Exhibit 10.1

EXECUTION VERSION

AMENDMENT

NO. 1 TO CREDIT AGREEMENT

This AMENDMENT NO. 1 TO CREDIT AGREEMENT, dated as of November 23, 2021 (this “Amendment”), is made by and among RED FIBER PARENT LLC, a Delaware limited liability company (“Holdings”), Cincinnati Bell Inc., an Ohio corporation, (the “Borrower”), each of the Guarantors party hereto, GOLDMAN SACHS BANK USA, as administrative agent (in such capacity and including any permitted successor or assign, the “Administrative Agent”) for the Lenders (as defined the Existing Credit Agreement), the Incremental Term Lenders (as defined below) and each of the Existing Lenders (as defined below). Capitalized terms used but not defined herein have the meaning assigned thereto in the Credit Agreement (as defined below).

PRELIMINARY STATEMENTS

WHEREAS, the Borrower, Holdings, certain lenders from time to time parties thereto (collectively, the “Lenders”), the Administrative Agent and the other parties thereto have entered into that certain Credit Agreement, dated as of September 7, 2021 (the “Existing Credit Agreement”; as amended by this Amendment, the “Credit Agreement”); capitalized terms used herein but not defined shall be used herein as defined in the Credit Agreement;

WHEREAS, Holdings and the Borrower have requested amendments to the Existing Credit Agreement including to: (1) increase the Revolving Credit Commitments from $275,000,000 to $400,000,000 (the amount of such increase the “Revolving Commitment Increase”) and reduce the Applicable Rate with respect to Revolving Credit Loans as set forth in the Credit Agreement, (2) increase the amount of the Term B-1 Loans from $150,000,000 to $500,000,000 and reduce the Applicable Rate with respect the Term B-1 Loans as set forth in the Credit Agreement and (3) borrow a new Class of Term Loans under the Credit Agreement in the form of Term B-2 Loans in an aggregate principal amount of $650,000,000;

WHEREAS, each Revolving Credit Lender under the Existing Credit Agreement immediately prior to the Amendment No. 1 Effective Date (collectively, the “Existing Revolving Credit Lenders”) hereby agrees to the terms and conditions of this Amendment;

WHEREAS, each Term Lender and each Voting Participant under the Existing Credit Agreement immediately prior to the Amendment No. 1 Effective Date (collectively, the “Existing Term Lenders” and together with the Existing Revolving Credit Lenders, the “Existing Lenders”) hereby agrees to the terms and conditions of this Amendment;

WHEREAS, Section 2.14 of the Existing Credit Agreement permits the Borrower to request (i) a New Term Loan which may be in the form of a Term Loan Increase or a New Term Commitment or (ii) a Revolving Commitment Increase, in each case by, among other things, entering into an Incremental Amendment, in accordance with the terms and conditions of the Existing Credit Agreement;

WHEREAS, (i) pursuant to Section 2.14 of the Existing Credit Agreement, the Borrower desires (x) to obtain a Revolving Commitment Increase consisting of an increase to the Revolving Credit Commitments by $125,000,000 to $400,000,000 in aggregate principal amount from each of the Existing Revolving Credit Lenders to the aggregate principal amounts set forth on Schedule I hereto and the Existing Revolving Credit Lenders have agreed, subject to the terms and conditions hereinafter set forth, to provide for such Revolving Commitment Increase, (y) that the lender named on Schedule I hereto (such lender, the “New Term B-1 Lender”) make Incremental Term Loans in the form of a Term Loan Increase (hereinafter referred to as the “New Term B-1 Loans”) to the Borrower on the Amendment No. 1 Effective Date

immediately following the effectiveness thereof to the Borrower in an aggregate principal amount equal to $350,000,000 and the New Term B-1 Lender has agreed, subject to the terms and conditions hereinafter set forth, to provide for such New Term B-1 Loans from the New Term B-1 Lender as set forth below, which New Term B-1 Loans will be (1) an increase to the Class of Term Loans existing under the Credit Agreement immediately prior to the effectiveness of this Amendment and (2) used to fund the redemption of the Existing 2024 Secured Notes and the Existing 2025 Secured Notes and pay fees, expenses and other transaction costs related to this Amendment and the transactions contemplated thereby and hereby and (z) that the lender named on Schedule I hereto (such lender, the “Term B-2 Lender”) make Incremental Term Loans in the form of New Term Loans (hereinafter referred to as the “Term B-2 Loans”) to the Borrower on the Amendment No. 1 Effective Date immediately following the effectiveness thereof to the Borrower in an aggregate principal amount equal to $650,000,000 and the Term B- 2 Lender has agreed, subject to the terms and conditions hereinafter set forth, to provide for such Term B-2 Loans from the Term B-2 Lender as set forth below, which Term B-2 Loans will be (1) a new and separate Class of Term Loans under the Credit Agreement and (2) used to fund the redemption of the Existing 2024 Secured Notes and the Existing 2025 Secured Notes and pay fees, expenses and other transaction costs related to this Amendment and the transactions contemplated thereby and hereby and (ii) in accordance with Section 10.01 of the Existing Credit Agreement, to make certain other amendments to the Existing Credit Agreement and the Administrative Agent, Holdings, the Borrower and the Existing Lenders have agreed, subject to the terms and conditions hereinafter set forth, to make such other amendments to the Existing Credit Agreement as set forth herein;

WHEREAS, the New Term B-1 Commitment (as defined below), the Revolving Commitment Increase and the Term B- 2 Commitment (as defined below) shall be incurred in reliance on clause (d) of the Available Incremental Amount (as defined in the Existing Credit Agreement);

NOW THEREFORE, in consideration of the premises and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto hereby agree as follows:

SECTION 1. Amendments to Existing Credit Agreement. The Existing Credit Agreement is, effective as of the Amendment No. 1 Effective Date (as hereinafter defined) and subject to the satisfaction (or waiver in accordance with Section 10.01 of the Existing Credit Agreement) in writing of the conditions precedent set forth in Section 4, hereby amended to delete the struck text (indicated textually in the same manner as the following example: struck text), and to add the underlined text (indicated textually in the same manner as the following example: underlined text) as set forth in the pages of the Credit Agreement attached as Annex I hereto.

SECTION 2. Continuation of Existing Loans. Each Existing Revolving Credit Lender and each Existing Term Lender hereby consents and agrees to this Amendment.

SECTION 3. Incremental Facility Amendments.

(a) Each of the Existing Revolving Credit Lenders (immediately following the effectiveness of Sections 1 and 2 above), on a several and not joint basis, hereby agrees to provide the commitment for the amount of the Revolving Commitment Increase set forth next to such Existing Revolving Credit Lender’s name on Schedule I hereto. The Revolving Commitment Increase provided pursuant to this Amendment shall be subject to all of the terms and conditions set forth in the Credit Agreement. The Existing Revolving Credit Lenders, the Administrative Agent, Holdings and the Borrower agree that this Section 3 of the Amendment is necessary and appropriate, in each of their reasonable opinions, to effect the provisions of Section 2.14 of the Credit Agreement and shall constitute an Incremental Amendment pursuant to and in accordance with Section 2.14(c) of the Credit Agreement.

 

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Immediately following the Amendment No. 1 Effective Date, the Revolving Commitment Increase (x) shall be part of the same Class of Revolving Credit Loans that were outstanding immediately prior to the Amendment No. 1 Effective Date and (y) shall be subject to the same terms and conditions and the same rights, remedies, protections, guarantees and collateral security afforded to the Obligations under the Existing Credit Agreement and the other Loan Documents, as the currently existing Revolving Credit Commitments and Revolving Credit Loans as of the Amendment No. 1 Effective Date (immediately prior to the occurrence thereof).

(b) The New Term B-1 Lender (immediately following the effectiveness of Sections 1 and 2 above) hereby agrees to provide the commitment for the entire amount of the New Term B-1 Loans (the “New Term B-1 Commitment”). The New Term B-1 Commitment provided pursuant to this Amendment shall be subject to all of the terms and conditions set forth in the Credit Agreement. The New Term B-1 Lender, the Administrative Agent, Holdings and the Borrower agree that this Section 3 of the Amendment is necessary and appropriate, in each of their reasonable opinions, to effect the provisions of Section 2.14 of the Credit Agreement and shall constitute an Incremental Amendment pursuant to and in accordance with Section 2.14(c) of the Credit Agreement. Upon the incurrence of the New Term B-1 Loans pursuant to this Amendment, such New Term B-1 Loans (x) shall be part of the same Class of Term Loans that were outstanding immediately prior to the Amendment No. 1 Effective Date and (y) shall be subject to the same terms and conditions and the same rights, remedies, protections, guarantees and collateral security afforded to the Obligations under the Existing Credit Agreement and the other Loan Documents, as the currently existing Term Loans as of the Amendment No. 1 Effective Date (immediately prior to the occurrence thereof).

(c) The Term B-2 Lender (immediately following the effectiveness of Sections 1 and 2 above) hereby agrees to provide the commitment for the entire amount of the Term B-2 Loans (the “Term B-2 Commitment”). The Term B-2 Commitment provided pursuant to this Amendment shall be subject to all of the terms and conditions set forth in the Credit Agreement. The Term B-2 Lender, the Administrative Agent, Holdings and the Borrower agree that this Section 3 of the Amendment is necessary and appropriate, in each of their reasonable opinions, to effect the provisions of Section 2.14 of the Credit Agreement and shall constitute an Incremental Amendment pursuant to and in accordance with Section 2.14(c) of the Credit Agreement. Upon the incurrence of the Term B-2 Loans pursuant to this Amendment, such Term B-2 Loans (x) shall be a new and separate Class of Term Loans and (y) shall have the terms and conditions and the rights, remedies, protections, guarantees and collateral security afforded to the Obligations under the Credit Agreement and the other Loan Documents, as provided in the Existing Credit Agreement as of the Amendment No. 1 Effective Date (immediately after the occurrence thereof).

(d) On the Amendment No. 1 Effective Date, (i) the Administrative Agent shall reallocate all Revolving Credit Loans outstanding immediately prior to the Amendment No. 1 Effective Date (such Revolving Credit Loans, the “Existing Revolving Credit Loans”) among all the Revolving Credit Lenders such that each Revolving Credit Lender holds its Pro Rata Share (determined by reference to the Revolving Credit Commitments after giving effect to the Increased Revolving Facility contemplated by this Amendment) of the Existing Revolving Credit Loans and (ii) the participations in all Letters of Credit outstanding immediately prior to the Amendment No. 1 Effective Date (such Letters of Credit, the “Existing L/Cs”) shall be deemed to be reallocated among all the Revolving Credit Lenders such that the participations in the Existing L/Cs are held on a pro rata basis by the Revolving Credit Lenders in accordance with their Pro Rata Share (determined by reference to the Revolving Credit Commitments under the Increased Revolving Facility contemplated by this Amendment), in each case in accordance with Section 2.14(d) of the Credit Agreement.

 

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(e) Upon the occurrence of the Amendment No. 1 Effective Date, the New Term B-1 Lender (i) shall be obligated to make the New Term B-1 Loans as provided in this Amendment on the terms, and subject to the conditions, set forth in this Amendment and (ii) to the extent provided in this Amendment and the Credit Agreement, shall have the rights and obligations of a Lender thereunder and under the other applicable Loan Documents.

(f) Upon the occurrence of the Amendment No. 1 Effective Date, the Term B-2 Lender (i) shall be obligated to make the Term B-2 Loans as provided in this Amendment on the terms, and subject to the conditions, set forth in this Amendment and (ii) to the extent provided in this Amendment and the Credit Agreement, shall have the rights and obligations of a Lender thereunder and under the other applicable Loan Documents.

(g) The New Term B-1 Commitment of the New Term B-1 Lender shall automatically terminate upon the funding of the New Term B-1 Loans on the Amendment No. 1 Effective Date.

(h) The Term B-2 Commitment of the Term B-2 Loan Lender shall automatically terminate upon the funding of the Term B-2 Loans on the Amendment No. 1 Effective Date.

SECTION 4. Conditions to Amendment No. 1 Effective Date. This Amendment shall become effective and (x) the Revolving Commitment Increases shall become effective, (y) the New Term B-1 Lender shall make the New Term B-1 Loans to the Borrower and (z) the Term B-2 Lender shall make the Term B-2 Loans to the Borrower, in each case on the date (such date, the “Amendment No. 1 Effective Date”) on which, in each case, each of the conditions set forth in this Section 4 shall have been satisfied (or waived in accordance with Section 10.01 of the Existing Credit Agreement):

(a) Execution of Counterparts. Each of (A) the Borrower, (B) the Guarantors, (C) the New Term B-1 Lender, (D) the Term B-2 Lender and (E) each Existing Lender shall have duly executed and delivered a counterpart of this Amendment and a copy thereof shall be promptly delivered to the Administrative Agent.

