(b) If the IRS or any other Governmental Authority of the United States or other jurisdiction asserts a claim that Administrative Agent (or, in the case of a Participant, to the Lender granting the participation) did not properly withhold tax from amounts paid to or for the account of any Lender or any Participant due to a failure on the part of the Lender or any Participant (because the appropriate form was not delivered, was not properly executed, or because such Lender failed to notify Administrative Agent (or such Participant failed to notify the Lender granting the participation) of a change in circumstances which rendered the exemption from, or reduction of, withholding tax ineffective, or for any other reason) such Lender shall indemnify and hold Administrative Agent harmless (or, in the case of a Participant, such Participant shall indemnify and hold the Lender granting the participation harmless) for all amounts paid, directly or indirectly, by Administrative Agent (or, in the case of a Participant, to the Lender granting the participation), as tax or otherwise, including penalties and interest, and including any taxes imposed by any jurisdiction on the amounts payable to Administrative Agent (or, in the case of a Participant, to the Lender granting the participation only) under this Section 16, together with all costs and expenses (including attorneys’ fees and expenses). The obligation of the Lenders and the Participants under this subsection shall survive the payment of all Obligations and the resignation or replacement of Administrative Agent.
16.4
Refunds. If Administrative Agent or a Lender determines, in its sole discretion, that it has received a refund of any Indemnified Taxes to which Borrowers have paid additional amounts pursuant to this
Section 16, so long as no Default or Event of Default has occurred and is continuing, it shall pay over such refund to Borrowers (but only to the extent of payments made, or additional amounts paid, by Borrowers under this
Section 16 with respect to Indemnified Taxes giving rise to such a refund), net of all out-of-pocket expenses of Administrative Agent or such Lender and without interest (other than any interest paid by the applicable Governmental Authority with respect to such a refund); provided, that Borrowers, upon the request of Administrative Agent or such Lender, agrees to repay the amount paid over to Borrowers (plus any penalties, interest or other charges, imposed by the applicable Governmental Authority, other than such penalties, interest or other charges imposed as a result of the willful misconduct or gross negligence of Administrative Agent hereunder) to Administrative Agent or such Lender in the event Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything in this Agreement to the contrary, this
Section 16 shall not be construed to require Administrative Agent or any Lender to make available its tax returns (or any other information which it deems confidential) to Borrowers or any other Person.
17.1
Effectiveness. This Agreement shall be binding and deemed effective when executed by Parent, each Borrower, Administrative Agent, and each Lender whose signature is provided for on the signature pages hereof.
17.2
Section Headings. Headings and numbers have been set forth herein for convenience only. Unless the contrary is compelled by the context, everything contained in each Section applies equally to this entire Agreement.
17.3
Interpretation. Neither this Agreement nor any uncertainty or ambiguity herein shall be construed against the Lender Group or any Loan Party, whether under any rule of construction or otherwise. On the contrary, this Agreement has been reviewed by all parties and shall be construed and interpreted according to the ordinary meaning of the words used so as to accomplish fairly the purposes and intentions of all parties hereto.
17.4
Severability of Provisions. Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision.
17.5
Bank Product Providers. Each Bank Product Provider in its capacity as such shall be deemed a third party beneficiary hereof and of the provisions of the other Loan Documents for purposes of any reference in a Loan Document to the parties for whom Administrative Agent is acting. Administrative Agent hereby agrees to act as agent for such Bank Product Providers and, by virtue of entering into a Bank Product Agreement, the applicable Bank Product Provider shall be automatically deemed to have appointed Administrative Agent as its agent and to have accepted the benefits of the Loan Documents. It is understood and agreed that the rights and benefits of each Bank Product Provider under the Loan Documents consist exclusively of such Bank Product Provider’s being a beneficiary of the Liens and security interests (and, if applicable, guarantees) granted to Administrative Agent and the right to share in payments and collections out of the Collateral as more fully set forth herein. In addition, each Bank Product Provider, by virtue of entering into a Bank Product Agreement, shall be automatically deemed to have agreed that Administrative Agent shall have the right, but shall have no obligation, to establish, maintain, relax, or release reserves in respect of the Bank Product Obligations and that if reserves are established there is no obligation on the part of Administrative Agent to determine or insure whether the amount of any such reserve is appropriate or not. In connection with any such distribution of payments or proceeds of Collateral, Administrative Agent shall be entitled to assume no amounts are due or owing to any Bank Product Provider unless such Bank Product Provider has provided a written certification (setting forth a reasonably detailed calculation) to Administrative Agent as to the amounts that are due and owing to it and such written certification is received by Administrative Agent a reasonable period of time prior to the making of such distribution. Administrative Agent shall have no obligation to calculate the amount due and payable with respect to any Bank Products, but may rely upon the written certification of the amount due and payable from the applicable Bank Product Provider. In the absence of an updated certification, Administrative Agent shall be entitled to assume that the amount due and payable to the applicable Bank Product Provider is the amount last certified to Administrative Agent by such Bank Product Provider as being due and payable (less any distributions made to such Bank Product Provider on account thereof). Borrowers may obtain Bank Products from any Bank Product Provider, although Borrowers are not required to do so. Each Borrower acknowledges and agrees that no Bank Product Provider has committed to provide any Bank Products and that the providing of Bank Products by any Bank Product Provider is in the sole and absolute discretion of such Bank Product Provider. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Product shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or Guarantors.
17.6
Debtor-Creditor Relationship. The relationship between the Lenders and Administrative Agent, on the one hand, and the Loan Parties, on the other hand, is solely that of creditor and debtor. No member of the Lender Group has (or shall be deemed to have) any fiduciary relationship or duty to any Loan Party arising out of or in connection with the Loan Documents or the transactions contemplated thereby, and there is no agency or joint venture relationship between the members of the Lender Group, on the one hand, and the Loan Parties, on the other hand, by virtue of any Loan Document or any transaction contemplated therein.
17.7
Counterparts; Electronic Execution. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement. Delivery of an executed counterpart of this Agreement by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Agreement. The foregoing shall apply to each other Loan Document
mutatis mutandis.
17.8
Revival and Reinstatement of Obligations; Certain Waivers. If any member of the Lender Group or any Bank Product Provider repays, refunds, restores, or returns in whole or in part, any payment or property (including any proceeds of Collateral) previously paid or transferred to such member of the Lender Group or such Bank Product Provider in full or partial satisfaction of any Obligation or on account of any other obligation of any Loan Party under any Loan Document or any Bank Product Agreement, because the payment, transfer, or the incurrence of the obligation so satisfied is asserted or declared to be void, voidable, or otherwise recoverable under any law relating to creditors’ rights, including provisions of the Bankruptcy Code relating to fraudulent transfers, preferences, or other voidable or recoverable obligations or transfers (each, a “
Voidable Transfer”), or because such member of the Lender Group or Bank Product Provider elects to do so on the reasonable advice of its counsel in connection with a claim that the payment, transfer, or incurrence is or may be a Voidable Transfer, then, as to any such Voidable Transfer, or the amount thereof that such member of the Lender Group or Bank Product Provider elects to repay, restore, or return (including pursuant to a settlement of any claim in respect thereof), and as to all reasonable costs, expenses, and attorneys’ fees of such member of the Lender Group or Bank Product Provider related thereto, (i) the liability of the Loan Parties with respect to the amount or property paid, refunded, restored, or returned will automatically and immediately be revived, reinstated, and restored and will exist and (ii) Agent’s Liens securing such liability shall be effective, revived, and remain in full force and effect, in each case, as fully as if such Voidable Transfer had never been made. If, prior to any of the foregoing, (A) Agent’s Liens shall have been released or terminated or (B) any provision of this Agreement shall have been terminated or cancelled, Agent’s Liens, or such provision of this Agreement, shall be reinstated in full force and effect and such prior release, termination, cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligation of any Loan Party in respect of such liability or any Collateral securing such liability.
(a) Administrative Agent, the Co-Collateral Agents, the Australian Security Trustee and Lenders each individually (and not jointly or jointly and severally) agree that material, non-public information regarding Parent, Borrowers and their Subsidiaries, their operations, assets, and existing and contemplated business plans (“Confidential Information”) shall be treated by Administrative Agent, the Co-Collateral Agents, the Australian Security Trustee and the Lenders in a confidential manner, and shall not be disclosed by Administrative Agent, the Co-Collateral Agents, the Australian Security Trustee and the Lenders to Persons who are not parties to this Agreement, except: (i) to attorneys’ for and other advisors, accountants, auditors, and consultants to any member of the Lender Group and to employees, directors and officers of any member of the Lender Group (the Persons in this clause (i), “Lender Group Representatives”) on a “need to know” basis in connection with this Agreement and the transactions contemplated hereby and on a confidential basis, (ii) to Subsidiaries and Affiliates of any member of the Lender Group (including the Bank Product Providers); provided that any such Subsidiary or Affiliate shall have agreed to receive such information hereunder subject to the terms of this Section 17.9, (iii) as may be required by regulatory authorities so long as such authorities are informed of the confidential nature of such information, (iv) as may be required by statute, decision, or judicial or administrative order, rule, or regulation; provided that (x) prior to any disclosure under this clause (iv), the disclosing party agrees to provide Administrative Borrower with prior notice thereof, to the extent that it is practicable to do so and to the extent that the disclosing party is permitted to provide such prior notice to Borrowers pursuant to the terms of the applicable statute, decision, or judicial or administrative order, rule, or regulation and (y) any disclosure under this clause (iv) shall be limited to the portion of the Confidential Information as may be required by such statute, decision, or judicial or administrative order, rule, or regulation, (v) as may be agreed to in advance in writing by Borrowers, (vi) as requested or required by any Governmental Authority pursuant to any subpoena or other legal process; provided, that, (x) prior to any disclosure under this clause (vi) the disclosing party agrees to provide Borrowers with prior written notice thereof, to the extent that it is practicable to do so and to the extent that the disclosing party is permitted to provide such prior written notice to Borrowers pursuant to the terms of the subpoena or other legal process and (y) any disclosure under this clause (vi) shall be limited to the portion of the Confidential Information as may be required by such Governmental Authority pursuant to such subpoena or other legal process, (vii) as to any such information that is or becomes generally available to the public (other than as a result of prohibited disclosure by Administrative Agent the Co-Collateral Agents, the Australian Security Trustee or the Lenders or the Lender Group Representatives), (viii) in connection with any assignment, participation or pledge of any Lender’s interest under this Agreement; provided that prior to receipt of Confidential Information any such assignee, participant, or pledgee shall have agreed in writing to receive such Confidential Information either subject to the terms of this Section 17.9 or pursuant to confidentiality requirements substantially similar to those contained in this Section 17.9 (and such Person may disclose such Confidential Information to Persons employed or engaged by them as described in clause (i) above), (ix) in connection with any litigation or other adversary proceeding involving parties hereto which such litigation or adversary proceeding involves claims related to the rights or duties of such parties under this Agreement or the other Loan Documents; provided, that, prior to any disclosure to any Person (other than any Loan Party, Administrative Agent, the Co-Collateral Agents, the Australian Security Trustee any Lender, any of their respective Affiliates, or their respective counsel) under this clause (ix) with respect to litigation involving any Person (other than any Borrower, Administrative Agent, the Co-Collateral Agents, the Australian Security Trustee any Lender, any of their respective Affiliates, or their respective counsel), the disclosing party agrees to provide Borrowers with prior written notice thereof, and (x) in connection with, and to the extent reasonably necessary for, the exercise of any secured creditor remedy under this Agreement or under any other Loan Document.
(b) Anything in this Agreement to the contrary notwithstanding, Administrative Agent may disclose information concerning the terms and conditions of this Agreement and the other Loan Documents to loan syndication and pricing reporting services or in its marketing or promotional materials, with such information to consist of deal terms and other information customarily found in such publications or marketing or promotional materials and may otherwise use the name, logos, and other insignia of any Borrower or the other Loan Parties and the Commitments provided hereunder in any “tombstone” or other advertisements, on its website or in other marketing materials of Administrative Agent.
(c) Each Loan Party agrees that Administrative Agent may make materials or information provided by or on behalf of Borrowers hereunder (collectively, “Borrower Materials”) available to the Lenders by posting the Borrower Materials on IntraLinks, SyndTrak or a substantially similar secure electronic transmission system (the “Platform”). The Platform is provided “as is” and “as available.” Administrative Agent does not warrant the accuracy or completeness of the Borrower Materials, or the adequacy of the Platform and expressly disclaims liability for errors or omissions in the communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by Administrative Agent in connection with the Borrower Materials or the Platform. In no event shall Administrative Agent or any of the Agent-Related Persons have any liability to the Loan Parties, any Lender or any other person for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or Administrative Agent’s transmission of communications through the Internet, except to the extent the liability of such Person is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from such Person’s gross negligence or willful misconduct. Each Loan Party further agrees that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Loan Parties or their securities) (each, a “Public Lender”). The Loan Parties shall be deemed to have authorized Administrative Agent and its Affiliates and the Lenders to treat Borrower Materials marked “PUBLIC” or otherwise at any time filed with the SEC as not containing any material non-public information with respect to the Loan Parties or their securities for purposes of United States federal and state securities laws. All Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor” (or another similar term). Administrative Agent and its Affiliates and the Lenders shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” or that are not at any time filed with the SEC as being suitable only for posting on a portion of the Platform not marked as “Public Investor” (or such other similar term).
17.10
Survival. All representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other instru-ments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that Administrative Agent, Issuing Bank, or any Lender may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of, or any accrued interest on, any Loan or any fee or any other amount payable under this Agreement is outstand-ing or unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or been terminated.
17.11 Patriot Act; Due Diligence. Each Lender that is subject to the requirements of the Patriot Act hereby notifies the Loan Parties that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow such Lender to identify each Loan Party in accordance with the Patriot Act. In addition, Administrative Agent and each Lender shall have the right to periodically conduct due diligence on all Loan Parties, their senior management and key principals and legal and beneficial owners. Each Loan Party agrees to cooperate in respect of the conduct of such due diligence and further agrees that the reasonable costs and charges for any such due diligence by Administrative Agent shall constitute Lender Group Expenses hereunder and be for the account of Borrowers.
17.12
Integration. This Agreement, together with the other Loan Documents, reflects the entire understanding of the parties with respect to the transactions contemplated hereby and shall not be contradicted or qualified by any other agreement, oral or written, before the date hereof. The foregoing to the contrary notwithstanding, all Bank Product Agreements, if any, are independent agreements governed by the written provisions of such Bank Product Agreements, which will remain in full force and effect, unaffected by any repayment, prepayments, acceleration, reduction, increase, or change in the terms of any credit extended hereunder, except as otherwise expressly provided in such Bank Product Agreement.
17.13
Australian Code of Banking Practice. Each of the parties hereto agrees that the Australian Code of Banking Practice does not apply to this Agreement and the transactions in connection herewith.
17.14
Thryv, Inc. as Agent for Borrowers. Each Borrower hereby irrevocably appoints Thryv, Inc. as the borrowing agent and attorney-in-fact for all Borrowers (the “
Administrative Borrower”) which appointment shall remain in full force and effect unless and until Administrative Agent shall have received prior written notice signed by each Borrower that such appointment has been revoked and that another Borrower has been appointed Administrative Borrower. Each Borrower hereby irrevocably appoints and authorizes Administrative Borrower (a) to provide Administrative Agent with all notices with respect to Revolving Loans and Letters of Credit obtained for the benefit of any Borrower and all other notices and instructions under this Agreement and the other Loan Documents (and any notice or instruction provided by Administrative Borrower shall be deemed to be given by Borrowers hereunder and shall bind each Borrower), (b) to receive notices and instructions from members of the Lender Group (and any notice or instruction provided by any member of the Lender Group to Administrative Borrower in accordance with the terms hereof shall be deemed to have been given to each Borrower), and (c) to take such action as Administrative Borrower deems appropriate on its behalf to obtain Revolving Loans and Letters of Credit and to exercise such other powers as are reasonably incidental thereto to carry out the purposes of this Agreement. It is understood that the handling of the Loan Accounts and Collateral in a combined fashion, as more fully set forth herein, is done solely as an accommodation to Borrowers in order to utilize the collective borrowing powers of Borrowers in the most efficient and economical manner and at their request, and that Lender Group shall not incur liability to any Borrower as a result hereof. Each Borrower expects to derive benefit, directly or indirectly, from the handling of the Loan Accounts and the Collateral in a combined fashion since the successful operation of each Borrower is dependent on the continued successful performance of the integrated group. To induce the Lender Group to do so, and in consideration thereof, each Borrower hereby jointly and severally agrees to indemnify each member of the Lender Group and hold each member of the Lender Group harmless against any and all liability, expense, loss or claim of damage or injury, made against the Lender Group by any Borrower or by any third party whosoever, arising from or incurred by reason of (i) the handling of the Loan Accounts and Collateral of Borrowers as herein provided or (ii) the Lender Group’s relying on any instructions of Administrative Borrower
, except that Borrowers will have no liability to the relevant Agent-Related Person or Lender-Related Person under this
Section 17.14 with respect to any liability that has been finally determined by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Agent-Related Person or Lender-Related Person, as the case may be.
17.15
Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any parties hereto, each of the parties hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the effects of any Bail-in Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.
17.16
Amendment and Restatement; No Novation. This Agreement constitutes an amendment and restatement of the 2016 Credit Agreement effective from and after the Closing Date. The execution and delivery of this Agreement shall not constitute a novation of any indebtedness or other obligations owing to any Secured Party under the 2016 Credit Agreement or the other “Loan Documents” (as defined in the 2016 Credit Agreement) or be deemed to be a repayment of all or any portion of such indebtedness or obligations. On the Closing Date, (a) the credit facilities described in the 2016 Credit Agreement shall be amended and supplemented by the credit facilities described herein, (b) all “Loans,” “Letters of Credit,” and other obligations of the “Borrowers” and “Loan Parties” (in each case as defined in the 2016 Credit Agreement) outstanding as of such date under the 2016 Credit Agreement shall be deemed to be Loans, Letters of Credit, and other obligations of the Borrowers and Loan Parties outstanding under the corresponding facilities described herein, and (c) any reference to the 2016 Credit Agreement in any Loan Document shall be a reference to this Agreement. Unless otherwise provided in this Agreement or in any other Loan Document, any fees and interest accrued under the 2016 Credit Agreement shall accrue up to (but not including) the Closing Date at the rates and in the manner provided in the 2016 Credit Agreement but shall be due and payable at the times and in the manner provided under this Agreement. All costs and expenses which were due and owing under the 2016 Credit Agreement and related Loan Documents shall continue to be due and owing under, and shall be due and payable in accordance with, this Agreement.
17.17
Currency Indemnity. If, for the purposes of obtaining judgment in any court in any jurisdiction with respect to this Agreement or any of the other Loan Documents, it becomes necessary to convert into the currency of such jurisdiction (the “Judgment Currency”) any amount due under this Agreement or under any of the other Loan Documents in any currency other than the Judgment Currency (the “Currency Due”), then conversion shall be made at the exchange rate at which Administrative Agent is able, on the relevant date, to purchase the Currency Due with the Judgment Currency at the spot selling rate on the Business Day before the day on which judgment is given. In the event that there is a change in the rate of exchange rate prevailing between the Business Day before the day on which the judgment is given and the date of receipt by Administrative Agent of the amount due, the applicable Borrowers will, on the date of receipt by Administrative Agent, pay such additional amounts, if any, as may be necessary to ensure that the amount received by Administrative Agent on such date is the amount in the Judgment Currency which when converted at the rate of exchange prevailing on the date of receipt by Administrative Agent is the amount then due under this Agreement or such other of the Loan Documents in the Currency Due. If the amount of the Currency Due which Administrative Agent is able to purchase is less than the amount of the Currency Due originally due to it, the applicable Loan Parties shall indemnify and save Administrative Agent harmless from and against loss arising as a result of such deficiency. The indemnity contained herein shall constitute an obligation separate and independent from the other obligations contained in this Agreement and the other Loan Documents, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by Administrative Agent from time to time and shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due under this Agreement or any of the other Loan Documents or under any judgment or order.
17.18
Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Hedge Agreements or any other agreement or instrument that is a QFC (such support, “
QFC Credit Support” and each such QFC a “
Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “
U.S. Special Resolution Regimes”), in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States). In the event a Covered Entity that is party to a Supported QFC (each, a “
Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
[Signature pages to follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the date first above written.
| BORROWERS: | | THRYV, INC., | |
| | | | |
| | | a Delaware corporation | |
| | | | |
| | By: |
|
|
| | | Name: | |
| | | Title: | |
| GUARANTORS: | | THRYV HOLDINGS, INC., | |
| | | | |
| | | a Delaware corporation | |
| | | | |
| | By: |
|
|
| | | Name: | |
| | | Title: | |
| | | THRYV INTERNATIONAL HOLDING, LLC, | |
| | | | |
| | | a Delaware limited liability company | |
| | | | |
| | By: | | |
| | | Name: | |
| | Title: | | |
| | | | |
| | WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as Administrative Agent, as Joint Lead Arranger, as Joint Book Runner, as Co-Collateral Agent, as a Lender and as Australian Security Trustee | |
| | | |
| | By: |
| |
| | | Name: | |
| | | Title: | |
| | PNC BANK, NATIONAL ASSOCIATION, a national banking association, as Joint Lead Arranger, Joint Bookrunner, Syndication Agent, Co-Collateral Agent and as a Lender | |
| | | |
| | | | |
| | By: |
| |
| | | Name: | |
| | | Title: | |
| | | CIT BANK, N.A., a national banking association, as a Lender | |
| | | | |
| | By: | | |
| | | Name: | |
| | | Title: | |
to Credit Agreement
As used in the Agreement, the following terms shall have the following definitions:
“ABL Priority Collateral” has the meaning specified therefor in the Intercreditor Agreement.
“Account” means an account (as that term is defined in the Code) and all Credit Card Accounts and all rights to payment, including those arising in connection with bank and non-bank credit cards.
“Account Debtor” means any Person who is obligated on an Account, chattel paper, or a general intangible, including any Credit Card Issuer or Credit Card Processor.
“Accounting Changes” means changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants (or successor thereto or any agency with similar functions).
