal or state Law, except for any noncompliance that would not reasonably be expected to have, either individually or in the aggregate a Material Adverse Effect. Each Plan which is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS, is adopted by means of a master or prototype plan that has received a favorable opinion letter upon which the relevant Loan Party or ERISA Affiliate is entitled to rely or is within the remedial amendment period (under Section 401(b) of the Code and the regulations and IRS guidance thereunder) in which to submit a request for a favorable determination letter. As to each Plan which is intended to qualify under Section 401(a) of the Code, to the knowledge of the Responsible Officers of the Loan Parties, nothing has occurred that would cause the loss of such qualification that cannot be remedied under the IRS employee plans compliance resolution system or any successor program. The Loan Parties and each ERISA Affiliate have satisfied all of their obligations and liabilities with respect to each Plan and each Multiemployer Plan in all material respects and have made all required contributions to each Plan and each Multiemployer Plan on or before the applicable due date, including contributions to any Pension Plan that are required by the Plan Funding Rules and any contributions to any Pension Plan or any Multiemployer Plan that are required by a collective bargaining agreement, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Pension Plan or Multiemployer Plan.
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(b) There are no pending or, to the knowledge of the Responsible Officers of the Loan Parties, threatened claims, actions or lawsuits, including by any Governmental Authority, with respect to any Plan that would reasonably be expected to result in a Material Adverse Effect.
(c) Except as set forth on Schedule 5.17, no ERISA Event has occurred or is reasonably expected to occur. Nothing listed on Schedule 5.17, either individually or in the aggregate, will result in (i) any liability in excess of the Threshold Amount, (ii) any Lien against a Plan or any Loan Party or (iii) additional contributions to any Plan required by the Plan Funding Rules.
(d) As of the Closing Date, the Borrower is not and will not be using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to the Borrower’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement.
5.18 Environmental Matters.
(a) Except as would not reasonably be expected to have a Material Adverse Effect, the facilities and properties currently or formerly owned, leased or operated by any Loan Party or any Subsidiary of any Loan Party (the “Properties”) do not (x) contain any Hazardous Materials attributable to the ownership, lease or operation of the Properties by any Loan Party or any Subsidiary of any Loan Party in amounts or concentrations or (y) store or utilize any Hazardous Materials in amounts or concentrations which (i) constitute a violation by any Loan Party or any Subsidiary of Environmental Laws, or (ii) could reasonably be expected to give rise to any Environmental Liability.
(b) Except as would not reasonably be expected to have a Material Adverse Effect, no Loan Party or Subsidiary of any Loan Party has received any written notice of violation, alleged violation, non-compliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws with regard to the activities of any Loan Party or any Subsidiary of any Loan Party at any of the Properties or the business operated by any Loan Party or any Subsidiary of any Loan Party (the “Business”), or any prior Business for which any Loan Party or any Subsidiary of any Loan Party has retained liability under any Environmental Law.
(c) Except as would not reasonably be expected to have a Material Adverse Effect, Hazardous Materials have not been transported or disposed of from the Properties (i) in violation of Environmental Law by or (ii) in a manner or to a location which could reasonably be expected to give rise to any Environmental Liability; nor have any Hazardous Materials been generated, treated, stored or disposed of by or on behalf of any Loan Party or any Subsidiary of any Loan Party at, on or under any of the Properties in violation of Environmental Laws, or in a manner that could reasonably be expected to give rise to, any Environmental Liability.
5.19 Communications Regulatory Matters.
(a) A Loan Party or a wholly-owned, Domestic Subsidiary of a Loan Party holds each Material License or the right to utilize each Material License.
(b) The Material Licenses held or utilized by the Loan Parties and their Subsidiaries are valid and in full force and effect without adverse conditions limiting the rights or authority of such Loan Party or Subsidiary under the Material Licenses, except for such conditions as (i) are generally applicable to holders of such Material Licenses or (ii) do not adversely affect the ability of the Loan Parties and their Subsidiaries to operate their Communications Systems in any material respect. Each Loan Party or Subsidiary of a Loan Party holding or utilizing a Material License has all requisite power and authority required under the Communications Act and PUC Laws to hold or utilize such Material License and to own and operate the Communications Systems held or utilized by such Loan Party or such Subsidiary of a Loan Party. The Material Licenses constitute in all material respects all of the Licenses necessary for the operation of the Communications Systems of the Loan Parties and the Subsidiaries of the Loan Parties. No event has occurred and is continuing which would reasonably be expected to (i) result in the suspension, revocation, or termination of any such Material License or (ii) materially and adversely affect any rights of the Loan Parties or their respective Subsidiaries thereunder. No Responsible Officer of any Loan Party or any Subsidiary of any Loan Party has actual knowledge that any Material License will not be renewed in the ordinary course. Neither the Loan Parties nor any of their respective Subsidiaries are a party to any investigation, notice of apparent liability, notice of violation, order or complaint issued by or before the FCC, any PUC or any other applicable Governmental Authority with respect to any Material License, and there are no proceedings pending by or before the FCC, any PUC or any other applicable Governmental Authority which would reasonably be expected to have a material and adverse effect on the validity of any Material License.
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(c) All of the material properties, equipment and systems owned, leased, subleased or managed by the Loan Parties or their respective Subsidiaries are, and (to the best knowledge of the Loan Parties and their Subsidiaries) all such property, equipment and systems to be acquired or added in connection with any contemplated system expansion or construction will be, in good repair, working order and condition (reasonable wear and tear and casualty events excepted) and are and will be in compliance in all material respects with all terms and conditions of the Material Licenses and all standards or rules imposed by any Governmental Authority or as imposed under any agreements with telecommunications companies and customers.
(d) Each of the Loan Parties and their respective Subsidiaries has made all material filings which are required to be filed by it, paid, or caused to be paid, all material franchise, license or other fees and charges related to the Material Licenses or which have become due pursuant to any authorization, consent, approval or license of, or registration or filing with, any Governmental Authority in respect of its business and has made appropriate provision as is required by GAAP for any such fees and charges which have accrued.
5.20 Solvency.
As of (a) the Closing Date and (b) the date of any request for an Incremental Term Loan pursuant to Section 2.16(b), the Borrower is, and the Loan Parties and their respective Subsidiaries on a Consolidated basis are, Solvent.
5.21 Qualified ECP Guarantor.
The Borrower is a Qualified ECP Guarantor.
5.22 Reserved.
5.23 Labor Matters.
There are no strikes, lockouts or slowdowns against any Loan Party or any Subsidiary of any Loan Party pending or, to the knowledge of any Responsible Officer of any Loan Party or any Subsidiary of any Loan Party, threatened except as would not reasonably be expected to result in a Material Adverse Effect. The hours worked by and payments made to employees of the Loan Parties and their respective Subsidiaries within the past five (5) years have not been in violation of the Fair Labor Standards Act or any other applicable Federal, state, local or foreign law dealing with such matters, except as would not reasonably be expected to result in a Material Adverse Effect. The execution, delivery and performance of the Loan Documents will not give rise to any right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which any Loan Party or any Subsidiary of any Loan Party is bound, except for any such termination or renegotiation which would not reasonably be expected to result in a Material Adverse Effect.
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5.24 Anti-Corruption; Anti-Terrorism and Sanctions.
(a) Each of the Loan Parties and their respective Subsidiaries (including the ABS Entities), Affiliates, and to the knowledge of the Loan Parties and their Subsidiaries, their officers, directors, employees and authorized agents are in compliance, in all respects, with all applicable (i) Anti-Corruption Laws, (ii) Anti-Terrorism Laws and (iii) Sanctions.
(b) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Loan Parties and their respective Subsidiaries (including the ABS Entities), Affiliates, officers, directors, employees and authorized agents with all applicable (i) Anti-Corruption Laws, (ii) Anti-Terrorism Laws and (iii) Sanctions.
(c) None of the Loan Parties or their respective Subsidiaries (including the ABS Entities), Affiliates, officers, directors, employees or authorized agents are Sanctioned Persons or have engaged in, or are now engaged in, any dealings or transactions with any Sanctioned Person.
(d) No Credit Extension, use of proceeds or other transaction contemplated by this Agreement will violate any applicable (i) Anti-Corruption Laws, (ii) Anti-Terrorism Laws or (iii) Sanctions.
(e) The Loan Parties have provided to the Administrative Agent and the Lenders all information requested by the Administrative Agent and the Lenders regarding the Loan Parties and their respective Subsidiaries (including the ABS Entities), Affiliates, officers, directors, employees and authorized agents that is necessary for the Administrative Agent and the Lenders to collect to comply with applicable Anti-Corruption Laws, Anti-Terrorism Laws, Sanctions and other Laws.
5.25 The Parent and Holdco’s Status as a Holding Company.
Neither the Parent nor Holdco owns any assets or conducts or engages in any business or operations, in each case, in violation of Section 7.18.
5.26 Senior Debt.
The Obligations constitute “Senior Indebtedness” (or any comparable term) or “Senior Secured Financing” (or any comparable term) under, and as defined in, the documentation governing any Indebtedness that is subordinated to the Obligations expressly by its terms.
5.27 Affected Financial Institutions.
No Loan Party is an Affected Financial Institution.
5.28 Covered Entities.
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No Loan Party is a Covered Entity.
5.29 Beneficial Ownership Certification.
To the knowledge of the Borrower, the information included in the Beneficial Ownership Certification, if applicable, is true and correct in all respects.
5.30 Outbound Investment Rules.
Neither any Loan Party nor any Subsidiary (including any ABS Entity) is a “covered foreign person” as that term is used in the Outbound Investment Rules. Neither any Loan Party nor any Subsidiary (including any ABS Entity) currently engages, or has any present intention to engage in the future, directly or indirectly, in (a) a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, (b) 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 such Loan Party or such Subsidiary were a U.S. Person or (c) any other activity that would cause the Secured Parties to be in violation of the Outbound Investment Rules or cause any Secured Party to be legally prohibited by the Outbound Investment Rules from performing under this Agreement or any other Loan Document.
Article VI
AFFIRMATIVE COVENANTS
Each of the Loan Parties hereby covenants and agrees that on the Closing Date and thereafter until the Facility Termination Date, the Loan Parties shall comply at all times with the following covenants:
6.01 Reporting Requirements.
The Loan Parties will furnish or cause to be furnished to the Administrative Agent and each of the Lenders:
(a) Quarterly Financial Statements. As soon as available and in any event no later than forty-five (45) days after the end of each of the first three fiscal quarters in each fiscal year of the Parent, financial statements of the Parent and its Subsidiaries (including the ABS Entities), consisting of consolidated balance sheets as of the end of such fiscal quarter and the then elapsed portion of the applicable fiscal year, and related consolidated statements of income, stockholders’ or members’ equity and cash flows for the fiscal quarter then ended and the fiscal year through that date (which requirement shall be deemed satisfied by the delivery or filing with the SEC of the Parent’s quarterly report on Form 10-Q (or any successor form) for such quarter), all in reasonable detail and certified by a Financial Officer of the Borrower as having been prepared in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), and setting forth in comparative form the respective financial statements for the corresponding date and period in the previous fiscal year.
(b) Annual Financial Statements. As soon as available and in any event no later than one hundred (100) days after the end of each fiscal year of the Parent, audited financial statements of the Parent and its Subsidiaries (including the ABS Entities) consisting of consolidated balance sheets as of the end of such fiscal year, and related consolidated statements of income, stockholders’ equity and cash flows for the fiscal year then ended (which requirement shall be deemed satisfied by the delivery or the filing with the SEC of the Parent’s Annual Report on Form 10-K (or any successor form) for such year), and accompanied by an opinion of RSM US LLP or another independent certified public accountants of nationally recognized standing. The report of accountants shall be prepared in accordance with Statement of Auditing Standards No. 58, as amended, entitled “Reports on Audited Financial Statements” and shall be free of material qualifications or exception as to the scope of such audit or any “going concern” qualification (other than (x) any consistency qualification that may result from a change in the method used to prepare the financial statements as to which such accountants concur and (y) any such exception or qualification that is with respect to, or expressly resulting from, the occurrence of any Incremental Term Loan Maturity Date with respect to any Incremental Term Facility that is scheduled to occur within one (1) year from the time such report and opinion are delivered).
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(c) Compliance Certificate. Concurrently with the financial statements furnished to the Administrative Agent and to the Lenders pursuant to Sections 6.01(a) and (b), a Compliance Certificate duly executed by a Financial Officer of the Borrower.
(d) Reconciliation. Concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), an internally prepared reconciliation reflecting the adjustments necessary to eliminate the accounts of the ABS Entities, if any, from such financial statements.
(e) Other Reports.
(i) Annual Budget. An annual Consolidated budget and any forecasts or projections of the Parent and its Subsidiaries, to be supplied not later than sixty (60) calendar days after the commencement of each fiscal year.
(ii) Accountants’ Reports. Promptly upon their becoming available to the Borrower, any reports, including management letters submitted, to the Parent by independent accountants in connection with any annual, interim or special audit.
(iii) ABS Indenture Documentation Statements, Reports and Notices. Promptly when made available pursuant to the ABS Indenture Documentation, a copy of each “Manager Report” (as defined in the ABS Base Indenture) and, upon the reasonable request of the Administrative Agent, copies any other statement, report or notice furnished by any ABS Entity to any holder of the obligations under any of the ABS Indenture Documentation or to any other Person, in each case, to the extent such statement, report or notice was furnished, delivered or provided pursuant to the terms of any of the ABS Indenture Documentation.
(iv) Benefit Plan Documentation. Promptly upon request by any Lender, the Borrower will deliver to such Lender (A) all reports, forms and other documents required to be or otherwise prepared or filed in respect of any Pension Plan pursuant to the Code, ERISA and other Applicable Law, and (B) all actuarial reports prepared in respect of any Pension Plan. Promptly upon request by any Lender, (A) the Borrower will deliver to such Lender any documentation regarding withdrawal liability under or the funding status with respect to any Multiemployer Plan that any Loan Party has received and (B) the Borrower will request the Multiemployer Plan to provide (and the Borrower will provide to such Lender upon the receipt by any Loan Party) any documentation regarding withdrawal liability or funding status that a Multiemployer Plan is required to provide upon request.
(f) Notices.
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(i) Default. Promptly after any Responsible Officer of any Loan Party or any Subsidiary of any Loan Party has learned of the occurrence of a Default, a certificate signed by a Responsible Officer of the Borrower setting forth the details of such Default and the action that the Borrower proposes to take, or to cause to be taken, with respect thereto.