(b) Representations. Subject, as applicable, to Sections 6.17 and 8.05 of the Credit Agreement, the representations and warranties of the Borrower contained in Article V of the Credit Agreement and in each other Loan Document shall be true and correct in all material respects (or, to the extent qualified by materiality or Material Adverse Effect, in all respects) on and as of the Amendment No. 1 Effective Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date.

(c) Loan Notice. The Borrower shall have delivered to the Administrative Agent a Loan Notice relating to the New Term B-1 Loans, the Term B-2 Loans and (if applicable) any Revolving Credit Loans to be borrowed on the Amendment No. 1 Effective Date which shall be delivered in accordance with Section 2.02(a) of the Existing Credit Agreement (but, notwithstanding anything to the contrary therein, by not later than 9:00 a.m. (New York City time) one (1) Business Day prior to the Amendment No. 1 Effective Date).

(d) Payment of Transaction Expenses. All Transaction expenses required to be paid on the Amendment No. 1 Effective Date under that certain Engagement Letter, dated as of November 7, 2021 (“Engagement Letter”) by and among Goldman Sachs, Regions Capital Markets, a division of Regions Bank, Société Générale, MUFG Union Bank, N.A., CoBank, ACB, Fifth Third Bank, National Association, PNC Capital Markets LLC (collectively, the “Lead Arrangers”), First Financial Bank (“First Financial”) and First Hawaiian Bank (“First Hawaiian” and together with the Lead Arrangers and First Financial, the “Agents”), payable to the New Term B-1 Lenders and Term B-2 Lenders, the Agents shall have been paid to the extent due and, with respect to expenses (including reimbursable fees and expenses of counsel), to the extent a reasonably detailed invoice therefor has been delivered to the Borrower at least three (3) Business Days prior to the Amendment No. 1 Effective Date.

 

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(e) Certificates. The Administrative Agent shall have received (A) such certificates of good standing or status (to the extent such concepts exist) from the applicable secretary of state (or equivalent authority) of the jurisdiction of organization of each Loan Party (in each case, to the extent such concept exists in the applicable jurisdiction) and (B) customary certificates attaching (i) organizational documents, (ii) customary Board of Directors resolutions or other customary corporate authorizing action, (iii) customary incumbency specimen signature certificates and/or other customary certificates of Responsible Officers of each Loan Party evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment to which such Loan Party is a party or is to be a party on the Amendment No. 1 Effective Date (or, in the case of clauses (B)(i) and (B)(iii), in lieu of attaching such organization documents and incumbency specimens evidencing the identity, authority and capacity, shall include a certification by a Responsible Officer of such Loan Party that there have been no changes to the corresponding documents and/or specimens evidencing the identity, authority and capacity delivered to the Administrative Agent on the Closing Date).

(f) Solvency Certificate. The Administrative Agent shall have received a solvency certificate, substantially in the form set forth in Exhibit Q of the Existing Credit Agreement (with appropriate modifications to reflect the nature of the Transactions), from the chief financial officer, chief accounting officer or other officer with equivalent duties of the Borrower.

(g) No Events of Default. Immediately after the occurrence of the Amendment No. 1 Effective Date, no Event of Default exists and is continuing.

(h) Legal Opinions. The Administrative Agent shall have received customary opinions (addressed to the Administrative Agent and the Lenders) with respect to the Loan Parties party to the Loan Documents on the Amendment No. 1 Effective Date from:

(A) White & Case LLP, New York counsel to the Loan Parties;

(B) Bosse Law, Ohio counsel to the Loan Parties; and

(C) Watanabe Ing LLP, Hawaii counsel to the Loan Parties.

(i) KYC information. The Lenders shall have received, at least three (3) days prior to the Amendment No. 1 Effective Date, all documentation and information as is reasonably requested in writing by the Lead Arrangers (as defined in the 2021 Engagement Letter) on their behalf at least ten (10) Business Days prior to the Amendment No. 1 Effective Date about the Borrower and the Guarantors required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act and the Beneficial Ownership Regulation.

For purposes of determining compliance with the conditions specified in this Section 4, each Lender (including the New Term B-1 Lender and the Term B-2 Lender) that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with or waived (as applicable), each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender unless the Borrower and the Administrative Agent shall have received notice from such Lender prior to the Amendment No. 1 Effective Date specifying its objection thereto.

 

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SECTION 5. Representations and Warranties; Confirmation of Guarantees and Collateral.

(a) By its execution below, the Borrower (on behalf of itself and each other Loan Party) hereby represents and warrants, on and as of the Amendment No. 1 Effective Date, that (subject, as applicable, to Sections 6.17 and 8.05 of the Credit Agreement) (A) the representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement and in each other Loan Document are true and correct in all material respects (or, to the extent qualified by materiality or Material Adverse Effect, in all respects) on and as of the Amendment No. 1 Effective Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they are true and correct in all material respects as of such earlier date; and (B) immediately after the occurrence of the Amendment No. 1 Effective Date, no Event of Default exists and is continuing.

(b) By signing this Amendment, each Loan Party hereby confirms that (i) the obligations of the Loan Parties under the Existing Credit Agreement as modified hereby (including with respect to the Revolving Commitment Increase, the New Term B-1 Loans and the Term B-2 Loans) and the other Loan Documents (x) are entitled to the benefits of the guarantees and the security interests set forth or created in the Existing Credit Agreement, the Security Agreement, the Holdings Pledge Agreement, the Guaranty and the other Loan Documents and (y) constitute Obligations and (ii) notwithstanding the effectiveness of the terms hereof, the Guaranty, the Security Agreement, the Holdings Pledge Agreement and the other Loan Documents are, and shall continue to be, in full force and effect and are hereby ratified and confirmed in all respects. Each Loan Party ratifies and confirms that all Liens granted, conveyed, or assigned to the Collateral Agent by such Person pursuant to each Security Document to which it is a party remain in full force and effect as and to the extent such Liens were in effect immediately prior to the effectiveness of this Amendment and are not released or reduced, and continue to secure full payment and performance of the Obligations as increased hereby.

SECTION 6. Reference to and Effect on the Loan Documents.

(a) On and after the Amendment No. 1 Effective Date, each reference in the Credit Agreement to “hereunder”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the other transaction documents to the “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement. In addition, on and after the Amendment No. 1 Effective Date, this Amendment shall be a Loan Document under the Credit Agreement.

(b) The Existing Credit Agreement, the Collateral Documents, the Guaranties and each other Loan Document, as amended by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed, and the respective guarantees, pledges, grants of security interests and other agreements, as applicable, under each of the Collateral Documents and Guaranties, notwithstanding the consummation of the transactions contemplated hereby, shall continue to be in full force and effect and shall accrue to the benefit of the Secured Parties under the Credit Agreement and the other Loan Documents. Without limiting the generality of the foregoing, the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan Documents, in each case, as amended by this Amendment. After the Amendment No. 1 Effective Date and the funding of the New Term B-1 Loans and Term B-2 Loans, without limiting the generality of the foregoing, the Revolving Commitment Increase, the New Term B-1 Loans and the Term B-2 Loans (and all Indebtedness relating, respectively, thereto) constitute Secured Obligations under the Security Agreement.

 

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(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or any Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.

SECTION 7. Execution in Counterparts; Electronic Signature. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging (including in .pdf, .tif, .jpeg or other electronic format) means shall be effective as delivery of a manually executed counterpart of this Agreement. The words “execution,” “execute,” “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent (which approval may be subject to reasonable conditions and procedures reasonably specified by the Administrative Agent for its acceptance of electronic signatures using such platform), or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Laws, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

SECTION 8. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York, and shall be subject to the jurisdictional and service provisions of the Credit Agreement, as if this were a part of the Credit Agreement. The jurisdiction, consent to service of process, and waiver of right to trial by jury provisions in Sections 10.15 and 10.16 of the Credit Agreement are incorporated herein by reference mutatis mutandis.

SECTION 9. No Novation. This Amendment shall not extinguish the obligations for the payment of money outstanding under the Existing Credit Agreement or discharge or release the Lien or priority of any Collateral Document or any other security therefor. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Existing Credit Agreement or instruments securing the same, which shall remain in full force and effect, except to any extent modified hereby or by instruments executed concurrently herewith. Nothing implied in this Amendment or in any other document contemplated hereby shall be construed as a release or other discharge of any of the Loan Parties under any Loan Document from any of its obligations and liabilities as a Borrower, Guarantor, pledgor or Subsidiary Guarantor under any of the Loan Documents.

SECTION 10. Expenses. The Borrower agrees to reimburse the Administrative Agent for its reasonable and documented in reasonable detail out- of-pocket expenses incurred in connection with this Agreement, in accordance with the provisions of Section 10.04 of the Credit Agreement (and without duplication of such provision or any provision of this Agreement).

SECTION 11. Waiver of Repricing Fee. By its execution of this Amendment, each Existing Term Lender and each Voting Participant hereby waives any fee owed and payable to it pursuant to Section 2.20 of the Existing Credit Agreement as a result of the incurrence of the New Term B-1 Loans and/or the Term B-2 Loans or any amendments to the Existing Credit Agreement under this Agreement.

 

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SECTION 12. Miscellaneous. The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof. This Amendment shall be binding upon and inure to the benefit of the parties hereto and to the Credit Agreement and the other Loan Documents and their respective successors and permitted assigns. Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall not invalidate the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

[Remainder of Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to the Credit Agreement to be duly executed and delivered as of the day and year first above written.

 

[Signature Page to Amendment No.I]

[Signature Page to Amendment No.1]

[Signature Page to Amendment No. 1]

[Signature Page to Amendment No.1]

[Signature Page to Amendment No.1]

[Signature Page to Amendment No.I]

[Signature Page to Amendment No.I]

[Signature Page to Amendment No. I]

[Signature Page to Amendment No.1]

[Signature Page to Amendment No.1]

[Signature Page to Amendment No.1]

[Signature Page to Amendment No.1]

[Signature Page to Amendment No. 1]

[Signature Page to Amendment No.1]

[Signature Page to Amendment No. I]

[Signature Page to Amendment No. I]

[Signature Page to Amendment No.1]

SCHEDULE I

INCREMENTAL COMMITMENTS

 

Incremental Term Lender		Existing Revolving Credit Commitments				Incremental Revolving Credit Commitments				Aggregate Revolving Credit Commitments
Goldman Sachs Bank USA		$	50,000,000			$	5,000,000			$	55,000,000
Regions Bank		$	45,000,000			$	10,000,000			$	55,000,000
Société Genérale		$	40,000,000			$	15,000,000			$	55,000,000
MUFG Union Bank, N.A.		$	40,000,000			$	15,000,000			$	55,000,000
CoBank, ACB		$	25,000,000			$	20,000,000			$	45,000,000
Fifth Third Bank National Association		$	18,750,000			$	26,250,000			$	45,000,000
PNC Bank, National Association		$	18,750,000			$	26,250,000			$	45,000,000
First Financial Bank		$	18,750,000			$	3,750,000			$	22,500,000
First Hawaiian Bank		$	18,750,000			$	3,750,000			$	22,500,000
TOTAL:		$	275,000,000			$	125,000,000			$	400,000,000

New Term B-1 Commitment: CoBank, ACB – $350,000,000

Term B-2 Commitment: Goldman Sachs Bank USA – $650,000,000

ANNEX I

AMENDED CREDIT AGREEMENT

(See attached)

EXECUTION VERSIONANNEX I

CREDIT AGREEMENT

dated as of September 7, 2021

as amended by Amendment No. 1, dated as of November 23, 2021

among

RED FIBER PARENT LLC,

as Holdings,

RF MERGER SUB INC.,

as Merger Sub and the Initial Borrower,

From and after giving effect to consummation of the Closing Date Merger

as successor in interest to the Initial Borrower, CINCINNATI BELL INC.,

as the Borrower,

GOLDMAN SACHS BANK USA,

as the Administrative Agent,

and

THE L/C ISSUERS AND LENDERS PARTY HERETO,

 

 

 