“
Acquired EBITDA” means, with respect to any Person or business acquired pursuant to an Acquisition for any period, the amount for such period of Consolidated EBITDA of any such Person or business so acquired (determined using such definitions as if references to Parent and its Subsidiaries therein were to such Person or business), as calculated by the Borrower in good faith and which shall be factually supported by historical financial statements or a quality of earnings report prepared by an independent third party accounting firm that is reasonably acceptable to the Administrative Agent;
provided, that, notwithstanding the foregoing to the contrary, in determining Acquired EBITDA for any Person or business that does not have historical financial accounting periods which coincide with that of the financial accounting periods of Parent and its Subsidiaries (a) references to Reference Period in any applicable definitions shall be deemed to mean the same relevant period as the
applicable period of determination for Parent and its Subsidiaries and (b) to the extent the commencement of any such Reference Period shall occur during a fiscal quarter of such acquired Person or business (such that only a portion of such fiscal quarter shall be included in such Reference Period), Acquired EBITDA for the portion of such fiscal quarter so included in such Reference Period shall be deemed to be an amount equal to (x) Acquired EBITDA otherwise attributable to the entire fiscal quarter (determined in a manner consistent with the terms set forth above) multiplied by (y) a fraction, the numerator of which shall be the number of months of such fiscal quarter included in the relevant Reference Period and the denominator of which shall be actual months in such fiscal quarter.
“Acquisition” means (a) the purchase or other acquisition by a Person or its Subsidiaries of all or substantially all of the assets of (or any division or business line of) any other Person, or (b) the purchase or other acquisition (whether by means of a merger, consolidation, or otherwise) by a Person or its Subsidiaries of all or substantially all of the Equity Interests of any other Person.
“Additional Documents” has the meaning specified therefor in Section 5.12 of the Agreement.
“Administrative Agent” has the meaning specified therefor in the preamble to the Agreement.
“Administrative Agent’s Account” means the Deposit Account of Administrative Agent identified on Schedule A-1 to this Agreement (or such other Deposit Account of Administrative Agent that has been designated as such, in writing, by Administrative Agent to Borrowers and the Lenders).
“Administrative Borrower” has the meaning specified therefor in Section 17.14 of the Agreement.
“Administrative Questionnaire” has the meaning specified therefor in Section 13.1(a) of the Agreement.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affected Lender” has the meaning specified therefor in Section 2.13(b) of the Agreement.
“Affiliate” means, as applied to any Person, any other Person who controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” means the possession, directly or indirectly through one or more intermediaries, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of Equity Interests, by contract, or otherwise; provided, that, for purposes of the definition of Eligible Accounts and Section 6.10 of the Agreement: (a) any Person which owns directly or indirectly 10% or more of the Equity Interests having ordinary voting power for the election of directors or other members of the governing body of a Person or 10% or more of the partnership or other ownership interests of a Person (other than as a limited partner of such Person) shall be deemed an Affiliate of such Person, (b) each director (or comparable manager) of a Person shall be deemed to be an Affiliate of such Person, and (c) each partnership in which a Person is a general partner shall be deemed an Affiliate of such Person.
“Agent’s Liens” means the Liens granted by each Loan Party and their Subsidiaries to Administrative Agent (including Australian Security Trustee) under the Loan Documents and securing the Obligations.
“Agent-Related Persons” means Administrative Agent, either Co-Collateral Agent, and their respective officers, directors, employees, attorneys, and agents.
“Agreed Currencies” means US Dollars and Australian Dollars.
“Agreement” means the Credit Agreement to which this Schedule 1.1 is attached.
“Alpha Accounts” means Accounts due from AT&T or any of its Affiliates (other than any Loan Party or its Subsidiaries) from the sale of Accounts by any Loan Party to AT&T or any of its Affiliates (other than any Loan Party or its Subsidiaries) pursuant to the terms of the Billing and Collection Agreement.
“Anti-Corruption Laws” means the FCPA, the U.K. Bribery Act of 2010, as amended, and all other applicable laws and regulations or ordinances concerning or relating to bribery, money laundering or corruption in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business.
“Anti-Money Laundering Laws” means the applicable laws or regulations in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business that relates to money laundering, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto.
“Applicable Margin” means, as of any date of determination (a) with respect to Base Rate Loans, two percent (2.00%) and (b) with respect to LIBOR Rate Loans and Australian Bill Rate Loans, three percent (3.00%).
“Applicable Unused Line Fee Percentage” means 0.375%.
“Application Event” means the occurrence of (a) a failure by Borrowers to repay all of the Obligations in full on the Maturity Date, or (b) an Event of Default and the election by Administrative Agent or the Required Lenders to require that payments and proceeds of Collateral be applied pursuant to Section 2.4(b)(iii) of the Agreement.
“ASIC” means the Australian Securities and Investments Commission.
“Assignee” has the meaning specified therefor in Section 13.1(a) of the Agreement.
“Assignment and Acceptance” means an Assignment and Acceptance Agreement substantially in the form of Exhibit A to the Agreement.
“AT&T” means AT&T Inc.
“Attributable Debt” means, on any date, in respect of any lease of Parent or any Subsidiary entered into as part of a sale and leaseback transaction subject to Section 6.4(b), (a) if such lease is a Capitalized Lease Obligation, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP and (b) if such lease is not a Capitalized Lease Obligation, the capitalized amount of the remaining lease payments under such lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capitalized Lease Obligation.
“Australia” means the Commonwealth of Australia.
“Australian Availability” means, as of any date of determination, the amount that Australian Borrowers are entitled to borrow as Australian Revolving Loans under Section 2.1 of the Agreement (after giving effect to the then outstanding Australian Revolver Usage).
“Australian Bill Rate” means, for any day, the rate per annum for the Australian Bank Bill Swap Rate as administered by ASX Benchmarks Pty Limited (or any other Person that takes over the administration of such rate) for a tenor equal to three (3) months displayed on page BBSY of the Thomson Reuters screen (the “Australian Bill Rate Screen Rate”) (or, in the event such rate does not appear on a Thomson Reuters page or screen, on any successor or substitute page on such screen or service that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion and applied generally by the Administrative Agent to other credit facilities for which it acts as administrative agent for purposes of determining such rate) at or about 11:00am (Sydney, Australia time) (or such other time at which such rate customarily appears on that page, including if corrected, as recalculated and republished by the relevant administrator) on any relevant day (and, if such rate is below zero, the Australian Bill Rate shall be deemed to be zero). When interest is determined in relation to Australian Bill Rate, each change in the interest rate will become effective each Business Day that Administrative Agent determines that the Australian Bill Rate has changed.
“Australian Bill Rate Loan” means a Revolving Loan denominated in Australian Dollars that bears interest at a rate determined by reference to the Australian Bill Rate.
“Australian Bill Rate Screen Rate” has the meaning specified in the definition of “Australian Bill Rate”.
“Australian Borrower” and “Australian Borrowers” have the respective meanings specified therefor in the preamble to the Agreement.
“Australian Borrowing Base” means, as of any date of determination, as to Australian Borrowers, the result of:
(a) the sum of
(i) 85% of the amount of Eligible Billed Accounts of such Australian Borrowers, plus
(ii) 65% of the amount of Eligible Installment Accounts of such Australian Borrowers, plus
(iii) 85% of the amount of Eligible Credit Card Accounts of such Australian Borrowers, plus
(iv) 85% of the amount of Eligible Telstra Accounts, minus
(b) without duplication of any reserves established under the US Borrowing Base, the aggregate amount of reserves, if any, established by Administrative Agent under Section 2.1(c) of the Agreement.
Notwithstanding anything to the contrary set forth in the Agreement, (A) the amount of the Australian Borrowing Base shall be deemed to be zero dollars ($0) at all times until the occurrence of each of the following: (1) the Australian Joinder Effective Date with respect to Thryv Ausco and each of the Australian Sunshine Entities, (2) the Administrative Agent has received evidence, in form and substance satisfactory to Administrative Agent, that the Australian Security Trustee has a first priority Lien in the Collateral (except to the extent of Permitted Liens which by operation of law or pursuant to the express terms of the Loan Documents would have priority over the Liens securing the Obligations, permitted purchase money Liens, or the interests of lessors under Capital Leases and subject to the Intercreditor Agreement) of Thryv Ausco and each of the Australian Sunshine Entities and (3) Co-Collateral Agents have completed an appraisal and field examination with respect to the Accounts of the Australian Borrowers, in each case, reasonably satisfactory to Co-Collateral Agents and (4) Lenders shall have received all documentation and other information that is requested by and satisfactory to such Lenders in connection with Thryv Ausco and each of the Australian Sunshine Entities for purposes of complying with all necessary “know your customer” and applicable anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, and (B) in no event shall the sum of clause (a)(ii) above plus clause (a)(ii) of the definition of US Borrowing Base exceed seventy-five percent (75%) of the Maximum Revolver Amount.
“Australian Corporations Act” means the Corporations Act 2001 (Cth) of Australia.
“Australian Dollars” or “AUS$” means the lawful currency of Australia.
“Australian Excess Availability” means, as of any date of determination, the amount equal to Australian Availability minus the aggregate amount, if any, of all trade payables of Australian Borrowers and their Subsidiaries aged in excess of 60 days past their due date.
“Australian Featherweight Security Deed” means the featherweight security deed to be entered on or about the Australian Joinder Effective Date between Thryv Ausco, each Australian Sunshine Entity and the Australian Security Trustee, in form and substance reasonably satisfactory to the Administrative Agent.
“Australian General Security Deed” means the general security deed to be entered on or about the Australian Joinder Effective Date between Thryv Ausco, each Australian Sunshine Entity and the Australian Security Trustee, in form and substance reasonably satisfactory to Administrative Agent.
“Australian Guarantors” means collectively (together with their respective successors and assigns), any Person incorporated under the laws of Australia that at any time after the Fifth Amendment Effective Date becomes an Australian Guarantor (including Thryv Ausco and the Australian Sunshine Entities effective as of the Australian Joinder Effective Date), and “Australian Guarantor” means any one of them.
“Australian IWT” means any Taxes required to be withheld or deducted from any interest payment under Division 11A of Part III of the Australian Tax Act or Subdivision 12-F of Schedule 1 to the Taxation Administration Act 1953 (Cth).
“Australian Joinder Effective Date” has the meaning specified therefor in Section 5.16 of the Agreement.
“Australian Loan Account” has the meaning specified therefor in Section 2.9 of the Agreement.
“Australian Loan Party” means any Australian Borrower or Australian Guarantor.
“Australian Obligations” means all Obligations of the Australian Loan Parties.
“Australian Pension Plan” means a superannuation, retirement benefit or pension fund (whether established by deed or under any statute of Australia or any state or territory of Australia) contributed to by, or to which there is or may be an obligation to contribute by, any Loan Party in respect of its Australian employees and officers or former employees and officers.
“Australian PPSA” means the Personal Property Securities Act 2009 (Cth) of Australia.
“Australian Priority Payables Reserves” means, solely with respect to the Australian Borrowing Base, those reserves that Co-Collateral Agents deems necessary or appropriate, in their Permitted Discretion and subject to Section 2.1(c) with respect to amounts secured by any Liens, choate or inchoate, or with respect to any rights, whether imposed by applicable law in Australia or elsewhere (and including rights to the payment or reimbursement of any costs, charges or other amounts in connection with any insolvency proceeding), which rank or are capable of ranking in priority to (or pari passu) the Liens on the Collateral in favor of Administrative Agent or the Australian Security Trustee including, without limitation, to the extent applicable by operation of law, any such amounts due or which may become due and not paid for wages, long service leave, retrenchment, payment in lieu of notice, or vacation pay (including in all respects amounts protected by or payable pursuant to the Fair Work Act 2009 (Cth)) of Australia, any preferential claims as set out in the Australian Corporations Act, amounts due or which may become due and not paid under any legislation relating to workers’ compensation or to employment insurance, all amounts deducted or withheld and not paid and remitted when due under the Taxation Administration Act 1953 (Cth) (but excluding Pay as You Go income withholding tax) and amounts in the future, currently or past due and not contributed, remitted or paid in respect of any Australian Pension Plan, together with any charges which may be levied by a Governmental Authority as a result of any default in payment obligations in respect of any Australian Pension Plan.
“Australian Revolver Usage” means, as of any date of determination, the amount of outstanding Australian Revolving Loans.
“Australian Revolving Loans” has the meaning specified therefor in Section 2.1(a) of the Agreement.
“Australian Security Agreements” means (a) the Australian General Security Deed, (b) the Australian Featherweight Security Deed, (c) the Australian Specific Security Deed and (d) any other security document executed subsequent to the Fifth Amendment Effective Date by any Australian Loan Party to secure the Obligations, in each case, together with all extensions, renewals, amendments, supplements, modifications, substitutions and replacements thereto and thereof.
“Australian Security Documents” means each Australian Security Agreement, together with all agreements, instruments, licenses, registrations, filings, authorizations, title deeds or other incidental, collateral or supplementary documents executed, prepared and/or delivered in connection with the Collateral or an Australian Security Agreement.
“Australian Security Trust Deed” means the security trust deed to be entered into on or about the Australian Joinder Effective Date, executed by, among others, TIH, Thryv Ausco, each Australian Sunshine Entity and the Australian Security Trustee.
“Australian Security Trustee” shall have the meaning set forth in the preamble to this Agreement and shall include its successors and assigns.
“Australian Specific Security Deed” means the specific security deed (marketable securities), to be entered on or about the Australian Joinder Effective Date, executed by TIH in favor of the Australian Security Trustee, in form and substance reasonably satisfactory to the Administrative Agent.
“Australian Subsidiary” means a Subsidiary that is organized or incorporated under the laws of Australia.
“Australian Sunshine Entities” means each of (a) the Sunshine SPV, (b) the Sunshine Target, (c) Project Sunshine II Pty Limited ACN 167 275 890, (d) Project Sunshine III Pty Limited ACN 167 276 066, (e) Project Sunshine IV Pty Limited ACN 167 276 226, (f) Sensis Pty Ltd ACN 007 423 912, (g) Sensis Holdings Pty Ltd ACN 090 894 769, (h) Citysearch Australia Pty. Ltd. ACN 076 673 857, (i) Australian Local Search Pty Limited ACN 109 826 351, and (j) Life Events Media Pty Limited ACN 118 014 298.
“Australian Tax Act” shall mean the Income Tax Assessment Act 1936 (Cth) of Australia.
“Australian Tax Consolidated Group” shall mean a “consolidated group” or an “MEC group” as defined in the Australian Tax Act.
“Australian TFA” means any tax funding agreement for Australian tax consolidation purposes.
“Australian TSA” means an agreement between the members of an Australian Tax Consolidated Group which takes effect as a tax sharing agreement under section 721-25 of the applicable Australian Tax Act and complies with the applicable Australian Tax Act and any applicable law, official directive, request, guideline or policy (whether or not having the force of law) issued in connection with the applicable Australian Tax Act.
“Australian Whitewash Documents” means all documents (including all resolutions, notices of meeting, explanatory statements and forms) that are required to be lodged with ASIC in connection with the Australian Whitewash Transaction.
“Australian Whitewash Transaction” means the transaction by which Thryv Ausco and each Australian Sunshine Entity, among others: (i) passes all resolutions that are required to be passed in accordance with section 260B of the Australian Corporations Act to approve the giving of financial assistance in connection with the entry into and performance of obligations under each Loan Document to which it is proposed to be a party within the required time periods; and (ii) lodges all its relevant Australian Whitewash Documents with ASIC in accordance with section 260B of the Australian Corporations Act.
“Authorized Person” means any one of the individuals identified on Schedule A-2 to the Agreement, as such schedule is updated from time to time by written notice from Borrowers to Administrative Agent.
“Available Currency” means with respect to (a) Revolving Loans to be made to (and Letters of Credit issued for the account of) US Borrower, US Dollars, (b) Revolving Loans to be made to Australian Borrowers, US Dollars and Australian Dollars, and (c) with respect to Eligible Accounts, US Dollars and Australian Dollars, as applicable.
“Available Tenor” means, as of any date of determination and with respect to any then-current Benchmark, as applicable, (a) if such Benchmark is a term rate, any tenor for such Benchmark or (b) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.12(d).
“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).
“Bank Product” means any one or more of the following financial products or accommodations extended to a Loan Party or any of their Subsidiaries by a Bank Product Provider: (a) credit cards (including commercial cards (including so-called “purchase cards”, “procurement cards” or “p-cards”)), (b) credit card processing services, (c) debit cards, (d) stored value cards, (e) Cash Management Services, or (f) transactions under Hedge Agreements.
“Bank Product Agreements” means those agreements entered into from time to time by a Loan Party or any of their Subsidiaries with a Bank Product Provider in connection with the obtaining of any of the Bank Products.
“Bank Product Collateralization” means providing cash collateral (pursuant to documentation reasonably satisfactory to Co-Collateral Agents) to be held by Administrative Agent for the benefit of the Bank Product Providers (other than the Hedge Providers) in an amount determined by Administrative Agent in its reasonable discretion as sufficient to satisfy the reasonably estimated credit exposure with respect to the then existing Bank Product Obligations (other than Hedge Obligations).
“Bank Product Obligations” means (a) all obligations, liabilities, reimbursement obligations, fees, or expenses owing by each Loan Party and its Subsidiaries to any Bank Product Provider pursuant to or evidenced by a Bank Product Agreement and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, (b) all Hedge Obligations, and (c) all amounts that Administrative Agent or any Lender is obligated to pay to a Bank Product Provider as a result of Administrative Agent or such Lender purchasing participations from, or executing guarantees or indemnities or reimbursement obligations to, a Bank Product Provider with respect to the Bank Products provided by such Bank Product Provider to a Loan Party or one of its Subsidiaries.
“Bank Product Provider” means Wells Fargo or any of its Affiliates, including each of the foregoing in its capacity, if applicable, as a Hedge Provider.
“Bank Product Provider Agreement” means an agreement, in form and substance reasonably satisfactory to Administrative Agent, duly executed by the applicable Bank Product Provider, Loan Party, and Administrative Agent.
“Bank Product Reserves” means, as of any date of determination, those reserves that the Co-Collateral Agents deems necessary or appropriate, in the exercise of their Permitted Discretion, to establish based upon the Bank Product Providers’ determination of the liabilities and obligations of each Loan Party and its Subsidiaries in respect of Bank Product Obligations then provided or outstanding.
“Bankruptcy Code” means title 11 of the United States Code, as in effect from time to time.
“Base Rate” means the greatest of (a) the Federal Funds Rate plus ½%, (b) the LIBOR Rate plus one (1) percentage point, and (c) the rate of interest announced, from time to time, within Wells Fargo at its principal office in San Francisco as its “prime rate”, with the understanding that the “prime rate” is one of Wells Fargo’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal publications as Wells Fargo may designate (and, if any such announced rate is below zero, then the rate determined pursuant to this clause (c) shall be deemed to be zero).
“Base Rate Loan” means each portion of the Revolving Loans that bears interest at a rate determined by reference to the Base Rate.
“Benchmark” means, initially, with respect to (i) any Obligations, interest, fees, commissions or other amounts denominated in US Dollars or calculated with respect thereto, USD LIBOR or (ii) any Obligations, interest, fees, commissions or other amounts denominated in Australian Dollars or calculated with respect thereto, Australian Bill Rate Screen Rate; provided that if a Benchmark Transition Event, a Term SOFR Transition Event, or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to any such benchmark rate, then “Benchmark” with respect to Obligations, interest, fees, commissions or other amounts denominated in such currency means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.12(d)(i).
“Benchmark Replacement” means, for any Available Tenor,
(a) with respect to any Benchmark Transition Event or Early Opt-in Election with respect to a then-current Benchmark, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date; provided, that in the case of any LIBOR Rate Loan denominated in an Agreed Currency (other than US Dollars), “Benchmark Replacement” shall mean the alternative set forth in clause (3) below:
(1) the sum of: (A) Term SOFR and (B) the related Benchmark Replacement Adjustment; provided that, if Administrative Borrower has provided a notification to the Administrative Agent in writing on or prior to such Benchmark Replacement Date that Administrative Borrower has a Hedge Agreement in place with respect to any of the Term Loans as of the date of such notice (which such notification the Administrative Agent shall be entitled to rely upon and shall have no duty or obligation to ascertain the correctness or completeness of), then the Administrative Agent, in its sole discretion, may decide not to determine the Benchmark Replacement pursuant to this clause (a)(1) for such Benchmark Transition Event or Early Opt-in Election, as applicable;
(2) the sum of: (A) Daily Simple SOFR and (B) the related Benchmark Replacement Adjustment;
(3) the sum of: (A) the alternate benchmark rate that has been selected by the Administrative Agent and Administrative Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for such Benchmark for syndicated credit facilities denominated in the applicable Agreed Currency at such time and (B) the related Benchmark Replacement Adjustment; or
(b) with respect to any Term SOFR Transition Event and a Benchmark with respect to any Obligations, interests fees, commissions or other amounts denominated in Dollars or calculated with respect thereto, the sum of (i) Term SOFR and (ii) the related Benchmark Replacement Adjustment;
provided that, (i) in the case of clause (a)(1), if the Administrative Agent decides that Term SOFR is not administratively feasible for the Administrative Agent, then Term SOFR will be deemed unable to be determined for purposes of this definition and (ii) in the case of clause (a)(1) or clause (b) of this definition, the applicable Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion. If the Benchmark Replacement as determined pursuant to clause (a)(1), (a)(2) or (a)(3) or clause (b) of 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 Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of any then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:
(1) for purposes of clauses (a)(1) and (a)(2) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Administrative Agent:
(c) the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such interest period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Available Tenor of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor;
(d) the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such interest period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Available Tenor of such Benchmark for the applicable Corresponding Tenor;
(2) for purposes of clause (a)(3) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and Administrative Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Available Tenor of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Available Tenor of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Agreed Currency at such time; and
(3) for purposes of clause (b) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such interest period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Available Tenor of USD LIBOR with a SOFR-based rate;
provided that, (x) in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Administrative Agent in its reasonable discretion and (y) if such then-current Benchmark is a term rate, more than one tenor of such Benchmark is available as of the applicable Benchmark Replacement Date and the applicable Unadjusted Benchmark Replacement that will replace such Benchmark in accordance with Section 2.12(d)(i) will not be a term rate, the Available Tenor of such Benchmark for purposes of this definition of “Benchmark Replacement Adjustment” shall be deemed to be, with respect to each Unadjusted Benchmark Replacement having a payment period for interest calculated with reference thereto, the Available Tenor that has approximately the same length (disregarding business day adjustments) as such payment period.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides (in consultation with Administrative Borrower) may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date” means, with respect to any then-current Benchmark, the earliest to occur of the following events with respect to such Benchmark:
(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof);
(b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein;
(c) in the case of a Term SOFR Transition Event, the date that is thirty (30) days after the Administrative Agent has provided the Term SOFR Notice to the Lenders and the Borrower pursuant to Section 2.12(d)(i)(B); or
(d) in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to any then-current Benchmark, the occurrence of one or more of the following events with respect to such Benchmark:
(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided, that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Board of Governors, 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 all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided, that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, with respect to any then-current Benchmark, the period (if any) (a) beginning at the time that a Benchmark Replacement Date pursuant to clauses (a) or (b) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.12(d) and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.12(d).