(ii) Regulatory and Other Notices. Promptly after filing, receiving or becoming aware thereof, the Borrower will deliver or cause to be delivered copies of any filings or written communications sent to, or notices and other communications received by, any Loan Party or any of its respective Subsidiaries from any Governmental Authority, including the FCC and any PUC, relating to any material noncompliance by any Loan Party or any of its Subsidiaries with any Applicable Law, including the Communications Act and any applicable PUC Law, or with respect to any matter or proceeding, in each case, the effect of which would reasonably be expected to result in a Material Adverse Effect.
(iii) Litigation. Promptly after the commencement thereof, notice of all actions, suits, proceedings or investigations before or by any Governmental Authority or any other Person against any Loan Party or Subsidiary of any Loan Party that relate to the Collateral, involve a claim or series of claims that would reasonably be expected to result in a Material Adverse Effect.
(iv) Organization Documents. Within the time limits set forth in Section 7.14, any material amendment to the Organization Documents of any Loan Party or any Subsidiary of any Loan Party.
(v) Material Contracts; ABS Indenture Documentation; ABS Trigger Event or Condition. Promptly after any Responsible Officer of any Loan Party or any Subsidiary of any Loan Party becoming aware thereof, (A) any material amendment, supplement, waiver or other modification of, or consent provided under, any of the Material Contracts, the ABS Entity Agreements or any of the other ABS Indenture Documentation, in each case, unless such amendment, supplement, waiver, modification or consent is not prohibited by Section 7.16, or any notice of default or of termination, cancellation or revocation (in each case, prior to any scheduled date of termination) delivered under any Material Contract, any of the ABS Entity Agreements or any of the other ABS Indenture Documentation if such default, termination, cancellation or revocation would reasonably be expected to result in a Material Adverse Effect or in a Default and (B) the occurrence or existence of any ABS Trigger Event or Condition.
(vi) Erroneous Financial Information. Promptly in the event that the Parent, the Borrower or their respective accountants conclude or advise that any previously issued financial statement, audit report or interim review should no longer be relied upon or that disclosure should be made or action should be taken to prevent future reliance.
(vii) ERISA Event. Promptly upon the occurrence of any ERISA Event or any event reasonably expected to result in an ERISA Event; provided, that, no notice of any ERISA Event set forth on Schedule 5.17 as of the Closing Date shall be required.
(viii) Material Adverse Effect. Promptly after becoming aware thereof, the Borrower will give notice of any change in events or changes in facts or circumstances affecting any Loan Party or any of their respective Subsidiaries which individually or in the aggregate have resulted in or would reasonably be expected to result in a Material Adverse Effect.
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(ix) Environmental Notices. Promptly after becoming aware of any material violation by any Loan Party or any of its respective Subsidiaries of Environmental Laws or promptly upon receipt of any notice that a Governmental Authority has asserted that any Loan Party or any of its respective Subsidiaries is not in compliance with Environmental Laws or that its compliance is being investigated, and, in either case, the same would reasonably be expected to result in a Material Adverse Effect, the Borrower will give notice thereof and provide such other information as may be reasonably available to any Loan Party or any of its respective Subsidiaries to enable the Administrative Agent and the Lenders to reasonably evaluate such matter.
(x) Acquisition of Certain Additional Collateral. Concurrently with the delivery of each Compliance Certificate, to the extent notice thereof has not previously been given to the Administrative Agent, notice of (A) the acquisition by any Loan Party of (1) any Pledged Equity, (2) any material Intellectual Property, and/or (3) any Commercial Tort Claim (as defined in the Security Agreement) or related grouping of Commercial Tort Claims arising from the same general circumstances that is or are known to any Loan Party (such that an officer of any Loan Party has actual knowledge of the existence of a tort cause of action and not merely of the existence of the facts giving rise to such cause of action) and are known to any Loan Party to involve an amount in controversy in excess of the Threshold Amount in the aggregate, (B) the entrance into by any Loan Party or any Subsidiary of any Material Contract, and/or (C) the entrance into by any Loan Party or any Subsidiary (including any ABS Entity) of any ABS Indenture Documentation.
(xi) Beneficial Ownership Certification. Promptly (A) upon a change to the list of beneficial owners identified the Beneficial Ownership Certification previously received by the Administrative Agent and the Lenders, notice of such change and (B) upon the reasonable request of the Administrative Agent or any Lender, any information or documentation requested by the Administrative Agent or such Lender, as the case may be, for purposes of complying with the Beneficial Ownership Regulation.
(g) Other Information. Such other reports and information as the Administrative Agent may from time to time reasonably request.
In no event shall the requirements set forth in Section 6.01(e), (f) or (g) require the Borrower or any of its Subsidiaries to provide any such information which (i) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by Law or (ii) is subject to attorney-client or similar privilege or constitutes attorney work-product.
In no event shall the Borrower be required to furnish, or cause to be furnished, any information (w) that constitutes non-financial trade secrets or non-financial proprietary information, (x) that constitutes attorney work product, (y) that would result in violation of any confidentiality agreement by which it is bound or (z) to the extent that the provision thereof would waive or impair attorney-client privilege, or violate any law, rule or regulation, or any obligation of confidentiality binding on any Loan Party; provided, further, that, in the event the Borrower does not provide information in reliance on the foregoing, such Person shall provide notice to the Administrative Agent that such information is being withheld and shall use commercially reasonable efforts to receive a waiver or consent with respect to such restriction, to the extent such waiver or consent would not result in a loss of privilege.
Documents required to be delivered pursuant to Section 6.01(a) or (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 date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 1.01(a); or (ii) on which such documents are filed with the SEC or otherwise posted on the Borrower’s behalf on an Internet or intranet 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).
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The Borrower hereby acknowledges that (i) the Administrative Agent and/or an Affiliate thereof may, but shall not be obligated to, make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar or a substantially similar electronic transmission system (the “Platform”) and (ii) 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 use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (A) 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; (B) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, any Affiliate thereof, the Arrangers, the L/C Issuer 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 its 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 11.07); (C) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (D) the Administrative Agent and any Affiliate thereof and the Arrangers 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.”
6.02 Preservation of Existence, Etc.
Each Loan Party shall, and shall cause each of its Subsidiaries to, maintain (a) its legal existence and its license or qualification and good standing in each jurisdiction in which its ownership or lease of property or the nature of its business makes such license or qualification necessary, except as otherwise expressly permitted in Section 7.07 or where the failure would not reasonably be expected to result in a Material Adverse Effect and (b) all licenses, franchises, permits and other authorizations (including all Licenses other than Material Licenses) and Intellectual Property, the loss, revocation, termination, suspension or adverse modification of which would reasonably be expected to result in a Material Adverse Effect.
6.03 Preservation of Licenses.
Each Loan Party shall, and shall cause each of its Subsidiaries to, at all times preserve and keep in full force and effect all Material Licenses.
6.04 Payment of Liabilities, Including Taxes, Etc.
Each Loan Party shall, and shall cause each of its Subsidiaries to, pay, discharge or otherwise satisfy all Indebtedness and other liabilities (including all lawful claims that, if unpaid, would by Law become a Lien on the assets of any Loan Party) to which it is subject or that are asserted against it, promptly as and when the same shall become due and payable, including all material taxes, assessments and governmental charges upon it or any of its properties, assets, income or profits, prior to the date on which penalties attach thereto, except (a) to the extent that such liabilities, including taxes, assessments or governmental charges, are being contested in good faith and by appropriate and lawful proceedings diligently conducted and for which such reserve or other appropriate provisions, if any, as shall be required by GAAP shall have been made, or (b) where the failure to pay, discharge or otherwise satisfy the same would not reasonably be expected to result in a Material Adverse Effect.
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6.05 Maintenance of Insurance.
(a) Each Loan Party shall, and shall cause each of its Subsidiaries to, insure its properties and assets against loss or damage by fire and such other insurable hazards as such assets are commonly insured (including fire, extended coverage, property damage, workers’ compensation, public liability and business interruption insurance) and against other risks (including errors and omissions) in such amounts as similar properties and assets are insured by prudent companies in similar circumstances carrying on similar businesses, and with reputable and financially sound insurers, including self-insurance to the extent customary. Such insurance policies shall contain additional insured and lender loss payable special endorsements in form and substance reasonably satisfactory to the Administrative Agent naming the Administrative Agent as additional insured and lender loss payee, as applicable, and providing the Administrative Agent with notice of cancellation acceptable to the Administrative Agent.
(b) Not less than fifteen (15) days (or such later date as the Administrative Agent shall agree to in its reasonable discretion) prior to the expiration date of the insurance policies required to be maintained by any Loan Party or its Subsidiaries pursuant to the terms hereof, the Borrower will deliver to the Administrative Agent one or more certificates of insurance and endorsements evidencing renewal of the insurance coverage required hereunder plus such other evidence of payment of premiums therefor as Administrative Agent may reasonably request.
(c) If any Loan Party fails to, or fails to cause any of its Subsidiaries to, obtain and maintain any of the policies of insurance required to be maintained pursuant to the provisions of this Section 6.05 or to pay any premium in whole or in part, the Administrative Agent may, without waiving or releasing any obligation or Default, at the Loan Parties’ expense, but without any obligation to do so, procure such policies or pay such premiums. All sums so disbursed by the Administrative Agent, including any reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and reasonable and documented fees, charges and disbursements of counsel for the Administrative Agent, shall be payable by the Loan Parties to the Administrative Agent on demand and shall be additional Obligations hereunder and under the other Loan Documents, secured by the Collateral.
6.06 Maintenance of Properties.
Each Loan Party shall, and shall cause each of its Subsidiaries to, maintain in good repair, working order and condition (ordinary wear and tear and casualty excepted) in accordance with the general practice of other businesses of similar character and size, all of those properties useful or necessary to its business, and from time to time, such Loan Party will make or cause to be made all appropriate repairs, renewals or replacements thereof, except in each case where the failure would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
6.07 Visitation Rights.
Each Loan Party will permit, and will cause each of its Subsidiaries to permit, at the expense of the Loan Parties, any authorized representatives of the Administrative Agent (together with any authorized representatives of any Lender that desires to have its authorized representatives accompany the Administrative Agent’s authorized representatives and (during the existence of an Event of Default) any authorized representative of any Lender (whether or not accompanied by representatives of the Administrative Agent)):
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(a) to visit and inspect any of the properties of the Loan Parties and their respective Subsidiaries, including their financial and accounting records, and to make copies and take extracts therefrom; provided, that, absent the existence of an Event of Default, the Administrative Agent shall not (and any Lender that elected to have its authorized representatives accompany the Administrative Agent’s authorized representatives on such visit and inspection shall not) request reimbursement from the Borrower for more than one visit and inspection in any calendar year; and
(b) to discuss their affairs, finances and business with their officers, employees and certified public accountants; provided, that, absent the existence of an Event of Default, the Loan Parties will receive reasonable prior notice of the time and place of such discussions with their certified public accounts and may elect to attend and participate in such discussions (for the avoidance of doubt, the failure of the Loan Parties to attend or participate any such discussions at the time and place provided in such notice shall not prevent the authorized representatives of the Administrative Agent (together with any authorized representatives of any Lender that desires to have its authorized representatives accompany the Administrative Agent’s authorized representatives) from proceeding with such discussion);
in each case upon reasonable prior notice at such reasonable times during normal business hours and as often as may be reasonably requested; provided, that, during the continuance of an Event of Default, the authorized representatives of the Administrative Agent and any Lender may conduct such visits and inspections and engage in such discussions without notice and as frequently and at such times as they may specify.
6.08 Keeping of Records and Books of Account.
The Loan Parties shall, and shall cause each Subsidiary to, maintain and keep adequate books of record and account that enable the Parent and its Subsidiaries to issue financial statements in accordance with GAAP and as otherwise required by Applicable Laws of any Governmental Authority having jurisdiction over the Parent or any Subsidiary, and in which full, true and correct entries shall be made in all material respects of all its dealings and business and financial affairs.
6.09 Compliance with Laws.
(a) Each Loan Party shall, and shall cause each of its Subsidiaries to, comply with all Applicable Laws, except where failure to comply with any Applicable Law would not reasonably be expected to result in a Material Adverse Effect.
(b) Each of the Loan Parties shall, and shall cause each of its Subsidiaries (including the ABS Entities), Affiliates, officers, directors, employees and authorized agents to, comply with all applicable Anti-Corruption Laws, Anti-Terrorism Laws and Sanctions. The Borrower shall implement and maintain in effect policies and procedures designed to ensure compliance by the Loan Parties and their respective Subsidiaries (including the ABS Entities), Affiliates, officers, directors, employees and authorized agents with all applicable Anti-Corruption Laws, Anti-Terrorism Laws and Sanctions.
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(c) Except where the failure would not reasonably be expected to result in a Material Adverse Effect, each of the Loan Parties shall, and shall cause each of its Subsidiaries to, (i) conduct its operations and keep and maintain its real property in compliance with all Environmental Laws and environmental permits; (ii) obtain and renew all environmental permits necessary for its operations and properties; and (iii) implement any and all investigation, remediation, removal and response actions that are necessary to maintain the value and marketability of the real property or to otherwise comply with Environmental Laws pertaining to any of its real property (provided, however, that, neither a Loan Party nor any of its Subsidiaries shall be required to undertake any such investigation, remediation, removal, response or other action to the extent that its obligation to do so is being contested in good faith and by proper proceedings and adequate reserves have been set aside and are being maintained by the Loan Parties with respect to such circumstances in accordance with GAAP).
6.10 Further Assurances.
(a) Generally. Each Loan Party shall, from time to time, at its expense, preserve and protect the Administrative Agent’s Lien on and Prior Security Interest in the Collateral whether now owned or hereafter acquired as a continuing Prior Security Interest therein, and shall do or make, or cause each of its Subsidiaries to do or make, such other acts, deliveries and things as the Administrative Agent may deem reasonably necessary or advisable from time to time in order to consummate the transactions contemplated hereby, preserve, perfect and protect the Liens granted or purported to be granted under the Loan Documents and to exercise and enforce its rights and remedies thereunder with respect to the Collateral.
(b) Additional Subsidiaries. In furtherance, and not in limitation, of Section 6.10(a), but subject to the limitations of such Section, promptly, and in any event within sixty (60) days (or such later date as the Administrative Agent shall agree to in its sole discretion) of:
(i) the creation or acquisition of any direct or indirect Subsidiary by any Loan Party (other than an Excluded Subsidiary), each of the Loan Parties shall, and shall cause each of its Subsidiaries to, cause each such new Subsidiary to execute and deliver (A) to the Administrative Agent a duly executed Guarantor Joinder, pursuant to which (1) such new Subsidiary shall become a party hereto as a Guarantor and shall become a party to the Security Agreement as an Obligor (as defined therein), and (2) the Pledged Equity of such new Subsidiary shall be pledged by the applicable Loan Party to the extent provided in the Collateral Documents and (B) an additional signature page to the Master Subordinated Intercompany Note, together with an allonge in the form required pursuant thereto; and
(ii) the creation or acquisition of any direct or indirect Subsidiary by any Loan Party that is a Regulated Subsidiary, to the extent such Regulated Subsidiary is an Excluded Subsidiary, each of the Loan Parties shall, and shall cause each of its Subsidiaries to, cause (A) each such new Regulated Subsidiary to execute and deliver to the Administrative Agent a duly executed Negative Pledge Agreement and (B) the Pledged Equity of such new Regulated Subsidiary shall be pledged by the applicable Loan Party to the extent provided in the Collateral Documents.