GOLDMAN SACHS BANK USA,

REGIONS CAPITAL MARKETS, A DIVISION OF REGIONS BANK,

SOCIÉTÉ GÉNÉRALE, COBANK, ACB and MUFG UNION BANK, N.A.,

as Joint Lead Arrangers and Joint Bookrunners

and

FIFTH THIRD BANK, NATIONAL ASSOCIATION, PNC BANK, NATIONAL ASSOCIATION,

FIRST FINANCIAL BANK, AND FIRST HAWAIIAN BANK,

as Co-Managers

Table of Contents

 

				Page
ARTICLE I
Definitions and Accounting Terms					2
Section 1.01		Defined Terms			2
Section 1.02		Other Interpretive Provisions			8590
Section 1.03		Accounting Terms			8792
Section 1.04		Rounding			8792
Section 1.05		References to Agreements, Laws, Etc.			8792
Section 1.06		Times of Day			8892
Section 1.07		Available Amount Transactions			8892
Section 1.08		Pro Forma Calculations			8893
Section 1.09		Currency Equivalents Generally			9095
Section 1.10		Certifications			9196
Section 1.11		Payment or Performance			9196
Section 1.12		Letter of Credit Amounts			9196
Section 1.13		Limited Condition Transactions			9196
Section 1.14		Divisions			9297
Section 1.15		Additional Alternative Currencies			9297
ARTICLE II
The Commitments and Borrowings					9398
Section 2.01		The Loans			9398
Section 2.02		Borrowings, Conversions and Continuations of Loans			9499
Section 2.03		Letters of Credit			96101
Section 2.04		Swing Line Loans			105110
Section 2.05		Prepayments			108113
Section 2.06		Termination or Reduction of Commitments			122127
Section 2.07		Repayment of Loans			123128
Section 2.08		Interest			123129
Section 2.09		Fees			124129
Section 2.10		Computation of Interest and Fees			124130
Section 2.11		Evidence of Indebtedness			125130
Section 2.12		Payments Generally			126131
Section 2.13		Sharing of Payments, Etc.			127133
Section 2.14		Incremental Credit Extensions			128134
Section 2.15		Refinancing Amendments			132138
Section 2.16		[Reserved]			139145
Section 2.17		Extended Term Loans			139145
Section 2.18		Extended Revolving Credit Commitments			142148
Section 2.19		Defaulting Lenders			145151
Section 2.20		Loan Repricing Protection			147153
ARTICLE III
Taxes, Increased Costs Protection and Illegality					148154
Section 3.01		Taxes			148154
Section 3.02		Illegality			151157
Section 3.03		Inability to Determine Rates			152158

 

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Table of Contents

(continued)

 

				Page
Section 3.04		Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurocurrency Rate Loans, etc.			158166
Section 3.05		Funding Losses			160168
Section 3.06		Matters Applicable to All Requests for Compensation.			160169
Section 3.07		Replacement or Termination of Lenders under Certain Circumstances			161170
Section 3.08		Survival			163172
ARTICLE IV
Conditions Precedent to Credit Extensions					163172
Section 4.01		Conditions to Initial Credit Extension			163172
Section 4.02		Conditions to All Credit Extensions after the Closing Date			166175
ARTICLE V
Representations and Warranties					167176
Section 5.01		Existence, Qualification and Power			167176
Section 5.02		Authorization; No Contravention			167176
Section 5.03		Governmental Authorization; Other Consents			167176
Section 5.04		Binding Effect			168176
Section 5.05		Financial Statements; No Material Adverse Effect			168177
Section 5.06		Litigation			168177
Section 5.07		Labor Matters			168177
Section 5.08		Ownership of Property; Liens			168177
Section 5.09		Environmental Matters			168177
Section 5.10		Taxes			169177
Section 5.11		ERISA Compliance			169178
Section 5.12		Subsidiaries			169178
Section 5.13		Margin Regulations; Investment Company Act			169178
Section 5.14		Disclosure			169178
Section 5.15		Intellectual Property; Licenses, Etc.			170179
Section 5.16		Solvency			170179
Section 5.17		[Reserved].			170179
Section 5.18		Compliance with Laws; PATRIOT Act; FCPA; OFAC.			170179
Section 5.19		Collateral Documents			171180
Section 5.20		Insurance			171180
ARTICLE VI
Affirmative Covenants					171180
Section 6.01		Financial Statements			172181
Section 6.02		Certificates; Other Information			173182
Section 6.03		Notices			175184
Section 6.04		Payment of Taxes			175184
Section 6.05		Preservation of Existence, Etc.			175184
Section 6.06		Maintenance of Properties			175184
Section 6.07		Maintenance of Insurance			176184

 

ii

Table of Contents

(continued)

 

				Page
Section 6.08		Compliance with Laws			176185
Section 6.09		Sanctions and Anti-Corruption.			176185
Section 6.10		[Reserved] Maintenance of Ratings			176185
Section 6.11		Inspection Rights			176185
Section 6.12		Covenant to Guarantee Obligations and Give Security			177186
Section 6.13		Compliance with Environmental Laws			178187
Section 6.14		Further Assurances			179188
Section 6.15		Designation of Subsidiaries			179188
Section 6.16		[Reserved]			179188
Section 6.17		Post-Closing Actions			179188
Section 6.18		Use of Proceeds			180189
Section 6.19		Change in Nature of Business			180189
ARTICLE VII
Negative Covenants					180189
Section 7.01		Liens			180189
Section 7.02		Investments			187196
Section 7.03		Indebtedness			192201
Section 7.04		Fundamental Changes			196206
Section 7.05		Dispositions			197207
Section 7.06		Restricted Payments			201210
Section 7.07		[Reserved]			206215
Section 7.08		Transactions with Affiliates			206215
Section 7.09		Burdensome Agreements			209219
Section 7.10		Financial Covenant			211220
Section 7.11		[Reserved].			211221
Section 7.12		Prepayments, Etc. of Indebtedness; Certain Amendments			211221
Section 7.13		Holdings			212222
ARTICLE VIII
Events of Default and Remedies					214223
Section 8.01		Events of Default			214223
Section 8.02		Remedies upon Event of Default			216226
Section 8.03		Application of Funds			217226
Section 8.04		Right to Cure			218227
Section 8.05		Clean Up Period			219229
ARTICLE IX
Administrative Agent and Other Agents					219229
Section 9.01		Appointment and Authority of the Administrative Agent			219229
Section 9.02		Rights as a Lender			220230
Section 9.03		Exculpatory Provisions			221230
Section 9.04		Reliance by the Administrative Agent			222231
Section 9.05		Delegation of Duties			222232

 

iii

Table of Contents

(continued)

 

				Page
Section 9.06		Non-Reliance on Administrative Agent and Other Lenders; Disclosure of Information by Agents			222232
Section 9.07		Indemnification of Agents			223233
Section 9.08		No Other Duties; Other Agents, Lead Arrangers, Managers, Etc.			224233
Section 9.09		Resignation and Removal of Administrative Agent			224233
Section 9.10		Administrative Agent May File Proofs of Claim			225235
Section 9.11		Collateral and Guaranty Matters			227236
Section 9.12		Appointment of Supplemental Administrative Agents			228238
Section 9.13		Intercreditor Agreements			229238
Section 9.14		Secured Cash Management Agreements and Secured Hedge Agreements			229239
Section 9.15		Withholding Taxes			230239
Section 9.16		Erroneous Payments			230240
ARTICLE X
Miscellaneous					233243
Section 10.01		Amendments, Etc.			233243
Section 10.02		Notices and Other Communications; Facsimile Copies			238248
Section 10.03		No Waiver; Cumulative Remedies			240250
Section 10.04		Attorney Costs and Expenses			241251
Section 10.05		Indemnification by the Borrower; Reimbursement by Lenders			242252
Section 10.06		Marshaling; Payments Set Aside			244254
Section 10.07		Successors and Assigns			244254
Section 10.08		Confidentiality			255265
Section 10.09		Set-off			257267
Section 10.10		Interest Rate Limitation			257267
Section 10.11		Counterparts; Integration; Effectiveness			257267
Section 10.12		Electronic Execution of Assignments and Certain Other Documents			258268
Section 10.13		Survival of Representations and Warranties			258268
Section 10.14		Severability			258268
Section 10.15		GOVERNING LAW, JURISDICTION AND ARBITRATION			258268
Section 10.16		WAIVER OF RIGHT TO TRIAL BY JURY			259269
Section 10.17		Binding Effect			260270
Section 10.18		Lender Action			260270
Section 10.19		CoBank Equities			260270
Section 10.20		PATRIOT Act Notice			261271
Section 10.21		Service of Process			261271
Section 10.22		No Advisory or Fiduciary Responsibility			261271
Section 10.23		Cashless Settlement			262272
Section 10.24		Acknowledgement and Consent to Bail-In of Affected Financial Institutions			262272
Section 10.25		Acknowledgment Regarding Any Supported QFCs			263273
Section 10.26		Permitted Receivables Financings			263273

 

iv

Table of Contents

(continued)

 

SCHEDULES
1.01(a)		Specified FOCI Assets
1.01(b)		Certain Security Interests and Guarantees
2.01		Commitments
2.03		Existing Letters of Credit
5.12		Subsidiaries and Other Equity Investments
6.17		Post-Closing Actions
7.01(b)		Existing Liens
7.02(f)		Existing Investments
7.03(b)		Existing Indebtedness
7.05(w)		Dispositions
7.08		Transactions with Affiliates
10.02		Administrative Agent’s Office, Certain Addresses for Notices
EXHIBITS
Form of
A		Loan Notice
B-1		Letter of Credit Application
B-2		Swing Line Loan Notice
C		Compliance Certificate
D-1		Term Note
D-2		Revolving Credit Note
D-3		Swing Line Note
E-1		Assignment and Assumption
E-2		Affiliate Assignment Notice
F		Guaranty
G-1		Security Agreement
G-2		Holdings Pledge Agreement
H-1		Non-Bank Certificate (For Foreign Lenders Not Treated as Partnerships)
H-2		Non-Bank Certificate (For Foreign Lenders Treated as Partnerships)
H-3		Non-Bank Certificate (For Foreign Participants Not Treated as Partnerships)
H-4		Non-Bank Certificate (For Foreign Participants Treated as Partnerships)
I		Intercompany Note
J		Discount Range Prepayment Notice
K		Discount Range Prepayment Offer
L		Solicited Discounted Prepayment Notice
M		Solicited Discounted Prepayment Offer
N		Specified Discount Prepayment Notice
O		Specified Discount Prepayment Response
P		Acceptance and Prepayment Notice
Q		Solvency Certificate

 

v

CREDIT AGREEMENT

This CREDIT AGREEMENT (this “Agreement”) is entered into as of September 7, 2021, and amended by Amendment No. 1, dated as of November 23, 2021, by and among RED FIBER PARENT LLC, a Delaware limited liability company (“Holdings”), RF MERGER SUB INC., an Ohio corporation (“Merger Sub” and the “Initial Borrower”), to be merged with and into CINCINNATI BELL INC., an Ohio corporation (the “Company”), from and after the consummation of the Closing Date Merger as successor in interest to the Initial Borrower, the Company as the Borrower, GOLDMAN SACHS BANK USA (“Goldman Sachs”), as administrative and collateral agent (in such capacities, together with its successors there in such capacities, the “Administrative Agent”) under the Loan Documents, each L/C Issuer and Swing Line Lender from time to time party hereto and each lender from time to time party hereto (collectively, the “Lenders” and, individually, each, a “Lender”).

PRELIMINARY STATEMENTS

On the Closing Date, pursuant to that certain Agreement and Plan of Merger, dated as of March 13, 2020 (together with all exhibits and schedules thereto, and as amended, supplemented or otherwise modified from time to time, the “Closing Date Acquisition Agreement”), by and among Holdings, Merger Sub and the Company, Holdings will, directly or indirectly, acquire acquired the Company (the “Closing Date Acquisition”) and Merger Sub will mergemerged with and into the Company, with the Company surviving such merger (the “Closing Date Merger”).

The Borrower has requested that the Lenders extend credit to the Borrower in the form of (i) Initial Term Loans on the Closing Date in an initial aggregate principal amount of $150,000,000 pursuant to this Agreement and, (ii) a Revolving Credit Facility in an initial aggregate principal committed amount of $275,000,000 pursuant to this Agreement. The, (iii) New Term B-1 Loans on the Amendment No. 1 Effective Date in an aggregate principal amount of $350,000,000 pursuant to Amendment No. 1, (iv) Term B-2 Loans on the Amendment No. 1 Effective Date in an aggregate principal amount of $650,000,000 pursuant to Amendment No. 1 and (v) a Revolving Commitment Increase in an aggregate principal committed amount of $125,000,000 pursuant to Amendment No. 1. The Initial Revolving Credit Facility will include (x) a sub-limit for the making of one or more Letters of Credit from time to time and (y) Swing Line Loans denominated in Dollars from time to time.