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“BHC Act Affiliate” of a Person means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such Person.
“Billing and Collection Agreement” means the Second Amended and Restated Agreement for AT&T Billing Solution Services, dated as of June 20, 2017, among YP LLC and Print Media LLC, individually and collectively as the customer, and AT&T Services, Inc., on behalf of Pacific Bell Telephone Company d/b/a AT&T California, Nevada Bell Telephone Company d/b/a AT&T Nevada, Illinois Bell Telephone Company d/b/a AT&T Illinois, Indiana Bell Telephone Company, Incorporated d/b/a AT&T Indiana, Michigan Bell Telephone Company d/b/a AT&T Michigan, The Ohio Bell Telephone Company d/b/a AT&T Ohio, Wisconsin Bell, Inc. d/b/a AT&T Wisconsin, and/or BellSouth Telecommunications, Inc. d/b/a AT&T Alabama, AT&T Florida, AT&T Georgia, AT&T Kentucky, AT&T Louisiana, AT&T Mississippi, AT&T North Carolina, AT&T South Carolina and AT&T Tennessee.
“Board of Directors” means, as to any Person, the board of directors (or comparable managers) of such Person, or any committee thereof duly authorized to act on behalf of the board of directors (or comparable managers).
“Board of Governors” means the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Borrower Materials” has the meaning specified therefor in Section 17.9(c) of the Agreement.
“Borrowers” means, collectively, US Borrowers and Australian Borrowers, and “Borrower” means any one of them.
“Borrowing” means a borrowing consisting of Revolving Loans made on the same day to the same Borrower or Borrowers in the same currency by the Lenders (or Administrative Agent on behalf thereof), or by Swing Lender in the case of a Swing Loan, or by Administrative Agent in the case of an Extraordinary Advance.
“Borrowing Base” means the Australian Borrowing Base and the US Borrowing Base, individually or collectively, as the context requires.
“Borrowing Base Certificate” means a certificate in the form of Exhibit B.
“Business Day” means any day that is not a Saturday, Sunday, or other day on which banks are authorized or required to close in the state of New York, except that, if a determination of a Business Day shall relate to a LIBOR Rate Loan or Australian Bill Rate Loan, the term “Business Day” also shall exclude any day on which banks are closed for dealings in deposits in the applicable Available Currency.
“Capital Expenditures” means, for any period, without duplication, the additions to property, plant and equipment and other capital expenditures of Parent and its consolidated Subsidiaries for such period, determined in accordance with GAAP.
“Capital Lease” means a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP.
“Capitalized Lease Obligation” means that portion of the obligations under a Capital Lease that is required to be capitalized in accordance with GAAP.
“Cash Dominion Trigger Period” means the period (a) commencing on the day that (i) an Event of Default occurs and is continuing or (ii) Total Excess Availability is less than or equal to the lesser of (A) twelve and one-half percent (12.5%) of the Maximum Revolver Amount at such time or (B) twelve and one-half percent (12.5%) of the Total Borrowing Base at such time and (b) continuing until the date that during the previous ninety (90) consecutive days, (i) no Event of Default has existed or (ii) Total Excess Availability has been greater than the lesser of (A) twelve and one-half percent (12.5%) of the Maximum Revolver Amount at such time or (B) twelve and one-half percent (12.5%) of the Total Borrowing Base at such time; provided, however, that the Cash Dominion Trigger Period may not be cured as contemplated by clause (b) more than two (2) times in any fiscal year or five (5) times during the term of this Agreement; provided, further, that up to two and one-half percent (2.50%) of suppressed Total Availability (that is, the amount by which the Total Borrowing Base exceeds the Maximum Revolver Amount) may be used in calculating Total Excess Availability for purposes of this definition.
“Cash Equivalents” means:
(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case, maturing or allowing for liquidation at the original par value at the option of the holder within one year from the date of acquisition thereof;
(b) investments in commercial paper (other than commercial paper issued by Parent or any of its Affiliates) maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;
(c) investments in certificates of deposit, banker’s acceptances, time deposits or overnight bank deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000, and having a debt rating of “A-1” or better from S&P or “P-1” or better from Moody’s;
(d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above; and
(e) money market funds that (i) comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000.
“Cash Management Services” means any cash management or related services including treasury, depository, return items, overdraft, controlled disbursement, merchant store value cards, e-payables services, electronic funds transfer, interstate depository network, automatic clearing house transfer (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system) and other cash management arrangements.
“
CFC” means a Foreign Subsidiary (other than the Sunshine Entities) that is a “
controlled foreign corporation” under Section 957 of the Code and any Subsidiary owned directly or indirectly by such Foreign Subsidiary.
“CFC Holdco” means a Subsidiary substantially all the assets of which consist of Equity Interests in Foreign Subsidiaries that each constitute a CFC and/or Indebtedness or accounts receivable owed by Foreign Subsidiaries that each constitute a CFC or are treated as owed by any such Foreign Subsidiaries for U.S. federal income tax purposes.
“Change in Law” means the occurrence after the date of the Agreement of: (a) the adoption or effectiveness of any law, rule, regulation, judicial ruling, judgment or treaty, (b) any change in any law, rule, regulation, judicial ruling, judgment or treaty or in the administration, interpretation, implementation or application by any Governmental Authority of any law, rule, regulation, guideline or treaty, or (c) the making or issuance by any Governmental Authority of any request, rule, guideline or directive, whether or not having the force of law; provided that notwithstanding anything in the Agreement 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 and (ii) all requests, rules, guidelines or directives concerning capital adequacy 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 shall, in each case, be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.
“Change of Control” means that:
(a) at any time, Parent shall fail to own or control, directly or indirectly, one hundred percent (100%) of the Equity Interests of Thryv entitled to vote in the election of members of the board of directors (or equivalent governing body) of Thryv;
(b) at any time, Thryv shall fail to own or control, directly or indirectly, one hundred percent (100%) of the Equity Interests of each other Loan Party (other than (i) Parent and (ii) in connection with any transaction involving any such Loan Party expressly permitted under Section 6.3 or Section 6.4 of this Agreement that would result in such Loan Party no longer existing or the Equity Interests of such Loan Party no longer being, directly or indirectly, owned or controlled 100% by Thryv) entitled to vote in the election of members of the board of directors (or equivalent governing body) of each such Loan Party;
(c) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such person or its Subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) other than the Permitted Holders becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a “person” or “group” shall be deemed to have “beneficial ownership” of all Equity Interests that such “person” or “group” has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of the Equity Interests entitled to vote for members of the board of directors (or equivalent governing body) of Parent on a fully diluted basis (and taking into account all such securities that such “person” or “group” has the right to acquire pursuant to any option right) representing more than 40% of the total voting power of all of the outstanding Equity Interests of Parent; or
(d) the occurrence of a change in control, or other similar provision, as defined in the Term Loan Credit Agreement or any agreement or instrument evidencing any other Indebtedness or Equity Interests in excess of $25,000,000 obligating Parent or any of its Subsidiaries to repurchase, redeem or repay all or any part of the Indebtedness or Equity Interests provided for therein.
“Chapter 11 Cases” means the bankruptcy cases commenced by Parent and its Subsidiaries in the United States Bankruptcy Court for the District of Delaware on May 17, 2016 by filing voluntary petitions under chapter 11 of the Bankruptcy Code.
“Closing Date” means the date of the making of the initial Revolving Loan (or other extension of credit) under the Agreement.
“Co-Collateral Agents” has the meaning set forth in the preamble to the Agreement.
“Code” means the New York Uniform Commercial Code, as in effect from time to time.
“Collateral” means all assets and interests in assets and proceeds thereof now owned or hereafter acquired by any Borrower or its Subsidiaries in or upon which a Lien is granted by such Person in favor of Administrative Agent, the Australian Security Trustee or any other Secured Party under any of the Loan Documents.
“Collateral Access Agreement” means a landlord waiver, bailee letter, or acknowledgement agreement of any lessor, warehouseman, processor, consignee, or other Person in possession of, having a Lien upon, or having rights or interests in any Borrower’s or its Subsidiaries’ books and records, in each case, in form and substance reasonably satisfactory to Co-Collateral Agents.
“Collateral and Guarantee Requirement” means the requirement that:
(a) Administrative Agent shall have received (i) from each US Loan Party either (A) a counterpart of the Guaranty and Security Agreement and the Intercreditor Agreement duly executed and delivered on behalf of such Loan Party or (B) in the case of any of its Subsidiaries that becomes a US Loan Party after the Closing Date, a supplement to the Guaranty and Security Agreement and Intercreditor Agreement, in the form specified therein, duly executed and delivered on behalf of such Subsidiary, (ii) from each Australian Loan Party, either (A) the documentation set forth in Section 5.16 and/or (B) in the case of any Australian Subsidiary that becomes an Australian Loan Party after the Fifth Amendment Effective Date, such supplements thereto as the Administrative Agent may reasonably require and (iii) in the case of any Subsidiary that has been designated as a Discretionary Guarantor in accordance with the definition thereof, (A) in the case of an Australian Subsidiary, the documents described in clause (ii) above or (B) in the case of any other Foreign Subsidiary (other than an Australian Subsidiary), such documentation as Administrative Agent may reasonably require;
(b) all outstanding Equity Interests of each Subsidiary of Parent shall have been pledged pursuant to the Guaranty and Security Agreement (except that Parent and each other Loan Party shall not be required to pledge more than 65% of the outstanding voting Equity Interests of any first-tier Foreign Subsidiary or any Equity Interests of a Foreign Subsidiary that is not directly owned by a Loan Party) and Administrative Agent shall have received all certificates or other instruments representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank; provided, that, notwithstanding the foregoing, no later than the earlier of (i) 90 days after the Fifth Amendment Effective Date and (ii) the date that such items are pledged to the Term Loan Agent pursuant to the Term Loan Documents (or such later date as the Administrative Agent may agree), all outstanding Equity Interests of Thryv Ausco and the Australian Sunshine Entities shall have been pledged pursuant to the Australian Specific Security Deed and the Australian General Security Deed and the Administrative Agent shall have received all certificates or other instruments representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank;
(c) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by Co-Collateral Agents or Required Lenders to be filed, registered or recorded to create the Liens intended to be created by the Loan Documents and perfect such Liens to the extent required by, and with the priority required by, the Guaranty and Security Agreement, shall have been filed, registered or recorded or delivered to Administrative Agent, for filing, registration or recording; and
(d) each Loan Party shall have obtained all consents and approvals required to be obtained by it in connection with the execution and delivery of all Loan Documents (or supplements thereto) to which it is a party, the performance of its obligations thereunder and the granting by it of the Liens thereunder.
“Commitment” means, with respect to each Lender, its Revolver Commitment, and, with respect to all Lenders, their Revolver Commitments, in each case as such Dollar amounts are set forth beside such Lender’s name under the applicable heading on Schedule C-1 to the Agreement or in the Assignment and Acceptance pursuant to which such Lender became a Lender under the Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of the Agreement.
“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.
“Competitor” means any Person engaged (whether directly or indirectly through the control of any other person) other than through Parent and its Subsidiaries in the business of providing yellow page services or other similar targeted advertising in North America; provided, that no potential assignee shall be deemed to be a Competitor on account of owning less than 10% (or, in the case of any Person that was a Term Loan Lender (as defined in the Reorganization Plan) as of the petition date, 20%) of the outstanding shares of equity securities of a Competitor so long as such potential assignee does not have the right to appoint, and no director, officer or employee of such potential assignee is, a director of such Competitor or any of its Subsidiaries.
“Compliance Certificate” means a certificate substantially in the form of Exhibit C to the Agreement delivered by the chief financial officer or principal accounting officer of Administrative Borrower to Administrative Agent.
“Confidential Information” has the meaning specified therefor in Section 17.9(a) of the Agreement.
“Confirmation Order” means that certain order approving the Disclosure Statement and confirming the Reorganization Plan pursuant to the Bankruptcy Code entered by the bankruptcy court on July 15, 2016.
“Consolidated EBITDA” means, for any period, Consolidated Net Income for such period plus
(a) without duplication and (except in the case of clauses (a)(x) and (a)(v)(B) below) to the extent deducted in determining such Consolidated Net Income, the sum of:
(i) Consolidated Interest Expense for such period,
(ii) Taxes paid or provisions for Taxes, in each case, measured by net income, profits or capital (or any similar measures), including federal and state and local income Taxes, foreign income Taxes and franchise Taxes for such period,
(iii) (A) depreciation and amortization for such period (including, without limitation, amortization of goodwill, software and other intangible assets) and (B) other non-cash charges or expenses (including impairment charges, write-offs, write-downs and non-cash compensation charges arising from the granting of stock options, stock appreciation rights, profits interests and/or similar arrangements),
(iv) any non-recurring extraordinary charges or losses for such period (excluding losses from discontinued operations, but including any losses in connection with any actual or prospective legal settlement, fine, judgment or order); provided that in any applicable Reference Period the sum of (A) the aggregate amount of Net Extraordinary Charges and Losses added back to Consolidated EBITDA pursuant to this clause (a)(iv) in such Reference Period plus (B) the aggregate amount added back to Consolidated EBITDA pursuant to clauses (a)(v)(A) and (a)(v)(B) below in such Reference Period shall in no event exceed 15% of Consolidated EBITDA for such Reference Period,
(v) (A) other cash expenses or charges (including restructuring charges, attributable to the undertaking and/or implementation of new initiatives, business optimization activities, cost savings initiatives, cost rationalization programs, operating expense reductions and/or synergies and/or similar initiatives and/or similar programs, including expenses incurred in connection with inventory optimization programs, office or facility closure, relocation, headcount savings, product margin and integration savings, office or facility consolidations and openings, retention, severance, systems establishment costs, contract termination costs and reconstruction, decommissioning, recommissioning or reconfiguration of fixed assets for alternative uses; provided that for any applicable Reference Period, the sum of (1) the aggregate amount of Net Extraordinary Charges and Losses added back to Consolidated EBITDA pursuant to clause (a)(iv) above in such Reference Period, plus (2) the aggregate amount added back to Consolidated EBITDA pursuant to this clause (a)(v)(A) and clause (a)(v)(B) below in such Reference Period shall in no event exceed 15% of Consolidated EBITDA for such Reference Period; and (B) the amount of any “run rate” synergies, operating expense reductions and other net cost savings and integration costs, in each case, projected by Parent in connection with Permitted Acquisitions, Dispositions (including the termination or discontinuance of activities constituting such business) and/or other operating improvement, restructuring, cost savings initiative or other similar initiative taken after the Fifth Amendment Effective Date that have been consummated during the applicable Reference Period (calculated on a pro forma basis as though such synergies, expense reductions and cost savings had been realized on the first day of the period for which Consolidated EBITDA is being determined), net of the amount of actual benefits realized during such period from such actions; provided, that (x) such synergies, expense reductions and cost savings are reasonably identifiable, factually supportable, expected to have a continuing impact on the operations of Parent and its Subsidiaries and have been determined by Parent in good faith to be reasonably anticipated to be realizable within 12 months following any such action as set forth in reasonable detail on a certificate of a Financial Officer of Parent delivered to the Administrative Agent, (y) no such amounts shall be added pursuant to this clause to the extent duplicative of any expenses or charges otherwise added to Consolidated EBITDA, whether through a pro forma adjustment, the definition of pro forma basis or otherwise and (z) for any applicable Reference Period, the sum of (1) the aggregate amount added pursuant to this clause (v)(B) for such Reference Period plus (2) the aggregate amount of Net Extraordinary Charges and Losses added back to Consolidated EBITDA pursuant to clause (a)(iv) above in such Reference Period, plus (3) the aggregate amount added back to Consolidated EBITDA pursuant to clause (a)(v)(A) above in such Reference Period shall in no event exceed 15% of Consolidated EBITDA for such period,
(vi) payments of customary investment and commercial banking fees and expenses in connection with transactions permitted by this Agreement,
(vii) cash premiums, penalties or other payments payable in connection with the early extinguishment or repurchase of Indebtedness,
(viii) (A) Specified Charges for such period and/or (B) any earn-out and contingent consideration obligations (including to the extent accounted for as bonuses, compensation or otherwise) incurred in connection with the Fifth Amendment Transactions and/or any other acquisition and/or other Investment which is paid or accrued during such period and, in each case, adjustments thereof,
(ix) the amount of any charge or expense that is actually reimbursed or reimbursable by one or more third parties pursuant to indemnification or reimbursement provisions or similar agreements or insurance; provided that in respect of any such charge or expense that is added back in reliance on this clause (a)(ix), the relevant Person in good faith expects to receive reimbursement for such charge or expense within the next four fiscal quarters (it being understood that to the extent any such reimbursement amount is not actually received within such four fiscal quarter period, such reimbursement amount shall be deducted in calculating Consolidated EBITDA for the last fiscal quarter of such period and each subsequent period which includes such quarter),
(x) the amount of any proceeds of any business interruption insurance policy in an amount representing the earnings for the applicable period that such proceeds are intended to replace (whether or not then received so long as the relevant Person in good faith expects to receive such proceeds within the next four fiscal quarters (it being understood that to the extent such proceeds are not actually received within such four fiscal quarter period, such proceeds shall be deducted in calculating for the last fiscal quarter of such period and each subsequent period which includes such quarter)), and/or
(xi) any charge, expense or deduction that is associated with any Subsidiary and attributable to any non-controlling interest and/or minority interest of any third party,
minus
(b) without duplication and to the extent included in determining such Consolidated Net Income,
(i) consolidated interest income for such period,
(ii) Federal, state, local and foreign income
Tax credits of Parent and its Subsidiaries for such period (to the extent not netted from income Tax expense);
(iii) all extraordinary, unusual or non-recurring gains (including any gains in connection with any actual or prospective legal settlement, fine, judgment or order);
(iv) non-cash gains or non-cash items
(v) any cash expense made during such period which represents the reversal of any non-cash expense that was added in a prior period pursuant to clause (b)(iii) above subsequent to the fiscal quarter in which the relevant non-cash expenses, charges or losses were incurred; and
(vi) cash rental and other cash payments made for such period pursuant to the Tucker Lease.
For purposes of this Agreement, Consolidated EBITDA shall exclude any non-cash impact attributable to the reduction in deferred revenue or reduction in deferred costs to balance sheet accounts as a result of the fair value exercise undertaken as required by purchase method of accounting for the transactions contemplated by any acquisition, in accordance with GAAP.
“Consolidated Interest Expense” means, for any period, the sum of the following determined on a Consolidated basis, without duplication, for Parent and its Subsidiaries in accordance with GAAP, interest expense (including (i) any amortization of any debt issuance cost and/or deferred financing fees, (ii) any interest expense attributable to Capital Leases and (iii) all net payment obligations pursuant to Hedge Agreements) for such period.
“Consolidated Net Income” means, for any period, the net income (or loss) of Parent and its Subsidiaries for such period, determined on a consolidated basis, without duplication, in accordance with GAAP and adjusted to eliminate any non-cash impact attributable to the reduction in deferred revenue or reduction in deferred costs to balance sheet accounts as a result of the fair value exercise undertaken as required by purchase method of accounting for the transactions contemplated by any Acquisition, in accordance with GAAP; provided, that, in calculating Consolidated Net Income of Parent and its Subsidiaries for any period, there shall be excluded:
(a) the income (or loss) of any Person (other than a Subsidiary which shall be subject to clause (c) below) in which Parent or any of its Subsidiaries has a joint interest with a third party, except to the extent such net income is actually paid in cash to Parent or any of its Subsidiaries by dividend or other distribution during such period,
(b) the income (or loss) any Person accrued prior to the date it becomes a Subsidiary of Parent or any of its Subsidiaries or is merged into or consolidated with Parent or any of its Subsidiaries or that Person’s assets are acquired by Parent or any of its Subsidiaries except to the extent included pursuant to the foregoing clause (a),
(c) the net income (if positive), of any Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary to Parent or any of its Subsidiaries of such net income (i) is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Subsidiary or (ii) would be subject to any Taxes payable on such dividends or distributions, but in each case only to the extent of such prohibition or Taxes,
(d) the net income (or loss) of any Non-Wholly-Owned Subsidiary to the extent such net income (or loss) is attributable to the minority interest in such Subsidiary,
(e) any gain or loss from Dispositions of Property during such period,
(f) any gain or loss attributable to the early extinguishment of Indebtedness (and the termination of any associated Hedge Agreement) and any cancellation of indebtedness income resulting from any purchase of any Term Loans by the Borrower under the Term Loan Credit Agreement,
(g) any non-cash compensation expense recorded from grants of stock appreciation or similar rights, stock options, restricted stock or other rights (including equity compensation to employees (including pursuant to pension plans)) and non-cash charges associated with the roll-over, acceleration or payout of Equity Interests by management of Administrative Borrower, Parent or any direct or indirect parent thereof in connection with the Fifth Amendment Transactions or other Permitted Acquisitions,
(h) (i) any realized or unrealized gain and/or loss in respect of (A) any obligation under any Hedge Agreement as determined in accordance with GAAP and/or (B) any other derivative instrument pursuant to, in the case of this clause (B), Financial Accounting Standards Board’s Accounting Standards Codification No. 815-Derivatives and Hedging and/or (ii) any realized or unrealized foreign currency exchange gain or loss (including any currency re-measurement of Indebtedness, any net gain or loss resulting from Hedge Agreements for currency exchange risk resulting from any intercompany Indebtedness, any foreign currency translation or transaction or any other currency-related risk; provided, that notwithstanding anything to the contrary herein, any realized gain or loss in respect of any Designated Operational FX Hedge shall be included in the calculation of Consolidated Net Income;
(i) (i) the effects of adjustments resulting from the application of purchase accounting, recapitalization accounting and/or acquisition method accounting, as applicable, in relation to the Fifth Amendment Transactions or any consummated acquisition or other similar investment or the amortization or write-off of any amount thereof, net of Taxes and (ii) the cumulative effect of changes in accounting principles or policies made in such period in accordance with GAAP which affect Consolidated Net Income; and
(j) the amount of any contingent payments related to any Acquisition or Investment permitted hereunder that are treated as compensation expense in accordance with GAAP.