Concurrently with the delivery of the foregoing, the Loan Parties will deliver, or cause to be delivered, all certificates evidencing such Pledged Equity, together with undated, executed transfer powers, and such other Collateral Documents and such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Subsidiary) regarding such new Subsidiary, in form, content and scope reasonably satisfactory to the Administrative Agent, as the Administrative Agent may reasonably request in connection therewith and, if applicable, will take such other action as the Administrative Agent may reasonably request to create in favor of the Administrative Agent a Prior Security Interest in the Collateral, to the extent provided in the Collateral Documents, for the Secured Obligations.
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The Administrative Agent may elect not to request any documents, instruments, filings or opinions as contemplated by this Section 6.10 or the Security Agreement and the other Loan Documents if it determines in its sole discretion that the costs to the Loan Parties of perfecting a security interest or Lien in such property exceed the relative benefit of such security interest to the Secured Parties.
For the avoidance of doubt, assets owned by any ABS Entity shall not constitute Collateral.
6.11 Cash Management.
The Loan Parties shall maintain, and shall cause their Subsidiaries to maintain, primary depository accounts and primary cash management relationship with one or more of the Lenders (and/or any Affiliates thereof).
6.12 Use of Proceeds.
Each of the Loan Parties shall, and shall cause each of its Subsidiaries to, use the proceeds of (a) the Revolving Loans (i) on the Closing Date, to refinance certain existing indebtedness of the Parent and its Subsidiaries, and (ii) on the Closing Date and thereafter, for working capital and other general corporate purposes (including capital expenditures and payment of fees and expenses in connection with the Transactions) not in contravention of the Loan Documents, and (b) any Incremental Term Facility as specified in the applicable Incremental Term Loan Lender Joinder Agreement; provided, that, in no event shall the proceeds of the Facilities be used in contravention of any Law.
6.13 Material Contracts; ABS Direction Letters.
(a) Except for noncompliance that would not reasonably be expected to result in a Material Adverse Effect, each of the Loan Parties shall, and shall cause each of its Subsidiaries to, comply in all material respects with each Material Contract and each ABS Entity Agreement.
(b) Each of the Loan Parties shall, and shall cause their Subsidiaries (including the ABS Entities) to, (i) comply with all of the provisions of the ABS Direction Letters and (ii) promptly upon such amounts being available for distribution in accordance with the ABS Indenture Documentation, cause all such amounts available for distribution by the ABS Issuer to be distributed to the ABS Guarantor (and cause the ABS Guarantor to cause such amounts to be simultaneously distributed to the Borrower pursuant to, and in accordance with, the ABS Direction Letters).
6.14 Benefit Plan Compliance.
Except for noncompliance that would not reasonably be expected to result in a Material Adverse Effect, (a) each of the Loan Parties shall, and shall cause each of its Subsidiaries to, ensure that each Plan will be in compliance in all material respects with its terms and Applicable Law, (b) each of the Loan Parties and the ERISA Affiliates will satisfy their obligations and liabilities with respect to each Plan and each Multiemployer Plan and (c) each of the Loan Parties and the ERISA Affiliates will make all contributions with respect to any Plan or Multiemployer Plan on or before the due date for such contribution.
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6.15 Anti-Corruption Laws; Sanctions.
Each of the Loan Parties shall, and shall cause their Subsidiaries (including the ABS Entities) and Affiliates to, conduct its business in compliance in all material respects with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other applicable anti-corruption legislation in other jurisdictions and with all applicable Sanctions, and maintain policies and procedures designed to promote and achieve compliance with such laws and Sanctions.
6.16 Post-Closing Deliveries.
Each of the Loan Parties covenants and agrees that it shall, and shall cause each of its Subsidiaries to, perform the obligations set forth on Schedule 6.16 on or before the date provided in Schedule 6.16 (as such date may be extended by the Administrative Agent in its sole discretion) with respect to each such obligation.
Article VII
NEGATIVE COVENANTS
Each of the Loan Parties hereby covenants and agrees that on the Closing Date and thereafter until the Facility Termination Date, the Loan Parties shall comply at all times with the following covenants:
7.01 Indebtedness.
No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries to, at any time create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under this Agreement and the other Loan Documents;
(b) Indebtedness of Excluded Subsidiaries of up to $500,000 in the aggregate at any time outstanding;
(c) unsecured, short-term Indebtedness of the Borrower to Shenandoah Telephone with respect to cash management systems not to exceed $15,000,000 in the aggregate at any time outstanding;
(d) Indebtedness incurred with respect to Purchase Money Security Interests, Synthetic Lease Obligations and Capital Leases for fixed or capital assets not to exceed $15,000,000 in the aggregate at any time outstanding;
(e) unsecured, subordinated Indebtedness of a Loan Party to another Loan Party, pursuant to the Master Subordinated Intercompany Note;
(f) unsecured Indebtedness representing deferred compensation to employees of the Loan Parties and their Subsidiaries incurred in the ordinary course of business;
(g) Indebtedness (contingent or otherwise) of any Loan Party arising under (i) any Secured Hedge Agreement, (ii) any other Interest Rate Hedge, (iii) Indebtedness under any Secured Cash Management Agreement or (iv) other cash management arrangements with depository institutions, in each case, entered into in the ordinary course of business; provided, however, that, (A) no Loan Party shall enter into or incur any Secured Hedge Agreement or other Interest Rate Hedge that constitutes a Swap Obligation if at the time it enters into or incurs such Swap Obligation it does not constitute an “eligible contract participant” as defined in the Commodity Exchange Act, and (B) the Loan Parties and their Subsidiaries shall enter into a Secured Hedge Agreement or other Interest Rate Hedge only for hedging (rather than speculative) purposes;
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(h) Guarantees and other Contingent Obligations permitted by Section 7.04;
(i) Indebtedness owed to any Person providing property, casualty, liability or other insurance to the Loan Parties or their Subsidiaries so long as the amount of such Indebtedness is not in excess of the amount of the unpaid premium of, and shall be incurred only to defer the cost of, such insurance for any twelve-month period in which such Indebtedness is incurred and such Indebtedness is outstanding only in such twelve-month period;
(j) Indebtedness incurred by the Loan Parties in a Permitted Acquisition or Disposition permitted hereunder, in each case, constituting indemnification obligations or obligations in respect of purchase price (including earn-outs) or other similar adjustments;
(k) Indebtedness consisting of obligations of the Loan Parties under deferred compensation or other similar arrangements incurred by such Person in connection with Permitted Acquisitions;
(l) Indebtedness in respect of netting services, automatic clearinghouse arrangements, overdraft protections, employee credit card programs and other cash management and similar arrangements in the ordinary course of business;
(m) Indebtedness owing to the ABS Entities on account of the transactions contemplated by the ABS Indenture Documentation; and
(n) Indebtedness of a Loan Party not to exceed at any time the greater of (i) $10,000,000 and (ii) fifteen percent (15%) of Consolidated Adjusted EBITDA of the Parent and its Subsidiaries calculated on a Pro Forma Basis for the period of four (4) consecutive fiscal quarters ending as of the last day of the most recently ended fiscal quarter for which the Loan Parties were required to deliver financial statements pursuant to Section 6.01(a) or Section 6.01(b).
7.02 Liens.
No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries to, at any time create, incur, assume or suffer to exist any Lien on any of its property or assets, tangible or intangible, now owned or hereafter acquired, except Permitted Liens; provided, that, notwithstanding the foregoing, neither any Loan Party nor any Subsidiary shall at any time create, incur, assume or suffer to exist any Lien on any of the Equity Interests of any ABS Entity, other than any such Lien required to be granted pursuant to the ABS Indenture Documentation.
7.03 Affiliate Transactions.
No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries to, enter into or carry out any transaction with any Affiliate of any Loan Party (including purchasing property or services from or selling property or services to any Affiliate of any Loan Party or other Person) unless such transaction (a) is not otherwise prohibited by this Agreement, (b) is in accordance with all Applicable Law and (c)(i) is solely between or among the Loan Parties and their respective Subsidiaries and no other Affiliate, (ii) is entered into in the ordinary course of business upon fair and reasonable arm’s-length terms and conditions, (iii) relates to the payment of reasonable compensation to directors, officers and employees in the ordinary course of business for services actually rendered in their capacities as directors, officers and employees, (iv) is a Restricted Payment permitted by Section 7.06 or an advance permitted by Section 7.05(b), (v) is a charitable contribution to Shentel Foundation, a Virginia nonstock corporation, so long as the aggregate amount of all such contributions does not exceed $1,500,000 in any fiscal year, (vi) involves consideration in an amount not to exceed $1,000,000 in any fiscal year or (vii) is an ABS Transaction or is a transaction contemplated by the ABS Indenture Documentation.
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7.04 Contingent Obligations.
No Loan Party shall, nor shall it permit any of its Subsidiaries to, at any time, directly or indirectly, create or become or be liable with respect to any Contingent Obligation except for those:
(a) resulting from endorsement of negotiable instruments for collection in the ordinary course of business;
(b) arising with respect to customary adjustment of purchase price or similar obligations incurred in connection with Investments permitted pursuant to Section 7.05;
(c) arising under indemnity agreements to title insurers;
(d) arising in the ordinary course of business with respect to customary indemnification obligations incurred in the ordinary course of business;
(e) incurred in the ordinary course of business with respect to surety and appeal bonds, performance and return-of-money bonds and other similar obligations;
(f) constituting Investments permitted pursuant to Section 7.05;
(g) Guarantees by any Loan Party of Indebtedness permitted hereunder (other than Indebtedness of any Subsidiary that is not a Loan Party and Excluded Swap Obligations) or other obligations permitted hereunder not constituting Indebtedness (other than any obligations with respect to the Preferred Stock); and
(h) arising under the Loan Documents and under any Secured Hedge Agreement or other Interest Rate Hedge to the extent permitted under Section 7.01.
7.05 Investments.
No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries to, at any time make or suffer to remain outstanding any Investment, except:
(a) trade credit extended on usual and customary terms in the ordinary course of business;
(b) advances to officers, directors and employees of the Loan Parties to meet expenses incurred by such officers, directors or employees for travel, entertainment, relocation and analogous ordinary business purposes in the ordinary course of business not to exceed $1,000,000 at any time outstanding;
(c) Investments in the form of cash and Cash Equivalents;
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(d) Investments in other Loan Parties;
(e) Investments of the Loan Parties and their respective Subsidiaries existing on the Closing Date and set forth on Schedule 7.05;
(f) notes payable to, or Equity Interests issued by, account debtors to any Loan Party in good faith settlement of delinquent obligations and pursuant to any plan of reorganization or similar proceedings upon the bankruptcy or insolvency of any such account debtor;
(g) Guaranties and other Contingent Obligations permitted by Section 7.04;
(h) any Secured Hedge Agreement or other Interest Rate Hedge permitted under Section 7.01;
(i) subject to the ABS Intercompany Transaction Exception, (i) Investments of ABS Fiber Network Assets in any ABS Entity and (ii) other Investments in the ABS Entities;
(j) Investments in the Excluded Subsidiaries made after the Closing Date in an aggregate outstanding amount at any time not to exceed $10,000,000;
(k) so long as (i) no Default has occurred and is continuing or would result therefrom and (ii) upon giving Pro Forma Effect to such transaction, (A) the Loan Parties would be in compliance with the financial covenants set forth in Sections 7.20(a) and (b) as of the most recent fiscal quarter end for which the Loan Parties were required to deliver financial statements pursuant to Section 6.01(a) or (b) and (B) the Borrower’s Total Net Leverage Ratio is less than or equal to 2.50:1.00, Investments in an unlimited amount;
(l) Investments in the CoBank Equities; and
(m) Permitted Acquisitions.
7.06 Dividends and Related Distributions.
No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries to, declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) any Subsidiary of the Borrower may make, declare and pay lawful, cash dividends or distributions to, or redeem any Equity Interest held by, any Loan Party (other than Holdco);
(b) any Loan Party may make, declare or pay lawful cash dividends or distributions to the Excluded Subsidiaries in an aggregate amount of up to $10,000,000 over the term of the Facilities;
(c) any Subsidiary of the Borrower that is not directly or indirectly wholly-owned by the Borrower may make, declare and pay lawful, pro rata cash dividends, distributions and redemptions;
(d) the Borrower and its Subsidiaries may make, declare and pay lawful dividends or distributions to the extent payable in Equity Interests that are not Disqualified Stock;
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(e) the Borrower may make distributions to Holdco, for further distribution by Holdco to the Parent, with the proceeds of distributions received from the ABS Entities;
(f) so long as (x) no Default shall exist at the time of such declaration or could reasonably be expected to result from such Restricted Payment (tested solely at the time of declaration of any such Restricted Payment) and (y) the Loan Parties shall be in compliance with the covenants set forth in Section 7.20 after giving effect to any such Restricted Payment on a Pro Forma Basis for the four fiscal quarter period most recently then ended for which financial statements have been delivered (tested solely at the time of declaration of any such Restricted Payment), the Borrower may make, declare and pay Restricted Payments to Holdco, for further distribution by Holdco to Parent, (i) in any fiscal year, in an amount not to exceed $7,500,000 for ultimate distribution to the holders of common stock of the Parent and (ii) when the Total Net Leverage Ratio is less than or equal to 2.50:1.00 on a Pro Forma Basis, an unlimited amount; and
(g) non-cash distributions consisting of an increase to the liquidation price of the Preferred Stock to the holders of the Preferred Stock.