The proceeds of the Initial Term Loans will bewere used by the Borrower on and after the Closing Date (i) to finance a portion of the Transaction, including the payment of the Transaction Expenses, (ii) to finance the Closing Date Refinancing and the repayment and/or redemption of any other existing indebtedness of the Company and its subsidiaries in connection with the Transaction and (iii) for working capital and other general corporate purposes (including working capital and/or purchase price adjustments and/or to fund OID or upfront fees in connection with the Facilities).

Subject to the limitations on the incurrence of Revolving Credit Loans on the Closing Date set forth in Section 6.18(b), the Letters of Credit and proceeds of Borrowings under the Revolving Credit Facility and Swing Line Facility were or will be used by the Borrower and its Subsidiaries (i) to finance, in part, the Transaction, including the payment of the Transaction Expenses and (ii) for working capital, capital expenditures and other general corporate purposes (including to fund OID or upfront fees in connection with the Facilities), permitted acquisitions, other permitted investments, permitted dividends and other permitted distributions and any other purpose not prohibited by this Agreement.

The Lenders have indicated their willingness to lend, and the L/C Issuers have indicated their willingness to issue Letters of Credit, in each case, on the terms and subject to the conditions set forth herein.

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

ARTICLE I

Definitions and Accounting Terms

Section 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:

“2021 Notes Refinancing” means the satisfaction and discharge, defeasance, repayment and redemption of all of the Existing Secured 2024 Notes and the Existing Secured 2025 Notes, together with all accrued interest (regardless of whether due and payable), fees and other amounts, in each case outstanding under the Existing Secured 2024 Notes Documents and Existing Secured 2025 Notes Documents, and the termination of such Existing Secured 2024 Notes Documents and Existing Secured 2025 Notes Documents.

“2021 Revolving Commitment Increase” has the meaning given to the term “Revolving Commitment Increase” in Amendment No. 1.

“6.75% Cumulative Convertible Preferred Shares” means 6 3/4% cumulative convertible preferred shares, without par value, of the Company.

“Acceptable Discount” has the meaning specified in Section 2.05(a)(v)(D)(2).

“Acceptable Prepayment Amount” has the meaning specified in Section 2.05(a)(v)(D)(3).

“Acceptance and Prepayment Notice” means a notice of the applicable Borrower Party’s acceptance of the Acceptable Discount in substantially the form of Exhibit P.

“Acceptance Date” has the meaning specified in Section 2.05(a)(v)(D)(2).

“Additional Lender” means, at any time, any bank, other financial institution or other Person (other than a natural person) that, in any case, is not an existing Lender and that agrees to provide any portion of any (a) New Term Commitment, New Term Loan, New Revolving Credit Commitment or New Revolving Credit Loan in accordance with Section 2.14, (b) Refinancing Loans or Refinancing Commitments in accordance with Section 2.15 or (c) Replacement Term Loans pursuant to Section 10.01; provided that each Additional Lender shall be subject to the approval of the Administrative Agent (such approval not to be unreasonably withheld or delayed), in each case to the extent any such consent would be required from the Administrative Agent under Section 10.07(b)(iii)(B) for an assignment of Loans to such Additional Lender, and the consent of the Borrower, to the extent required under Section 10.07(b)(iii)(A); provided, further, that no Additional Lender shall be a Disqualified Institution, any other Person that is not an Eligible Assignee or Holdings, the Borrower or any Subsidiary thereof.

“Adjusted Eurocurrency Rate” means, with respect to Eurocurrency Rate Loans denominated in Dollars, an interest rate per annum equal to the Eurocurrency Rate, multiplied by the Statutory Reserve Rate and with respect to Eurocurrency Rate Loans denominated in an Alternative Currency, an interest rate per annum equal to the Eurocurrency Rate; provided that the Eurocurrency Rate with respect to any Loan will be deemed not to be less than zero. With respect to Eurocurrency Rate Loans denominated in Dollars, the Adjusted Eurocurrency Rate will be adjusted automatically as of the effective date of any change in the Statutory Reserve Rate.

 

2

“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than (x) with respect to the Initial Revolving Credit Loans, 0.0%, then Adjusted Term SOFR shall be deemed to be 0.0%, (y) with respect to the Term B-1 Loans, 0.25%, then Adjusted Term SOFR shall be deemed to be 0.25% and (z) with respect to the Term B-2 Loans, 0.50%, then Adjusted Term SOFR shall be deemed to be 0.50%.

“Administrative Agent” has the meaning specified in the introductory paragraph to this Agreement.

“Administrative Agent’s Office” means the Administrative Agent’s address and account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.

“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

“Affiliated Debt Fund” means any Affiliate of any Investor that is a bona fide debt fund or an investment vehicle that is engaged in the making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of business and with respect to which investment vehicles managed or advised by the Equity Sponsors that are not engaged primarily in making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course do not make investment decisions for such Affiliate.

“Affiliated Lender” means, at any time, any Affiliate of the Borrower (for the avoidance of doubt, for the purpose of Section 10.07(h), including Ares and any Affiliate of Ares (other than any other portfolio company of Ares)) that in the future acquires any direct or indirect Equity Interests in Holdings and/or the Borrower, in each case, other than (a) a natural Person, (b) Holdings, the Borrower or any of their respective Subsidiaries and (c) any Affiliated Debt Fund.

“Affiliated Lender Cap” has the meaning specified in Section 10.07(h)(iii).

“Agent Parties” has the meaning specified in Section 10.02(d).

“Agent- Related Distress Event” means with respect to the Administrative Agent or any Person that directly or indirectly Controls the Administrative Agent, as the case may be (each, a “Distressed Agent-Related Person”), (i) a voluntary or involuntary case with respect to such Distressed Agent-Related Person under any Debtor Relief Law, (ii) a custodian, conservator, receiver or similar official is appointed for such Distressed Agent-Related Person or any substantial part of such Distressed Agent-Related Person’s assets, (iii) such Distressed Agent-Related Person makes a general assignment

 

3

for the benefit of creditors or is otherwise adjudicated as, or determined by any Governmental Authority (having regulatory authority over such Distressed Agent-Related Person) to be, insolvent or bankrupt or (iv) such Distressed Agent-Related Person becomes the subject of a Bail-In Action; provided that an Agent-Related Distress Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any Equity Interests in the Administrative Agent or any Person that directly or indirectly Controls the Administrative Agent, as the case may be, by a Governmental Authority.

“Agent-Related Persons” means the Agents, together with their respective Affiliates, and the officers, directors, employees, agents, attorney-in-fact, partners, trustees and advisors of such Persons and of such Persons’ Affiliates.

“Agents” means, collectively, the Administrative Agent and the Supplemental Administrative Agents (if any).

“Aggregate Commitments” means the Commitments of all the Lenders.

“Agreement” has the meaning specified in the introductory paragraph to this Agreement.

“AHYDO Catch-Up Payment” means any payment, including subordinated debt obligations, in each case to avoid the disallowance of deductions pursuant to Section 163(e)(5) of the Code or to avoid having any Term Loan or other indebtedness of Holdings, the Borrower or any other parent company or Restricted Subsidiary thereof be treated as an “applicable high yield discount obligation” within the meaning of Section 163(i) of the Code.

“All-In Yield” means, as to any Indebtedness, the yield thereof, calculated in a manner consistent with generally accepted financial practices, taking into account interest rate, margin, OID, upfront fees, a Eurocurrency RateTerm SOFR floor or Base Rate floor or otherwise; provided that OID and upfront fees shall be equated to interest rate assuming a 4-year life to maturity (or, if less, the stated life to maturity at the time of incurrence of the applicable Indebtedness); and provided, further, that “All-In Yield” shall not include (x) arrangement fees, commitment fees, structuring fees, agency fees or underwriting or similar fees paid to arrangers or agents for such Indebtedness (regardless of whether paid in whole or in part to any or all lenders under the applicable Indebtedness) or other fees that are not paid generally to all lenders of such Indebtedness or fees that are not paid directly by the Borrower generally to all relevant lenders ratably in the primary syndication of such Indebtedness, (y) ticking fees or unused line fees and (z) customary consent fees paid generally to consenting Lenders. In determining the All-In Yield, any stepdowns in interest rate margins shall be disregarded.

“Allocable Revolving Share” means, at any time, with respect to the Revolving Credit Commitments of any Class, the percentage of the total Revolving Credit Commitments represented at such time by such Class; provided that if any such Class of Revolving Credit Commitments has been terminated, then the Allocable Revolving Share of each applicable Lender shall be determined based on the Allocable Revolving Share of such Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof.

“Alternative Currencies” means (a) in the case of any Letter of Credit, Euros, Pounds Sterling and Canadian Dollars and, (b) in the case of any New Revolving Credit Commitments or New Term Commitments, any currency agreed to by the Borrower, the Administrative Agent and the Lenders providing such New Term Commitments and (c) in the case of any New Revolving Credit Commitments or New Term Commitments, any currency agreed to by the Borrower, the Administrative Agent and all Revolving Credit Lenders; provided that in the case of immediately preceding clause (b), such Alternative Currency shall (i) only be permitted to the extent it is administratively feasible for the Administrative Agent to provide agency services for products denominated in such Alternative Currency (as determined by the Administrative Agent in its reasonable discretion) and (ii) be subject to Section 2.08(e) hereof.

 

4

“Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, at such time on the basis of the Exchange Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.

“Amendment No. 1” means that certain Amendment No. 1 to Credit Agreement, dated as of November 23, 2021, by and among the Borrower, Holdings, the Guarantors party thereto, the Administrative Agent and the Lenders, Voting Participants and L/C Issuers party thereto.

“Amendment No. 1 Effective Date” has the meaning specified in Amendment No. 1.

“Applicable Asset Sale Prepayment Percentage” means (a) if the Borrower’s Secured Net Leverage Ratio at the end of the immediately preceding Test Period is greater than 3.25 to 1.00, 100%, (b) if the Borrower’s Secured Net Leverage Ratio at the end of the immediately preceding Test Period is equal to or less than 3.25 to 1.00 but greater than 2.75 to 1.00, 50% and (c) if the Borrower’s Secured Net Leverage Ratio at the end of the immediately preceding Test Period is equal to or less than 2.75 to 1.00, 0%, in each case, calculated on a Pro Forma Basis, including giving effect to the required prepayment pursuant to Section 2.05(b)(ii).

“Applicable Discount” has the meaning specified in Section 2.05(a)(v)(C)(2).

“Applicable ECF Prepayment Percentage” means, with respect to each Excess Cash Flow Period, (a) if the Borrower’s Secured Net Leverage Ratio at the end of such Excess Cash Flow Period is greater than 3.25 to 1.00, 50%; (b) if such Secured Net Leverage Ratio is equal to or less than 3.25 to 1.00, but greater than 2.75 to 1.00, 25%, and (c) if such Secured Net Leverage Ratio is equal to or less than 2.75 to 1.00, 0%.

“Applicable Period” has the meaning specified in the definition of “Applicable Rate”.