“Control Agreement” means (a) in the case of a US Loan Party, a control agreement, in form and substance reasonably satisfactory to Co-Collateral Agents, executed and delivered by a Borrower or one of its Subsidiaries, Administrative Agent, and the applicable securities intermediary (with respect to a Securities Account) or bank (with respect to a Deposit Account) and (b) in the case of an Australian Loan Party, an agreement, in form and substance reasonably satisfactory to the Australian Security Trustee, establishing “control” (for the purposes of Part 9.5 of the Australian PPSA) of such an account by the Australian Security Trustee.
“Controller” has the meaning given to it in section 9 of the Australian Corporations Act.
“Copyright Security Agreement” has the meaning specified therefor in the Guaranty and Security Agreement.
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party” has the meaning specified therefor in Section 17.18 of this Agreement.
“Credit Card Accounts” means all present and future rights of a Borrower to payment from any Credit Card Issuer or Credit Card Processor, including all amounts at any time due or to become due from any Credit Card Issuer or Credit Card Processor under the Credit Card Agreements or otherwise.
“Credit Card Acknowledgments” means the agreements by parties to the Credit Card Agreements in favor of the Administrative Agent (or the Australian Security Trustee, as applicable) acknowledging the Administrative Agent’s first priority lien on and security interest in the monies due and to become due to the Loan Parties under the Credit Card Agreements of such Loan Parties, and agreeing to transfer all such amounts to a Cash Management Account.
“Credit Card Agreements” means all agreements (other than Credit Card Acknowledgments) now or hereafter entered into by a Borrower or for the benefit of a Borrower, in each case with any Credit Card Issuer or any Credit Card Processor with respect to sales transactions involving credit card or debit card purchases, including, but not limited to, the agreements set forth on Schedule 4.25 hereto.
“Credit Card Issuer” means any person (other than a Loan Party) who issues or whose members issue credit cards and other non-bank credit or debit cards, including credit or debit cards.
“Credit Card Processor” means any servicing or processing agent or any factor or financial intermediary who facilitates, services, processes or manages the credit authorization, billing transfer and/or payment procedures with respect to a Borrower’s sales transactions involving credit card or debit card purchases by customers using credit cards or debit cards issued by any Credit Card Issuer.
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by 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 Administrative Agent decides that any such convention is not administratively feasible for Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“Daily Three Month LIBOR” means, for any day the rate per annum for United States dollar deposits determined by Administrative Agent for the purpose of calculating the effective interest rate for loans that reference Daily Three Month LIBOR as the Inter-Bank Market Offered Rate in effect from time to time for the 3 month delivery of funds in amounts approximately equal to the principal amount of such loans (and, if such rate is below zero, the Daily Three Month LIBOR shall be deemed to be zero) as published by ICE Benchmark Administration Limited (“LIBOR Screen Rate”) (or any successor page or other commercially available source as the Administrative Agent may designate from time to time) which determination shall be made by Administrative Agent and shall be conclusive in the absence of manifest error. When interest is determined in relation to Daily Three Month LIBOR, each change in the interest rate will become effective each Business Day that Administrative Agent determines that Daily Three Month LIBOR has changed.
“Debtor Relief Law” means the Bankruptcy Code, the Australian Corporations Act and any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief law of the United States, Australia or other applicable jurisdiction from time to time in effect.
“Default” means an event, condition, or default that, with the giving of notice, the passage of time, or both, would be an Event of Default.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender” means any Lender that (a) has failed to fund any amounts required to be funded by it under the Agreement within one (1) Business Day of the date that it is required to do so under the Agreement (including the failure to make available to Administrative Agent amounts required pursuant to a Settlement or to make a required payment in connection with a Letter of Credit Disbursement), (b) notified Borrowers, Administrative Agent, or any Lender in writing that it does not intend to comply with all or any portion of its funding obligations under the Agreement, (c) has made a public statement to the effect that it does not intend to comply with its funding obligations under the Agreement or under other agreements generally (as reasonably determined by Administrative Agent) under which it has committed to extend credit, (d) failed, within two (2) Business Day after written request by Administrative Agent or a Borrower, to confirm that it will comply with the terms of the Agreement relating to its obligations to fund any amounts required to be funded by it under the Agreement, (e) otherwise failed to pay over to Administrative Agent or any other Lender any other amount required to be paid by it under the Agreement within one (1) Business Day of the date that it is required to do so under the Agreement, or (f) (i) becomes or is insolvent or has a parent company that has become or is insolvent, (ii) becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, or custodian or appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or (iii) becomes the subject of a Bail-in Action.
“Defaulting Lender Rate” means (a) for the first three (3) days from and after the date the relevant payment is due, the LIBOR Rate, and (b) thereafter, the interest rate then applicable to Revolving Loans that are LIBOR Rate Loans (inclusive of the Applicable Margin applicable thereto).
“Deposit Account” means any deposit account (as that term is defined in the Code) and any deposit account which has the meaning given to the term “ADI account” in the Australian PPSA.
“Designated Account” means the Deposit Account of Administrative Borrower identified on Schedule D-1 to the Agreement (or such other Deposit Account of Administrative Borrower located at Designated Account Bank that has been designated as such, in writing, by Borrowers to Administrative Agent).
“Designated Account Bank” has the meaning specified therefor in Schedule D-1 to the Agreement (or such other bank that is located within the United States that has been designated as such, in writing, by Borrowers to Administrative Agent).
“Designated Non-Cash Consideration” means the fair market value (as determined by Administrative Borrower in good faith) of non-cash consideration received by the Parent or any Subsidiary in connection with any Disposition pursuant to clause (d) of the definition of “Permitted Disposition” that is designated as Designated Non-Cash Consideration pursuant to a certificate of an authorized officer of Administrative Borrower, setting forth the basis of such valuation (which amount will be reduced by the amount of cash or Cash Equivalents received in connection with a subsequent sale or conversion of such Designated Non-Cash Consideration to cash or Cash Equivalents).
“Designated Operational FX Hedge” means any Hedge Agreement entered into for the purpose of hedging currency-related risks in respect of the revenues, cash flows or other balance sheet items of Administrative Borrower or any of its Subsidiaries and irrevocably designated at the time entered into (or on or prior to the Fifth Amendment Effective Date, with respect to any Hedge Agreement entered into on or prior to the Fifth Amendment Effective Date) as a Designated Operational FX Hedge by Administrative Borrower in a writing to the Administrative Agent promptly after such Hedge Agreement is entered into.
“Dilution” means, as of any date of determination and with respect to any period selected by Administrative Agent, a percentage that is the result of dividing the Dollar amount of (a) bad debt write-downs, discounts, advertising allowances, credits, or other dilutive items with respect to Borrowers’ Accounts during such period, by (b) Borrowers’ billings with respect to Accounts during such period.
“Dilution Reserve” means, as of any date of determination, an amount sufficient to reduce the advance rate against Eligible Accounts by one (1) percentage point for each percentage point by which Dilution is in excess of five percent (5%).
“Disclosure Statement” means the Disclosure Statement for the Reorganization Plan filed in the Chapter 11 Cases at Docket No. 19, the adequacy of which was approved by the bankruptcy court pursuant to the Confirmation Order.
“Discretionary Guarantor” has the meaning assigned thereto in the definition of “Guarantor”.
“
Disposed EBITDA” means, with respect to any Person or business
that is sold or disposed of in a Disposition during any period, the amount for such period of Consolidated EBITDA of
any such Person or business subject to such Disposition (determined using such definitions as if references to Parent and its Subsidiaries therein were to such Person or business), as calculated by the Borrower in good faith.
“
Disposition” means the sale, transfer, license, lease or other disposition of any
property (including any sa
le and leaseback transaction or division), whether in a single transaction or a series of related transactions, by any Loan Party or any Subsidiary thereof, and any issuance of Equity Interests by any Subsidiary of Parent to any Person that is not a Loan Party or any Subsidiary thereof. For the avoidance of doubt, the write-off of any assets subject to the Tucker Lease shall not be deemed to constitute a Disposition.
“Disqualified Equity Interests” shall mean any Equity Interest that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is 180 days after the Maturity Date.
“Drawing Document” means any Letter of Credit or other document presented for purposes of drawing under any Letter of Credit.
“Early Opt-in Election” means:
(a) with respect to a Benchmark with respect to any Obligations, interest, fees, commissions or other amounts denominated in US Dollars or calculated with respect thereto, if such Benchmark is USD LIBOR, the occurrence of:
(1) a notification by the Administrative Agent to (or the request by Administrative Borrower to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding US Dollar denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based on SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
(2) the joint election by the Administrative Agent and Administrative Borrower to trigger a fallback from the LIBOR Screen Rate and the provision by the Administrative Agent of written notice of such election to the applicable Lenders; and
(b) with respect to a Benchmark with respect to any Obligations, interest, fees, commissions or other amounts denominated in the applicable Agreed Currency (other than US Dollars), the occurrence of:
(1) a notification by the Administrative Agent to (or the request by Administrative Borrower to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding syndicated credit facilities denominated in such currency at such time contain (as a result of amendment or as originally executed) a new benchmark interest rate to replace such Benchmark; and
(2) the joint election by Administrative Agent and Administrative Borrower to trigger a fallback from such Benchmark and the provision by Administrative Agent of written notice of such election to the applicable Lenders.
“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.
“Eligible Accounts” means Eligible Billed Accounts, Eligible Installment Accounts, Eligible Credit Card Accounts, Eligible Alpha Accounts and Eligible Telstra Accounts.
“Eligible Alpha Accounts” means Accounts due from AT&T or any of its Affiliates (other than any Loan Party or its Subsidiaries) which (a) otherwise meet the criteria in subclauses (c), (h), (l) and (m) of the definition of Eligible Billed Accounts, (b) arise from the sale of such Eligible Billed Accounts by any Loan Party to AT&T or any of its Affiliates (other than any Loan Party or its Subsidiaries) pursuant to the terms of the Billing and Collection Agreement and (c) are net of any amounts owed by any Loan Party to AT&T or any of its Affiliates pursuant to the terms of the Billing and Collection Agreement.
“Eligible Billed Accounts” means those Accounts (other than Credit Card Accounts, Alpha Accounts or Telstra Accounts) created by a Borrower in the ordinary course of its business, that arise out of such Borrower’s sale of goods or rendition of services, that comply with each of the representations and warranties respecting Eligible Accounts made in the Loan Documents, and that are not excluded as ineligible for failing to satisfy one or more of the criteria set forth below. In determining the amount to be included, Eligible Billed Accounts shall be calculated net of customer deposits, unapplied cash, taxes, discounts, credits, allowances, and rebates. In general, the Co-Collateral Agents on behalf of Lenders will not deem an Account to be an Eligible Billed Account unless it satisfies the following criteria:
(a) delivery of the merchandise or the rendition of the services has been completed with respect to such Account;
(b) no dispute has occurred with respect to such Account, the Account Debtor has not asserted any setoff, defense or counterclaim with respect to such Account, and there has not occurred any extension of the time for payment with respect to such Account without the consent of Co-Collateral Agents in their Permitted Discretion; provided that, (x) in the case of any dispute, setoff, defense or counterclaim with respect to an Account, the portion of such Account not subject to such dispute, setoff, defense or counterclaim will not be ineligible solely by reason of this clause (b) and (y) with respect to the extension of time, the consent of Co-Collateral Agents shall not be required to the extent such extension of time does not exceed the period permitted under clause (e) of this definition;
(c) such Account is lawfully owned by a Loan Party free and clear of any Lien other than (i) Liens in favor of Administrative Agent (or the Australian Security Trustee, as applicable) for the benefit of the Secured Parties, (ii) Liens securing obligations under the Term Loan Documents and which are subject to the Intercreditor Agreement and (iii) Liens described in clause (c) of the definition of Permitted Liens and otherwise continues to be in conformity in all material respects with all representations and warranties made by a Loan Party to Administrative Agent and the Secured Parties with respect thereto in the Loan Documents;
(d) such Account is unconditionally payable in US Dollars (or, solely in the case of Australian Bill Rate Loans, Australian Dollars) within 90 days from the invoice date (or, in the case of Accounts owing by Account Debtors who are designated as “national advertisers” placing ads in print directories, 105 days from the invoice date) and is not evidenced by a promissory note, chattel paper or any other instrument or other document;
(e) no more than 90 days have elapsed from the invoice date (or, in the case of Accounts owing by Account Debtors who are designated as “national advertisers” placing ads in print directories, 105 days from the invoice date) and no more than 60 days have elapsed from the due date with respect to such Account;
(f) such Account is not due from an Affiliate of a Loan Party;
(g) such Account does not constitute an obligation of the United States, Australia or any other Governmental Authority (unless all steps required by Co-Collateral Agents in their Permitted Discretion in connection therewith, including notice to the United States Government under the Federal Assignment of Claims Act or any action under any state statute comparable to the Federal Assignment of Claims Act or issuing a notice of assignment in respect of the Account to the applicable Australian Governmental Authority, have been duly taken in a manner satisfactory to Co-Collateral Agents in their Permitted Discretion for such Accounts in the aggregate exceeding $5,000,000);
(h) the Account Debtor (or the applicable office of the Account Debtor) with respect to such Account is (i) in the case of Accounts of US Borrowers, located in the United States, Puerto Rico or Canada, or (ii) in the case of Accounts of Australian Borrowers, located in Australia, unless, in each case, such Account is supported by a letter of credit or other similar obligation satisfactory to Co-Collateral Agents in their Permitted Discretion;
(i) the Account Debtor with respect to such Account is not also a supplier to or creditor of a Loan Party, unless such Account Debtor has executed a no-offset letter satisfactory to Co-Collateral Agents in their Permitted Discretion;
(j) not more than 50% of the aggregate amount of all Accounts of the Account Debtor with respect to such Account have remained unpaid 90 days past the invoice date (or, in the case of Accounts owing by Account Debtors who are designated as “national advertisers” placing ads in print directories, 105 days from the invoice date);
(k) the invoice amount of such Eligible Billed Account, together with the sum of all Eligible Billed Accounts and Eligible Installment Accounts outstanding from the same Account Debtor and its Affiliates do not exceed 10% of the sum of the invoice amount of all Eligible Billed Accounts plus the sum of all Eligible Installment Accounts;
(l) the Account Debtor with respect to such Account (i) has not filed a petition for bankruptcy or any other relief under any Debtor Relief Law, (ii) has not failed, suspended business operations, become insolvent or called a meeting of its creditors for the purpose of obtaining any financial concession or accommodation, (iii) has not had or suffered to be appointed a receiver or a trustee for all or a significant portion of its assets or affairs or (iv) in the case of an Account Debtor who is an individual, is not an employee of a Loan Party or any of its Affiliates and has not died or been declared incompetent;
(m) the Account Debtor with respect to such Account is not an entity subject to an OFAC Sanctions Program;
(n) such Account does not represent a progress payment that is due prior to the completion of performance by the Loan Party under the subject contract for goods and services;
(o) such Account is not due from an Account Debtor with respect to which a Loan Party has accelerated the due date of any billed or un-billed Accounts with respect to such Account Debtor and such acceleration is due to a credit issue with respect to such Account Debtor;
(p) if such Accounts were acquired, or were owned by a Person acquired, in connection with a Permitted Acquisition (including, but not limited to, the Sunshine Acquisition), Co-Collateral Agents have completed an appraisal and field examination with respect to such Accounts, in each case, reasonably satisfactory to Co-Collateral Agents (which appraisal and field examination may be conducted prior to the closing of such Permitted Acquisition); and
(q) such Account is not otherwise unacceptable to Co-Collateral Agents, in the exercise of their Permitted Discretion.
“Eligible Credit Card Accounts” means those Credit Card Accounts of a Borrower that arise in the ordinary course of its business out of such Borrower’s sale of goods or rendition of services, that comply with each of the representations and warranties respecting Eligible Accounts made in the Loan Documents, and that are not excluded as ineligible as a result of one or more of the criteria set forth below. In determining the amount to be included, Eligible Credit Card Accounts shall be calculated net of fees. In general, the Co-Collateral Agents on behalf of Lenders will not deem an Account to be an Eligible Credit Card Account if:
(a) it has been outstanding for more than five (5) Business Days from the date of sale or such longer period as may be approved by the Administrative Agent in its Permitted Discretion;
(b) a Borrower does not have valid title thereto, free and clear of any Lien (other than (i) Liens in favor of the Administrative Agent (or the Australian Security Trustee, as applicable) for the benefit of Lenders, (ii) Liens securing obligations under the Term Loan Documents and which are subject to the Intercreditor Agreement, (iii) Liens described in clause (c) of the definition of Permitted Liens and otherwise continues to be in conformity in all material respects with all representations and warranties made by a Loan Party to Administrative Agent and the Secured Parties with respect thereto in the Loan Documents and (iv) the offset or chargeback rights of such Credit Card Processors (which shall be governed by clause (d) below));
(c) it is not subject to a first priority perfected security interest in favor of Administrative Agent (or the Australian Security Trustee, as applicable) on behalf of itself and the Lenders;
(d) it is disputed or it is with recourse due to the creditworthiness of the cardholder, or with respect to which a claim, counterclaim, offset or chargeback has been asserted by the related Credit Card Processor (but such Credit Card Account is only ineligible to the extent of such dispute, counterclaim, offset or chargeback);
(e) except as otherwise approved by the Co-Collateral Agents in writing, it is due from a major Credit Card Processor as to which the Administrative Agent has not received an acceptable (determined in its Permitted Discretion) Credit Card Acknowledgment;
(f) the Credit Card Processor with respect to such Credit Card Account (A) has filed a petition for bankruptcy or any other relief under any Debtor Relief Law, (B) has failed, suspended business operations, become insolvent or called a meeting of its creditors for the purpose of obtaining any financial concession or accommodation, or (C) has had or suffered to be appointed a receiver or a trustee for all or a significant portion of its assets or affairs;
(g) it is due from a Credit Card Processor which is not located in the United States of America or Australia, as applicable;
(h) it is not denominated in US Dollars (or, solely in the case of the Australian Borrowers, Australian dollars);
(i) it does not constitute an “account” or a “payment intangible” (as such terms are defined in the UCC);
(j) it is owed by, or arose from a transaction with, a Person subject to an OFAC Sanctions Program; or
(k) such Credit Card Account is otherwise unacceptable to Co-Collateral Agents, in the exercise of their Permitted Discretion.
“Eligible Installment Accounts” means Accounts (other than Billed Accounts, Alpha Accounts, Telstra Accounts or Credit Card Accounts) which otherwise meet the criteria set forth in the definition of Eligible Billed Accounts (other than as set forth in clauses (e) and (j)), but for the fact that an invoice has not been rendered to the Account Debtor; provided that no Eligible Installment Account may remain unbilled longer than thirteen (13) months; provided further that if (i) at any time 25% or more of the aggregate billed Accounts owing by an Account Debtor do not meet any of the criteria set forth in the definition of Eligible Billed Accounts, or (ii) at any time 25% or more of the aggregate Eligible Billed Accounts owing by an Account Debtor are more than thirty (30) days past due then, in either case, none of such Account Debtor’s unbilled Accounts will be deemed Eligible Installment Accounts hereunder.
“Eligible Telstra Accounts” means Telstra Accounts which (a) otherwise meet the criteria in subclauses (c), (h), (l) and (m) of the definition of Eligible Billed Accounts, (b) arise from the sale of such Eligible Billed Accounts by any Australian Borrower to Telstra or any of its Affiliates (other than any Loan Party or its Subsidiaries) and (c) are net of any amounts owed by any Loan Party to Telstra or any of its Affiliates.
“Eligible Transferee” means (a) any Lender (other than a Defaulting Lender), any Affiliate of any Lender and any Related Fund of any Lender; and (b) (i) a commercial bank organized under the laws of the United States or any state thereof, and having total assets in excess of $1,000,000,000; (ii) a savings and loan association or savings bank organized under the laws of the United States or any state thereof, and having total assets in excess of $1,000,000,000; (iii) a commercial bank organized under the laws of any other country or a political subdivision thereof; provided that (A) (x) such bank is acting through a branch or agency located in the United States or (y) such bank is organized under the laws of a country that is a member of the Organization for Economic Cooperation and Development or a political subdivision of such country, and (B) such bank has total assets in excess of $1,000,000,000; and (c) during the continuation of an Event of Default, any other Person approved by Administrative Agent.
“Employee Benefit Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA, (a) that is sponsored, maintained or contributed to by any Loan Party or ERISA Affiliate or (b) to which any Loan Party or ERISA Affiliate has any liability, contingent or otherwise.
“Environmental Action” means any written complaint, summons, citation, notice, directive, order, claim, litigation, investigation, judicial or administrative proceeding, judgment, letter, or other written communication from any Governmental Authority, or any third party involving violations of Environmental Laws or releases of Hazardous Materials (a) from any assets, properties, or businesses of any Borrower, any of its Subsidiaries of any Borrower, or any of their predecessors in interest, (b) from adjoining properties or businesses, or (c) from or onto any facilities which received Hazardous Materials generated by any Borrower, any of its Subsidiaries of any Borrower, or any of their predecessors in interest.
“Environmental Law” means any applicable federal, state or local statute, law, rule, regulation, ordinance, code, binding and enforceable guideline, binding and enforceable written policy, or rule of common law now or hereafter in effect and in each case as amended, or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, in each case, to the extent binding on any Loan Party or its Subsidiaries, relating to the environment, the effect of the environment on employee health or exposure to Hazardous Materials.
“Environmental Liabilities” means all liabilities, losses, damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts, or consultants, and costs of investigation and feasibility studies), fines and penalties incurred as a result of any claim or demand, or remedial action required, by any Governmental Authority.
“Environmental Lien” means any Lien in favor of any Governmental Authority for Environmental Liabilities.
“Equipment” means equipment (as that term is defined in the Code).
“Equity Interest” means, with respect to a Person, all of the shares, options, warrants, interests, participations, or other equivalents (regardless of how designated) of or in such Person, whether voting or nonvoting, including capital stock (or other ownership or profit interests or units), preferred stock, or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the SEC under the Exchange Act).
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute thereto.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with any Loan Party, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414(m) of the Code.