7.07 Liquidations, Mergers, Consolidations, Acquisitions.
No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries to, (x) dissolve, liquidate or wind-up its affairs, (y) become a party to any merger or consolidation, or (z) acquire by purchase, lease or otherwise all or substantially all of the assets or Equity Interests of any other Person or group of related Persons; except:
(a) any Subsidiary (other than Holdco or the Borrower) may combine, merge or consolidate with or into: (i) Holdco; provided, that, Holdco shall be the continuing or surviving Person; (ii) the Borrower; provided, that, the Borrower shall be the continuing or surviving Person; (iii) any other Loan Party (other than Holdco or the Borrower); provided, that, a Loan Party shall be the continuing or surviving Person; and (iv) any one or more other Subsidiaries that are not Loan Parties; provided, that, if a Loan Party is party to such combination, merger or consolidation, a Loan Party shall be the continuing or surviving Person;
(b) any Subsidiary (other than Holdco or the Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to another Subsidiary; provided, that, if the transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(c) any Subsidiary that is not a Loan Party may dissolve, liquidate or wind-up its affairs, as long as (i) no Event of Default would result therefrom and (ii) such Subsidiary dissolves, liquidates or winds-up into another Subsidiary or a Loan Party;
(d) any Loan Party (other than Holdco or the Borrower) may dissolve, liquidate or wind-up its affairs, as long as (i) no Event of Default exists or would result therefrom and (ii) such Loan Party dissolves, liquidates or winds-up into another Loan Party; and
(e) any Loan Party and any Subsidiary may enter into any transactions permitted under Section 7.05 or Section 7.08.
7.08 Dispositions of Assets or Subsidiaries.
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No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries to, Dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other Disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest, partnership interests or limited liability company interests or other Equity Interests of a Subsidiary of such Loan Party), except, subject in all cases to the ABS Intercompany Transaction Exception:
(a) transactions involving the sale of inventory to customers in the ordinary course of business;
(b) (i) any termination of any lease or sublease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(c) any Disposition of assets by any Loan Party to another Loan Party;
(d) any Disposition of Cash Equivalents in the ordinary course of business;
(e) any Disposition of obsolete or worn-out assets in the ordinary course of business that are no longer necessary or required in the conduct of such Loan Party’s or such Subsidiary’s business;
(f) any Disposition (i) permitted by Section 7.07 or (ii) pursuant to an event, with respect to any property of any Person, resulting in any loss of or damage to, or any condemnation or other taking of, such property for which such Person receives insurance proceeds (other than business interruption insurance proceeds), or proceeds of a condemnation award or other compensation;
(g) any Disposition by any Loan Party to any Excluded Subsidiary, so long as such Dispositions do not exceed $10,000,000 in the aggregate over the term of the Facilities and do not consist of any Equity Interest of any Loan Party;
(h) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law;
(i) other Dispositions so long as (i) the assets disposed of in connection with such disposition are sold for fair market value (as reasonably determined by the Borrower in good faith), (ii) immediately prior to and immediately after the consummation thereof, no Default exists, (iii) such disposition is not of a Minority Investment in any Loan Party, and (iv) the aggregate net book value of all assets sold during the term of the Facilities shall not exceed ten percent (10%) of Consolidated total assets of the Parent and its Subsidiaries;
(j) Dispositions solely in cash to Shentel Foundation, a Virginia nonstock corporation, subject to the dollar limitation set forth in Section 7.03(c)(v);
(k) to the extent constituting a Disposition, any Investment permitted pursuant to Section 7.05; and
(l) Dispositions of the CoBank Equities.
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7.09 Use of Proceeds.
No Loan Party shall (a) use the proceeds of any Loan or other Credit Extension hereunder, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U, T or X as promulgated by the Board) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose or (b) request any Credit Extension or use (or permit the use by any of its Subsidiaries (including the ABS Entities) or its or their respective Affiliates, directors, officers, employees or agents of) the proceeds of any Credit Extension, whether directly or indirectly, (i) in furtherance of an offer, payment, promise to pay or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, in any Sanctioned Country or (iii) in any manner that would result in a violation of Anti-Corruption Laws, Anti-Terrorism Laws, Sanctions or other Applicable Law.
7.10 Subsidiaries and Partnerships.
No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries to, own or create directly or indirectly any Subsidiaries other than (a) any Subsidiary that is a Guarantor on the Closing Date; (b) any Subsidiary formed or acquired after the Closing Date that, unless it is an Excluded Subsidiary, joins this Agreement as a Guarantor in accordance with the terms of this Agreement and the Security Agreement by delivering to the Administrative Agent (i) an executed Guarantor Joinder (including any additional documentation required pursuant to the terms of such Guarantor Joinder), (ii) documents in the forms described in Section 4.01 modified as appropriate and (iii) documents necessary to grant and perfect Prior Security Interests to the Administrative Agent for the benefit of the Secured Parties in the Pledged Equity of, and Collateral held by, such Subsidiary, and (c) any Excluded Subsidiary.
7.11 Continuation of or Change in Business.
No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries to, engage in any business other than the business of owning, constructing, managing and operating Communications Systems, or other lines of business necessary or ancillary to the foregoing, consistent with advances in the Communications Systems industry, or an otherwise reasonably related or complimentary extension of the foregoing.
7.12 Fiscal Year.
The Borrower shall not, and shall not permit the Parent or any Subsidiary to, change its fiscal year from the twelve-month period beginning January 1 and ending December 31.
7.13 Issuance of Equity Interests.
No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries to, consummate any Equity Issuance, except for (a) any such Equity Issuances by any Loan Party to and for the benefit of a Loan Party and that are subject to the Administrative Agent’s Prior Security Interest therein and otherwise comply with the Security Agreement, (b) any Equity Issuance by the Borrower, (c) any issuance of warrants or options for Equity Interests, stock appreciation rights or similar equity or equity-based awards of the Borrower to directors, officers or employees of the Borrower or any of its Subsidiaries pursuant to incentive, compensation or employee benefit plans established in the ordinary course of business and any such Equity Interests of the Borrower issued upon the exercise of such warrants or options and (d) any Equity Issuances (i) required pursuant to the terms governing the Preferred Stock upon conversion of the Preferred Stock or otherwise or (ii) permitted through the increase to the outstanding amount thereof solely through the payment in kind of distributions on the Preferred Stock.
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7.14 Changes in Organization Documents.
No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries to, amend in any material respect its Organization Documents without providing at least ten (10) Business Days’ prior written notice (or such shorter notice as to which the Administrative Agent may agree in its sole discretion) to the Administrative Agent and, in the event such change would be adverse in any material respect to the interests of the Lenders as determined by the Administrative Agent in its sole discretion, obtaining the prior written consent of the Required Lenders.
7.15 Negative Pledges; Other Inconsistent Agreements.
Each of the Loan Parties covenants and agrees that it shall not, and shall not permit any of its Subsidiaries to, enter into any agreement containing any provision which would:
(a) be breached by any Borrowing by the Borrower hereunder or by the performance by the Loan Parties or their respective Subsidiaries of any of their obligations hereunder or under any other Loan Document,
(b) limit the ability of any Loan Party or any Subsidiary of any Loan Party (except any Excluded Subsidiary) to create, incur, assume or suffer to exist Liens on property of such Person,
(c) create or permit to exist or become effective any encumbrance or restriction on the ability of any Loan Party or Subsidiary of any Loan Party to (i) make Restricted Payments to any Loan Party or pay any Indebtedness owed to any Loan Party, (ii) make loans or advances to any Loan Party, (iii) transfer any of its assets or properties to any Loan Party or (iv) Guarantee the Indebtedness of any Loan Party (except any Excluded Subsidiary), or
(d) require the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation of such Person;
provided, however, that, (i) the foregoing clauses (b) through (d) shall not apply to restrictions and conditions imposed by Applicable Law, by this Agreement, any Negative Pledge Agreement or any of the ABS Indenture Documentation, (ii) clauses (b) and (c) shall not prohibit any negative pledge incurred or provided in favor of any holder of Indebtedness permitted under Section 7.01(c) solely to the extent any such negative pledge relates to the property financed by or the subject of such Indebtedness and (iii) clauses (b) and (c) shall not prohibit any negative pledge incurred or provided in favor of any holder of the Preferred Stock solely with respect to the Preferred Stock.
7.16 Material Contracts; ABS Indenture Documentation.
Each of the Loan Parties covenants and agrees that it shall not, and shall not permit any of its Subsidiaries to (a) amend, restate, supplement, waive or otherwise modify, or terminate, cancel or revoke (prior to any scheduled date of termination), or provide any consent under, (i) any Material Contract if such amendment, restatement, supplement, waiver, modification, termination, cancellation, revocation or consent would reasonably be expected to result in a Material Adverse Effect, or would otherwise result in a Default, (ii) any ABS Entity Agreement if such amendment, restatement, supplement, waiver, modification, termination, cancellation, revocation or consent could reasonably be expected to be adverse to the interests of the Lenders in any material respects or (iii) any of the ABS Indenture Documentation (other than any ABS Entity Agreement, which shall be subject to Section 7.16(a)(ii)) if such amendment, restatement, supplement, waiver, modification, termination, cancellation, revocation or consent could reasonably be expected to be adverse to the interests of the Lenders in any material respects (it being understood and agreed that, for the purposes of this Section 7.16(a)(iii), (A) any such change to Section 5.01(a) of the ABS Base Indenture (including any such change to any defined term used in such section, to the extent such change in such defined term impacts the priority of payments set forth in such section), and (B) any such change to the timing of payments or frequency of payments to be made pursuant to Section 5.01(a) of the ABS Base Indenture (including any such change to the definition of “Payment Date” (as defined in the ABS Indenture)), in each case, shall be deemed to be adverse to the interests of the Lenders in a material respect in violation of this Section 7.16) (it being further understood and agreed that for purposes of this Section 7.16(a)(iii), the term “Subsidiaries” shall be deemed to include the ABS Entities), or (b) waive compliance with, or otherwise amend, restate, supplement or modify, or terminate, cancel or revoke, any ABS Direction Letter (it being understood and agreed that for purposes of this Section 7.16(b), the term “Subsidiaries” shall be deemed to include the ABS Entities).
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7.17 Management Fees.
Each of the Loan Parties covenants and agrees that it shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, pay any management or other similar fees to any Person, except (a) legal or consulting fees paid to Persons that are not Affiliates of any Loan Party for services actually rendered and in amounts typically paid by entities engaged in a Loan Party’s business, (b) management fees to Subsidiaries of up to $1,000,000 in the aggregate for all Subsidiaries who are not Loan Parties in any fiscal year and (c) the fees required to be paid pursuant to, and in accordance with the terms and conditions of, the ABS Non-Securitization Entity Access Agreements.
7.18 Holding Company Covenants.
(a) Holdco covenants and agrees that it shall not own or acquire any assets (other than immaterial assets) or have any liabilities other than the Equity Interests of its direct and indirect Subsidiaries (including the ABS Entities) and the Preferred Stock, and shall not conduct, transact or otherwise engage in any business or operations other than (i) those incidental to its ownership of the Equity Interests of its direct and indirect Subsidiaries (including the ABS Entities), including (A) the incurrence of Indebtedness owing to any other Loan Party under the Master Subordinated Intercompany Note, to the extent such Indebtedness is permitted pursuant to Section 7.01(e), and (B) the payment of dividends to the extent permitted pursuant to Section 7.06, (ii) the maintenance of its legal existence, including the ability to incur fees, costs and expenses relating to such maintenance, (iii) participating in tax, accounting and other administrative matters, (iv) the performance of its obligations under and in connection with the Loan Documents and the Preferred Stock, (v) incurring fees, costs and expenses relating to overhead and general operating including professional fees for legal, tax and accounting issues and paying taxes (including the allocation of professional and other such fees and expenses among the Parent and its Subsidiaries (including the ABS Entities) on a consolidated basis), (vi) providing indemnification to officers and members of its board of directors, (vii) guaranteeing the obligations of the other Loan Parties and its Subsidiaries in each case solely to the extent such obligations are not prohibited hereunder and (viii) activities incidental or reasonably related to the businesses or activities described in clauses (i) through (vii) above.
(b) The Loan Parties covenant and agree that they shall cause the Parent to not own or acquire any assets (other than immaterial assets) or have any liabilities other than the Equity Interests of Holdco, and shall not conduct, transact or otherwise engage in any business or operations other than (i) those incidental to its ownership of the Equity Interests of Holdco and Holdco’s direct and indirect Subsidiaries (including the ABS Entities), including the payment of dividends to the extent permitted pursuant to Section 7.06, (ii) the maintenance of its legal existence, including the ability to incur fees, costs and expenses relating to such maintenance, (iii) participating in tax, accounting and other administrative matters, (iv) the performance of its obligations under and in connection with the Loan Documents, (v) incurring fees, costs and expenses relating to overhead and general operating including professional fees for legal, tax and accounting issues and paying taxes (including the allocation of professional and other such fees and expenses among the Parent and its Subsidiaries (including the ABS Entities) on a consolidated basis), (vi) providing indemnification to officers and members of its board of directors and (vii) activities incidental or reasonably related to the businesses or activities described in clauses (i) through (vi) above.
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7.19 Anti-Corruption; Anti-Terrorism; Sanctions.
(a) None of the Loan Parties or their respective Subsidiaries (including the ABS Entities), Affiliates, officers, directors, employees or authorized agents will engage in any dealings or transactions with any Sanctioned Person or in violation of any applicable Anti-Corruption Laws, Anti-Terrorism Laws or Sanctions.
(b) No Loan Party will fund all or any part of any payment under this Agreement or any other Loan Document out of proceeds knowingly derived from transactions that violate Sanctions, or with any Sanctioned Person, or with or connected to any Sanctioned Country.
7.20 Financial Covenants.
(a) The Loan Parties shall not permit the Total Net Leverage Ratio as of the last day of any fiscal quarter, commencing with the first full fiscal quarter ending after the Closing Date, to be greater than 3.00 to 1.00.
(b) The Loan Parties shall not permit the Interest Coverage Ratio as of the last day of any fiscal quarter, commencing with the first full fiscal quarter ending after the Closing Date, to be less than 2.25 to 1.00.
7.21 Outbound Investment Rules.
The Loan Parties shall not, and shall cause their Subsidiaries (including the ABS Entities) not 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 such Loan Party or such Subsidiary were a U.S. Person or (iii) any other activity that would cause any Secured Party to be in violation of the Outbound Investment Rules or cause any Secured Party to be legally prohibited by the Outbound Investment Rules from performing under this Agreement or any other Loan Document.
Article VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default.
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Any of the following shall constitute an event of default (each, an “Event of Default”):
(a) Payments Under Loan Documents. Failure by the Borrower or any other Loan Party to pay, (i) on the date on which such payment becomes due in accordance with the terms of this Agreement or any other applicable Loan Document, any principal of any Loan (including scheduled installments, mandatory prepayments or the payment due at maturity), Unreimbursed Amount or Letter of Credit Borrowing, (ii) within three (3) Business Days after such amount is due, any interest or fees owing on any Loan, Unreimbursed Amount or Letter of Credit Borrowing, or (iii) within three (3) Business Days after such amount is due, any other amount owing hereunder or under the other Loan Documents, or any other Secured Obligation;
(b) Breach of Warranty. Any representation, warranty, certification or statement of fact made or deemed made at any time by any of the Loan Parties herein or in any other Loan Document shall have been false or misleading as of the time it was made or furnished (i) as stated if such representation or warranty contains an express materiality qualification or (ii) in any material respect if such representation or warranty does not contain such qualification.