“Applicable Rate” means a percentage per annum equal to:

(a) with respect to Initial Term B-1 Loans, (i) until the first Business Day immediately following the date of delivery of a Compliance Certificate for the first fiscal quarter ended after the ClosingAmendment No. 1 Effective Date pursuant to Section 6.02(a), (A)  3.252.50% in the case of Base Rate Loans and (B)  4.253.50% in the case of Eurocurrency RateSOFR Loans and (ii) thereafter, the following percentages per annum, based upon the Secured Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a); :

 

5

				Applicable Rate for Initial Term B1  Loans
Pricing Level		Secured Net Leverage Ratio		Base Rate		Eurocurrency Rate Term SOFR
1		> 4.25:1.00		3.75%		4.75%
21		<4.25:1.00 but		3.252.50%		4.253.50%
		> 2.75:1.00
32		<2.75:1.00		2.752.25%		3.753.25%

Any increase or decrease in the Applicable Rate with respect to such Term Loans resulting from a change in the Secured Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided that, upon written notice to the Borrower from the Administrative Agent (at the direction of the Required Facility Lenders with respect to the Initial Term Loan Facility) or the Required Facility Lenders with respect to the Initial Term Loan Facility, the highest pricing level shall apply as of the first Business Day after the date on which a Compliance Certificate was required to have been delivered but was not delivered, and shall continue to so apply to and including the date on which such Compliance Certificate is so delivered (and thereafter the pricing level otherwise determined in accordance with this definition shall apply);

(b) with respect to Term B-2 Loans, (i) until the first Business Day immediately following the date of delivery of a Compliance Certificate for the first fiscal quarter ended after the Amendment No. 1 Effective Date pursuant to Section 6.02(a), (A) 2.25% in the case of Base Rate Loans and (B) 3.25% in the case of SOFR Loans and (ii) thereafter, the following percentages per annum, based upon the Secured Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):

 

				Applicable Rate for Terms B-2 Loans
Pricing Level		Secured Net Leverage Ratio		Base Rate		Term SOFR
1		> 2.75:1.00		2.25%		3.25%
2		< 2.75:1.00		2.00%		3.00%

(c) (b) with respect to Revolving Credit Loans under the Initial Revolving Credit Facility, (i) until the first Business Day immediately following the date of delivery of a Compliance Certificate for the first fiscal quarter ended after the ClosingAmendment No. 1 Effective Date pursuant to Section 6.02(a), (A)  3.252.00% in the case of Base Rate Loans (including Swing Line Loans that are Base Rate Loans) and (B)  4.253.00% in the case of Eurocurrency RateSOFR Loans and (ii) thereafter, the following percentages per annum, based upon the Secured Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):

 

				Applicable Rate for Revolving Credit Loans
Pricing Level		Secured Net Leverage Ratio		Base Rate		Eurocurrency RateTerm SOFR
1		>3.252.75:1.00		3.252.00%		4.253.00%
2		<3.252.75:1.00		2.751.75%		3.752.75%

 

6

Any increase or decrease in the Applicable Rate resulting from a change in the Secured Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided that, upon written notice to the Borrower from the Administrative Agent (at the direction of the Required Facility Lenders with respect to the Initial Revolving Credit Facility) or the Required Facility Lenders with respect to the Initial Revolving Credit Facility, the highest pricing level shall apply as of the first Business Day after the date on which a Compliance Certificate was required to have been delivered but was not delivered, and shall continue to so apply to and including the date on which such Compliance Certificate is so delivered (and thereafter the pricing level otherwise determined in accordance with this definition shall apply); and

(d) (c) with respect to commitment fees payable in respect of Initial Revolving Credit Commitments, (i) until the first Business Day immediately following the date of delivery of a Compliance Certificate for the first fiscal quarter ended after the ClosingAmendment No. 1 Effective Date pursuant to Section 6.02(a), 0.50%, and (ii) thereafter, the following percentage per annum, based upon the Secured Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):

 

		Secured Net		Applicable Rate for
Pricing Level		Leverage Ratio		Commitment Fees
1		> 3.25:1.00		0.50%
2		< 3.25:1.00		0.375%

Any increase or decrease in the commitment fee resulting from a change in the Secured Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided that, upon written notice to the Borrower from the Administrative Agent (at the direction of the Required Facility Lenders with respect to the Initial Revolving Credit Facility) or the Required Facility Lenders with respect to the Initial Revolving Credit Facility, the highest commitment fee level shall apply as of the first Business Day after the date on which a Compliance Certificate was required to have been delivered but was not delivered, and shall continue to so apply to and including the date on which such Compliance Certificate is so delivered (and thereafter the commitment fee level otherwise determined in accordance with this definition shall apply).

In the event that any financial statements under Section 6.01 or a Compliance Certificate are or is shown to be inaccurate at any time that this Agreement is in effect and any Loans or Commitments are outstanding hereunder when such inaccuracy is discovered and such inaccuracy, if corrected, would have led to a higher Applicable Rate for any period (an “Applicable Period”) than the Applicable Rate applied for such Applicable Period, then (i) the Borrower shall promptly (and in no event later than five (5) Business Days thereafter) deliver to the Administrative Agent a corrected Compliance Certificate for such Applicable Period, (ii) the Applicable Rate shall be determined by reference to the corrected Compliance Certificate (but in no event shall the Revolving Credit Lenders owe any amounts to the Borrower) and (iii) the Borrower shall pay to the Administrative Agent promptly upon demand (and in no event later than five (5) Business Days after demand) any additional interest or commitment fee owing as a result of such increased Applicable Rate for such Applicable Period, which payment shall be promptly applied by the Administrative Agent in accordance with the terms hereof. Any additional interest or fees under this paragraph shall not be due and payable until such demand is made for such payment by the Administrative Agent and accordingly, any nonpayment of such interest or fees as a result of any such demand not having been made shall not constitute a Default (whether retroactively or otherwise), and none of such additional amounts shall be deemed overdue or accrue interest at the Default Rate, in each case at any time prior to the date that is five (5) Business Days following such demand.

 

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Notwithstanding the foregoing, the Applicable Rate in respect of Extended Term Loans of any Term Loan Extension Series, Extended Revolving Credit Loans of any Revolving Credit Loan Extension Series, Refinancing Term Loans, Refinancing Revolving Credit Loans, New Term Commitments, New Term Loans, New Revolving Credit Commitments, New Revolving Credit Loans or Replacement Term Loans shall be the applicable percentages per annum provided pursuant to the applicable Extension Amendment, Refinancing Amendment, Incremental Amendment or amendment to this Agreement in respect of Replacement Term Loans, as the case may be. The Applicable Rate in respect of Extended Term Loans of any Term Loan Extension Series, Extended Revolving Credit Loans of any Revolving Credit Loan Extension Series, Refinancing Term Loans, Refinancing Revolving Credit Loans, New Term Commitments, New Term Loans, New Revolving Credit Commitments, New Revolving Credit Loans or Replacement Term Loans may be further adjusted as may be agreed by the relevant Lenders and the Borrower in connection with any Extension Amendment, Refinancing Amendment, Incremental Amendment or amendment to this Agreement in respect of Replacement Term Loans, as the case may be.

“Appropriate Lender” means, at any time, (a) with respect to Loans or Commitments of any Class, the Lenders of such Class, (b) with respect to any Letters of Credit, (i) the relevant L/C Issuers and (ii) the Revolving Credit Lenders with Initial Revolving Credit Commitments and (c) with respect to the Swing Line Facility, (i) the Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant to Section 2.04(a), the Revolving Credit Lenders with Initial Revolving Credit Commitments.

“Approved Fund” means, with respect to any Lender, any Fund that is administered, advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages such Lender.

“Approved Jurisdiction” means Canada and any other jurisdiction mutually agreed in writing by the Borrower and the Administrative Agent.

“Ares “ means Ares Special Situation Fund IV, L.P., ASOF Holdings I, L.P. and any other relevant affiliate and/or managed fund of any of them.

“Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit E-1 or any other form approved by the Administrative Agent and the Borrower.

“Attorney Costs” means all reasonable and documented (in reasonable detail) fees, and expenses of any law firm or other external legal counsel.

“Attributable Indebtedness” means, on any date, in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.

“Attributed Principal Amount” means, on any day, with respect to the Securitization Facility, the Factoring Facility and/or any other Permitted Receivables Financing, the aggregate principal, stated or invested amount of (a) outstanding loans made by Receivables Financiers to the relevant Receivables Financing SPC under the Securitization Facility, the Factoring Facility and/or such other Permitted Receivables Financing or (b) notes, bonds or other debt instruments, beneficial interests in a trust, undivided ownership interests in receivables or other securities issued for cash consideration by the relevant Receivables Financing SPC to Receivables Financiers, in each case the proceeds of which are used to finance, in whole or in part, the purchase by such Receivables Financing SPC of Transferred Assets under the Securitization Facility, the Factoring Facility and/or in such other Permitted Receivables Financing.

 

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“Auction Agent” means (a) the Administrative Agent or (b) any other financial institution or advisor employed by the Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Discounted Loan Prepayment pursuant to Section 2.05(a)(v); provided that the Borrower shall not designate the Administrative Agent as the Auction Agent without the written consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no obligation to agree to act as the Auction Agent); provided, further, that none of the Borrower, Holdings, nor any of their respective Affiliates or Subsidiaries may act as the Auction Agent.

“Audited Financial Statements” has the meaning specified in the Closing Date Acquisition Agreement.

“Auto-Renewal Letter of Credit” has the meaning specified in Section 2.03(b)(iii).

“Available Amount” means, at any time (the “Reference Date”), the sum of:

(a) the greater of $200,000,000 and 10.0% of Consolidated Tangible Assets; plus

(b) 50% of Consolidated Net Income of the Borrower for the period (taken as one accounting period) from the first day of the fiscal quarter during which the Closing Date occurs to the end of the Borrower’s most recently ended fiscal quarter for which financial statements have been made available (or were required to be made available) pursuant to Section 6.01(a) or 6.01(b) (provided that in no event shall such amount pursuant to this clause (b) be less than zero); plus

(c) to the extent not included in the definition of “Excluded Contribution,” the amount of any capital contributions made in cash, Cash Equivalents or other property (at the fair market value thereof (as determined in good faith by the Borrower)) or the Net Cash Proceeds from Permitted Equity Issuances (or issuances of debt securities that have been converted into or exchanged for Qualified Equity Interests) received by the Borrower (or Holdings or any other direct or indirect parent thereof and contributed to the Borrower), but excluding any Specified Equity Contributions, during the period from and including the Business Day immediately following the Closing Date through and including the Reference Date and Not Otherwise Applied; plus

(d) to the extent not (i) included in clause (b) above or (ii) already reflected as a return of capital with respect to such Investment for purposes of determining the amount of such Investment including pursuant to clause (i) below, the aggregate amount of all Returns (including all cash repayment of principal) received in cash or Cash Equivalents by the Borrower or any Restricted Subsidiary from any Investment or Unrestricted Subsidiary during the period from and including the Business Day immediately following the Closing Date through and including the Reference Date; plus

(e) to the extent not (A) included in clause (b) or (d) above, (B) already reflected as a return of capital with respect to such Investment for purposes of determining the amount of such Investment or (C) required to be applied to prepay Term Loans in accordance with Section 2.05(b)(ii) or 2.05(b)(iii), the aggregate amount of all Net Cash Proceeds received by the Borrower or any Restricted Subsidiary in connection with the sale, transfer or other disposition of any Investment or its ownership interest in any Unrestricted Subsidiary during the period from and including the Business Day immediately following the Closing Date through and including the Reference Date; plus

 

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(f) to the extent not (i) included in clause (b), (d) or (e) above or (ii) already reflected as a return of capital with respect to such Investment for purposes of determining the amount of such Investment, in the event that the Borrower redesignates as a Restricted Subsidiary any Unrestricted Subsidiary that was designated as an Unrestricted Subsidiary after the Closing Date (which, for purposes hereof, shall be deemed to also include (A) the merger, consolidation, liquidation or similar amalgamation of any such Unrestricted Subsidiary into the Borrower or any Restricted Subsidiary, so long as the Borrower or such Restricted Subsidiary is the surviving Person, and (B) the transfer of all or substantially all of the assets of any such Unrestricted Subsidiary to the Borrower or any Restricted Subsidiary), the fair market value (as determined in good faith by the Borrower) of the Investment in such Unrestricted Subsidiary at the time of such redesignation; plus

(g) the Net Cash Proceeds received by the Borrower or any of its Restricted Subsidiaries of any Indebtedness or Disqualified Equity Interests incurred or issued by the Borrower or any of its Restricted Subsidiaries following the Closing Date (other than Indebtedness owing to the Borrower or a Guarantor) that is exchanged or converted into Qualified Equity Interests of the Borrower (or any direct or indirect parent of the Borrower); plus

(h) the Borrower Retained Prepayment Amounts; plus

(i) to the extent not required to be applied to prepay Term Loans in accordance with Section 2.05(b)(ii) or 2.05(b)(iii), the aggregate amount of all Net Cash Proceeds received by the Borrower or any Restricted Subsidiary in connection with any asset sale or other Disposition during the period from and including the Closing Date through and including the Reference Date; plus

(j) the aggregate amount received in cash and the fair market value of marketable securities or other property received by the Borrower or any Restricted Subsidiary as dividends or distributions from Unrestricted Subsidiaries after the Closing Date; minus

(k) any Investments made pursuant to Section 7.02(j) (which amounts, for the avoidance of doubt, shall, in each case (and without duplication of amounts in clause (d) above), be reduced by any repayments, returns representing a return of capital, redemptions or sales with respect to any such Investment to the extent not in excess of the amount of such initial Investment), (ii) any Restricted Payment made pursuant to Section 7.06(c) or (iii) any payment made pursuant to Section 7.12(a)(v), in each case, during the period commencing on the Closing Date and ending on the Reference Date (and, for purposes of this clause (k), without taking account of the intended usage of the Available Amount on such Reference Date in the contemplated transaction), in each case, in reliance on the Available Amount.