“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) any failure by any Plan to satisfy the minimum funding standards (within the meaning of Sections 412 and 430 of the Code or Section 302 of ERISA) applicable to such Plan, whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Plan or the failure by any Loan Party or any of its ERISA Affiliates to make any required contribution to a Multiemployer Plan; (d) the incurrence by any Loan Party or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan, including but not limited to the imposition of any Lien in favor of the PBGC or any Plan; (e) a determination that any Plan is, or is expected to be, in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA; (f) the receipt by any Loan Party or any of its ERISA Affiliates from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan under Section 4042 of ERISA; (g) the incurrence by any Loan Party or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (h) the receipt by any Loan Party or any of its ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan from a Loan Party or any of its ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in endangered or critical status, within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor thereto), as in effect from time to time.
“Event of Default” has the meaning specified therefor in Section 8 of the Agreement.
“Exchange Act” means the Securities Exchange Act of 1934, as in effect from time to time.
“Exchange Rate” means on any date, as determined by Administrative Agent, the spot selling rate posted by Reuters on its website for the sale of the applicable currency for US Dollars at approximately 11:00 a.m. on such date; provided, that, if, for any reason, no such spot rate is being quoted, the spot selling rate shall be determined by reference to such publicly available service for displaying exchange rates as may be reasonably selected by Administrative Agent, or, in the event no such service is available, such spot selling rate shall instead be the rate reasonably determined by Administrative Agent as the spot rate of exchange in the market where its foreign currency exchange operations in respect of the applicable currency are then being conducted, at or about 11:00 a.m. on the applicable date for the purchase of the relevant currency for delivery two (2) Business Days later.
“Excluded Subsidiary” means (a) each CFC, (b) each Subsidiary that is a direct or indirect Subsidiary of a CFC, (c) each CFC Holdco, (d) any Subsidiary that (i) is prohibited by applicable law or by any contractual obligation existing on the Fifth Amendment Effective Date or existing at the time of acquisition of such Subsidiary after the Fifth Amendment Effective Date or such Person becoming a Subsidiary (and not incurred in contemplation of such acquisition or such Person becoming a Subsidiary), in each case, from guaranteeing the Obligations, but only so long as such prohibition exists or (ii) is subject to a requirement to obtain governmental (including regulatory) or third party (other than an Affiliate) consent, approval, license or authorization (including any regulatory consent, approval, license or authorization) to provide a Guarantee of the Obligations (in each case, to the extent such requirement exists on the Fifth Amendment Effective Date or exists at the time of acquisition of such Subsidiary after the Fifth Amendment Effective Date or such Person becoming a Subsidiary (and not incurred in contemplation of such acquisition or such Person becoming a Subsidiary) that has not been obtained or received, but only for so long as such requirement or any replacement or renewal thereof is in effect and such consent, approval, license or authorization has not been obtained or received (it being understood and agreed that none of Parent, any Borrower and/or any of their respective Subsidiaries shall have any obligation to obtain (or seek to obtain) any such consent, approval, license or authorization), (e) any Foreign Subsidiary (other than any Australian Subsidiary), (f) any not-for-profit Subsidiary, (g) any captive insurance Subsidiary, (h) each Immaterial Subsidiary, (i) any special purpose entity engaging in receivables financing transactions permitted under this Agreement, (j) any bona fide joint ventures with non-affiliated third parties, (k) any Subsidiary with respect to which Administrative Agent and Administrative Borrower mutually agree that the provision of a Guarantee of the Obligations would reasonably be likely to result in material and adverse tax consequences to Parent or any of its Subsidiaries and (l) any other Subsidiary with respect to which Administrative Agent and Administrative Borrower mutually agree that the cost of providing a Guarantee of the Obligations would be excessive in relation to the benefit to be afforded thereby. Notwithstanding the foregoing, in no event shall any Subsidiary that is an obligor or guarantor of (i) the Term Loan or any other Material Indebtedness, in any such case be an Excluded Subsidiary (other than a CFC that is a borrower thereunder to the extent (A) the Guarantee of the Obligations would result in material adverse tax consequences to Parent and its Subsidiaries or (B) clause (l) above applies).
“Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the obligation of such Loan Party in respect of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason not to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time the Guarantee of such Loan Party becomes effective with respect to such related Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guaranty or security interest is or becomes illegal.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes and Australian 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 Borrowers under Section 14.2) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 16.1, 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 16.2, (d) any U.S. federal withholding Taxes imposed under FATCA and (e) any amounts paid or deducted from a payment to a Recipient in compliance with a notice or direction under section 260-5 Schedule 1 to the Taxation Administration Act 1953 (Cth) of Australia, section 255 of the Australian Tax Act or any analogous provisions.
“Existing Letters of Credit” means those letters of credit described on Schedule E-1 to the Agreement.
“Extraordinary Advances” has the meaning specified therefor in Section 2.3(d)(iii) of the Agreement.
“FATCA” means Sections 1471 through 1474 of the IRC, as of the date of the Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the IRC, and any applicable intergovernmental agreement with respect thereto and applicable official implementing guidance thereunder.
“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal to, for each day during such period, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by Administrative Agent from three Federal funds brokers of recognized standing selected by it (and, if any such rate is below zero, then the rate determined pursuant to this definition shall be deemed to be zero).
“Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.
“Fee Letter” means that certain fee letter, dated as of the Closing Date, even date with the Agreement, among the US Borrowers and Administrative Agent, in form and substance reasonably satisfactory to Administrative Agent.
“Fifth Amendment” means the Fifth Amendment to Amended and Restated Credit Agreement, First Amendment to Guaranty and Security Agreement and Joinder, dated as of the Fifth Amendment Effective Date, by and among the Borrowers, Parent, the Guarantors party thereto, the Lenders party thereto and the Administrative Agent.
“Fifth Amendment Effective Date” means March 1, 2021.
“Fifth Amendment Transactions” means, collectively, (a) the repayment in full of all Indebtedness outstanding under the Existing Credit Agreement (under and as defined in the Term Loan Credit Agreement), (b) the entry into the Term Loan Credit Agreement and the making of the Term Loan on the Term Loan Closing Date, (c) the closing of the Sunshine Acquisition, (d) the closing of the Fifth Amendment, (e) the repayment on the Fifth Amendment Effective Date of certain Indebtedness hereunder and (f) the payment of the Specified Charges incurred in connection with the foregoing.
“
Financial Officer” means the chief financial officer, principal accounting officer, vice president of finance, treasurer or controller of Parent.
“Fixed Charge Coverage Ratio” means, with respect to any fiscal period and with respect to Parent determined on a consolidated basis in accordance with GAAP, the ratio of (a) Consolidated EBITDA for such period minus Capital Expenditures made (to the extent not already incurred in a prior period) or incurred during such period, to (b) Fixed Charges for such period.
“Fixed Charges” means, with respect to any fiscal period and with respect to Parent determined on a consolidated basis in accordance with GAAP, the sum, without duplication, of (a) consolidated interest expense accrued (other than interest paid-in-kind, amortization of financing fees, and other non-cash interest expense) during such period, (b) scheduled principal payments in respect of Indebtedness paid during such period, and (c) all federal, state, and local income taxes accrued during such period, (d) all management, consulting, monitoring, and advisory fees paid to Jason Mudrick or his Affiliates during such period, and (e) all Restricted Payments paid (whether in cash or other property, other than common Equity Interest) during such period.
“Floor” means, with respect to any Benchmark, the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to such Benchmark.
“Foreign Lender” means any Lender or Participant that is not a United States person within the meaning of IRC section 7701(a)(30).
“Foreign Subsidiary” means any Subsidiary that is not a US Subsidiary.
“Funding Date” means the date on which a Borrowing occurs.
“GAAP” means generally accepted accounting principles as in effect from time to time in the United States, consistently applied.
“Governing Documents” means, with respect to any Person, the certificate or articles of incorporation, by-laws, or other organizational documents of such Person.
“Governmental Authority” means the government of any nation or any political subdivision thereof, whether at the national, state, territorial, provincial, municipal or any other level, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining to, government (including any supra-national bodies such as the European Union or the European Central Bank).
“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or other obligation; provided, that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.
“Guarantors” means, collectively, (a) US Guarantors, (b) Australian Guarantors, (c) each US Subsidiary or Australian Subsidiary of each Borrower that becomes a guarantor pursuant to Section 5.11 and (d) upon (i) Administrative Borrower’s request, (ii) at its sole discretion, the prior written consent of Administrative Agent, (iii) the receipt by the Lenders, the Issuing Bank and the Administrative Agent (or Australian Security Trustee, as applicable) of such documentation and other information requested by the Lenders, the Issuing Bank or the Administrative Agent (or Australian Security Trustee, as applicable) for purposes of complying with all necessary “know your customer” or other similar checks under applicable law, which documentation and information is satisfactory to the Lenders, the Issuing Bank and the Administrative Agent (or Australian Security Trustee, as applicable) and (iv) the satisfaction of the applicable conditions set forth in Section 5.11 and the Collateral and Guarantee Requirement, any Foreign Subsidiary (other than any Australian Subsidiary) that is not otherwise required to be a Guarantor to provide a Guarantee of the Obligations that becomes a guarantor pursuant to Section 5.11 (a “Discretionary Guarantor”); provided, that upon such an election pursuant to this clause (d) (and for so long as such election remains in effect) such Subsidiary shall no longer be deemed to be an Excluded Subsidiary.
“Guaranty and Security Agreement” means a guaranty and security agreement, dated as of the Closing Date and amended on the Fifth Amendment Effective Date, executed and delivered by each US Loan Party and each of the US Guarantors to Administrative Agent.
“Hazardous Materials” means (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable laws or regulations as “hazardous substances,” “hazardous materials,” “hazardous wastes,” “toxic substances,” or any other formulation intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, or “EP toxicity”, (b) oil, petroleum, or petroleum derived substances, natural gas, natural gas liquids, synthetic gas, drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal resources and (c) any flammable substances or explosives or any radioactive materials
“Hedge Agreement” means a “swap agreement” as that term is defined in Section 101(53B)(A) of the Bankruptcy Code.
“Hedge Obligations” means any and all obligations or liabilities, whether absolute or contingent, due or to become due, now existing or hereafter arising, of each Borrower and their Subsidiaries arising under, owing pursuant to, or existing in respect of Hedge Agreements entered into with one or more of the Hedge Providers.
“Hedge Provider” means any Lender or any of its Affiliates; provided, that no such Person (other than Wells Fargo or its Affiliates) shall constitute a Hedge Provider unless and until Administrative Agent receives a Bank Product Provider Agreement from such Person and with respect to the applicable Hedge Agreement within 10 days after the execution and delivery of such Hedge Agreement with a Borrower or its Subsidiaries; provided further, that if, at any time, a Lender ceases to be a Lender under the Agreement, then, from and after the date on which it ceases to be a Lender thereunder, neither it nor any of its Affiliates shall constitute Hedge Providers and the obligations with respect to Hedge Agreements entered into with such former Lender or any of its Affiliates shall no longer constitute Hedge Obligations.
“Immaterial Subsidiary” means any Subsidiary that is not a Material Subsidiary.
“Indebtedness” as to any Person means (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes, or other similar instruments and all reimbursement or other obligations in respect of letters of credit, bankers acceptances, or other financial products, (c) all obligations of such Person as a lessee under Capital Leases, (d) all obligations or liabilities of others secured by a Lien on any asset of such Person, irrespective of whether such obligation or liability is assumed, (e) all obligations of such Person to pay the deferred purchase price of assets (other than trade payables incurred in the ordinary course of business and repayable in accordance with customary trade practices and, for the avoidance of doubt, other than royalty payments payable in the ordinary course of business in respect of non-exclusive licenses), (f) all monetary obligations of such Person owing under Hedge Agreements (which amount shall be calculated based on the amount that would be payable by such Person if the Hedge Agreement were terminated on the date of determination), (g) any Disqualified Equity Interests of such Person, and (h) any Guarantee of such Person of Indebtedness of others. For purposes of this definition, (i) the amount of any Indebtedness represented by a guaranty or other similar instrument shall be the lesser of the principal amount of the obligations 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 Indebtedness, and (ii) the amount of any Indebtedness which is limited or is non-recourse to a Person or for which recourse is limited to an identified asset shall be valued at the lesser of (A) if applicable, the limited amount of such obligations, and (B) if applicable, the fair market value of such assets securing such obligation. Notwithstanding anything to the contrary, in no event shall the obligations (including rental payments) under the Tucker Lease be deemed to be Indebtedness.
“Indemnified Liabilities” has the meaning specified therefor in Section 10.3 of the Agreement.
“Indemnified Person” has the meaning specified therefor in Section 10.3 of the Agreement.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Insolvency Proceeding” means any proceeding commenced by or against any Person under any provision of the Bankruptcy Code or under any other Debtor Relief Law.
“Intellectual Property” means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses, Marks, Mark licenses, technology, know-how and processes, and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.
“Intercompany Subordination Agreement” means an intercompany subordination agreement, dated as of the Closing Date, executed and delivered by each Loan Party and each of their Subsidiaries, and Administrative Agent, the form and substance of which is reasonably satisfactory to Administrative Agent.
“Intercreditor Agreement” means the Intercreditor Agreement, dated as of the Fifth Amendment Effective Date (as amended, restated, amended and restated, supplemented or otherwise modified from time to time) between the Administrative Agent and the Term Loan Agent, and acknowledged by Borrowers and Guarantors.
“Inventory” means inventory (as that term is defined in the Code).
“Investment” means, with respect to any Person, any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees, advances, capital contributions (excluding (a) commission, travel, and similar advances to officers and employees of such Person made in the ordinary course of business, and (b) bona fide accounts receivable arising in the ordinary course of business), or acquisitions of Indebtedness, Equity Interests, or all or substantially all of the assets of such other Person (or of any division or business line of such other Person), and any other items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. For purposes of determining the amount of any Investment outstanding for purposes of Section 6.9, such amount shall be deemed to be the amount of such Investment when made, purchased or acquired (without adjustment for subsequent increases or decreases in the value of such Investment), but after giving effect to any repayments in cash of principal and/or payments in cash of interest in the case of any Investment in the form of a loan and any amount realized in respect of such Investment in the form of an equity Investment upon the sale, collection or return of capital (whether as a distribution, dividend, redemption or sale, but not to exceed the original amount invested).
“IRC” means the Internal Revenue Code of 1986, as in effect from time to time.
“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“ISP” means, with respect to any Letter of Credit, the International Standby Practices 1998 (International Chamber of Commerce Publication No. 590) and any subsequent revision thereof adopted by the International Chamber of Commerce on the date such Letter of Credit is issued.
“Issuer Document” means, with respect to any Letter of Credit, a letter of credit application, a letter of credit agreement, or any other document, agreement or instrument entered into (or to be entered into) by a Borrower in favor of Issuing Bank and relating to such Letter of Credit.
“Issuing Bank” means Wells Fargo, PNC Bank, National Association with respect to the Existing Letters of Credit, or any other Lender that, at the request of Borrowers and with the consent of Administrative Agent, agrees, in such Lender’s sole discretion, to become an Issuing Bank for the purpose of issuing Letters of Credit pursuant to Section 2.11 of the Agreement, and Issuing Bank shall be a Lender.
“Joint Book Runners” has the meaning set forth in the preamble to the Agreement.
“Joint Lead Arrangers” has the meaning set forth in the preamble to the Agreement.
“Junior Indebtedness” means, with respect to Parent, the Borrower and its Subsidiaries, any (a) Subordinated Indebtedness and (b) Indebtedness secured by Liens that are junior to the Liens securing the Obligations.
“Landlord Reserve” means, as to each location at which a Borrower has books and records located and as to which a Collateral Access Agreement has not been received by Administrative Agent, a reserve in an amount equal to the greater of (a) the number of months’ rent for which the landlord will have, under applicable law, a Lien on any Collateral to secure the payment of rent or other amounts under the lease relative to such location, or (b) 3 months’ rent under the lease relative to such location.
“Lender” has the meaning set forth in the preamble to the Agreement, shall include Issuing Bank and the Swing Lender, and shall also include any other Person made a party to the Agreement pursuant to the provisions of Section 13.1 of the Agreement and “Lenders” means each of the Lenders or any one or more of them.
“Lender Group” means each of the Lenders (including Issuing Bank and the Swing Lender), Australian Security Trustee, Administrative Agent and the Co-Collateral Agents, or any one or more of them.
“Lender Group Expenses” means all (a) costs or expenses (including taxes and insurance premiums) required to be paid by any Loan Party or its Subsidiaries under any of the Loan Documents that are paid, advanced, or incurred by any Secured Party, (b) documented out-of-pocket fees or charges paid or incurred by Administrative Agent, Australian Security Trustee and Co-Collateral Agents in connection with the Lender Group’s transactions with each Loan Party and its Subsidiaries under any of the Loan Documents, including, photocopying, notarization, couriers and messengers, telecommunication, public record searches, filing fees, recording fees, publication, real estate surveys, real estate title policies and endorsements, and environmental audits, (c) Administrative Agent’s and Co-Collateral Agent’s customary fees and charges imposed or incurred in connection with any background checks or OFAC/PEP searches related to any Loan Party or its Subsidiaries, (d) Administrative Agent's customary fees and charges (as adjusted from time to time) with respect to the disbursement of funds (or the receipt of funds) to or for the account of any Borrower (whether by wire transfer or otherwise), together with any out-of-pocket costs and expenses incurred in connection therewith, (e) customary charges imposed or incurred by Administrative Agent resulting from the dishonor of checks payable by or to any other Loan Party, (f) reasonable documented out-of-pocket costs and expenses paid or incurred by the Secured Parties to correct any default or enforce any provision of the Loan Documents, or during the continuance of an Event of Default, in gaining possession of, maintaining, handling, preserving, storing, shipping, selling, preparing for sale, or advertising to sell the Collateral, or any portion thereof, irrespective of whether a sale is consummated, (g) field examination, appraisal, and valuation fees and expenses of Administrative Agent and Co-Collateral Agents related to any field examinations, appraisals, or valuation to the extent of the fees and charges (and up to the amount of any limitation) provided in Section 2.10 of the Agreement, (h) reasonable costs and expenses (including reasonable documented attorneys’ fees and expenses) of Administrative Agent, Australian Security Trustee and Co-Collateral Agents relative to third party claims or any other lawsuit or adverse proceeding paid or incurred, whether in enforcing or defending the Loan Documents or otherwise in connection with the transactions contemplated by the Loan Documents, Agent’s Liens (or the Liens of Australian Security Trustee) in and to the Collateral, or the Secured Parties’ relationship with any Loan Party or any of their Subsidiaries, (i) reasonable documented costs and expenses (including reasonable documented attorneys’ fees and due diligence expenses) incurred by Administrative Agent and Co-Collateral Agents in advising, structuring, drafting, reviewing, administering (including travel, meals, and lodging), syndicating (including, CUSIP, DXSyndicate™, SyndTrak or other communication costs incurred in connection with a syndication of the loan facilities), or amending, waiving, or modifying the Loan Documents, and (j) Administrative Agent’s, Co-Collateral Agents’ and each Lender’s reasonable documented costs and expenses (including reasonable documented attorneys, accountants, consultants, and other advisors fees and expenses) incurred in terminating, enforcing (including attorneys, accountants, consultants, and other advisors fees and expenses incurred in connection with a “workout,” a “restructuring,” or an Insolvency Proceeding concerning any Loan Party or any of their Subsidiaries or in exercising rights or remedies under the Loan Documents), or defending the Loan Documents, irrespective of whether a lawsuit or other adverse proceeding is brought, or in taking any enforcement action or any remedial action with respect to the Collateral (provided that the fees and expenses of counsel that shall constitute Lender Group Expenses shall in any event be limited to one primary counsel, one local counsel in each reasonably necessary jurisdiction (including, without limitation, Australian counsel), one specialty counsel in each reasonably necessary specialty area, and one or more additional counsel if one or more conflicts of interest arise).
“Lender Group Representatives” has the meaning specified therefor in Section 17.9 of the Agreement.
“Lender-Related Person” means, with respect to any Lender, such Lender, together with such Lender’s Affiliates, officers, directors, employees, attorneys, and agents.
“Letter of Credit” means a letter of credit (as that term is defined in the Code) issued by Issuing Bank.
“Letter of Credit Collateralization” means either (a) providing cash collateral (pursuant to documentation reasonably satisfactory to Administrative Agent, including provisions that specify that the Letter of Credit Fees and all commissions, fees, charges and expenses provided for in Section 2.11(k) of the Agreement (including any fronting fees) will continue to accrue while the Letters of Credit are outstanding) to be held by Administrative Agent for the benefit of the Revolving Lenders in an amount equal to 105% of the then existing Letter of Credit Usage, (b) delivering to Administrative Agent documentation executed by all beneficiaries under the Letters of Credit, in form and substance reasonably satisfactory to Administrative Agent and Issuing Bank, terminating all of such beneficiaries’ rights under the Letters of Credit, or (c) providing Administrative Agent with a standby letter of credit, in form and substance reasonably satisfactory to Administrative Agent, from a commercial bank acceptable to Administrative Agent (in its sole discretion) in an amount equal to 105% of the then existing Letter of Credit Usage (it being understood that the Letter of Credit Fee and all fronting fees set forth in the Agreement will continue to accrue while the Letters of Credit are outstanding and that any such fees that accrue must be an amount that can be drawn under any such standby letter of credit).
“Letter of Credit Disbursement” means a payment made by Issuing Bank pursuant to a Letter of Credit.
“Letter of Credit Exposure” means, as of any date of determination with respect to any Lender, such Lender’s Pro Rata Share of the Letter of Credit Usage on such date.
“Letter of Credit Fee” has the meaning specified therefor in Section 2.6(b) of the Agreement.
“Letter of Credit Indemnified Costs” has the meaning specified therefor in Section 2.11(f) of the Agreement.
“Letter of Credit Related Person” has the meaning specified therefor in Section 2.11(f) of the Agreement.
“Letter of Credit Usage” means, as of any date of determination, the aggregate undrawn amount of all outstanding Letters of Credit.
“LIBOR Rate” means Daily Three Month LIBOR.
“LIBOR Rate Loan” means each portion of a Revolving Loan that bears interest at a rate determined by reference to the LIBOR Rate.
“LIBOR Screen Rate” has the meaning specified in the definition of “Daily Three Month LIBOR”.
“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit arrangement, encumbrance, easement, lien (statutory or other), security interest (including, without limitation, any “security interest” as defined in sections 12(1) and 12(2) of the Australian PPSA), or other security arrangement and any other preference, priority, or preferential arrangement of any kind or nature whatsoever, including any interest of a vendor or lessor under any conditional sale contract or other title retention agreement, the interest of a lessor under a Capital Lease and any synthetic or other financing lease having substantially the same economic effect as any of the foregoing.