(c) Breach of Certain Covenants. Any of the Loan Parties shall default in the observance or performance of any covenant contained in Section 6.01, Section 6.02, Section 6.03, Section 6.05, Section 6.07, Section 6.11, Section 6.12, Section 6.13(b), Section 6.15, or Article VII;
(d) Breach of Other Covenants. Any of the Loan Parties shall default in the observance or performance of any other covenant, condition or provision hereof or of any other Loan Document, and such default shall continue unremedied for a period of thirty (30) days after the earlier of (i) the date any Responsible Officer of any Loan Party or Subsidiary of any Loan Party knows of such default or (ii) the date of receipt by any Loan Party of notice from the Administrative Agent or the Required Lenders of such default;
(e) Defaults in Other Agreements or Indebtedness. A default or event of default shall occur at any time under the terms of any other agreement with respect to Material Indebtedness of any Loan Party or Subsidiary of any Loan Party, with respect to any Indebtedness arising under or in connection with the ABS Indenture Documentation or with respect to any Swap Contract of any Loan Party or Subsidiary of any Loan Party, the aggregate Hedge Termination Value of which is equal to or in excess of $25,000,000 and such breach, default or event of default (i) arises from the failure to pay (beyond any period of grace permitted with respect thereto, whether waived or not) any related Indebtedness or other credit extensions when due (whether at stated maturity, by acceleration or otherwise) or (ii) the effect of which is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice and/or lapse of time, if required, the acceleration of any related Indebtedness or other credit extensions (whether or not such right shall have been waived) or the termination of any commitment to lend;
(f) Final Judgments or Orders. Any final judgments or orders for the payment of money in excess of the Threshold Amount in the aggregate shall be entered against any Loan Party or any Subsidiary of any Loan Party by a court having jurisdiction in the premises, which judgment is not discharged, satisfied, vacated, bonded or stayed pending appeal within a period of thirty (30) days from the date of entry;
(g) Injunction. Any Loan Party or any of its respective Subsidiaries are enjoined, restrained or in any way prevented by the order of any Governmental Authority from conducting any substantial portion of the business of the Loan Parties and their Subsidiaries, taken as a whole, and such order continues for more than thirty (30) days;
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(h) Expropriation. Any federal, state or local Governmental Authority expropriates or condemns any material portion of the assets of the Loan Parties and their Subsidiaries, taken as a whole, and such expropriation or condemnation causes a Material Adverse Effect;
(i) Loan Document Unenforceable. Any of the Loan Documents shall cease to be legal, valid and binding agreements enforceable against the party executing the same or such party’s successors and assigns (as permitted under the Loan Documents) in accordance with the respective terms thereof or shall in any way be terminated (except in accordance with its terms) or become or be declared ineffective or inoperative or shall in any way be challenged or contested by any party thereto (other than by the Administrative Agent or any Lender) or cease to give or provide the respective Liens, security interests, rights, titles, interests, remedies, powers or privileges intended to be created thereby;
(j) Security Interests Unenforceable. Any Lien purported to be created under any Collateral Document shall cease to be, or shall be asserted by any Loan Party not to be, a valid or perfected Lien on any portion of the Collateral, with the priority required by the applicable Collateral Document, except (i) as a result of a release pursuant to Section 11.01(a)(vi) or (ii) as a result of the sale or other Disposition of the applicable Collateral or the release of the applicable Loan Party in a transaction permitted under the Loan Documents;
(k) Uninsured Losses; Proceedings Against Assets. There shall occur any uninsured damage to or loss, theft or destruction of any portion of the Collateral with a fair market value in excess of the Threshold Amount or the Collateral or any other of the Loan Parties’ or any of their Subsidiaries’ assets with a fair market value in excess of the Threshold Amount are attached, seized, levied upon or subjected to a writ or distress warrant; or such come within the possession of any receiver, trustee, custodian or assignee for the benefit of creditors and the same is not cured within thirty (30) days thereafter;
(l) Events Relating to Employee Benefit Plans. (i) An ERISA Event occurs that has resulted or could reasonably be expected to result in liability of any Loan Party or any ERISA Affiliate in an aggregate amount in excess of $25,000,000 or (ii) any Loan Party or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any contribution required to be made with respect to any Pension Plan or Multiemployer Plan in an aggregate amount in excess of $25,000,000, including any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan;
(m) Change of Control. A Change of Control shall have occurred;
(n) Insolvency Proceedings. (i) An Insolvency Proceeding shall have been instituted against the Parent, any Loan Party or any Subsidiary of a Loan Party and such Insolvency Proceeding shall remain undismissed or unstayed and in effect for a period of forty-five (45) consecutive days or such court shall enter a decree or order granting any of the relief sought in such Insolvency Proceeding, (ii) the Parent, any Loan Party or any Subsidiary of a Loan Party institutes, or takes any action in furtherance of, an Insolvency Proceeding, (iii) an order granting the relief requested in any Insolvency Proceeding (including, but not limited to, an order for relief under federal bankruptcy Laws) instituted against the Parent, any Loan Party or any Subsidiary of a Loan Party shall be entered, (iv) the Parent, any Loan Party or any Subsidiary of a Loan Party shall commence a voluntary case under, file a petition seeking to take advantage of, any bankruptcy, insolvency, reorganization or other similar Law, domestic or foreign, (v) the Parent, any Loan Party or any Subsidiary of a Loan Party shall consent to or fail to contest in a timely and appropriate manner any petition filed against it in any Insolvency Proceeding, (vi) the Parent, any Loan Party or any Subsidiary of a Loan Party shall apply for or consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the taking of possession by, a receiver, custodian, trustee, or liquidator of itself or of a substantial part of its property, domestic or foreign, (vii) the Parent, any Loan Party or any Subsidiary of a Loan Party shall take any action to approve or authorize any of the foregoing, or (viii) the Parent, any Loan Party or any Subsidiary of a Loan Party ceases to be Solvent or admits in writing its inability to pay its debts as they mature;
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(o) FCC and PUC Matters. Any Material License shall be cancelled, expired, revoked, terminated, rescinded, annulled, suspended or modified or shall no longer be in full force and effect; or
(p) Material Contracts; ABS Entity Agreements. Any Loan Party shall default, past any applicable grace and cure period, under any Material Contract or any ABS Entity Agreement not otherwise described in this Section 8.01 and such default results in termination of such Material Contract or such ABS Entity Agreement.
Without limiting the provisions of Article IX, if a Default shall have occurred under the Loan Documents, then such Default will continue to exist until it either is cured (to the extent specifically permitted) in accordance with the Loan Documents or is otherwise expressly waived by Administrative Agent (with the approval of requisite Appropriate Lenders (in their sole discretion)) as determined in accordance with Section 11.01; and once an Event of Default occurs under the Loan Documents, then such Event of Default will continue to exist until it is expressly waived by the requisite Appropriate Lenders or by the Administrative Agent with the approval of the requisite Appropriate Lenders, as required hereunder in Section 11.01.
8.02 Remedies upon Event of Default.
If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:
(a) declare the Commitments of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the Minimum Collateral Amount with respect thereto); and
(d) exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies available to it, the Lenders and the L/C Issuer under the Loan Documents or Applicable Law or equity;
provided, however, that, upon the occurrence of an event described in Section 8.01(n) with respect to the Borrower, the Commitments of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
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8.03 Application of Funds.
(a) After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02) or if at any time insufficient funds are received by and available to the Administrative Agent to pay fully all Secured Obligations then due hereunder, any amounts received on account of the Secured Obligations shall, subject to the provisions of Sections 2.14 and 2.15, be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Secured Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Secured Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer) arising under the Loan Documents and amounts payable under Article III, ratably among them in proportion to the respective amounts described in this Second clause payable to them;
Third, to payment of that portion of the Secured Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Secured Obligations arising under the Loan Documents, ratably among the Lenders and the L/C Issuer in proportion to the respective amounts described in this Third clause payable to them;
Fourth, to payment of that portion of the Secured Obligations constituting unpaid principal of the Loans, L/C Borrowings and Secured Obligations then owing under Secured Hedge Agreements and Secured Cash Management Agreements and to the to the Administrative Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections 2.03 and 2.14, in each case ratably among the Administrative Agent, the Lenders, the L/C Issuer, the Hedge Banks and the Cash Management Banks in proportion to the respective amounts described in this Fourth clause held by them; and
Last, the balance, if any, after all of the Secured Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.
(b) Subject to Sections 2.03(c) and 2.14, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to the Fourth clause above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Secured Obligations, if any, in the order set forth above. 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 above in this Section 8.03.
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(c) Notwithstanding the foregoing, Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements shall be excluded from the application described above if the Administrative Agent has not received a Secured Party Designation Notice, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX for itself and its Affiliates as if a “Lender” party hereto.
Article IX
ADMINISTRATIVE AGENT
9.01 Appointment and Authority.
(a) Appointment. Each of the Lenders and the L/C Issuer hereby irrevocably appoints, designates and authorizes Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article IX are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrower nor any other Loan Party shall have rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
(b) Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Hedge Bank, and a potential Cash Management Bank) and the L/C Issuer hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article IX and Article XI (including Section 11.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.
9.02 Rights as a Lender.
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The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of banking, trust, financial, advisory, underwriting or other business with any Loan Party or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or to provide notice to or consent of the Lenders with respect thereto.
9.03 Exculpatory Provisions.
(a) None of the Administrative Agent or any Arranger, as applicable, shall have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, none of the Administrative Agent or any Arranger, as applicable, and its Related Parties:
(i) shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(ii) shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided, that, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or Applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and
(iii) shall have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, to any Lender or the L/C Issuer any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of their Affiliates that is communicated to, or in the possession of, the Administrative Agent, such Arranger or any of their Related Parties in any capacity, except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent herein.
(b) Neither the Administrative Agent nor any of its Related Parties shall be liable for any action taken or not taken by the Administrative Agent under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby or thereby (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary), or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 11.01 and 8.02) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given in writing to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.
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(c) Neither the Administrative Agent nor any of its Related Parties have any duty or obligation to any Lender or participant or any other Person to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
9.04 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall be fully protected in relying and shall not incur any liability for relying upon, any notice, request, certificate, communication, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall be fully protected in relying thereon and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Loan Parties), 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. For purposes of determining compliance with the conditions specified in Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objections.
9.05 Delegation of Duties.
The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article IX shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the Facilities as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
9.06 Resignation of Administrative Agent.
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(a) Notice. The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuer and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above; provided, that, in no event shall any successor Administrative Agent be a Defaulting Lender. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
(b) Effect of Resignation or Removal. With effect from the Resignation Effective Date (i) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and the L/C Issuer directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 3.01(g) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the Resignation Effective Date), and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section 9.06). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article XI and Section 11.04 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 (A) while the retiring Administrative Agent was acting as Administrative Agent and (B) after such resignation or removal for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including, without limitation, (1) acting as collateral agent or otherwise holding any collateral security on behalf of any of the Secured Parties and (2) in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent.
(c) L/C Issuer and Swingline Lender. Any resignation or removal by Bank of America as Administrative Agent pursuant to this Section 9.06 shall also constitute its resignation as L/C Issuer and Swingline Lender. If Bank of America resigns as the L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as the L/C Issuer and all L/C Obligations with respect thereto, including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c). If Bank of America resigns as Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder with respect to Swingline Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swingline Loans pursuant to Section 2.04(c). Upon the appointment by the Borrower of a successor L/C Issuer or Swingline Lender hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swingline Lender, as applicable, (ii) the retiring L/C Issuer and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (iii) the successor L/C Issuer shall issue Letters of Credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.
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9.07 Non-Reliance on Administrative Agent, the Arrangers and the Other Lenders.
Each Lender and the L/C Issuer expressly acknowledges that neither of the Administrative Agent nor any Arranger has made any representation or warranty to it, and that no act by the Administrative Agent or any Arranger hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of any Loan Party or any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative Agent or such Arranger to any Lender or the L/C Issuer as to any matter, including whether the Administrative Agent or such Arranger have disclosed material information in their (or their Related Parties’) possession. Each Lender and the L/C Issuer represents to the Administrative Agent and each Arranger that it has, independently and without reliance upon the Administrative Agent, any Arranger, any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis of, appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower hereunder. Each Lender and the L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent, any Arranger, any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own credit analysis, appraisals and 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, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties. Each Lender and the L/C Issuer represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a Lender or L/C Issuer for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to such Lender or L/C Issuer, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender and the L/C Issuer agrees not to assert a claim in contravention of the foregoing. Each Lender and the L/C Issuer represents and warrants that it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such L/C Issuer, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities.
9.08 No Other Duties, Etc.
Anything herein to the contrary notwithstanding, none of the titles listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, an Arranger, a Lender or the L/C Issuer hereunder.
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9.09 Administrative Agent May File Proofs of Claim; Credit Bidding.
(a) In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C 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, 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, L/C Obligations and all other Secured Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03(h) and (i), 2.09, 2.10(b) and 11.04) 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 judicial proceeding is hereby authorized by each Lender and the L/C Issuer 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 and the L/C Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09, 2.10(b) and 11.04.
(b) 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 the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Secured Obligations or the rights of any Lender or the L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or the L/C Issuer or in any such proceeding.
(c) 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 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 (i) 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, (ii) at any other sale or 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 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 would 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) in the asset or assets so purchased (or in the Equity Interests or debt instruments of the acquisition vehicle or vehicles that are used to consummate such purchase). In connection with any such bid (A) the Administrative Agent shall be authorized to form one or more acquisition vehicles to make a bid, (B) 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 the vote of the Required Lenders, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained Section 11.01(a)(i) through (a)(viii), and (C) 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 debt credit bid by the acquisition vehicle or otherwise), such Secured Obligations shall automatically be reassigned to the Lenders prorata and the Equity Interests and/or debt instruments issued by any acquisition vehicle on account of the Secured Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.
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9.10 Collateral and Guaranty Matters.
(a) Each of the Lenders (including in its capacities as a potential Cash Management Bank and a potential Hedge Bank) and the L/C Issuer irrevocably authorize the Administrative Agent, at its option and in its discretion,
(i) to release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon the Facility Termination Date, (ii) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted hereunder or under any other Loan Document, or (iii) if approved, authorized or ratified in writing by the Required Lenders in accordance with Section 11.01;
(ii) 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 7.01(i) (as in effect on the Closing Date); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents.
(b) Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10. In each case as specified in this Section 9.10, the Administrative Agent will, at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.10.