“Available Excluded Contribution Amount” means, an amount equal to 200% of the aggregate amount of any Excluded Contribution.

“Available Incremental Amount” means an aggregate principal amount of up to (a) the greater of $410,000,000 and 20.5% of Consolidated Tangible Assets (which amount, in either case, (i) shall be reduced by the aggregate principal amount of any New Term Loans, New Revolving Credit Commitments and Incremental Equivalent Debt previously incurred in reliance on this clause (a), but (ii) shall not be reduced by any amount incurred or issued in reliance on the immediately succeeding clause (b), (c) or (d)); plus (b) additional amounts incurred, the effect of which extends the maturity date of any Class of Loans and/or Commitments (or portion thereof) under any Facility (including any New Term

 

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Loans and New Revolving Credit Loans) up to an amount equal to the principal amount of the Class of Loans and/or Commitments (or portion thereof) being so extended (plus accrued interest, premium, fees and expenses related thereto); plus (c) the aggregate amount of any voluntary prepayments, voluntary redemptions, voluntary debt buybacks or open market purchases made or consummated with respect to any Loans or Commitments (in the case of Revolving Credit Loans to the extent accompanied by an equivalent permanent voluntary commitment reduction) and any voluntary prepayments, voluntary redemptions, voluntary debt buybacks or open market purchases made or consummated with respect to any of New Term Loans, New Revolving Credit Commitments, Incremental Equivalent Debt, Refinancing Loans or Refinancing Equivalent Debt and/or the Existing Secured Notes and/or other Indebtedness, which is secured on a pari passu first lien basis on the Collateral (to the extent previously or substantially simultaneously applied to the prepayment of any of the foregoing), in each case, except (other than with respect to the Existing Secured Notes) to the extent financed with long-term Indebtedness (other than revolving Indebtedness) (plus, in the case of any Existing Secured Notes, unpaid accrued interest, fees, premium (including call and tender premiums) thereon, defeasance costs, and fees and expenses incurred (including OID, upfront fees and similar items), in connection with such voluntary prepayments, voluntary redemptions, voluntary debt buybacks or open market purchases made or consummated); plus (d) an unlimited amount of New Term Loans, New Revolving Credit Commitments and any Incremental Equivalent Debt so long as the Secured Net Leverage Ratio for the Test Period ended most recently prior to the incurrence or issuance of such New Term Loans, New Revolving Credit Commitments and/or Incremental Equivalent Debt, as the case may be, after giving Pro Forma Effect to such incurrence or issuance, is less than or equal to the greater of (i) 3.75 to 1.00 and (ii) if incurred in connection with a Permitted Acquisition or other permitted Investment, the Secured Net Leverage Ratio as in effect immediately prior to the incurrence or issuance of such New Term Loans, New Revolving Credit Commitments and/or Incremental Equivalent Debt; provided that (i) the Borrower may elect to use clause (d) above prior to clause (a), (b) and/or (c) above, and if clause (a), (b) and/or (c) above and clause (d) above are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (d) above and (ii) to the extent the proceeds of any New Term Loans, New Revolving Credit Commitments or Incremental Equivalent Debt are intended to be applied to finance a Permitted Acquisition or other Investment, the Secured Net Leverage Ratio shall be tested instead only at the time the relevant agreement with respect to such Permitted Acquisition or other Investment is entered into giving Pro Forma Effect to such Permitted Acquisition or other Investment and the incurrence of all Indebtedness to be incurred in connection therewith as if such transactions had occurred on such date; provided, further, that in the case of any single transaction that provides for the incurrence and/or increase of loans and/or commitments under clause (d) above and one or more of clause (a), (b) or (c) above, compliance with the above Secured Net Leverage Ratio shall be determined for purposes of clause (d) above by giving the single transaction Pro Forma Effect but excluding in such determination the aggregate of indebtedness (and deemed indebtedness) from any such incurrence and increase utilizing clause (a), (b) or (c) above; provided, further, that, to the extent the Borrower has incurred New Term Loans, New Revolving Credit Commitments and/or any Incremental Equivalent Debt pursuant to clause (a), (b) or (c) above and subsequently would be in compliance with the Secured Net Leverage Ratio contained in clause (d) above, such previously incurred New Term Loans, New Revolving Credit Commitments and/or any Incremental Equivalent Debt shall automatically (and without action by the Borrower or any other Person) be reallocated to clause (d) above and the Available Incremental Amount that is available pursuant to preceding clause (a), (b) and/or (c) above shall be increased dollar-for-dollar for such reallocated amount; provided, further, that for purposes of determining compliance with clause (d) above, notwithstanding if such New Term Loans, New Revolving Credit Commitments and/or Incremental Equivalent Debt, as the case may be, then being incurred is unsecured or secured by assets not constituting Collateral, such New Term Loans, New Revolving Credit Commitments and/or Incremental Equivalent Debt, as the case may be, then being incurred shall be included as Consolidated Secured Net Debt in the Secured Net Leverage Ratio (but for the avoidance of doubt, not for any subsequent calculations determining the Available Incremental Amount or other calculations of the Secured Net Leverage Ratio).

 

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“Available RDP Reclassification Amount “ means the aggregate amount of prepayments, redemptions, purchases, defeasances, retirements, extinguishments or other satisfaction of Indebtedness permitted to be made in accordance with Sections 7.12(a)(iv) and (a)(vi) to the extent Not Otherwise Applied.

“Available RP Reclassification Amount” means the aggregate amount of Restricted Payments permitted to be made in accordance with Sections 7.06(c), (f), (j), (k) and (o) to the extent Not Otherwise Applied.

“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).

“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or any successor thereto.

“Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Goldman Sachs (or if a successor Administrative Agent has succeeded Goldman Sachs as Administrative Agent, such other bank as is designated by such Administrative Agent at the time it becomes Administrative Agent) as its “prime rate” in effect at its principal office in New York City and notified to the Borrower, (c) to the extent ascertainable, the one month Eurocurrency RateAdjusted Term SOFR plus 1.00% and (d) if Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. The “prime rate” is a rate set by Goldman Sachs (or such other bank) based upon various factors including Goldman Sachs’s (or such other bank’s) costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Goldman Sachs (or such other bank) shall take effect on the day specified in the public announcement of such change in the “prime rate.”

“Base Rate Loan” means a Loan that bears interest based on the Base Rate.

“Base Rate Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.

“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

“Board of Directors” means, with respect to any Person, (i) in the case of any corporation, the board of directors of such Person, (ii) in the case of any limited liability company, the board of managers or board of directors, as applicable, of such Person, or if such limited liability company does not have a board of managers or board of directors, the functional equivalent of the foregoing, (iii) in the case of any partnership, the board of directors or board of managers, as applicable, of the general partner of such Person and (iv) in any other case, the functional equivalent of the foregoing.

 

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“Booked But Not Billed Adjustments” means an amount to be added or subtracted from, as applicable, Consolidated EBITDA for any applicable period equal to (a) 0.8 multiplied by (b) the difference between (x) the contracted revenue that would have been earned during such period from each booked but not billed contract of the Borrower and its Restricted Subsidiaries and the target of an Permitted Acquisition or other similar permitted Investment (if applicable) that has been signed and will commence billing within 90 days after such Permitted Acquisition or permitted Investment and which revenue will be reasonably expected to be realized within 12 months of execution of such contract (or 18 months in the case of small cell contracts), as if all such contracts had been billed beginning on the first (1st) day of such period, and (y) the revenue recognized during such period from customer contracts of the Borrower and its Restricted Subsidiaries and such target (if applicable) for which, on or prior to such period, any of the Borrower, its Restricted Subsidiaries or such target (if applicable) has received a notice of termination but which were not actually disconnected; provided, however, that for any Fiscal Quarter, the aggregate amount of the Booked But Not Billed Adjustments shall not exceed 10.0%, of LQA Consolidated EBITDA calculated after giving effect to any Booked But Not Billed Adjustments.

“Borrower” means (a) prior to the consummation of the Closing Date Merger, the Initial Borrower and (b) from and after the consummation of the Closing Date Merger, the Company.

“Borrower Materials” has the meaning specified in the last paragraph of Section 6.02.

“Borrower Offer of Specified Discount Prepayment” means the offer by the applicable Borrower Party to make a voluntary prepayment of Term Loans at a specified discount to par pursuant to Section 2.05(a)(v)(B).

“Borrower Parties” means the collective reference to Holdings and its Subsidiaries, including the Borrower, and “Borrower Party” means any one of them.

“Borrower Prepayment Parties” has the meaning specified in Section 2.05(a)(v)(A). “Borrower Retained Prepayment Amounts” has the meaning specified in Section 2.05(b)(viii).

“Borrower Solicitation of Discount Range Prepayment Offers” means the solicitation by the applicable Borrower Party of offers for, and the corresponding acceptance by a Lender of, a voluntary prepayment of Term Loans at a specified range of discounts to par pursuant to Section 2.05(a)(v)(C).

“Borrower Solicitation of Discounted Prepayment Offers” means the solicitation by the applicable Borrower Party of offers for, and the subsequent acceptance, if any, by a Lender of, a voluntary prepayment of Term Loans at a discount to par pursuant to Section 2.05(a)(v)(D).

“Borrowing” means a Revolving Credit Borrowing, a Swing Line Borrowing, or a Term Borrowing, as the context may require.

 

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“Business Day” means (a) any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the jurisdiction where the Administrative Agent’s Office is located, and (b)(i) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in respect of any such Eurocurrency Rate Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank market or (ii) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in an Alternative Currency, any fundings, disbursements, settlements and payments in such Alternative Currency, or any other dealings in such Alternative Currency to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, any such day described in clause (a) above which is also a day on which dealings in deposits in such Alternative Currency are conducted by and between banks in the London interbank market and (other than any date that relates to any interest rate setting in respect of such Alternative Currency) any such day on which banks are open for foreign exchange business in the principal financial center of the country of such Alternative Currency.

“Capital Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Capitalized Leases) by the Borrower and its Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as capital expenditures on the consolidated statement of cash flows of Holdings, the Borrower and its Restricted Subsidiaries.

“Capitalized Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a Capitalized Lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP.

“Capitalized Leases “ means all leases that have been or are required to be, in accordance with GAAP, recorded as capitalized leases; provided that for all purposes hereunder the amount of obligations under any Capitalized Lease shall be the Capitalized Lease Obligation with respect thereto; provided, further, that any lease that is or would be characterized as an operating lease in accordance with GAAP on the Closing Date (whether or not such lease was in effect on such date) shall be accounted for as an operating lease (and not as a Capitalized Lease) for purposes of this Agreement regardless of any change in GAAP or any change in the application of GAAP following December 31, 2015, that would otherwise require such lease to be characterized (on a prospective or retroactive basis or otherwise) as a Capitalized Lease.

“Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by the Borrower and its Restricted Subsidiaries during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet (excluding the footnotes thereto) of the Borrower and its Restricted Subsidiaries.

“Captive Insurance Subsidiary” means any Subsidiary of the Borrower that is subject to regulation as an insurance company (or any Subsidiary thereof).

“Cash Collateral Account” means an account subject to the sole dominion and control of the Administrative Agent.

 

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“Cash Collateralize” means (a) to pledge and deposit with, or deliver to, the Administrative Agent, for the benefit of the Administrative Agent, the applicable L/C Issuer or Swing Line Lender (as applicable) and the Appropriate Lenders, as collateral for L/C Obligations or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash, Cash Equivalents, deposit account or securities account balances, (b) to provide a “backstop” letter of credit having terms, and issued by a financial institution, reasonably acceptable to the applicable L/C Issuer, (c) for the purposes of the definition of Disqualified Equity Interests in Section 1.01, the preamble paragraphs to Article VI and VII, Sections 9.11(a) and 10.13 and the Collateral Documents, to provide evidence that a Letter of Credit has been “grandfathered” into a future credit facility in a manner reasonably acceptable to such L/C Issuer or (d) if the applicable L/C Issuer or Swing Line Lender benefiting from such collateral shall agree in its reasonable discretion, to provide other credit support, in each case, in an amount equal to 100% of such obligations and pursuant to documentation in form and substance reasonably satisfactory to (i) in the case of clause (a), the Administrative Agent (on its own behalf and on behalf of the Appropriate Lenders) and (ii) the applicable L/C Issuer(s) or the Swing Line Lender (as applicable). “Cash Collateral,” “Cash Collateralizing,” “Cash Collateralized” and “Cash Collateralization” shall have the meanings correlative thereto and shall include the proceeds of such cash collateral and other credit support.