“Liquidity” means the sum of (a) the amount of unrestricted cash and Cash Equivalents of Borrowers that is in Deposit Accounts or in Securities Accounts, or any combination thereof, and, solely with respect to any Deposit Account or Securities Account of a US Loan Party, which Deposit Account or Securities Account is the subject of a Control Agreement and is maintained by a branch office of a bank or securities intermediary located within the United States, plus (b) Total Availability.
“Loan” shall mean any Revolving Loan, Swing Loan or Extraordinary Advance made (or to be made) hereunder.
“Loan Accounts” means the US Loan Account and the Australian Loan Account, individually or collectively, as ---the context requires.
“Loan Documents” means the Agreement, the Control Agreements, the Copyright Security Agreement, any Borrowing Base Certificate, the Fee Letter, the Guaranty and Security Agreement, the Intercompany Subordination Agreement, any Issuer Documents, the Letters of Credit, the Patent Security Agreement, the Trademark Security Agreement, any Credit Card Acknowledgment, any Australian Security Documents, the Australian Security Trust Deed, any note or notes executed by Borrowers in connection with the Agreement and payable to any member of the Lender Group, and any other instrument or agreement entered into, now or in the future, by Parent, any Borrower or any of its Subsidiaries and any Secured Party in connection with the Agreement that is designated (other than with respect to any amendment to any Loan Document or any security agreement, which requires no such specific designation) as a “Loan Document”.
“Loan Party” means any Borrower or any Guarantor.
“Margin Stock” as defined in Regulation U of the Board of Governors as in effect from time to time.
“Marks” means all current and future (i) trademarks, service marks, trade styles, and logos (including all registrations and recordings thereof and all applications in connection therewith, whether in the United States Patent and Trademark Office or in any similar office or agency of the United States, any state thereof or any other country or any political subdivision thereof, or otherwise) and (ii) trademark rights in any trade names, corporate names, company names, business names, fictitious business names, other source or business identifiers Internet domain names, subdomain names and social media account or page addresses (but excluding all other rights in the foregoing items in this subsection (ii), including any rights in any registrations or recordings for the foregoing items), and in each case of subsections (i) and (ii), all goodwill associated therewith and all common-law rights related thereto.
“Material Adverse Effect” means a material adverse effect on (a) the business, assets, property, material agreements, liabilities, financial condition or results of operations of Parent and its Subsidiaries, taken as a whole, or (b) the validity or enforceability of this Agreement or any of the other Loan Documents or the rights and remedies of Administrative Agent or the other Secured Parties under any of the Loan Documents.
“Material Indebtedness” means Indebtedness (other than the Loans but including, for the avoidance of doubt, Guarantees) of any one or more of Parent and its Subsidiaries, in an aggregate principal amount exceeding $25,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of Parent or any of its Subsidiaries in respect of any Hedge Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that Parent or such Subsidiary would be required to pay if such Hedge Agreement were terminated at such time.
“Material Subsidiary” means (a) each Borrower and (b) a Subsidiary that, together with its Subsidiaries on a consolidated basis, as of the date of the financial statements most recently delivered pursuant to Section 5.1 (i) generates annual revenue in excess of 2.5% of the Consolidated annual revenue of Parent and its Subsidiaries or (ii) owns assets the book value of which exceeds 2.5% of the Consolidated book value of the total assets of Parent and its Subsidiaries; provided, that no Subsidiary shall be excluded as a Material Subsidiary until, and for so long as, Administrative Borrower shall have designated such Subsidiary’s status as an Immaterial Subsidiary in writing to the Administrative Agent; provided, further, that no Subsidiary shall be excluded as a Material Subsidiary if the consolidated total assets or consolidated revenue of such Subsidiary, taken together with the consolidated total assets and consolidated revenue of all other Subsidiaries then excluded as Material Subsidiaries, exceeds 5.0% of the consolidated total assets or consolidated revenue, as the case may be, of Administrative Borrower and its Subsidiaries.
“Maturity Date” means the earlier of (a) March 1, 2026 or (b) ninety-one (91) days prior to the stated maturity date of the Term Loan.
“Maximum Australian Loan Amount” means US$40,000,000.
“Maximum Revolver Amount” means $175,000,000, unless decreased by the amount of reductions in the Revolver Commitments made in accordance with Section 2.4(c).
“Maximum US Loan Amount” means, at any time, (a) the Maximum Revolver Amount, minus (b) the Australian Revolver Usage.
“Moody’s” means Moody’s Investors Service, Inc.
“Mudrick” means Mudrick Capital Management L.P.
“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Net Extraordinary Charges and Losses” means, for any applicable Reference Period, an amount (which shall not be less than zero) equal to (a) the amount of non-recurring extraordinary charges and losses for such Reference Period minus (b) the amount of any extraordinary gains deducted from Consolidated EBITDA for such period pursuant to clause (a)(iii) of the definition thereof.
“Non-Consenting Lender” has the meaning specified therefor in Section 14.2(a) of the Agreement.
“Non-Defaulting Lender” means each Lender other than a Defaulting Lender.
“Non-Wholly-Owned Subsidiary” means any Subsidiary of Parent that is not Wholly-Owned.
“Obligations” means (a) all loans (including the Revolving Loans (inclusive of Extraordinary Advances and Swing Loans)), debts, principal, interest (including any interest that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), reimbursement or indemnification obligations with respect to Letters of Credit (irrespective of whether contingent), premiums, liabilities (including all amounts charged to any Loan Account pursuant to the Agreement), obligations (including indemnification obligations), fees (including the fees provided for in the Fee Letter), Lender Group Expenses (including any fees or expenses that accrue after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), guaranties, and all covenants and duties of any other kind and description owing by any other Loan Party arising out of, under, pursuant to, in connection with, or evidenced by the Agreement or any of the other Loan Documents and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all interest not paid when due and all other expenses or other amounts that Borrowers are required to pay or reimburse by the Loan Documents or by law or otherwise in connection with the Loan Documents, and (b) all Bank Product Obligations. Without limiting the generality of the foregoing, the Obligations of Borrowers under the Loan Documents include the obligation to pay (i) the principal of the Revolving Loans, (ii) interest accrued on the Revolving Loans, (iii) the amount necessary to reimburse Issuing Bank for amounts paid or payable pursuant to Letters of Credit, (iv) Letter of Credit commissions, fees (including fronting fees) and charges, (v) Lender Group Expenses, (vi) fees payable under the Agreement or any of the other Loan Documents, and (vii) indemnities and other amounts payable by any other Loan Party under any Loan Document. Any reference in the Agreement or in the Loan Documents to the Obligations shall include all or any portion thereof and any extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any Insolvency Proceeding.
“OFAC” means The Office of Foreign Assets Control of the U.S. Department of the Treasury.
“OFAC Sanctions Programs” means the laws, regulations and Executive Orders administered by OFAC, including but not limited to, Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, as it has been or shall thereafter be renewed, extended, amended, or replaced, and the list of Specially Designated Nationals and Blocked Persons administered by OFAC, as such list may be amended from time to time.
“Originating Lender” has the meaning specified therefor in Section 13.1(e) of the Agreement.
“Other Connection Taxes” means, with respect to a Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction or taxing authority imposing the Tax (other than any such connection arising solely from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” 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 2.13(b) or Section 14.2).
“Overadvance” means, as of any date of determination, that the Total Revolver Usage is greater than any of the limitations set forth in Section 2.1 or Section 2.11.
“Parent” has the meaning specified therefor in the preamble to the Agreement.
“Participant” has the meaning specified therefor in Section 13.1(e) of the Agreement.
“Participant Register” has the meaning set forth in Section 13.1(f) of the Agreement.
“Patent Security Agreement” has the meaning specified therefor in the Guaranty and Security Agreement.
“Patriot Act” has the meaning specified therefor in Section 4.13 of the Agreement.
“Payment Conditions” means, with respect to any transaction or payment, the following:
(a) as of the date of any such transaction or payment, and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing,
(b) as of the date of any such transaction or payment, on a pro forma basis after giving effect thereto, Total Excess Availability shall be greater than or equal to fifteen percent (15%) of the Maximum Revolver Amount,
(c) for the thirty (30) day period immediately preceding such transaction or payment, average Total Excess Availability shall be greater than or equal to fifteen percent (15%) of the Maximum Revolver Amount,
(d) as of the date of any such transaction or payment and after giving effect thereto, Parent’s Fixed Charge Coverage Ratio, calculated for the preceding trailing twelve month period ending closest to the date on which the transaction or payment shall have been consummated, determined on a pro forma basis as if such transaction or payment had been consummated during or at the end of such period, shall not be less than 1.00 to 1.00.
(e) as of the date of any such transaction or payment and after giving effect thereto, Parent and its Subsidiaries on a consolidated basis shall be Solvent and Administrative Agent shall have received a customary officer’s certificate with respect thereto, and
(f) Administrative Agent shall have received a certificate of a Financial Officer, certifying as to compliance with the preceding clauses and demonstrating (in reasonable detail) the calculations required thereby.
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Permitted Acquisitions” means any Acquisition by Parent or any other Loan Party, so long as:
(a) both before and immediately after giving effect thereto, each of the Payment Conditions is satisfied,
(b) a substantial portion of the business of such acquired Person or business consists of one or more Permitted Businesses,
(c) each US Subsidiary and/or Australian Subsidiary resulting from such Acquisition (and which survives such Acquisition), other than any Excluded Subsidiary, shall become a Loan Party and 100% of the Equity Interests of each such Subsidiary shall be owned directly by Parent and/or Loan Parties and shall have been pledged pursuant to the applicable Loan Documents (subject to the limitations of the pledge of Equity Interests of Foreign Subsidiaries set forth in the definition of “Collateral and Guarantee Requirement”), in each case, in accordance with and within the time periods provided for in Section 5.11 of this Agreement and the applicable Loan Documents,
(d) the Collateral and Guarantee Requirement shall have been satisfied with respect to each such US Subsidiary and/or Australian Subsidiary (other than any Excluded Subsidiary) in accordance with and within the time periods provided for in Section 5.11 of this Agreement and the applicable Loan Documents,
(e) such Acquisition shall be consensual and shall been approved by the board of directors (or comparable body) of the Person to be acquired and such Person has not announced that it will oppose such Acquisition or shall not have commenced an action which alleges that such Acquisition will violate applicable law,
(f) no Indebtedness will be incurred, assumed, or would exist with respect to any Loan Party or their Subsidiaries as a result of such Acquisition, other than Indebtedness permitted under clause (f) of the definition of Permitted Indebtedness and no Liens will be incurred, assumed, or would exist with respect to the assets of any Loan Party or their Subsidiaries as a result of such Acquisition other than Permitted Liens,
(g) Borrowers have provided Administrative Agent with written confirmation, supported by reasonably detailed calculations, that on a pro forma basis (including pro forma adjustments arising out of events which are directly attributable to such proposed Acquisition, are factually supportable, and are expected to have a continuing impact, in each case, determined as if the combination had been accomplished at the beginning of the relevant period; such eliminations and inclusions to be calculated by adding the historical combined financial statements of Parent (including the combined financial statements of any other Person or assets that were the subject of a prior Permitted Acquisition during the relevant period) to the historical consolidated financial statements of the Person to be acquired (or the historical financial statements related to the assets to be acquired) pursuant to the proposed Acquisition, Parent and its Subsidiaries (i) would have been in compliance with the financial covenants in Section 7 of the Agreement for the fiscal quarter ended immediately prior to the proposed date of consummation of such proposed Acquisition, and (ii) are projected to be in compliance with the financial covenants in Section 7 of the Agreement for each of the 4 fiscal quarters in the period ended one year after the proposed date of consummation of such proposed Acquisition,
(h) Borrowers have provided Administrative Agent with its due diligence package relative to the proposed Acquisition, including forecasted balance sheets, profit and loss statements, and cash flow statements of the Person or assets to be acquired, all prepared on a basis consistent with such Person’s (or assets’) historical financial statements, together with appropriate supporting details and a statement of underlying assumptions for the one (1) year period following the date of the proposed Acquisition, on a quarter by quarter basis), but excluding for purposes of this clause (h) any Protected Information,
(i) Borrowers have provided Administrative Agent with written confirmation, supported by reasonably detailed calculations, that after giving pro forma effect to such Acquisition, the assets being acquired or the Person whose Equity Interests are being acquired will not have a negative effect on Consolidated EBITDA of Parent and its Subsidiaries,
(j) Borrowers have provided Administrative Agent with written notice of the proposed Acquisition at least fifteen (15) Business Days prior to the anticipated closing date of the proposed Acquisition and, not later than five (5) Business Days prior to the anticipated closing date of the proposed Acquisition, copies of the acquisition agreement and other material documents relative to the proposed Acquisition, but excluding for purposes of this clause (j) any Protected Information, and
(k) the assets being acquired (other than a de minimis amount of assets in relation to the assets being acquired) are located within the United States, Canada, Australia or the jurisdiction of organization of any Discretionary Guarantor, or the Person whose Equity Interests are being acquired is organized in a jurisdiction located within the United States, Canada, Australian or the jurisdiction of organization of any Discretionary Guarantor; provided, that, (i) an Acquisition by Parent of the assets of, or Equity Interests in, Camilyo (a software company based in Tel Aviv, Israel), which otherwise satisfies clauses (a) through (j) of this definition, shall not be excluded as a Permitted Acquisition by reason of this clause (k) and (ii) for purposes of clauses (c) and (d) of this definition, Acquisitions, to the extent that any Person or Property acquired in such Acquisition does not become a Guarantor or a part of a Guarantor, shall not be excluded as a Permitted Acquisition by reason of such clauses (c) and (d) as to Acquisitions during the term of this Agreement (for the period commencing after the Fifth Amendment Effective Date) that involve consideration not to exceed the aggregate amount of $25,000,000, except, that, the foregoing dollar cap set forth in clause (ii) above shall not apply to any Acquisition to the extent the Person so acquired (or the Person owning the assets so acquired) becomes a Guarantor even though such Person owns Equity Interests in Persons that are not otherwise required to become Guarantors hereunder, if not less than 80% of the Consolidated EBITDA of the Person(s) acquired in such Acquisition (for this purpose and for the component definitions used therein, determined on a consolidated basis for such Persons and their respective Subsidiaries) is generated by Person(s) that will become Guarantors (i.e., disregarding any Consolidated EBITDA generated by Subsidiaries of such Guarantors that are not (or will not become) Guarantors).
“Permitted Business” means the telephone and internet, targeted print, marketing, digital and directory services businesses (including CRM applications) and businesses reasonably related, incidental or ancillary thereto or any business or activity that is reasonably similar thereto or a reasonable extension, development or expansion thereof or ancillary thereto.
“Permitted Discretion” means a determination made in good faith and the exercise of reasonable (from the perspective of a secured asset-based lender) business judgment.
“Permitted Dispositions” means:
(a) Dispositions of (i) inventory in the ordinary course of business and/or (ii) used, surplus, obsolete or worn-out assets no longer used or useful in the business of Parent or any of its Subsidiaries;
(b) Dispositions to Parent or a Subsidiary; provided, that any such Dispositions made to any Subsidiary that is not a Loan Party shall be made in compliance with Section 6.10;
(c) sale and leaseback transactions permitted by Section 6.4(b);
(d) sales, transfers and other dispositions of assets (other than ABL Priority Collateral and Equity Interests in a Subsidiary) to bona fide third parties that are not Affiliates of Parent and that are not permitted by any other clause of this Section; provided, that, (i) the aggregate cumulative fair market value of all assets sold, transferred or otherwise disposed of after the Term Loan Closing Date in reliance upon this clause (d) shall not exceed $20,000,000 and (ii) at least 75% of the consideration for such disposition shall consist of cash or Permitted Investments;
(e) licensing or sublicensing (other than exclusive licenses or sublicenses) of Intellectual Property in the ordinary course of business in a manner that does not, and could not reasonably be expected to, materially interfere with the business of Parent and its Subsidiaries, taken as a whole;
(f) the expiration of Intellectual Property in accordance with its statutory term or the abandonment or lapse of intellectual property in the ordinary course of business, in each case in a manner that does not, and could not reasonably be expected to, materially interfere with the business of Parent and its Subsidiaries, taken as a whole;
(g) abandonment or lapse of Intellectual Property in the ordinary course of business in a manner that does not, and could not reasonably be expected to, materially interfere with the business of the Borrowers, taken as a whole;
(h) Dispositions of cash or Cash Equivalents in a manner that is not prohibited by the terms of this Agreement or the other Loan Documents;
(i) the write-off, discount, sale or other Disposition, in each case without recourse, of accounts receivable and similar obligations arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(j) the sale of Dispositions of accounts receivable in connection with, and as contemplated by, the Billing and Collection Agreement;
(k) any involuntary loss, damage or destruction of property;
(l) any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property;
(m) leases, subleases, licenses or sublicenses of real or personal property granted by Parent or any of its Subsidiaries to others in the ordinary course of business not detracting from the value of such real or personal property or interfering in any material respect with the business of Parent or any of its Subsidiaries, taken as a whole;
(n) the Specified Disposition; provided that at the time of such Specified Disposition and after giving effect thereto, no Default or Event of Default shall have occurred and continuing or would result therefrom;
(o) the Disposition, termination or unwinding of any Hedge Agreement;
(p) the making of any Permitted Investment; and
(q) Dispositions pursuant to any other transaction permitted in accordance with Section 6.3;
provided, that (x) all Dispositions permitted pursuant to clauses (c), (d), (h), (j) and (n) shall be made for at least 75% cash consideration (and any Designated Non-Cash Consideration received in respect of all such Dispositions having an aggregate fair market value not in excess of $5,000,000 shall be deemed to be cash), and (y) all sales, transfers, leases and other dispositions permitted by clauses (a)(i), (c), (d) and (n) above shall be made for fair value as determined in good faith by Administrative Borrower.
“Permitted Encumbrances” means:
(r) Liens imposed by law for taxes, assessments and other governmental charges or levies (excluding any Lien imposed pursuant to any of the provisions of ERISA or Environmental Laws) that (i) (A) are not yet delinquent and payable or as to which the period of grace (not to exceed thirty (30) days), if any, related thereto has not expired or (B) the underlying taxes are the subject of Permitted Protests and (ii) do not have priority over Administrative Agent’s Lien;
(s) carriers’, warehousemen’s, mechanics’, materialmen’s, landlord’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or are the subject of Permitted Protests;
(t) pledges and deposits made in the ordinary course of business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds, bank guarantees and other obligations of a like nature incurred in the ordinary course of business or in connection with the Sunshine Acquisition;
(u) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;
(v) judgment Liens in respect of judgments or attachments that do not constitute a Default or an Event of Default under Section 8.3;
(w) easements, zoning restrictions, rights-of-way, encroachments, other survey defects, rights or restrictions on Real Property that would be shown by a current, accurate survey or physical inspection, and similar encumbrances or irregularities in title or on record of Real Property, which in the aggregate are not substantial in amount and do not, or could not reasonably be expected to, materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Parent or any of its Subsidiaries;
(x) (i) Liens of a collecting bank arising in the ordinary course of business under Section 4-210 of the Uniform Commercial Code in effect in the relevant jurisdiction, (ii) Liens of any depositary bank in connection with statutory, common law and contractual rights of setoff and recoupment with respect to any deposit account of the Borrowers or any Subsidiary thereof, (iii) Liens arising 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 pursuant to Section 6.4 and (iv) Liens or rights of setoff against credit balances of Parent or any of its Subsidiaries with credit card issuers or credit card processors, or amounts owing by such credit card issuers or credit card processors to Parent or any of its Subsidiaries in the ordinary course of business, but not Liens on or rights of setoff against any other property or assets of Parent or any of its Subsidiaries, pursuant to applicable credit card agreements to secure the obligations of Parent or any of its Subsidiaries to such credit card issuers or credit card processors as a result of fees and chargebacks;
(y) (i) leases, subleases, non-exclusive licenses or sublicenses granted to others in the ordinary course of business which do not (A) interfere in any material respect with the business of Parent or its Subsidiaries or (B) secure any Indebtedness and (ii) any interest or title of a lessor, sub-lessor, non-exclusive licensor or sub-licensor under leases, subleases, non-exclusive licenses or sublicenses entered into by any of Parent and its Subsidiaries as non-exclusive licensee, sub-licensee, lessee or sub-lessee in the ordinary course of business (and covering only the assets so leased or licensed) or any customary restriction or encumbrance with respect to the Property subject to any such lease, sublease, non-exclusive license or sublicense which do not (A) interfere in any material respect with the business of Parent or its Subsidiaries or (B) secure any Indebtedness;
(z) the licensing or sublicensing (other than exclusive licenses or sublicenses) of Intellectual Property in the ordinary course of business in a manner that does not, or could not reasonably be expected to, materially interfere with the business of Parent and its Subsidiaries;
(aa) any provision for the retention of title to any property by the vendor or transferor of such property, which property is acquired by Parent or a Subsidiary of Parent in a transaction entered into in the ordinary course of business of Parent or such Subsidiary of Parent and for which kind of transaction it is normal market practice for such retention of title provision to be included; and
(bb) (i) Liens on Equity Interests of joint ventures securing capital contributions thereto and (ii) customary rights of first refusal and tag, drag and similar rights in joint venture
agreements and
agreements, in each case, with respect to
Non-Wholly-Owned Subsidiaries which are not Loan Parties;
provided, that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.
“Permitted Holder” means, collectively, (a) Mudrick and its Affiliates and (b) any fund or investment vehicle that (i) is organized by Mudrick for the purpose of making equity or debt investments in one or more companies and (ii) is advised, managed or controlled by, or under common control or management with, Mudrick, but in each case, excluding any portfolio companies of Mudrick or any portfolio companies of its co-investors. For purposes of this definition “control” means the power to direct or cause the direction of management and policies of a Person, whether by contract or otherwise.