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(c) The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
9.11 Secured Cash Management Agreements and Secured Hedge Agreements.
Except as otherwise expressly set forth herein or in the Guaranty or any Collateral Document, no Cash Management Bank or Hedge Bank that obtains the benefit of the provisions of Section 8.03, the Guaranty or any Collateral by virtue of the provisions hereof or the Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) (or to notice of or to consent to any amendment, waiver or modification of the provisions hereof or of the Guaranty or any Collateral Document) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article IX to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements except to the extent expressly provided herein and unless the Administrative Agent has received a Secured Party Designation Notice of such Secured Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. The Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements in the case of a Facility Termination Date.
9.12 Certain ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
(i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments, or this Agreement,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84–14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95–60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90–1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91–38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96–23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
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(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 (k) of Part I of PTE 84–14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84–14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(b) In addition, unless either (1) clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with 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).
9.13 Recovery of Erroneous Payments.
Without limitation of any other provision in this Agreement, if at any time the Administrative Agent makes a payment hereunder in error to any Lender Recipient Party, whether or not in respect of an Obligation due and owing by the Borrower at such time, where such payment is a Rescindable Amount, then in any such event, each Lender Recipient Party receiving a Rescindable Amount severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount received by such Lender Recipient Party in immediately available funds in the currency so received, with interest thereon, for each day from and including the date such Rescindable Amount is received by it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. Each Lender Recipient Party irrevocably waives any and all defenses, including any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. The Administrative Agent shall inform each Lender Recipient Party promptly upon determining that any payment made to such Lender Recipient Party comprised, in whole or in part, a Rescindable Amount.
Article X
CONTINUING GUARANTY
10.01 Guaranty.
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Each Guarantor hereby absolutely and unconditionally, jointly and severally guarantees, as primary obligor and as a guaranty of payment and performance and not merely as a guaranty of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of any and all Secured Obligations (for each Guarantor, subject to the proviso in this sentence, its “GuaranteedObligations”); provided, that, (a) the Guaranteed Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor and (b) the liability of each Guarantor individually with respect to this Guaranty shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code or any comparable provisions of any applicable state law. Without limiting the generality of the foregoing, the Guaranteed Obligations shall include any such indebtedness, obligations, and liabilities, or portion thereof, which may be or hereafter become unenforceable or compromised or shall be an allowed or disallowed claim under any proceeding or case commenced by or against any debtor under any Debtor Relief Laws. The Administrative Agent’s books and records showing the amount of the Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon each Guarantor, and conclusive for the purpose of establishing the amount of the Secured Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Secured Obligations or any instrument or agreement evidencing any Secured Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Secured Obligations which might otherwise constitute a defense to the obligations of the Guarantors, or any of them, under this Guaranty, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing.
10.02 Rights of Lenders.
Each Guarantor consents and agrees that the Secured Parties may, at any time and from time to time, without notice or demand, and without affecting the enforceability or continuing effectiveness hereof: (a) amend, extend, renew, compromise, discharge, accelerate or otherwise change the time for payment or the terms of the Secured Obligations or any part thereof; (b) take, hold, exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose of any security for the payment of this Guaranty or any Secured Obligations; (c) apply such security and direct the order or manner of sale thereof as the Administrative Agent, the L/C Issuer and the Lenders in their sole discretion may determine; and (d) release or substitute one or more of any endorsers or other guarantors of any of the Secured Obligations. Without limiting the generality of the foregoing, each Guarantor consents to the taking of, or failure to take, any action which might in any manner or to any extent vary the risks of such Guarantor under this Guaranty or which, but for this provision, might operate as a discharge of such Guarantor.
10.03 Certain Waivers.
Each Guarantor waives (a) any defense arising by reason of any disability or other defense of the Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of any Secured Party) of the liability of the Borrower or any other Loan Party; (b) any defense based on any claim that such Guarantor’s obligations exceed or are more burdensome than those of the Borrower or any other Loan Party; (c) the benefit of any statute of limitations affecting any Guarantor’s liability hereunder; (d) any right to proceed against the Borrower or any other Loan Party, proceed against or exhaust any security for the Secured Obligations, or pursue any other remedy in the power of any Secured Party whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by any Secured Party; and (f) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by Applicable Law limiting the liability of or exonerating guarantors or sureties. Each Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Secured Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Secured Obligations.
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10.04 Obligations Independent.
The obligations of each Guarantor hereunder are those of primary obligor, and not merely as surety, and are independent of the Secured Obligations and the obligations of any other guarantor, and a separate action may be brought against each Guarantor to enforce this Guaranty whether or not the Borrower or any other person or entity is joined as a party.
10.05 Subrogation.
No Guarantor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty until all of the Secured Obligations and any amounts payable under this Guaranty have been indefeasibly paid and performed in full and the Aggregate Commitments and the Facilities are terminated. If any amounts are paid to a Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Secured Parties to reduce the amount of the Secured Obligations, whether matured or unmatured.
10.06 Termination; Reinstatement.
This Guaranty is a continuing and irrevocable guaranty of all Secured Obligations now or hereafter existing and shall remain in full force and effect until the Facility Termination Date. Notwithstanding the foregoing, this Guaranty shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of the Borrower or a Guarantor is made, or any of the Secured Parties exercises its right of setoff, in respect of the Secured Obligations and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by any of the Secured Parties in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Laws or otherwise, all as if such payment had not been made or such setoff had not occurred and whether or not the Secured Parties are in possession of or have released this Guaranty and regardless of any prior revocation, rescission, termination or reduction. The obligations of each Guarantor under this Section 10.06 shall survive termination of this Guaranty.
10.07 Stay of Acceleration.
If acceleration of the time for payment of any of the Secured Obligations is stayed, in connection with any case commenced by or against a Guarantor or the Borrower under any Debtor Relief Laws, or otherwise, all such amounts shall nonetheless be payable by each Guarantor, jointly and severally, immediately upon demand by the Secured Parties.
10.08 Condition of Borrower.
Each Guarantor acknowledges and agrees that it has the sole responsibility for, and has adequate means of, obtaining from the Borrower and any other guarantor such information concerning the financial condition, business and operations of the Borrower and any such other guarantor as such Guarantor requires, and that none of the Secured Parties has any duty, and such Guarantor is not relying on the Secured Parties at any time, to disclose to it any information relating to the business, operations or financial condition of the Borrower or any other guarantor (each Guarantor waiving any duty on the part of the Secured Parties to disclose such information and any defense relating to the failure to provide the same).
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10.09 Appointment of Borrower.
Each of the Loan Parties hereby appoints the Borrower to act as its agent for all purposes of this Agreement, the other Loan Documents and all other documents and electronic platforms entered into in connection herewith and agrees that (a) the Borrower may execute such documents and provide such authorizations on behalf of such Loan Parties as the Borrower deems appropriate in its sole discretion and each Loan Party shall be obligated by all of the terms of any such document and/or authorization executed on its behalf, (b) any notice or communication delivered by the Administrative Agent, L/C Issuer or a Lender to the Borrower shall be deemed delivered to each Loan Party and (c) the Administrative Agent, L/C Issuer or the Lenders may accept, and be permitted to rely on, any document, authorization, instrument or agreement executed by the Borrower on behalf of each of the Loan Parties.
10.10 Right of Contribution.
The Guarantors agree among themselves that, in connection with payments made hereunder, each Guarantor shall have contribution rights against the other Guarantors as permitted under Applicable Law.
10.11 Keepwell.
Each Loan Party that is a Qualified ECP Guarantor at the time the Guaranty or the grant of a Lien under the Loan Documents, in each case, by any Specified Loan Party becomes effective with respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of its obligations under the Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Article X voidable under Applicable Law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section 10.11 shall remain in full force and effect until the Secured Obligations have been indefeasibly paid and performed in full. Each Loan Party intends this Section 10.11 to constitute, and this Section 10.11 shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit of, each Specified Loan Party for all purposes of the Commodity Exchange Act.
Article XI
MISCELLANEOUS
11.01 Amendments, Etc.
(a) Subject to Section 2.02(g), Section 3.03, the last proviso to this Section 11.01(a), Section 11.01(b), Section 11.01(c), Section 11.01(d), and Section 11.01(e), no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and the Borrower or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that, no such amendment, waiver or consent shall:
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(i) extend or increase any Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written consent of such Lender (it being understood and agreed that a waiver of any condition precedent in Section 4.02 or of any Default is not considered an extension or increase in Commitments of any Lender);
(ii) postpone any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due to the Lenders (or any of them) or reduce the amount of, waive or excuse any such payment hereunder or under such other Loan Document without the written consent of each Lender entitled to such payment;
(iii) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (D) of the second proviso to this Section 11.01(a)) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender entitled to such amount; provided, however, that, only the consent of the Required Lenders shall be necessary (i) to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;
(iv) change (i) Section 8.03 or Section 2.13 in a manner that would have the effect of altering the ratable reduction of Commitments, pro rata payments or pro rata sharing of payments required hereunder without the written consent of each Lender, (ii) Section 2.12(f) in a manner that would alter the pro rata application required thereby without the written consent of each Lender directly affected thereby or (iii) subordinate, or have the effect of subordinating, the Obligations hereunder to any other Indebtedness or other obligation or the Liens in the Collateral securing the Secured Obligations to any Liens securing any other Indebtedness or other obligations, except as permitted under the Loan Documents (as in effect on the Closing Date), in each case, without the written consent of each Lender;
(v) change (i) any provision of this Section 11.01(a) or the definition of “Required Lenders” or “Required Class Lenders” or any other provision of any Loan Document specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or thereunder or make any determination or grant any consent hereunder, without the written consent of each Lender or (ii) the definition of “Required Revolving Lenders” as it relates to the Revolving Facility (or the constituent definition therein relating to the Revolving Facility) without the written consent of each Revolving Lender;
(vi) release all or substantially all of the Collateral in any transaction or series of related transactions, without the written consent of each Lender;
(vii) release all or substantially all of the value of the Guaranty, without the written consent of each Lender, except to the extent the release of any Subsidiary from the Guaranty is permitted pursuant to Section 9.10 as in effect on the Closing Date (in which case such release may be made by the Administrative Agent acting alone); or
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(viii) directly and materially adversely affect the rights of Lenders holding Commitments or Loans of one Class differently from the rights of Lenders holding Commitments or Loans of any other Class without the written consent of the applicable Required Class Lenders;
and provided, further, that, (A) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (B) no amendment, waiver or consent shall, unless in writing and signed by the Swingline Lender in addition to the Lenders required above, affect the rights or duties of the Swingline Lender under this Agreement; (C) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and (D) any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto.
(b) Notwithstanding anything to the contrary herein, (i) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender, or all Lenders or each affected Lender under a Facility, may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (A) the Commitments of any Defaulting Lender may not be increased or extended without the consent of such Lender and (B) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender, or all Lenders or each affected Lender under a Facility, that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender; (ii) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set forth herein and (iii) the Required Lenders shall determine whether or not to allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Lenders.
(c) Notwithstanding anything to the contrary herein, this Agreement may be amended or amended and restated without the consent of any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment or amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended or amended and restated), such Lender shall have no other commitment or other obligation hereunder, and such Lender shall have been (or substantially concurrently with the effectiveness of such amendment or amendment and restatement, will be) paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement and the other Loan Documents.
(d) Notwithstanding any provision herein to the contrary, if the Administrative Agent and the Borrower acting together identify any ambiguity, omission, mistake, typographical error or other defect in any provision of this Agreement or any other Loan Document (including the schedules and exhibits thereto), then the Administrative Agent and the Borrower shall be permitted to amend, modify or supplement such provision to cure such ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any further action or consent of any other party to this Agreement.
(e) Notwithstanding any provision herein to the contrary, in order to implement any additional Commitments and/or any Incremental Term Facility in accordance with Section 2.16, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments and/or such Incremental Term Facility in accordance with Section 2.16, including amendments to this Section 11.01 as may be necessary to include the Lenders providing such additional Commitments and/or such Incremental Term Facility or implement such additional Commitments and/or such Incremental Term Facility) by the Borrower, the other Loan Parties, the Administrative Agent and the relevant Lenders providing such additional Commitments and/or providing a portion of such Incremental Term Facility.
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11.02 Notices; Effectiveness; Electronic Communications.
(a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in clause (b) below), 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 e-mail transmission as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i) if to Holdco, the Borrower or any other Loan Party, the Administrative Agent, the L/C Issuer or the Swingline Lender, to the address, e-mail address or telephone number specified for such Person on Schedule 1.01(a); and
(ii) if to any other Lender, to the address, e-mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Borrower).
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 delivered through electronic communications to the extent provided in clause (b) below shall be effective as provided in such clause (b).
(b) Electronic Communications.
(i) Notices and other communications to the Administrative Agent, the Lenders, the Swingline Lender and the L/C Issuer hereunder may be delivered or furnished by electronic communication (including e-mail, FPML messaging, and Internet or intranet websites) pursuant to an electronic communications agreement (or such other procedures approved by the Administrative Agent in its sole discretion); provided, that, the foregoing shall not apply to notices to any Lender, the Swingline Lender or the L/C Issuer pursuant to Article II if such Lender, the Swingline Lender or the L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article II by electronic communication. The Administrative Agent, the Swingline Lender, the L/C Issuer or the Borrower may each, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided, that, approval of such procedures may be limited to particular notices or communications.
(ii) Unless the Administrative Agent otherwise prescribes, (A) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement) and (B) notices and other communications posted to an Internet or intranet website shall be deemed received by the intended recipient upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail address or other written acknowledgement) indicating that such notice or communication is available and identifying the website address therefor; provided, that, for both clauses (A) and (B), if such notice or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.
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(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. 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 ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to Holdco, the Borrower, any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s, any Loan Party’s or the Administrative Agent’s transmission of Borrower Materials or notices through the Platform, any other electronic platform or electronic messaging service, or through the Internet.
(d) Change of Address, Etc. Each of Holdco, the Borrower, the Administrative Agent, the L/C Issuer and the Swingline Lender may change its address, telephone number or e-mail address for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telephone number or e-mail address for notices and other communications hereunder by notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swingline Lender. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, and e-mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one (1) individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and Applicable Law, including United States federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States federal or state securities laws.
(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including telephonic or electronic notices, Loan Notices, Letter of Credit Applications, Notice of Loan Prepayment and Swingline Loan Notices) purportedly given by or on behalf of any Loan Party even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Loan Parties shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of a Loan Party. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
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11.03 No Waiver; Cumulative Remedies; Enforcement.
(a) No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or under any other Loan Document preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
(b) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and the L/C Issuer; provided, however, that, the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) the L/C Issuer or the Swingline Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swingline Lender, as the case may be) hereunder and under the other Loan Documents, or (c) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that, if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b) and (c) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
11.04 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Loan Parties shall pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable and documented fees, charges and disbursements of counsel for the Administrative Agent and its Affiliates) in connection with the syndication of the credit facilities provided for herein, due diligence investigation, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and documented out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment, extension, reinstatement or renewal of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer (including the fees, charges and disbursements of any counsel for the Administrative Agent, any Lender or the L/C Issuer), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section 11.04, or (B) in connection with 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.