“Cash Equivalents” means any of the following types of Investments, to the extent owned by Holdings, the Borrower or any Restricted Subsidiary:

(a) Dollars, Pounds Sterling, any Alternative Currency and any local currency held by any of Holdings, the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;

(b) readily marketable direct obligations issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of 24 months or less from the date of acquisition;

(c) certificates of deposit, time deposits and Eurodollar time deposits with maturities of one year or less from the date of acquisition, demand deposits, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any Lender, any domestic or foreign commercial bank having capital and surplus of not less than $500,000,000 in the case of U.S. banks (or the Dollar equivalent as of the date of determination in the case of any non-U.S. banks) or any bank whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or form Moody’s is at least P-1 or the equivalent thereof (or, if at any time neither S&P nor Moody’s shall be rating such obligations, then an equivalent rating from such other nationally recognized rating service acceptable to the Administrative Agent);

(d) repurchase obligations for underlying securities of the types described in clauses

(b) and (c) above or clause (f) below entered into with any financial institution meeting the qualifications specified in clause (c) above;

(e) commercial paper rated at least P-2 by Moody’s or at least A-2 by S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency) and in each case maturing within 12 months after the date of creation thereof;

(f) marketable short-term money market and similar highly liquid funds having a rating of at least P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency);

 

15

(g) readily marketable direct obligations issued or directly and fully guaranteed or insured by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having an Investment Grade Rating from either Moody’s or S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency) with maturities of 24 months or less from the date of acquisition;

(h) overnight bank deposits and bankers’ acceptances at any U.S. commercial bank having capital and surplus in excess of $500,000,000 or a commercial bank organized under the laws of any other country that is a member of the OECD having total assets in excess of $500,000,000 (or its foreign currency equivalent at the time);

(i) deposits available for withdrawal on demand and money market deposit accounts with a U.S. commercial bank having capital and surplus in excess of $500,000,000 or a commercial bank organized under the laws of any other country that is a member of the OECD having total assets in excess of $500,000,000 (or its foreign currency equivalent at the time);

(j) Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency);

(k) investment funds investing substantially all of their assets in securities of the types described in clauses (a) through (j) above; and

(l) solely with respect to any Captive Insurance Subsidiary, any investment that a Captive Insurance Subsidiary is not prohibited to make in accordance with applicable Laws.

In the case of Investments made in a country outside the United States in the ordinary course of business, Cash Equivalents shall also include (i) investments of the type and maturity described in clauses (a) through (l) above of obligors, which Investments or obligors (or the parents of such obligors), if required under such clauses, have the ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (ii) other short-term investments utilized by Holdings, the Borrower or Restricted Subsidiaries in accordance with normal investment practices for cash management in investments analogous to the foregoing investments described in clauses (a) through (l) and in this paragraph.

“Cash Management Bank” means any Person that is the Administrative Agent, a Lender, a Lead Arranger, a Co-Manager or an Affiliate of any of the foregoing at the time (or within thirty (30) days after) it initially provides any Cash Management Services pursuant to a Secured Cash Management Agreement (or, in the case of Secured Cash Management Agreements existing on the Closing Date, on the Closing Date), whether or not such Person subsequently ceases to be the Administrative Agent, a Lender, a Lead Arranger, a Co-Manager or an Affiliate of any of the foregoing.

“Cash Management Obligations” means obligations owed by Holdings, the Borrower or any Restricted Subsidiary in respect of or in connection with any Cash Management Services.

“Cash Management Services” means any agreement or arrangement to provide cash management services, including treasury, depository, overdraft, credit card processing, credit or debit card, purchase card, electronic funds transfer, ACH transactions and other cash management arrangements.

 

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“Casualty Event” means any event that gives rise to the receipt by the Borrower or any Restricted Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property.

“CBT” means Cincinnati Bell Telephone Company LLC, an Ohio limited liability company.

“CFC” means a “controlled foreign corporation” within the meaning of Section 957 of the Code.

“CFC Holdco” means any Domestic Subsidiary that (a) has no material assets other than (i) cash and Cash Equivalents, (ii) Equity Interests in one or more Foreign Subsidiaries that are CFCs and/or CFC Holdcos or (iii) Indebtedness of one or more Foreign Subsidiaries that are CFCs and/or CFC Holdcos or (b) is a disregarded entity that owns Equity Interests in one or more Foreign Subsidiaries that are CFCs and/or CFC Holdcos.

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements or directives thereunder or issued in connection therewith or in implementation thereof and (y) all requests, rules, guidelines, requirements or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law,” regardless of the date enacted, adopted, issued or implemented.

“Change of Control” means the earliest to occur after the Closing Date of:

(a) at any time:

(i) prior to the consummation of a Qualifying IPO, the Permitted Holders ceasing to own, in the aggregate, directly or indirectly, beneficially, at least a majority of the aggregate ordinary common equity voting power represented by the issued and outstanding Equity Interests of Holdings; or

(ii) upon and after the consummation of a Qualifying IPO, (1) any Person (other than a Permitted Holder) or (2) Persons (other than one or more Permitted Holders) constituting a “group” (as such term is used in Section 13(d) and Section 14(d) of the Exchange Act as in effect on the Closing Date, but excluding any employee benefit plan of such Person and its Subsidiaries, and any Person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), becomes the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act as in effect on the Closing Date), directly or indirectly, of Equity Interests representing more than thirty-five percent (35%) of the aggregate ordinary common equity voting power represented by the issued and outstanding Equity Interests of Holdings and the percentage of aggregate ordinary common equity voting power so held is greater than the percentage of the aggregate ordinary common equity voting power represented by the Equity Interests of Holdings beneficially owned, directly or indirectly, in the aggregate by the Permitted Holders;

 

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unless, in the case of either clause (a)(i) or (a)(ii) above, the Permitted Holders have, at such time, the right or the ability by voting power, contract or otherwise to elect or designate for election directors entitled to cast the majority of votes on the board of directors of Holdings; or

(b) any “Change of Control” (or any comparable term) occurring under (i) any document pertaining to any Junior Financing, the aggregate outstanding principal amount of which is in excess of the Threshold Amount or (ii) the Existing Secured 2024 Notes or the Existing Secured 2025 Notes; or

(c) other than as a result of a transaction permitted by Section 7.04 or 7.13, Holdings (or any successor of Holdings under Section 7.04) ceases to directly own all of the issued and outstanding Equity Interests of the Borrower (other than (x) the Closing Date Borrower Preferred Equity, (y) director’s qualifying shares or (z) nominal shares issued to foreign nationals to the extent required by applicable Laws).

Notwithstanding the preceding provisions and the provisions of the applicable Laws, (i) a Person or “group” shall not be deemed to beneficially own Equity Interests subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the Equity Interests in connection with the transactions contemplated by any such agreements and (ii) a Person or “group” will not be deemed to beneficially own the Equity Interests of another Person as a result of its ownership of the Equity Interests or other securities (or related contractual rights) of such other Person’s parent entity unless it owns more than 50% of the aggregate ordinary voting power represented by the then issued and outstanding Equity Interests of such other Person’s parent entity.

“Channel Financing Facility” means an equipment and inventory financing credit facility, pursuant to which the applicable lender thereunder will make available a revolving credit facility the proceeds of which will be used to fund the purchase from certain designated vendors of assets in the form of (a) equipment (and related services) and/or (b) inventory, including for resale to customers and which credit facility may be secured by a Lien in favor of the applicable lender solely on the assets acquired with such credit facility and the proceeds thereof.

“Claims” has the meaning specified in the definition of “Environmental Claim.”

“Class” when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Initial Term B-1 Loans, Term B-2 Loans, Term Loans, Initial Revolving Credit Loans, Revolving Credit Loans or a separate Class of New Term Loans, New Revolving Credit Loans, Refinancing Term Loans, Refinancing Revolving Credit Loans, Extended Term Loans, Extended Revolving Credit Loans or Replacement Term Loans, (b) any Commitment, refers to whether such Commitment is a Commitment in respect of Initial Term B-1 Commitments, Term B-2 Commitments, Term Commitments, Initial Revolving Credit Commitments, Revolving Credit Commitments or a Commitment in respect of a Class of Loans to be made pursuant to an Incremental Amendment, a Refinancing Amendment, an Extension Amendment, Corrective Loan Extension Amendment or an amendment to this Agreement in respect of Replacement Term Loans and (c) any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments and includes, as a separate Class, Term Lenders with InitialTerm B-1 Loans,

 

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Term B-2 Loans, Term Loans, Revolving Credit Lenders with Initial Revolving Credit Commitments, Refinancing Term Lenders with Refinancing Term Commitments or Refinancing Term Loans, Refinancing Revolving Credit Lenders with Refinancing Revolving Credit Commitments or Refinancing Revolving Credit Loans, Extending Term Lenders for a given Term Loan Extension Series of Extended Term Commitments or Extended Term Loans, Extending Revolving Credit Lenders for a given Revolving Credit Loan Extension Series of Extended Revolving Credit Commitments or Extended Revolving Credit Loans, New Term Lenders with New Term Commitments or New Term Loans, New Revolving Credit Lenders with New Revolving Credit Commitments or New Revolving Credit Loans or Lenders with Replacement Term Loans. Refinancing Term Commitments, Refinancing Term Loans, Refinancing Revolving Credit Commitments, Refinancing Revolving Credit Loans, New Term Commitments, New Term Loans, New Revolving Credit Commitments, New Revolving Credit Loans, Extended Term Commitments, Extended Term Loans, Extended Revolving Credit Commitments, Extended Revolving Credit Loans, commitments in respect of Replacement Term Loans and Replacement Term Loans that have different terms and conditions shall be construed to be in different Classes.

“Clean Up Period” has the meaning specified in Section 8.05.

“Closing Date” means the first date on which all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01.

“Closing Date Acquisition” has the meaning specified in the preliminary statements to this Agreement.

“Closing Date Acquisition Agreement” has the meaning specified in the preliminary statements to this Agreement.

“Closing Date Borrower Preferred Equity” means any series of preferred Equity Interests issued by the Company on or prior to the Closing Date, including the 6.75% Cumulative Convertible Preferred Shares of the Company.

“Closing Date Equity Contribution” means cash (or, in the case of members of management of the Borrower and/or certain other Investors, cash or non-cash) equity contributions, which shall be common equity, “qualified” preferred equity or other equity, the terms of which are reasonably satisfactory to the Lead Arrangers and the Co-Managers (exclusive of the Rollover Equity Amount), directly or indirectly in Holdings from the Investors in an aggregate amount equal to, when combined with the Rollover Equity Amount, at least 40% of (a) the aggregate (i) principal amount of the Initial Term Loans (but without giving effect to any additional Initial Term Loans made available to fund original issue discount or upfront fees, in each case solely to the extent contemplated by the “market flex” provisions in any Fee Letter), plus (ii) principal amount of the Existing Secured Notes outstanding on the Closing Date, plus (b) the amount of the Closing Date Equity Contribution (including the Rollover Equity Amount), minus (c) the aggregate amount of cash on hand at the Borrower and its Subsidiaries on the Closing Date. On the Closing Date, Macquarie, any of its Affiliates and any funds, investment vehicles or partnerships managed, advised or sub-advised by any of them or any of their respective Affiliates (other than any portfolio companies thereof) shall own and control not less than 50.1% of the common voting equity interests in Holdings.

“Closing Date First Lien Intercreditor Agreement” has the meaning specified in the definition of First Lien Intercreditor Agreement.

 

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“Closing Date Merger” has the meaning specified in the preliminary statements to this Agreement.

“Closing Date Refinancing” means the repayment in full (or the making of arrangements for the repayment in full) of all principal, accrued and unpaid interest, fees, premium, if any, and other amounts (other than (x) obligations not then due and payable or that by their terms survive the termination thereof and (y) certain existing letters of credit outstanding under the Existing Credit Facility, as applicable, that on the Closing Date will be grandfathered into, or backstopped by, the Revolving Credit Facility or cash collateralized in a manner satisfactory to the issuing banks thereof) and termination of (or the making of arrangements for the termination of) all commitments to extend credit, in each case, under the Existing Credit Facility, and the termination and/or release of (or the making of arrangements for the termination and/or release of) any security interests and guarantees in connection therewith, in each case, to occur prior to, or substantially contemporaneously with the funding of the Facilities.