“Permitted Indebtedness” means:
(a) Indebtedness evidenced by the Loan Documents and any Bank Product Agreements;
(b) Indebtedness set forth on Schedule 4.14 to the Agreement and any Refinancing Indebtedness in respect of such Indebtedness;
(c) Permitted Intercompany Advances;
(d) (i) Guarantees by Parent of Indebtedness of any other Loan Party and by any of its Subsidiaries of Indebtedness of Parent or any other Loan Party and (ii) Guarantees by any Loan Party of Indebtedness of any Subsidiary that is not a Loan Party (to the extent constituting a Permitted Investment (other than under clause (e) of such definition);
(e) Indebtedness and Attributable Debt of Parent or any of its Subsidiaries incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capitalized Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by an amount not greater than fees and expenses, including premium and defeasance costs, associated therewith) or result in a decreased average weighted life thereof; provided, that (1) such Indebtedness or Attributable Debt is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (2) the aggregate principal amount of Indebtedness and Attributable Debt permitted by this clause (v), shall not exceed $30,000,000 at any time outstanding;
(f) Indebtedness of any Person that becomes a Subsidiary of any Loan Party after the Closing Date and Refinancing Indebtedness in respect thereof; provided, that (A) such Indebtedness (other than Refinancing Indebtedness) exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary (except to the extent such Indebtedness refinanced other Indebtedness to facilitate such entity becoming a Subsidiary) and (B) the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $50,000,000 at any time outstanding;
(g) the incurrence by any Loan Party of Indebtedness under Hedge Agreements that are incurred for the bona fide purpose of hedging the interest rate, exchange rate, commodity price, or foreign currency risks associated with such Loan Party’s operations and not for speculative purposes,
(h) Indebtedness under the Term Loan Credit Agreement in an aggregate principal amount not to exceed the Term Debt Cap (as such term is defined in the Intercreditor Agreement, as in effect on the date hereof) and any refinancings, renewals, substitutions or extensions of all of such Indebtedness; provided, however, that (i) the interest rate applicable thereto shall be a market interest rate, (ii) the scheduled maturity date for such Indebtedness is on or after the Maturity Date, (iii) such Indebtedness has an equal or longer weighted average life to maturity than the Term Loan as of the Fifth Amendment Effective Date, (iv) after giving effect to any such refinancing, renewal, substitution or extension, the amount of such Indebtedness is not greater than the amount of Term Loan Cap, (v) such Indebtedness does not have terms and conditions that would result in a material increase with respect to mandatory prepayments from the terms and conditions of the Term Loan Credit Agreement as of the Fifth Amendment Effective Date and (vi) the Liens on the ABL Priority Collateral securing any such obligations shall remain subordinate to the Liens on the ABL Priority Collateral securing the Obligations subject to the Intercreditor Agreement or intercreditor arrangements on substantially the same terms and conditions as in effect immediately prior to such refinancing, renewal, substitution or extension;
(i) Indebtedness in an amount not to exceed $15,000,000 at any time outstanding of the Borrowers or any Subsidiary required in connection with cash management services and arrangements (other than pursuant to the Loan Documents);
(j) (i) endorsement of instruments or other payment items for deposit in the ordinary course of business and/or (ii) unsecured Indebtedness incurred in respect of netting services, overdraft protection, and other like services, in each case, incurred in the ordinary course of business;
(k) Indebtedness owed to any Person providing property, casualty, liability, or other insurance to any Borrower or any of its Subsidiaries, so long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the year in which such Indebtedness is incurred and such Indebtedness is outstanding only during such year;
(l) contingent liabilities in respect of any indemnification obligation, adjustment of purchase price, non-compete, earn-out or similar obligation of any Loan Party or its Subsidiaries that are subordinated to the Obligations on terms satisfactory to the Administrative Agent incurred in connection with the consummation of one or more Permitted Acquisitions (including the Sunshine Acquisition);
(m) Indebtedness composing Permitted Investments;
(n) any other Indebtedness incurred by any Loan Party or any of their Subsidiaries in an aggregate outstanding amount not to exceed $25,000,000 at any one time;
(o) Permitted Unsecured Indebtedness and/or Subordinated Indebtedness in an aggregate principal amount not to exceed $500,000,000 at any time outstanding;
(p) Indebtedness under performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or with respect to workers’ compensation claims, in each case incurred in the ordinary course of business or in connection with the Sunshine Acquisition, and reimbursement obligations in respect of any of the foregoing;
(q) Indebtedness arising under (i) the letters of credit of the Australian Sunshine Entities assumed by any Loan Party or any of its Subsidiaries pursuant to the Sunshine Acquisition Agreement and (ii) any bank guarantees issued in connection with such assumed letters of credit referred to in clause (i) in an aggregate amount not to exceed AUS$3,325,021.39;
(r) Indebtedness consisting of promissory notes issued to current or former officers, directors and employees (or their respective family members, estates or trusts or other entities for the benefit of any of the foregoing) of Parent or its Subsidiaries to purchase or redeem Equity Interests or options of Parent permitted pursuant to clause (i) of the definition of “Permitted Investments”; provided, that the aggregate principal amount of all such Indebtedness shall not exceed $5,000,000 at any time outstanding; and
(s) the intercompany note issued on the Fifth Amendment Effective Date by Thryv Parabolica Limited, an entity organized under the laws of Malta, as issuer, in favor of Thryv Ausco in connection with the Sunshine Acquisition.
“Permitted Intercompany Advances” means loans made by (a) a Loan Party to another Loan Party, (b) a Subsidiary of Parent that is not a Loan Party to another Subsidiary of Parent that is not a Loan Party, (c) a Subsidiary of Parent that is not a Loan Party to a Loan Party, so long as the parties thereto are party to the Intercompany Subordination Agreement, or (d) a Loan Party to a Subsidiary that is not a Loan Party in amount not to exceed $25,000,000 at any time outstanding, provided, that, as of the date of the making of any such loan in connection with this clause (d), and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing.
“Permitted Investments” means:
(a) Investments in cash and Cash Equivalents,
(b) Investments existing on the date hereof and set forth on Schedule P-1, and any modification, replacement, renewal or extension thereof so long as such modification, renewal or extension thereof does not increase the amount of such original Investment except as otherwise permitted by Section 6.9;
(c) to the extent not otherwise constituting a Permitted Intercompany Advance, other Investments (i) by Parent or its Subsidiaries in Subsidiaries that are Loan Parties immediately prior to the time of such Investments, except, that, (A) no Borrower shall make Investments of any ABL Priority Collateral to any Guarantor, (B) no US Borrower shall make Investments of any ABL Priority Collateral to any Australian Borrower and (C) no Australian Borrower shall make Investments of any ABL Priority Collateral to any US Borrower, and (ii) by any Subsidiary that is not a Loan Party in the Parent or any other Subsidiary;
(d) Investments by Parent or any of its Subsidiaries consisting of capital expenditures permitted by this Agreement;
(e) guarantees constituting Indebtedness permitted by Section 6.1;
(f) Investments (including debt obligations and equity securities) received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) extensions of trade credit in the ordinary course of business;
(h) Investments consisting of non-cash consideration received in respect of Dispositions to the extent permitted by Section 6.4;
(i) Investments in the form of loans and advances by Parent and any of its Subsidiaries to their officers, directors and employees in the ordinary course of business in an aggregate amount at any time outstanding not in excess of $5,000,000;
(j) other Investments in cash, so long as, as of the date of making any such Investment, and after giving effect thereto, each of the Payment Conditions shall have been satisfied;
(k) Permitted Acquisitions;
(l) Hedge Agreements entered into in compliance with this Agreement;
(m) Permitted Intercompany Advances;
(n) deposits of cash made in the ordinary course of business to secure performance of operating leases;
(o) Investments held by a Person acquired in a Permitted Acquisition to the extent that such Investments were not made in contemplation of or in connection with such Permitted Acquisition and were in existence on the date of such Permitted Acquisition;
(p) Investments in negotiable instruments deposited or to be deposited for collection in the ordinary course of business;
(q) advances made in connection with purchases of goods or services in the ordinary course of business;
(r) Investments received in settlement of amounts due to any Loan Party or any of its Subsidiaries effected in the ordinary course of business or owing to any Loan Party or any of its Subsidiaries as a result of Insolvency Proceedings involving an account debtor or upon the foreclosure or enforcement of any Lien in favor of a Loan Party or its Subsidiaries;
(s) Investments consisting of notes receivable of, or prepaid royalties and other credit extensions, to customers and suppliers who are not Affiliates, in the ordinary course of business;
(t) the Sunshine Acquisition and any Investments made in connection therewith on the date of the consummation thereof;
(u) without duplication, Investments in the form of Restricted Payments permitted pursuant to Section 6.7; and
(v) the ownership by Thryv of Equity Interests of ChinaBig existing as of the Fifth Amendment Effective Date.
“Permitted Liens” means
(a) Liens created under the Loan Documents;
(b) Liens on the Collateral securing Indebtedness and other obligations under the Term Loan Documents; provided, that such Liens are subject at all times to the Intercreditor Agreement;
(c) Permitted Encumbrances;
(d) any Lien existing on the Closing Date and set forth in Schedule P-2 on any property or asset of Parent or any of its Subsidiaries; provided, that (A) such Lien shall not apply to any other property or asset of Parent or any of its Subsidiaries (other than proceeds) and (B) such Lien shall secure only those obligations which it secures on the date hereof and extensions, renewals, refinancings and replacements thereof that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof;
(e) any Lien existing on any property or asset prior to the acquisition thereof by Parent or any of its Subsidiaries or existing on any property or asset of any Person that becomes a Subsidiary after the Closing Date prior to the time such Person becomes a Subsidiary; provided, that (A) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (B) such Lien shall not apply to any other property or assets of Parent or any of its Subsidiaries (other than proceeds) and (C) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be and extensions, renewals, refinancings and replacements thereof that do not increase the outstanding principal amount thereof (other than by an amount not in excess of fees and expenses, including premium and defeasance costs, associated therewith) or result in a decreased average weighted life thereof;
(f) Liens securing Indebtedness permitted under clause (e) of the definition of “Permitted Indebtedness”; provided, that (A) such Liens shall be created substantially simultaneously with the acquisition, repair, construction, improvement or lease, as applicable, of the related property, (B) such Liens do not at any time encumber any property other than the property financed or improved by such Indebtedness, (C) the amount of Indebtedness secured thereby is not increased and (D) the principal amount of Indebtedness secured by any such Lien shall at no time exceed one hundred percent (100%) of the original price for the purchase, repair, construction, improvement or lease amount (as applicable) of such property at the time of purchase, repair, construction, improvement or lease (as applicable);
(g) Liens on cash collateral and deposit accounts maintained by the lienholder as depository bank to secure (i) Indebtedness incurred pursuant to clause (i) of the definition of Permitted Indebtedness and/or (ii) Indebtedness incurred pursuant to clause (q) of the definition of Permitted Indebtedness; provided, that, in the case of clause (ii), the amount of such cash collateral shall not exceed the aggregate amount of such Indebtedness permitted pursuant to such clause (q);
(h) Liens granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent the financing is permitted under the definition of Permitted Indebtedness;
(i) Liens solely on any cash earnest money deposits made by a Borrower or any of its Subsidiaries in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition;
(j) Liens for unpaid taxes, assessments, or other governmental charges or levies that either (i) are not yet delinquent, or (ii) do not have priority over Administrative Agent’s Liens and the underlying taxes, assessments, or charges or levies are the subject of Permitted Protests;
(k) Liens arising from the filing of precautionary UCC-1 financing statement that are filed by lessors with respect to operating leases entered into by the Loan Parties in the ordinary course of business;
(l) Liens or rights of setoff against credit balances of Borrowers with Credit Card Issuers or Credit Card Processors or amounts owing by such Credit Card Issuers or Credit Card Processors to Borrowers in the ordinary course of business, but not Liens on or rights of setoff against any other property or assets of Borrowers, pursuant to the Credit Card Agreements to secure the obligations of Borrowers to the Credit Card Issuers or Credit Card Processors as a result of fees and chargebacks;
(m) Liens on cash collateral (and any deposit account which exclusively holds such cash collateral) maintained by such depository bank to secure Indebtedness incurred pursuant to clause (q) of “Permitted Indebtedness”; provided that the amount of such cash collateral shall not exceed the aggregate amount of the Indebtedness permitted pursuant to clause (q) of “Permitted Indebtedness”;
(n) (i) Liens not otherwise permitted by clauses (a) through (l) of this definition securing obligations other than Indebtedness and (ii) involuntary Liens not otherwise permitted hereunder securing Indebtedness, which in the case of clauses (i) and (ii) hereof, are in not excess of an aggregate amount at any time outstanding of (1) if encumbering Collateral other than ABL Priority Collateral, $25,000,000 and (2) if encumbering ABL Priority Collateral, $1,000,000; and
(o) in respect of each Australian Loan Party, a Lien that is a deemed security interest under section 12(3) of the Australian PPSA which does not secure payment or performance of an obligation.
“Permitted Protest” means the right of any Loan Party or any of their Subsidiaries to protest any Lien (other than any Lien that secures the Obligations), or rental payment; provided that (a) a reserve with respect to such obligation is established on such Loan Party’s or such Subsidiary’s books and records in such amount as is required under GAAP, (b) any such protest is instituted promptly and prosecuted diligently by such Loan Party or its Subsidiary, as applicable, in good faith, and (c) Administrative Agent is satisfied that, while any such protest is pending, there will be no impairment of the enforceability, validity, or priority of any of Agent’s Liens.
“Permitted Unsecured Indebtedness” means unsecured Indebtedness that (i) provides solely for interest to be payable in-kind and not in cash, (ii) has a maturity date that is 180 days or more after the scheduled maturity date of the Term Loan, (iii) has covenants and other terms which, taken as a whole, are no more restrictive to Parent and its Subsidiaries in any material respect than the terms of this Agreement, taken as a whole, except for terms with respect to such Subordinated Indebtedness that are applicable only to the period after the date that is 180 days after the Latest Maturity Date (as defined in the Term Loan Credit Agreement) in effect at the time of incurrence of such Permitted Unsecured Indebtedness; provided, that such Indebtedness may have covenants and terms that are more restrictive in respect of the incurrence of additional unsecured Indebtedness; provided, further, that a certificate of an authorized officer of Administrative Borrower delivered to the Administrative Agent prior to the incurrence or assumption of such Permitted Unsecured Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Permitted Unsecured Indebtedness and substantially final drafts of the documentation related thereto, stating that Administrative Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement of clause (iii), and (iv) does not require any payments of principal thereof until the Obligations and the Term Loans have been paid in full.
“Person” means natural persons, corporations, limited liability companies, limited partnerships, general partnerships, limited liability partnerships, joint ventures, trusts, land trusts, business trusts, or other organizations, irrespective of whether they are legal entities, and governments and agencies and political subdivisions thereof.
“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which any Loan Party or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4062 of ERISA be deemed to be) an employer” as defined in Section 3(5) of ERISA.
“Platform” has the meaning specified therefor in Section 17.9(c) of the Agreement.
“Pro Rata Share” means, as of any date of determination:
(a) with respect to a Lender’s obligation to make all or a portion of the Revolving Loans, with respect to such Lender’s right to receive payments of interest, fees, and principal with respect to the Revolving Loans, and with respect to all other computations and other matters related to the Revolver Commitments or the Revolving Loans, the percentage obtained by dividing (i) the Revolving Loan Exposure of such Lender by (ii) the aggregate Revolving Loan Exposure of all Lenders,
(b) with respect to a Lender’s obligation to participate in the Letters of Credit, with respect to such Lender’s obligation to reimburse Issuing Bank, and with respect to such Lender’s right to receive payments of Letter of Credit Fees, and with respect to all other computations and other matters related to the Letters of Credit, the percentage obtained by dividing (i) the Revolving Loan Exposure of such Lender by (ii) the aggregate Revolving Loan Exposure of all Lenders; provided, that if all of the Revolving Loans have been repaid in full and all Revolver Commitments have been terminated, but Letters of Credit remain outstanding, Pro Rata Share under this clause shall be determined as if the Revolver Commitments had not been terminated and based upon the Revolver Commitments as they existed immediately prior to their termination, and
(c) with respect to all other matters and for all other matters as to a particular Lender (including the indemnification obligations arising under Section 15.7 of the Agreement), the percentage obtained by dividing (i) the Revolving Loan Exposure of such Lender by (ii) the aggregate Revolving Loan Exposure of all Lenders, in any such case as the applicable percentage may be adjusted by assignments permitted pursuant to Section 13.1; provided, that if all of the Loans have been repaid in full, all Letters of Credit have been made the subject of Letter of Credit Collateralization, and all Commitments have been terminated, Pro Rata Share under this clause shall be determined as if the Revolving Loan Exposures had not been repaid, collateralized, or terminated and shall be based upon the Revolving Loan Exposures as they existed immediately prior to their repayment, collateralization, or termination.
“Projections” means Parent’s forecasted (a) balance sheets, (b) profit and loss statements, and (c) cash flow statements, all prepared on a basis consistent with Parent’s historical financial statements, together with appropriate supporting details and a statement of underlying assumptions.
“Protected Information” information (a) in respect of which, and to the extent that, disclosure to Administrative Agent or any Lender (or any of their respective representatives) is prohibited by applicable law, (b) to the extent that such information is subject to any confidentiality agreement (unless mutually agreeable arrangements can be made to preserve such information as confidential in the good faith determination of Administrative Borrower), (c) to the extent that such information is classified or otherwise constitutes non-financial trade secrets or non-financial proprietary information of any Person or (d) to the extent that such information is subject to any attorney-client privilege or similar privilege or constitutes attorney work product; provided, that Administrative Borrower shall notify Administrative Agent if any such information is being withheld as a result of any of clauses (a) through (d) above and shall use its commercially reasonable efforts to describe, to the extent both feasible and permitted under applicable law or applicable confidentiality obligation, or without waiving such attorney-client privilege, as applicable, the applicable information (including via redaction) and seek to obtain necessary waivers to the disclosure of such information; provided, further, that any such confidentiality obligation was not entered into in contemplation of the requirements of this definition.
“Protective Advances” has the meaning specified therefor in Section 2.3(d)(i) of the Agreement.
“Public Lender” has the meaning specified therefor in Section 17.9(c) of the Agreement.
“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 therefor in Section 17.19 of this Agreement.
“Qualified Equity Interest” means and refers to any Equity Interests issued by Parent (and not by one or more of its Subsidiaries) that is not a Disqualified Equity Interest.
“Real Property” means any freehold estates or interests in real property now owned or hereafter acquired by any Loan Party or one of its Subsidiaries and the improvements thereto.
“Receivable Reserves” means, as of any date of determination, those reserves that Co-Collateral Agents deem necessary or appropriate, in their Permitted Discretion and subject to Section 2.1(c), to establish and maintain (including Dilution Reserves and reserves for rebates, discounts, warranty claims, and returns) with respect to Eligible Accounts, the Maximum Revolver Amount, the Maximum US Loan Amount or the Maximum Australian Loan Amount.
“Recipient” means the Administrative Agent, any Lender or any Issuing Bank.
“Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
“Reference Period” means, as of any date of determination, the period of four (4) consecutive fiscal quarters ended on or immediately prior to such date for which financial statements of Parent and its Subsidiaries have been delivered to the Administrative Agent hereunder.
“Reference Time” with respect to any setting of any then-current Benchmark means (1) if such Benchmark is USD LIBOR, 11:00 a.m. (London time) on the day that is two (2) London Banking Days preceding the date of such setting, and (2) if such Benchmark is not USD LIBOR, the time determined by the Administrative Agent in its reasonable discretion.
“Refinanced Debt” has the meaning assigned to such term in the definition of Refinancing Indebtedness.
“Refinancing Indebtedness” means Indebtedness issued or incurred (including by means of the extension or renewal of existing Indebtedness) to extend, renew or refinance existing Indebtedness (“Refinanced Debt”); provided, that (a) such extending, renewing or refinancing Indebtedness is in an original aggregate principal amount not greater than the aggregate principal amount of, and unpaid interest on, the Refinanced Debt plus the amount of any premiums paid thereon and fees and expenses associated therewith, (b) such Indebtedness has a later maturity and a longer weighted average life than the Refinanced Debt, (c) such Indebtedness bears a market interest rate (as reasonably determined in good faith by the board of directors of Parent) as of the time of its issuance or incurrence, (d) if the Refinanced Debt or any guarantees thereof are subordinated to the Obligations, such Indebtedness and guarantees thereof are subordinated to the Obligations on terms no less favorable to the holders of the Obligations than the subordination terms of such Refinanced Debt or guarantees thereof (and no Loan Party that has not guaranteed such Refinanced Debt guarantees such Indebtedness), (e) such Indebtedness contains covenants and events of default and is benefited by guarantees (if any) which, taken as a whole, are reasonably determined in good faith by the board of directors of Parent not to be materially less favorable to the Lenders than the covenants and events of default of or guarantees (if any) in respect of such Refinanced Debt, (f) if such Refinanced Debt or any guarantees thereof are secured, such Indebtedness and any guarantees thereof are either unsecured or secured only by such assets as secured the Refinanced Debt and guarantees thereof, (g) if such Refinanced Debt and any guarantees thereof are unsecured, such Indebtedness and guarantees thereof are also unsecured, (h) such Indebtedness is issued only by the issuer of such Refinanced Debt and (i) the proceeds of such Indebtedness are applied promptly (and in any event within forty-five (45) days) after receipt thereof to the repayment, repurchase or other retirement of such Refinanced Debt. Notwithstanding anything herein to the contrary, any refinancing, renewal, substitution or extension of the Term Loans permitted pursuant to clause (h) of the definition of “Permitted Indebtedness” shall be deemed to constitute “Refinancing Indebtedness” for all purposes of this Agreement and the other Loan Documents.
“Register” has the meaning set forth in Section 13.1(e) of the Agreement.
“Related Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course and that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.
“Relevant Governmental Body” means (i) with respect to a Benchmark Replacement in respect of LIBOR Rate Loans denominated in US Dollars, the Board of Governors and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors or the Federal Reserve Bank of New York or, in each case, any successor thereto and (ii) with respect to a Benchmark Replacement in respect of LIBOR Rate Loan denominated in any Agreed Currency (other than US Dollars), (a) the central bank for the currency in which such Benchmark Replacement is denominated or any central bank or other supervisor which is responsible for supervising either (1) such Benchmark Replacement or (2) the administrator of such Benchmark Replacement or (b) any working group or committee officially endorsed or convened by (1) the central bank for the currency in which such Benchmark Replacement is denominated, (2) any central bank or other supervisor that is responsible for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement, (3) a group of those central banks or other supervisors or (4) the Financial Stability Board or any part thereof.
“Relevant Rate” means (i) with respect to any LIBOR Rate Loan denominated in US Dollars, the applicable LIBOR Screen Rate or (ii) with respect to any Australian Bill Rate Loan denominated in Australian Dollars, the Australian Bill Rate Screen Rate.