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(b) Indemnification by the Loan Parties. The Loan Parties shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, 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 related expenses (including the reasonable and documented fees, charges and disbursements of any counsel for any Indemnitee) incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Borrower or any other Loan Party) arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby (including the Indemnitee’s reliance on any Communication executed using an Electronic Signature, or in the form of an Electronic Record), the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer 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) any actual or alleged presence or Release of Hazardous Materials on or from any property owned, leased or operated by a Loan Party or any of its Subsidiaries, or any Environmental Liability related in any way to a Loan Party or any of its Subsidiaries, 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 the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, INWHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided, that, such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for a material breach of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower or such Loan Party has obtained a final and non-appealable judgment in its favor on such claim as determined by a court of competent jurisdiction. Without limiting the provisions of Section 3.01(c), this Section 11.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
(c) Reimbursement by Lenders. To the extent that the Loan Parties for any reason fail to indefeasibly pay any amount required under clauses (a) or (b) of this Section 11.04 to be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer, the Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the L/C Issuer, the Swingline Lender or such Related Party, 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 based on each Lender’s share of the Total Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), such payment to be made severally among them based on such Lender’s Applicable Percentages (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought); 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 (or any such sub-agent), the L/C Issuer or the Swingline Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), the L/C Issuer or the Swingline Lender in connection with such capacity. The obligations of the Lenders under this clause (c) are subject to the provisions of Section 2.12(d).
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(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by Applicable Law, no Loan Party shall assert, and each Loan Party hereby waives, and acknowledges that no other Person shall have, any claim against any Indemnitee, 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, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in clause (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(e) Payments. All amounts due under this Section 11.04 shall be payable not later than ten (10) Business Days after demand therefor.
(f) Survival. The agreements in this Section 11.04 and the indemnity provisions of Section 11.02(e) shall survive the resignation of the Administrative Agent, the L/C Issuer and the Swingline Lender, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.
11.05 Payments Set Aside.
To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
11.06 Successors and Assigns.
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(a) Successors and Assigns Generally. The provisions of this Agreement and the other Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto and their respective successors and assigns permitted hereby, except neither the Borrower nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 11.06(b), (ii) by way of participation in accordance with the provisions of Section 11.06(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 11.06(e) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 11.06(d) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including all or a portion of its Commitment(s) and the Loans (including for purposes of this clause (b), participations in L/C Obligations and in Swingline Loans) at the time owing to it); provided, that, (in each case with respect to any Facility) any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment under any Facility and/or the Loans at the time owing to it (in each case with respect to any Facility) or contemporaneous assignments to related Approved Funds (determined after giving effect to such assignments) that equal at least the amount specified in clause (b)(i)(B) of this Section 11.06 in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in clause (b)(i)(A) of this Section 11.06, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000, in the case of any assignment in respect of the Revolving Facility, or $1,000,000, in the case of any assignment in respect of any Incremental Term Facility, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed).
(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement and the other Loan Documents with respect to the Loans and/or the Commitment assigned, except that this clause (b)(ii) shall not apply to the Swingline Lender’s rights and obligations in respect of Swingline Loans.
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(iii) Required Consents. No consent shall be required for any assignment except to the extent required by clause (b)(i)(B) of this Section 11.06 and, in addition:
(A) the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided, that, the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof;
(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (1) any unfunded Incremental Term Commitment or any Revolving Commitment if such assignment is to a Person that is not a Lender with a Commitment in respect of the applicable Facility, an Affiliate of such Lender or an Approved Fund with respect to such Lender or (2) any Incremental Term Loan to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund; and
(C) the consent of the L/C Issuer and the Swingline Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment in respect of the Revolving Facility.
(iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that, the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(v) No Assignment to Certain Persons. No such assignment shall be made (A) to the Parent, any Loan Party or any of their respective Affiliates or Subsidiaries, (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural Person (or a holding company, investment vehicle or trust for, or owned and operated by or for the primary benefit of one or more natural Persons).
(vi) Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (A) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, the L/C Issuer or any Lender hereunder (and interest accrued thereon) and (B) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swingline Loans in accordance with its Applicable Percentages. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under Applicable Law without compliance with the provisions of this clause (b)(vi), then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
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(vii) Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 11.06(c), from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement 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 Sections 3.01, 3.04, 3.05 and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment); provided, that, except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this clause (b) 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 Section 11.06(d).
(c) Register. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for Tax purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and interest amounts) of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, absent manifest error, and the Borrower, the Administrative Agent 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. The Register shall be available for inspection by the Borrower and any Lender (with respect to such Lender’s interest only), at any reasonable time and from time to time upon reasonable prior notice.
(d) Participations.
(i) Any Lender may at any time, without the consent of, or notice to, the Borrower, the Administrative Agent, the L/C Issuer or the Swingline Lender, sell participations to any Person (other than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of one or more natural Persons, a Defaulting Lender or the Parent, any Loan Party or any of their respective Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swingline Loans) owing to it); provided, that, (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 11.04(c) without regard to the existence of any participations.
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(ii) Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided, that, such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 11.01 that affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 (subject to the requirements and limitations therein, including the requirements under Section 3.01(e) (it being understood that the documentation required under Section 3.01(e) shall be delivered to the Lender who sells the participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (b) of this Section 11.06; provided, that, such Participant (A) shall be subject to the provisions of Sections 3.06 and 11.13 as if it were an assignee under clause (b) of this Section 11.06 and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.08 as though it were a Lender; provided, that, such Participant agrees to be subject to Section 2.13 as though it were a Lender. 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 interest amounts) 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 (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit 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 such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(iii) Notwithstanding anything to the contrary set forth in this Section 11.06(d), any Participant that is a Farm Credit Lender that (A) has purchased a participation, (B) has been designated as being entitled to be accorded the rights of a voting Participant (a “Voting Participant”) in a written notice (a “Voting Participant Notice”) sent by the relevant Lender (including any existing Voting Participant) to the Borrower and Administrative Agent and (C) receives, prior to becoming a Voting Participant, the written consent of the Borrower (unless a Default or Event of Default shall have occurred and is continuing) and the Administrative Agent (such Borrower and Administrative Agent consent to be required only to the extent and under the circumstances it would be required if such Voting Participant were to become a Lender pursuant to an assignment in accordance with Section 11.06(b) and such consent is not required for an assignment to an existing Voting Participant), or is specified as a Voting Participant as of the Closing Date, shall be entitled to vote as if such Voting Participant were a Lender on all matters subject to a vote by Lenders, and the voting rights of the selling Lender (including any existing Voting Participant) shall be correspondingly reduced, on a dollar-for-dollar basis. Each Voting Participant Notice shall include, with respect to each Voting Participant, the information that would be included by a prospective Lender in an Assignment and Assumption. Notwithstanding the foregoing, each Farm Credit Lender designated as a Voting Participant in Schedule 11.06 shall be a Voting Participant without delivery of a Voting Participant Notice. The selling Lender (including any existing Voting Participant) and the purchasing Voting Participant shall notify the Administrative Agent within three (3) Business Days of any termination, reduction or increase of the amount of such participation. The Administrative Agent shall be entitled to conclusively rely on information contained in Voting Participant Notices and all other notices delivered pursuant hereto. The voting rights of each Voting Participant are solely for the benefit of such Voting Participant and shall not inure to any assignee or participant of such Voting Participant that is not a Farm Credit Lender.
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(e) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note or Notes, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided, that, no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(f) Resignation as L/C Issuer or Swingline Lender after Assignment. Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns all of its Revolving Commitment and Revolving Loans pursuant to clause (b) above, Bank of America may, (i) upon thirty (30) days’ notice to the Administrative Agent, the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon thirty (30) days’ notice to the Borrower, resign as Swingline Lender. In the event of any such resignation as L/C Issuer or Swingline Lender, the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swingline Lender hereunder; provided, however, that, no failure by the Borrower to appoint any such successor shall affect the resignation of Bank of America as L/C Issuer or Swingline Lender, as the case may be. If Bank of America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of America resigns as Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder with respect to Swingline Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swingline Loans pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or Swingline Lender, (A) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swingline Lender, as the case may be, and (B) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.
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11.07 Treatment of Certain Information; Confidentiality.
(a) Treatment of Certain Information. Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (i) to its Affiliates, its auditors and its Related Parties (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), (ii) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (iii) to the extent required by Applicable Laws or regulations or by any subpoena or similar legal process, (iv) to any other party hereto, (v) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (vi) subject to an agreement containing provisions substantially the same as those of this Section 11.07, to (A) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.16 or Section 11.01 or (B) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder, (vii) on a confidential basis to (A) any rating agency in connection with rating any Loan Party, any Subsidiary or the credit facilities provided hereunder or (B) the provider of any Platform or other electronic delivery service used by the Administrative Agent, the L/C Issuer and/or the Swingline Lender to deliver Borrower Materials or notices to the Lenders or (viii) the CUSIP Service Bureau or any similar agency in connection with the application, issuance, publishing and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, or (ix) with the consent of the Borrower or to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section 11.07, (xi) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower or (xii) is independently discovered or developed by a party hereto without utilizing any Information received from the Borrower or violating the terms of this Section 11.07. For purposes of this Section 11.07, “Information” means all information received from any Loan Party or any Subsidiary relating to any Loan Party or any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by any Loan Party or any Subsidiary; provided, that, in the case of information received from any Loan Party or any Subsidiary after the Closing Date, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section 11.07 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. In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Administrative Agent and the Lenders in connection with the administration of this Agreement, the other Loan Documents and the Commitments.
(b) Non-Public Information. Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (i) the Information may include material non-public information concerning a Loan Party or a Subsidiary, as the case may be, (ii) it has developed compliance procedures regarding the use of material non-public information and (iii) it will handle such material non-public information in accordance with Applicable Law, including United States federal and state securities Laws.
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(c) Press Releases. The Loan Parties and their Affiliates agree that they will not in the future issue any press releases or other public disclosure using the name of the Administrative Agent or any Lender or their respective Affiliates or referring to this Agreement or any of the Loan Documents without the prior written consent of the Administrative Agent, unless (and only to the extent that) the Loan Parties or such Affiliate is required to do so under law and then, in any event the Loan Parties or such Affiliate will consult with such Person before issuing such press release or other public disclosure.
(d) Customary Advertising Material. The Loan Parties consent to the publication by the Administrative Agent or any Lender of customary advertising material relating to the transactions contemplated hereby using the name, product photographs, logo or trademark of the Loan Parties.
(e) Whistleblower Protections. For the avoidance of doubt, nothing herein shall prohibit any individual from communicating or disclosing information regarding suspected violations of Laws, rules, or regulations to a governmental, regulatory, or self-regulatory authority without any notification to any Person.
11.08 Right of Setoff.
If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, after obtaining the prior written consent of the Required Lenders, to the fullest extent permitted by Applicable 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, the L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower or Holdco against any and all of the obligations of the Borrower or Holdco now or hereafter existing under this Agreement or any other Loan Document to such Lender, the L/C Issuer or such Affiliates, irrespective of whether or not such Lender, the L/C Issuer or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower or Holdco may be contingent or unmatured, secured or unsecured, or are owed to a branch, office or Affiliate of such Lender or the L/C Issuer different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided, that, in the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.15 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the L/C Issuer and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Secured Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section 11.08 are in addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have under Applicable Law. Each Lender and the L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.
11.09 Interest Rate Limitation.
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Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by Applicable Law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by Applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
11.10 Integration; Effectiveness.
This Agreement, the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent or the L/C Issuer, 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 successor and assigns.
11.11 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
11.12 Severability.
If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 11.12, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, the L/C Issuer or the Swingline Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.
11.13 Replacement of Lenders.
(a) If the Borrower is entitled to replace a Lender pursuant to the provisions of Section 3.06, or if any Lender is a Defaulting Lender or a Non-Consenting Lender or if any other circumstance exists hereunder that gives the Borrower the right to replace a Lender as a party hereto, 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, and consents required by, Section 11.06), all of its interests, rights (other than its existing rights to payments pursuant to Sections 3.01 and 3.04) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided, that:
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(i) the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 11.06(b);
(ii) such Lender shall have received payment of an amount equal to 100% of the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) 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);
(iii) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;
(iv) such assignment does not conflict with Applicable Laws; and
(v) in the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.
(b) A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
(c) Each party hereto agrees that (i) an assignment required pursuant to this Section 11.13 may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee and (ii) the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to an be bound by the terms thereof; provided, that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender; provided, further, that, any such documents shall be without recourse to or warranty by the parties thereto.
(d) Notwithstanding anything in this Section 11.13 to the contrary, (A) the Lender that acts as the L/C Issuer may not be replaced hereunder at any time it has any Letter of Credit outstanding hereunder unless arrangements satisfactory to such Lender (including the furnishing of a backstop standby letter of credit in form and substance, and issued by an issuer, reasonably satisfactory to the L/C Issuer or the depositing of Cash Collateral into a Cash Collateral account in amounts and pursuant to arrangements reasonably satisfactory to the L/C Issuer) have been made with respect to such outstanding Letter of Credit and (B) the Lender that acts as the Administrative Agent may not be replaced hereunder except in accordance with the terms of Section 9.06.
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11.14 Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER, THE L/C ISSUER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK SITTING IN NEW YORK COUNTY, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN CLAUSE (b) OF THIS SECTION 11.14. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
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11.15 Waiver of Jury Trial.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.15.
11.16 Subordination.
Each Loan Party (a “Subordinating LoanParty”) hereby subordinates the payment of all obligations and indebtedness of any other Loan Party owing to it, whether now existing or hereafter arising, including but not limited to any obligation of any such other Loan Party to the Subordinating Loan Party as subrogee of the Secured Parties or resulting from such Subordinating Loan Party’s performance under this Guaranty, to the indefeasible payment in full in cash of all Obligations. If the Secured Parties so request, any such obligation or indebtedness of any such other Loan Party to the Subordinating Loan Party shall be enforced and performance received by the Subordinating Loan Party as trustee for the Secured Parties and the proceeds thereof shall be paid over to the Secured Parties on account of the Secured Obligations, but without reducing or affecting in any manner the liability of the Subordinating Loan Party under this Agreement. Without limitation of the foregoing, so long as no Default has occurred and is continuing, the Loan Parties may make and receive payments with respect to intercompany Indebtedness; provided, that, in the event that any Loan Party receives any payment of any intercompany Indebtedness at a time when such payment is prohibited by this Section 11.16, such payment shall be held by such Loan Party, in trust for the benefit of, and shall be paid forthwith over and delivered, upon written request, to the Administrative Agent.