“Reorganization Plan” means the Debtors’ Joint Prepackaged Chapter 11 Plan for Parent and its debtor Subsidiaries, including any exhibits, supplements, appendices and schedules thereto, dated May 16, 2016 and filed with the bankruptcy court on the petition date, as amended, supplemented or otherwise modified from time to time in accordance with the terms and as confirmed by the bankruptcy court pursuant to the Confirmation Order.
“Replacement Lender” has the meaning specified therefor in Section 2.13(b) of the Agreement.
“Report” has the meaning specified therefor in Section 15.16 of the Agreement.
“Reporting Trigger Period” means the period (a) commencing on the day that (i) an Event of Default occurs and is continuing or (ii) Total Excess Availability is less than fifteen percent (15%) of the Maximum Revolver Amount at such time, and (b) continuing until the date that during the previous ninety (90) consecutive days, (i) no Event of Default has existed and (ii) Total Excess Availability has been greater than fifteen percent (15%) of the Maximum Revolver Amount at such time; provided, however, that Reporting Trigger Period may not be cured as contemplated by clause (b) more than two (2) times in any fiscal year.
“Required Lenders” means, at any time, Lenders having or holding more than 50% of the sum of the aggregate Revolving Loan Exposure of all Lenders; provided, that (i) the Revolving Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Required Lenders and (ii) at any time there are three (3) or fewer Lenders (with any Lender and its Affiliates being counted as one Lender for purposes of this definition), Required Lenders shall mean all Lenders.
“Reserves” means, without duplication, as of any date of determination, those reserves (other than Receivable Reserves and Bank Product Reserves) that Co-Collateral Agents deem necessary or appropriate, in their Permitted Discretion and subject to Section 2.1(c), to establish and maintain (including reserves with respect to (a) sums that any Borrower or its Subsidiaries are required to pay under any Section of the Agreement or any other Loan Document (such as taxes, assessments, insurance premiums, or, in the case of leased assets, rents or other amounts payable under such leases) and has failed to pay, (b) amounts owing by any Loan Party or its Subsidiaries to any Person to the extent secured by a Lien on, or trust over, any of the Collateral (other than a Permitted Lien), which Lien or trust, in the Permitted Discretion of Co-Collateral Agents likely would have a priority superior to Administrative Agent’s Liens (such as Liens or trusts in favor of landlords, warehousemen, carriers, mechanics, materialmen, laborers, or suppliers, or Liens or trusts for ad valorem, excise, sales, or other taxes where given priority under applicable law) in and to such item of the Collateral, and (c) fluctuations in the Exchange Rate of Available Currencies and other currencies into US Dollars) with respect to the Total Borrowing Base, the Maximum Revolver Amount, the Maximum US Loan Amount or the Maximum Australian Loan Amount.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Restricted Payment” means to (a) declare or pay any dividend or make any other payment or distribution, directly or indirectly, on account of Equity Interests issued by Parent (including any payment in connection with any merger or consolidation involving Parent) or to the direct or indirect holders of Equity Interests issued by Parent in their capacity as such (other than dividends or distributions payable in Qualified Equity Interests issued by Parent, or (b) purchase, redeem, make any sinking fund or similar payment, or otherwise acquire or retire for value (including in connection with any merger or consolidation involving Parent) any Equity Interests issued by Parent, and (c) make any payment to retire, or to obtain the surrender of, any outstanding warrants, options, or other rights to acquire Equity Interests of Parent now or hereafter outstanding, and (d) make, or cause or suffer to permit Parent or any of its Subsidiaries to make, any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including in-substance or legal defeasance), sinking fund or similar payment with respect to, any Subordinated Indebtedness.
“Revolver Commitment” means, with respect to each Revolving Lender, its Revolver Commitment, and, with respect to all Revolving Lenders, their Revolver Commitments, in each case as such Dollar amounts are set forth beside such Revolving Lender’s name under the applicable heading on Schedule C-1 to the Agreement or in the Assignment and Acceptance pursuant to which such Revolving Lender became a Revolving Lender under the Agreement, as such amounts may be reduced from time to time pursuant to Section 2.4(c) or assignments made in accordance with the provisions of Section 13.1 of the Agreement.
“Revolving Lender” means a Lender that has a Revolver Commitment or that has an outstanding Revolving Loan.
“Revolving Loan Exposure” means, with respect to any Revolving Lender, as of any date of determination (a) prior to the termination of the Revolver Commitments, the amount of such Lender’s Revolver Commitment, and (b) after the termination of the Revolver Commitments, the aggregate outstanding principal amount of the Revolving Loans of such Lender.
“Revolving Loans” has the meaning specified therefor in Section 2.1(a) of the Agreement.
“S&P” means Standard & Poor’s Rating Group.
“Sanctioned Country” means a country or territory or a government of a country or territory that is a target of comprehensive, country-wide or territory-wide Sanctions, including a target of any such Sanctions administered and enforced by OFAC. For greater certainty, such countries and territories currently consist of Cuba, Iran, North Korea, Syria, and the Crimea Region of Ukraine.
“Sanctioned Person” means, at any time (a) any Person named on the list of Specially Designated Nationals and Blocked Persons maintained by OFAC, OFAC’s consolidated Non-SDN list or any other Sanctions-related list maintained by any Governmental Authority, (b) a Person or legal entity that is otherwise a target of Sanctions, (c) any Person operating, organized under the law of or resident in a Sanctioned Country, or (d) any Person directly or indirectly majority owned or controlled (individually or in the aggregate) by or acting on behalf of any such Person or Persons described in clauses (a) through (c) above.
“Sanctions” means individually and collectively, respectively, any and all economic sanctions, trade sanctions, financial sanctions, sectoral sanctions, trade embargoes, anti-terrorism laws and other sanctions laws, regulations or embargoes, including those imposed, administered or enforced from time to time by: (a) the United States of America, including those administered by OFAC, the U.S. Department of State, the U.S. Department of Commerce, or through any existing or future executive order, (b) the United Nations Security Council, (c) the European Union or any European Union member state, (d) Her Majesty’s Treasury of the United Kingdom, or (e) any other Governmental Authority with jurisdiction over any member of Lender Group or any Loan Party or any of their respective Subsidiaries or Affiliates.
“SEC” means the United States Securities and Exchange Commission and any successor thereto.
“Secured Parties” means (a) Administrative Agent (including in its capacity as Australian Security Trustee), (b) Co-Collateral Agents, (c) the Australian Security Trustee, (d) each member of the Lender Group, (e) each Bank Product Provider, (f) the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document and (g) the successors and assigns of each of the foregoing.
“Securities Account” means a securities account (as that term is defined in the Code).
“Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute.
“Sensis Holdings” means Sensis Holding Limited, a private limited company incorporated under the laws of England and Wales.
“Settlement” has the meaning specified therefor in Section 2.3(e)(i) of the Agreement.
“Settlement Date” has the meaning specified therefor in Section 2.3(e)(i) of the Agreement.
“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 the benchmark, (or a successor administrator) on the Federal Reserve Bank of New York’s Website.
“Solvent” means, with respect to any Person as of any date of determination, that (a) at fair valuations, the sum of such Person’s debts (including contingent liabilities) is less than all of such Person’s assets, (b) such Person is not engaged or about to engage in a business or transaction for which the remaining assets of such Person are unreasonably small in relation to the business or transaction or for which the property remaining with such Person is an unreasonably small capital, (c) such Person has not incurred and does not intend to incur, or reasonably believe that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise) and (d) such Person is “solvent” or not “insolvent”, as applicable within the meaning given those terms and similar terms under applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).
“
Specified Charges” means all expenses, fees, charges and other amounts (other than depreciation or amortization expense) related to (a) the Fifth Amendment Transactions, (b) any Permitted Acquisitions and (c) any offerings of Equity Interests, Investments, dispositions, Restricted Payments, recapitalizations or incurrence of Indebtednes
s or any other transaction not prohibited under this Agreement, in each case
, whether or not consummated, (including, without limitation, any financing fees, merger and acquisition fees, legal fees and expenses, financial advisory fees, due diligence fees or any other fees and expenses in connection therewith), in each case
, to the extent paid within
nine (
9) months of the Fifth Amendment Effective Date or the closing or termination of such other transaction, as applicable, including (i) such fees, expenses, or charges related to the incurrence of the Loans hereunder and all fees, costs, or expenses incurred or paid by Parent, the Borrowers, or any of their respective Subsidiaries in connection Fifth Amendment Transactions, this Agreement, and the other Loan Documents, and the transactions contemplated hereby and thereby, (ii) such fees, expenses, or charges related to the offering of the Loan Documents and any other credit facilities or debt issuances, and (iii) any amendment or other modification of the Loans hereunder or other Indebtedness, and, in each case, deducted (and not added back) in computing Consolidated Net Income.
“Specified Disposition” means the sale or other disposition of the real property of Parent or its Subsidiaries located in Moraine, Ohio.
“Specified Transaction” means (a) any Disposition having gross sales proceeds in excess of $25,000,000, (b) any Permitted Acquisition or other similar Investment, (c) the Fifth Amendment Transactions, (d) any capital contribution in respect of Qualified Equity Interests or any issuance of Qualified Equity Interests (other than any Specified Equity Contribution (as defined in the Term Loan Credit Agreement)), and (e) any other event that by the terms of the Loan Documents requires pro forma compliance with a test or covenant hereunder or requires such test or covenant to be calculated on a pro forma basis.
“Standard Letter of Credit Practice” means, for Issuing Bank, any domestic or foreign law or letter of credit practices applicable in the city in which Issuing Bank issued the applicable Letter of Credit or, for its branch or correspondent, such laws and practices applicable in the city in which it has advised, confirmed or negotiated such Letter of Credit, as the case may be, in each case, (a) which letter of credit practices are of banks that regularly issue letters of credit in the particular city, and (b) which laws or letter of credit practices are required or permitted under ISP or UCP, as chosen in the applicable Letter of Credit.
“Subordinated Indebtedness” means any unsecured Indebtedness of any Loan Party or any of their Subsidiaries incurred from time to time that is subordinated in right of payment to the Obligations and (a) that is only guaranteed by the Guarantors, (b) that is not subject to scheduled amortization, redemption, sinking fund or similar payment and does not have a final maturity, in each case, on or before the date that is six months after the Maturity Date, (c) that does not include any financial covenants or any covenant or agreement that is more restrictive on any other Loan Party in any material respect than any comparable covenant in the Agreement (except for terms with respect to such Subordinated Indebtedness that are applicable only to the period after the date that is 180 days after the Latest Maturity Date (as defined in the Term Loan Credit Agreement) in effect at the time of incurrence of such Subordinated Indebtedness) and is otherwise on terms and conditions reasonably acceptable to Administrative Agent, provided, that a certificate of an authorized officer of Administrative Borrower delivered to the Administrative Agent prior to the incurrence or assumption of such Subordinated Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Subordinated Indebtedness and substantially final drafts of the documentation related thereto, stating that Administrative Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement of clause (c); and (d) shall be limited to cross-payment default and cross-acceleration to designated “senior debt” (including the Obligations”), and (e) the terms and conditions of the subordination are reasonably acceptable to Administrative Agent.
“Subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held by the parent or one or more Subsidiaries of the parent or by the parent and one or more Subsidiaries of the parent. Where it relates to any Australian Loan Party, “Subsidiary” means a subsidiary within the meaning given in Part 1.2 Division 6 of the Australian Corporations Act. Unless context otherwise requires, references herein to a “Subsidiary” mean a Subsidiary of the Parent.
“Sunshine Acquisition” means the acquisition of all the Equity Interests of the Sunshine Entities by Thryv Ausco pursuant to the Sunshine Acquisition Agreement.
“Sunshine Acquisition Agreement” means that certain Share Purchase Agreement, dated as of the Sunshine Acquisition Effective Date and relating to the Sunshine Acquisition, together with all exhibits and schedules thereto and all agreements expressly contemplated thereby.
“Sunshine Acquisition Effective Date” means the “Sunshine Acquisition Effective Date” (as such term is defined in the Term Loan Agreement, as in effect on the date hereof).
“Sunshine Entities” means, collectively, (i) Sensis Holding Limited (UK), a private limited company incorporated under the laws of England and Wales and (ii) the Australian Sunshine Entities.
“Sunshine SPV” means Sunshine NewCo Pty Ltd., an Australian proprietary limited company, 100% of the Equity Interests of which are directly owned by Telstra immediately prior to the consummation of the Sunshine Acquisition.
“Sunshine Target” means Project Sunshine I Pty Limited ACN 167 275 818, an Australian proprietary limited company.
“Supermajority Lenders” means, at any time, Lenders having or holding more than 66 2/3% of the aggregate Revolving Loan Exposure of all Lenders; provided, that (i) the Revolving Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Required Lenders and (ii) at any time there are fewer than three (3) Lenders (with any Lender and its Affiliates being counted as one Lender for purposes of this definition), Supermajority Lenders shall mean all Lenders.
“Supported QFC” has the meaning specified therefor in Section 17.18 of the Agreement.
“Swap Obligation” 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.
“Swing Lender” means Wells Fargo or any other Lender that, at the request of Borrowers and with the consent of Administrative Agent agrees, in such Lender’s sole discretion, to become the Swing Lender under Section 2.3(b) of the Agreement.
“Swing Loan” has the meaning specified therefor in Section 2.3(b) of the Agreement.
“Swing Loan Exposure” means, as of any date of determination with respect to any Lender, such Lender’s Pro Rata Share of the Swing Loans on such date.
“Tax Lender” has the meaning specified therefor in Section 14.2(a) of the Agreement.
“Taxes” means any taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein, and all interest, penalties or similar liabilities with respect thereto.
“Telstra” means Telstra Corporation Limited, an Australian public limited liability company.
“Telstra Accounts” means Accounts due from Telstra or any of its Affiliates (other than any Loan Party or its Subsidiaries) from the sale of Accounts by any Australian Borrower to Telstra or any of its Affiliates (other than any Loan Party or its Subsidiaries) pursuant to the terms of the White Pages Agreement, dated as of February 28, 2014, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Term Loan” means the “Term Loans” as defined in the Term Loan Credit Agreement.
“Term Loan Agent” means Wells Fargo Bank, National Association, in its capacity as administrative agent under the Term Loan Credit Agreement, in its capacity as collateral agent under the “Security Documents” (as defined in the Term Loan Credit Agreement) and, where the context requires, in its capacity as Australian Security Trustee, and each of its successors and assigns in such capacity.
“Term Loan Cap” has the meaning specified therefor in clause (h) of the definition of “Permitted Indebtedness”.
“Term Loan Closing Date” means March 1, 2021.
“Term Loan Credit Agreement” means the Term Loan Credit Agreement, dated as of the Term Loan Closing Date, by and among Parent, Thryv, the Term Loan Agent and Term Loan Lenders, as the same may hereafter be further amended, restated, amended and restated, modified, supplemented, extended, renewed, restated, refinanced or otherwise replaced in accordance with the terms of the Intercreditor Agreement.
“Term Loan Debt Buyback” shall mean any assignment or repurchase of the Term Loans made pursuant to Section 10.9(g) of the Term Loan Credit Agreement.
“Term Loan Documents” means the “Loan Documents” as defined in the Term Loan Credit Agreement.
“Term Loan Lenders” means the lenders from time to time party to the Term Loan Credit Agreement, and each of their successors and assigns in such capacity.
“Term Loan Payment Conditions” means, with respect to any optional prepayment of the Term Loan pursuant to Section 2.4(a) of the Term Loan Credit Agreement or any Term Loan Debt Buyback, the following:
(a) as of the date of any such prepayment or repurchase, and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing,
(b) as of the date of any such prepayment or repurchase, on a pro forma basis after giving effect thereto, Liquidity shall be greater than or equal to $30,000,000,
(c) for the thirty (30) day period immediately preceding such prepayment or repurchase, average Liquidity shall be greater than or equal to $30,000,000, and
(d) as of the date of any such prepayment or repurchase (other than pursuant to Section 2.4(b)(iv) of the Term Loan Credit Agreement) and after giving effect thereto, Parent’s Fixed Charge Coverage Ratio, calculated for the preceding trailing twelve month period ending closest to the date on which the transaction or payment shall have been consummated, shall not be less than 1.00 to 1.00.
“Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Term SOFR Notice” means a notification by the Administrative Agent to the Lenders and the Borrowers of the occurrence of a Term SOFR Transition Event.
“Term SOFR Transition Event” means the determination by the Administrative Agent, in consultation with Administrative Borrower, that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, (b) the administration of Term SOFR is administratively feasible for the Administrative Agent and (c) a Benchmark Transition Event or an Early Opt-in Election, as applicable, has previously occurred resulting in the replacement of the applicable then-current Benchmark with respect to any Obligations, interest, fees, commissions or other amounts denominated in US Dollars or calculated with respect thereto for all purposes hereunder and under any Loan Document in accordance with Section 2.12(d)(i)(B) with a Benchmark Replacement the Unadjusted Benchmark Replacement component of which is not Term SOFR.
“Thryv” has the meaning set forth in the preamble to the Agreement.
“Thryv Ausco” means Thryv Australia Pty Ltd ACN 638 633 342, an Australian proprietary limited company.
“TIH” has the meaning set forth in the preamble to the Agreement.
“Total Availability” means, as of any date of determination, the amount equal to the sum of the following, as of such date: (a) US Availability, plus (b) Australian Availability.
“Total Borrowing Base” means, as of any date of determination, the amount equal to the sum of (a) the US Borrowing Base, plus (b) the Australian Borrowing Base.
“Total Excess Availability” means, as of any date of determination, the amount equal to the sum of the following, as of such date: (a) US Excess Availability, plus (b) Australian Excess Availability.
“Total Revolver Usage” means, as of any date of determination, the amount equal to the sum of the following, as of such date: (a) US Revolver Usage, plus (b) Australian Revolver Usage.
“Trailing 90 Day Collections” means the aggregate amount of funds actually collected with respect to Accounts during the three (3) consecutive calendar months prior to the date of determination.
“Trailing 90 Day Collections Report” means a report of the funds collected with respect to Accounts during the prior three (3) calendar months.
“Trademark Security Agreement” has the meaning specified therefor in the Guaranty and Security Agreement.
“Tucker Lease” means, collectively, (a) that certain Sublease Agreement, dated as of January 1, 2013, between AT&T Services Inc., a Delaware corporation, as tenant, and YP Texas Region Yellow Pages LLC, a Delaware limited liability company, as subtenant, in respect of the Real Property located at 2245 Northlake Parkway, Tucker, Georgia and (b) that certain Sublease Agreement, dated as of January 1, 2013, between AT&T Services Inc., a Delaware corporation, as tenant, and YP Texas Region Yellow Pages LLC, a Delaware limited liability company, as subtenant, in respect of the Real Property located at 2247 Northlake Parkway, Tucker, Georgia.
“UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits 2007 Revision, International Chamber of Commerce Publication No. 600 and any subsequent revision thereof adopted by the International Chamber of Commerce on the date such Letter of Credit is issued.
“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 falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“USD LIBOR” means the London interbank offered rate for Dollars.
“US Availability” means, as of any date of determination, the amount that US Borrowers are entitled to borrow as US Revolving Loans under Section 2.1 of the Agreement (after giving effect to the then outstanding US Revolver Usage).
“US Borrower” and “US Borrowers” have the respective meanings specified therefor in the preamble to the Agreement.
“US Borrowing Base” means, as of any date of determination, as to US Borrowers, the result of:
(a) the sum of
| (i) | 85% of the amount of Eligible Billed Accounts of such US Borrowers, plus |
| (ii) | 65% of the amount of Eligible Installment Accounts of such US Borrowers, plus |
| (iii) | 85% of the amount of Eligible Credit Card Accounts of such US Borrowers, plus |
| | (iv) | 85% of the amount of Eligible Alpha Accounts of such US Borrowers, minus |
(b) without duplication of clause (b) of the definition of “Australian Borrowing Base”, the aggregate amount of reserves, if any, established by Administrative Agent under Section 2.1(c) of the Agreement.
Notwithstanding the foregoing, in no event shall the sum of clause (a)(ii) above plus clause (a)(ii) of the definition of Australian Borrowing Base exceed seventy-five percent (75%) of the Maximum Revolver Amount.
“US Dollar Equivalent” means at any time (a) as to any amount denominated in US Dollars, the amount thereof at such time, and (b) as to any amount denominated in any currency other than US Dollars, the equivalent amount in US Dollars calculated by Administrative Agent at such time using the Exchange Rate in effect on the Business Day of determination.
“US Dollars” or “$” means United States dollars.
“US Excess Availability” means, as of any date of determination, the amount equal to US Availability minus the aggregate amount, if any, of all trade payables of US Borrowers and their Subsidiaries aged in excess of 60 days past their due date.
“US Guarantors” means, collectively, (a) Parent, (b) TIH, and (c) each other Person organized under the laws of the United States that becomes a US Guarantor after the Closing Date pursuant to Section 5.11 of the Agreement.
“US Loan Account” has the meaning specified therefor in Section 2.9 of the Agreement.
“US Loan Party” means any US Borrower or US Guarantor.
“US Person” means a United States person within the meaning of Section 7701(a)(30) of the IRC.
“US Revolver Usage” means, as of any date of determination, the sum of (a) the amount of outstanding US Revolving Loans (inclusive of Swing Loans and Extraordinary Advances), plus (b) the amount of the Letter of Credit Usage.
“US Revolving Loans” has the meaning specified therefor in Section 2.1(a) of the Agreement.
“US Subsidiary” means any Subsidiary organized under the laws of the United States, any state thereof or the District of Columbia.
“U.S. Special Resolution Regimes” has the meaning specified therefor in Section 17.18 of this Agreement.
“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.
“United States”, “U.S.” or “US” means the United States of America.
“Unused Line Fee” has the meaning specified therefor in Section 2.10(b) of the Agreement.
“Voidable Transfer” has the meaning specified therefor in Section 17.8 of the Agreement.
“Wells Fargo” means Wells Fargo Bank, National Association, a national banking association.
“Wholly-Owned” means, with respect to a Subsidiary, that all of the Equity Interests of such Subsidiary are, directly or indirectly, owned or controlled by Parent and/or one or more of its Wholly-Owned Subsidiaries (except for directors’ qualifying shares or other shares required by applicable law to be owned by a Person other than Parent and/or one or more of its Wholly-Owned Subsidiaries).
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Title IV of ERISA.
“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.