11.17 No Advisory or Fiduciary Responsibility.
In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower and each other Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (a) (i) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Arrangers and the Lenders and their respective Affiliates are arm’s-length commercial transactions between the Borrower, each other Loan Party and their respective Affiliates, on the one hand, and the Administrative Agent, the Arrangers and the Lenders and their respective Affiliates, on the other hand, (ii) each of the Borrower and the other Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) the Borrower and each other Loan Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (b) (i) the Administrative Agent, each Arranger and each Lender and each of their respective Affiliates each is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary, for the Borrower, any other Loan Party or any of their respective Affiliates, or any other Person and (ii) none of the Administrative Agent, any Arranger, nor any Lender nor any of their respective Affiliates has any obligation to the Borrower, any other Loan Party or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (c) the Administrative Agent, the Arrangers and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower, the other Loan Parties and their respective Affiliates, and none of the Administrative Agent, any Arranger, nor any Lender nor any of their respective Affiliates has any obligation to disclose any of such interests to the Borrower, any other Loan Party or any of their respective Affiliates. To the fullest extent permitted by law, each of the Borrower and each other Loan Party hereby waives and releases any claims that it may have against the Administrative Agent, the Arrangers, the Lenders and their respective Affiliates with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transactions contemplated hereby.
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11.18 Electronic Execution; Electronic Records; Counterparts.
This Agreement, any Loan Document and any other Communication, including Communications required to be in writing, may be in the form of an Electronic Record and may be executed using Electronic Signatures. Each of the Loan Parties and each of the Administrative Agent, the L/C Issuer, the Swingline Lender, and each Lender (collectively, each a “Credit Party”) agrees that any Electronic Signature on or associated with any Communication shall be valid and binding on such Person to the same extent as a manual, original signature, and that any Communication entered into by Electronic Signature, will constitute the legal, valid and binding obligation of such Person enforceable against such Person in accordance with the terms thereof to the same extent as if a manually executed original signature was delivered. Any Communication may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same Communication. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance of a manually signed paper Communication which has been converted into electronic form (such as scanned into PDF format), or an electronically signed Communication converted into another format, for transmission, delivery and/or retention. The Administrative Agent and each of the Credit Parties may, at its option, create one or more copies of any Communication in the form of an imaged Electronic Record (“Electronic Copy”), which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document. All Communications in the form of an Electronic Record, including an Electronic Copy, shall be considered an original for all purposes, and shall have the same legal effect, validity and enforceability as a paper record. Notwithstanding anything contained herein to the contrary, none of the Administrative Agent, the L/C Issuer or the Swingline Lender is under any obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by such Person pursuant to procedures approved by it; provided, further, that, without limiting the foregoing, (a) to the extent the Administrative Agent, the L/C Issuer and/or the Swingline Lender has agreed to accept such Electronic Signature, the Administrative Agent and each of the Credit Parties shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of any Loan Party and/or any Credit Party without further verification and (b) upon the request of the Administrative Agent or any Credit Party, any Electronic Signature shall be promptly followed by such manually executed counterpart.
None of the Administrative Agent, the L/C Issuer or the Swingline Lender shall be responsible for or have any duty to ascertain or inquire into the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document (including, for the avoidance of doubt, in connection with the Administrative Agent’s, the L/C Issuer’s or the Swingline Lender’s reliance on any Electronic Signature transmitted by emailed .pdf or any other electronic means). The Administrative Agent, the L/C Issuer and the Swingline Lender 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 Communication (which writing may be any electronic message, Internet or intranet website posting or other distribution or signed using an Electronic Signature) or any statement made to it orally or by telephone and believed by it to be genuine and signed or sent or otherwise authenticated (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the maker thereof).
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Each Loan Party and each Credit Party hereby waives (i) any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any other Loan Document based solely on the lack of paper original copies of this Agreement, such other Loan Document, and (ii) waives any claim against the Administrative Agent, each Credit Party and each Related Party for any liabilities arising solely from the Administrative Agent’s and/or any Credit Party’s reliance on or use of Electronic Signatures, including any liabilities arising as a result of the failure of the Loan Parties to use any available security measures in connection with the execution, delivery or transmission of any Electronic Signature.
11.19 USA Patriot Act Notice.
Each Lender that is subject to the Patriot Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower and the other Loan Parties that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107–56 (signed into law October 26, 2001)) (the “PatriotAct”), it is required to obtain, verify and record information that identifies the Borrower and each other Loan Party, which information includes the name and address of the Borrower and each other Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower and each other Loan Party in accordance with the Patriot Act. The Borrower and each other Loan Party shall, promptly following a request by the Administrative Agent or any Lender, provide all such other documentation and information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation.
| 11.20 | Acknowledgement and Consent to Bail-In of Affected Financial Institutions. |
|---|
Solely to the extent any Lender or the L/C Issuer that is an Affected Financial Institution is a party to this Agreement and 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 Lender or the L/C Issuer that is an 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 a 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 Lender or the L/C Issuer that is an Affected Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
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(iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.
11.21 Acknowledgement Regarding Any Supported QFCs.
To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC (such support, “QFCCredit 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.
11.22 ENTIRE AGREEMENT.
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENTTHE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORALAGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
| BORROWER: | SHENTEL BROADBAND OPERATIONS LLC, |
|---|---|
| a Delaware limited liability company | |
| By: | |
| Name: | |
| Title: | |
| GUARANTORS | SHENTEL BROADBAND HOLDING INC., |
| a Delaware corporation | |
| By: | |
| Name: | |
| Title: | |
| SHENANDOAH PERSONAL COMMUNICATIONS, LLC, | |
| a Virginia limited liability company | |
| By: | |
| Name: | |
| Title: | |
| SHENANDOAH MOBILE, LLC, | |
| a Virginia limited liability company | |
| By: | |
| Name: | |
| Title: | |
| SHENTEL MANAGEMENT COMPANY, | |
| a Virginia corporation | |
| By: | |
| Name: | |
| Title: | |
| SHENANDOAH CABLE TELEVISION, LLC, | |
| a Virginia limited liability company | |
| By: | |
| Name: | |
| Title: |
Credit Agreement
SHENTEL BROADBAND OPERATIONS LLC
| HORIZON ACQUISITION PARENT LLC, |
|---|
| a Delaware limited liability company |
| By: |
| Name: |
| Title: |
| HORIZON TELCOM, INC., |
| an Ohio corporation |
| By: |
| Name: |
| Title: |
| THE CHILLICOTHE TELEPHONE COMPANY, |
| an Ohio corporation |
| By: |
| Name: |
| Title: |
| HORIZON SERVICES, INC., |
| an Ohio corporation |
| By: |
| Name: |
| Title: |
| HORIZON TECHNOLOGY, INC., |
| an Ohio corporation |
| By: |
| Name: |
| Title: |
| URBANSYSTEMS, LLC, |
| an Indiana limited liability company |
| By: |
| Name: |
| Title: |
| INFINITY FIBER, LLC, |
| an Indiana limited liability company |
| By: |
| Name: |
| Title: |
Credit Agreement
SHENTEL BROADBAND OPERATIONS LLC
| ADMINISTRATIVE AGENT: | BANK OF AMERICA, N.A., |
|---|---|
| as Administrative Agent | |
| By: | |
| Name: | |
| Title: |
Credit Agreement
SHENTEL BROADBAND OPERATIONS LLC
| LENDERS: | BANK OF AMERICA, N.A., |
|---|---|
| as a Lender, L/C Issuer and Swingline Lender | |
| By: | |
| Name: | |
| Title: |
Credit Agreement
SHENTEL BROADBAND OPERATIONS LLC
| CITIZENS BANK, N.A., |
|---|
| as a Lender |
| By: |
| Name: |
| Title: |
Credit Agreement
SHENTEL BROADBAND OPERATIONS LLC
| FIFTH THIRD BANK, NATIONAL ASSOCIATION, |
|---|
| as a Lender |
| By: |
| Name: |
| Title: |
Credit Agreement
SHENTEL BROADBAND OPERATIONS LLC
| TRUIST BANK, |
|---|
| as a Lender |
| By: |
| Name: |
| Title: |
Credit Agreement
SHENTEL BROADBAND OPERATIONS LLC
| MORGAN STANLEY SENIOR FUNDING, INC., |
|---|
| as a Lender |
| By: |
| Name: |
| Title: |
Credit Agreement
SHENTEL BROADBAND OPERATIONS LLC
| COBANK, ACB, |
|---|
| as a Lender and, solely with respect to the Existing Letters of<br>Credit, as L/C Issuer |
| By: |
| Name: |
| Title: |
Credit Agreement
SHENTEL BROADBAND OPERATIONS LLC
Exhibit 99.1
Shenandoah Telecommunications Completes Refinancing of Credit Facilities
December 8, 2025 at 8:30 AM EST
Expects to lower cost of debt by approximately 170 basis points^1^,or $10.0 million annually^2^
Extends maturities to 2030
EDINBURG, Va., Dec. 08, 2025 (GLOBE NEWSWIRE) -- Shenandoah Telecommunications Company (“Shentel” or “Company”) (NASDAQ:SHEN) announced the refinancing of its existing credit facilities effective December 5, 2025 (“Closing”).
Refinancing Highlights
| • | Closed Inaugural $567.4 million Secured Fiber Network Asset Revenue Term Notes due December 2030 |
|---|---|
| • | Raised $175.0 million Variable Funding Note Facility due December 2029 |
| --- | --- |
| • | Raised $175.0 million new Revolving Credit Facility due December 2030 |
| --- | --- |
| • | Repaid $585.4 million Term and Revolving Credit Loans and Terminated Credit Facility due July 2028 |
| --- | --- |
Shentel Issuer LLC (“Shentel Issuer”), a limited-purpose, bankruptcy remote wholly-owned subsidiary of Shentel, closed its inaugural offering of $567,405,000 aggregate principal amount of secured fiber network revenue term notes, consisting of $489,142,000 5.64% Series 2025-1, Class A-2 term notes and $78,263,000 6.03% Series 2025-1, Class B term notes, each with an anticipated repayment date in December 2030 (collectively, the “Notes”). The Notes are secured by certain fiber network assets and related customer contracts primarily in the states of Virginia, Ohio, Pennsylvania, Indiana, and Maryland.
As part of the same Indenture and fiber network assets and related customer contracts that govern and secure the Notes, Shentel Issuer entered into a revolving $175.0 million variable funding note facility (the “VFN”) due December 2029 with a group of financial institutions. VFN advances will be subject to certain pro-forma leverage and debt service coverage ratios as defined in the Indenture. The VFN will bear interest at term Secured Overnight Financing Rate (“SOFR”) plus a margin of 1.75%. The Company had no borrowings under the VFN at Closing. The Company incurred approximately $15.0 million in upfront transaction fees to complete the Notes and VFN financings.
Concurrently, Shentel Broadband Operations LLC (“Shentel Broadband”), a wholly-owned indirect subsidiary of the Company, entered into a new $175.0 million Revolving Credit Facility (the “RCF”) due December 2030 with a group of financial institutions. The RCF is secured by substantially all of the assets and equity interests of its subsidiaries excluding Shentel Issuer; Shentel Guarantor LLC, a wholly-owned subsidiary of Shentel Broadband and parent of Shentel Issuer; Shentel Asset Entity I LLC, a wholly-owned subsidiary of Shentel Issuer; and Shentel Asset Entity II LLC, a wholly-owned subsidiary of Shentel Issuer. Borrowings under the RCF will bear interest at term SOFR plus a margin ranging from 2.50% to 3.00%. Shentel Broadband borrowed $75.0 million from the RCF at Closing.
"With the refinancing of our credit facilities, we have strengthened our balance sheet by extending maturities, reduced our cost of capital, and created financial flexibility as we complete our Glo Fiber expansion in 2026 and to use for general corporate purposes,” said Ed McKay, Shentel’s President and Chief Executive Officer. “We expect the refinancing will reduce our cost of debt by approximately 170 basis points and interest expense by approximately $10.0 million annually."
This press release does not constitute an offer to sell, or a solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
About Shenandoah Telecommunications Company
Shenandoah Telecommunications Company (Shentel) provides broadband services through its high speed, state-of-the-art fiber optic and cable networks to residential and commercial customers in eight contiguous states in the eastern United States. The Company’s services include: broadband internet, video, voice, high-speed Ethernet, dedicated internet access, dark fiber leasing, and managed network services. Shentel owns an extensive regional network with over 18,000 route miles of fiber. For more information, please visit www.shentel.com.
This release contains forward-looking statements and projections aboutShentel regarding, among other things, its business strategy, its prospects, its financial position, and the cost of debt. These statementscan be identified by the use of forward-looking terminology such as “believes,” “intends,” “may,”“will,” “should,” or “anticipates” or the negative or other variation of these or similar words,or by discussions of strategy or risks and uncertainties. The forward-looking statements are based upon management’s beliefs, assumptionsand current expectations and may include comments as to Shentel’s beliefs and expectations as to future events and trends affectingits business that are necessarily subject to uncertainties, many of which are outside Shentel’s control. Although management believesthat the expectations reflected in the forward-looking statements are reasonable, forward-looking statements are not, and should notbe relied upon as, a guarantee of future performance or results, nor will they necessarily prove to be accurate indications of the timesat which such performance or results will be achieved, and actual results may differ materially from those contained in or implied bythe forward-looking statements. A discussion of factors that may cause actual results to differ from management’s projections,forecasts, estimates and expectations is available in Shentel’s filings with the Securities and Exchange Commission. Those factorsmay include, among others, changes in our ability to generate free cash flow, overall economic conditions including rising inflation,changes in tariffs, new or changing regulatory requirements, changes in technologies, changes in competition, changing demand for ourproducts and services, our ability to execute our business strategies, availability of labor resources and capital, natural disasters,pandemics, and outbreaks of contagious diseases and other adverse public health developments. The forward-looking statements includedare made only as of the date of the statement. Shentel undertakes no obligation to revise or update such statements to reflect currentevents or circumstances after the date hereof, or to reflect the occurrence of unanticipated events, except as required by law.
CONTACT:
Shenandoah Telecommunications Company
Lucas Binder
VP Corporate Finance
540-984-4800
lucas.binder@emp.shentel.com
^1^ Based on weighted-average interest rate of 5.77% of the Notes and new RCF borrowings as compared to the prior term and revolving loans weighted-average interest rate of 7.47% as disclosed in the Company’s most recent 10-Q filing.
^2^ Based on weighted-average interest rate of 5.77% of the Notes and new RCF borrowings multiplied by $585.4 million in existing debt prior to closing of the refinancing.