“CoBank” means CoBank, ACB.

“CoBank Equities” has the meaning specified in Section 10.19(a).

“CoBank Fee Letter” has the meaning specified in clause (b) of the definition “Fee Letter”.

“Code” means the U.S. Internal Revenue Code of 1986, as amended.

“Collateral” means all the “Collateral” (or equivalent term) as defined in any Collateral Document and any other assets pledged (or purported to be pledged) pursuant to any Collateral Document.

“Collateral and Guarantee Requirement” means, at any time, the requirement that:

(a) the Administrative Agent shall have received each Collateral Document required to be delivered (i) on the Closing Date pursuant to Section 4.01(a)(iii) (as the same may be modified by Section 6.17) or (ii) on such other dates as required pursuant to Section 6.12 or Section 6.14 or the Collateral Documents, duly executed by each Loan Party party thereto;

(b) all Obligations (other than, with respect to any Guarantor, any Excluded Swap Obligations of such Guarantor) shall have been unconditionally guaranteed by Holdings, the Borrower and each Wholly Owned Restricted Subsidiary of the Borrower that is a Domestic Subsidiary (other than any Excluded Subsidiary) (each, a “Guarantor”) (provided that (i) the Guarantee by Holdings shall be non-recourse to Holdings and limited to the Equity Interests of the Borrower) and (ii) no Guarantor shall be required to provide a Guarantee of its own direct obligations under (x) any Loan Document or (y) any Secured Hedge Agreement or Secured Cash Management Agreement to which it is a party as a direct obligor;

(c) the Obligations of each Loan Party (other than, with respect to any Guarantor, any Excluded Swap Obligations of such Guarantor) shall have been secured by a first-priority security interest (subject to Liens permitted by Section 7.01) in all of the Equity Interests of the Borrower, each Subsidiary Guarantor and each Wholly Owned Restricted Subsidiary that is directly held by the Borrower or any Subsidiary Guarantor, in each case, other than (i) Equity Interests of any Foreign Subsidiary, CFC or CFC Holdco, in each case, in excess of 65% of the issued and outstanding voting Equity Interests thereof, (ii) Equity Interests of any Immaterial Subsidiary and (iii) any Equity Interests that constitute Excluded Assets;

 

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(d) except to the extent otherwise provided hereunder or under any Collateral Document, and subject to Section 6.12 and Liens permitted by Section 7.01 or under any Collateral Document, the Obligations (other than, with respect to any Guarantor, any Excluded Swap Obligations of such Guarantor) of (i) the Borrower and the Subsidiary Guarantors shall have been secured by a valid and perfected security interest in substantially all tangible and intangible assets of the Borrower and each Subsidiary Guarantor (other than any Excluded Assets) and (ii) Holdings shall have been secured by a valid and perfected security interest in all of the Equity Interests of the Borrower, in each case, with the priority required by the Collateral Documents (to the extent such security interest may be perfected by delivering certificated securities and Material Debt Instruments, solely to the extent required by Sections 6.12 and 6.14, filing financing statements under the Uniform Commercial Code or making any necessary filings with the United States Patent and Trademark Office or United States Copyright Office);

The foregoing definition shall not require, and the Loan Documents shall not contain any requirements as to, the creation or perfection of pledges of or security interests in, mortgages on, or the obtaining of title insurance, surveys or appraisals or taking other actions with respect to, any Excluded Assets. The Administrative Agent may grant extensions of time for the perfection of security interests in, and the taking of other actions with respect to, and the delivery of, assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties) where it reasonably determines, in consultation with the Borrower, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.

Notwithstanding anything to the contrary, there shall be no requirement for (and no Default under the Loan Documents shall arise out of the lack of) (A) actions in, or required by the Laws of, any jurisdiction other than the United States (or any state thereof or the District of Columbia) in order to create, perfect or maintain any security interests in any assets (including, without limitation, any intellectual property registered outside the United States and all real property located outside the United States) (it being understood that, subject to the final paragraph of this definition of Collateral and Guarantee Requirement and Section 6.12(b), there shall be no security agreements, pledge agreements or similar security documents governed by the Laws of any jurisdiction outside the United States), (B) actions required to be taken to perfect by “control” with respect to any Collateral (other than delivery of certificated securities required to be pledged in accordance with clause (c) of this definition), including control agreements or similar agreements in respect of any deposit accounts, securities accounts, commodities accounts or other bank accounts (other than the Cash Collateral Account (if any)) and (C) possession of promissory notes and other evidence of Indebtedness other than in respect of Material Debt Instruments in order to perfect any security interests in any Collateral.

In addition, the Borrower may cause any Domestic Subsidiary or Subsidiary that is organized under the Laws of any Approved Jurisdiction or any territory, province or municipality therein that is a Restricted Subsidiary that is not otherwise required to be a Guarantor to Guarantee the Obligations and otherwise satisfy the Collateral and Guarantee Requirement, in which case such Restricted Subsidiary shall be treated as a Guarantor under this Agreement and every other Loan Document for all purposes and notwithstanding anything in the Loan Documents to the contrary, the Administrative Agent and the Borrower shall agree on customary Collateral Documents and filings under the laws of such Approved Jurisdiction to be entered into by and made with respect to any such Restricted Subsidiary that is not a Domestic Subsidiary that becomes a Guarantor.

 

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“Collateral Documents” means, collectively, the Security Agreement, the Holdings Pledge Agreement, the Intellectual Property Security Agreements, each of the debentures, charges, collateral assignments, security agreements, pledge agreements or other similar agreements (if any) delivered to the Agents and the Lenders pursuant to this Agreement, the Guaranty, and each of the other agreements, instruments or documents executed by a Loan Party that creates or purports to create a Lien or Guarantee in favor of the Administrative Agent for the benefit of the Secured Parties.

“Co-Managers” means Fifth Third Bank, National Association (the “Initial Co-Manager”), PNC Bank, National Association, First Financial Bank, and First Hawaiian Bank, each in its capacity as a co-manager under this Agreement.

“Commitment” means a Term Commitment, a Revolving Credit Commitment, a New Revolving Credit Commitment, a Refinancing Revolving Credit Commitment or an Extended Revolving Credit Commitment, as the context may require.

“Commitment Letters” means (a) that certain Amended and Restated Commitment Letter, dated May 7, 2020, among Goldman Sachs, Regions Bank, Regions Capital Markets, Société Générale, Fifth Third Bank, National Association and Holdings and (b) that certain Commitment Letter, dated April 14, 2021, between CoBank and Holdings.

“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.

“Company” has the meaning specified in the introductory paragraph to this Agreement.

“Company Material Adverse Effect” has the meaning specified in the Closing Date Acquisition Agreement.

“Compliance Certificate” means a certificate substantially in the form of Exhibit C and which certificate shall in any event be a certificate of a Responsible Officer of the Borrower (or, at the Borrower’s option, Holdings) (a) certifying as to whether an Event of Default has occurred and is continuing and, if applicable, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (b) setting forth reasonably detailed calculations, (i) in the case of financial statements delivered under Section 6.01(a), beginning with the financial statements for the fiscal year of the Borrower ending December 31, 2022, of Excess Cash Flow for such fiscal year and (ii) in the case of any full fiscal quarter ended after the Closing Date (including the fourth fiscal quarter of any fiscal year) the last day of which is a Compliance Date, the Secured Net Leverage Ratio as of the last day of the applicable fiscal quarter (including the fourth fiscal quarter of any fiscal year), as the case may be and (c) in the case of financial statements delivered under Section 6.01(a), setting forth a reasonably detailed calculation of the Net Cash Proceeds received during the applicable period by or on behalf of, the Borrower or any of its Restricted Subsidiaries in respect of any Disposition subject to prepayment pursuant to Section 2.05(b)(ii)(A) or Section 2.05(b)(iii)(A) and the portion of such Net Cash Proceeds that has been invested or is intended to be reinvested in accordance with Section 2.05(b)(ii)(B) or Section 2.05(b)(iii)(B).

“Compliance Date “ means, any date on which both (a) the aggregate Outstanding Amount of (x) all Revolving Credit Loans (including Swing Line Loans, but excluding, for the first two full fiscal quarters ending after the Closing Date, the principal amount of any Revolving Credit Loans made on the Closing Date to finance any OID or upfront fees pursuant to the “Market Flex” provisions in any Fee Letter) and (y) all Letters of Credit (excluding (i) Letters of Credit that have been Cash Collateralized or otherwise backstopped, (ii) undrawn Letters of Credit (or Letters of Credit that have been drawn and not reimbursed for more than three (3) Business Days) and (iii) Letters of Credit to backstop or Cash Collateralize letters of credit or surety bonds (or similar obligations) existing on the Closing Date), exceeds an amount equal to 35.0% of the aggregate principal amount of all Revolving Credit Commitments then in effect and (b) Revolving Credit Loans are outstanding.

 

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“Conditional Notice Transaction” has the meaning specified in Section 2.05(a)(iii).

“Consolidated Current Assets” means, as at any date of determination, the total assets of the Borrower and its Restricted Subsidiaries on a consolidated basis that may properly be classified as current assets in conformity with GAAP, excluding cash and Cash Equivalents, amounts related to current or deferred taxes based on income or profits, assets held for sale, loans (permitted) to third parties, pension assets, deferred bank fees and derivative financial instruments.

“Consolidated Current Liabilities” means, as at any date of determination, the total liabilities of the Borrower and its Restricted Subsidiaries on a consolidated basis that may properly be classified as current liabilities in conformity with GAAP, but excluding (a) the current portion of any Funded Debt, (b) the current portion of interest, (c) accruals for current or deferred taxes based on income or profits, (d) accruals of any costs or expenses related to restructuring reserves or severance, (e) revolving loans, swing line loans and letter of credit obligations under the Revolving Credit Facility or any other revolving credit facility, (f) the current portion of any Capitalized Lease Obligation, (g) deferred revenue, (h) liabilities in respect of unpaid earn-outs or other similar acquisition related liabilities, (i) the current portion of any other long-term liabilities, and, furthermore, excluding the effects of adjustments pursuant to GAAP resulting from the application of recapitalization accounting or purchase accounting, as the case may be, in relation to the Transaction or any consummated acquisition and (j) Non-Cash Compensation Liabilities.

“Consolidated Depreciation and Amortization Expense” means, with respect to any Person for any period, the total amount of depreciation, amortization and depletion and accretion expense, including amortization or write-off of intangibles and non-cash organization costs and of deferred financing fees or costs and Capitalized Software Expenditures, of such Person, including the amortization of deferred financing fees or costs for such period on a consolidated basis and otherwise determined in accordance with GAAP and the amortization of OID resulting from the issuance of Indebtedness at less than par, and any write down of assets or asset value carried on the balance sheet.

“Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period:

(a) increased by (without duplication, and as determined in accordance with GAAP to the extent applicable):

(i) solely to the extent such amounts were deducted in computing Consolidated Net Income (A) provision for Taxes based on income or profits or capital, plus state, provincial, franchise, property or similar taxes and foreign withholding taxes and foreign unreimbursed value added taxes, of such Person for such period (including, in each case, penalties and interest related to such taxes or arising from tax examinations) paid or accrued during such period and (B) amounts paid to Holdings or any direct or indirect parent thereof in respect of taxes in accordance with Section 7.06(g); plus

 

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(ii) (A) total interest expense of such Person (including in connection with the deferred purchase price of assets and the portion of rent expense with respect to such period and Capitalized Leases that are treated as interest in accordance with GAAP), to the extent not reflected in such total interest expense, any net losses on hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, and (B) bank fees and costs owed with respect to letters of credit, bankers acceptances and surety bonds, in each case under this clause (B), in connection with financing activities and, in each case under clauses (A) and (B), to the extent the same were deducted in computing Consolidated Net Income; plus

(iii) Consolidated Depreciation and Amortization Expense of such Person for such period to the extent such expenses were deducted in computing Consolidated Net Income; plus

(iv) any (A) Transaction Expenses (including rating agency fees and related expenses) and (B) (I) fees, costs, expenses or charges incurred in connection with (x) any issuance or offering of Equity Interests (including any Qualifying IPO), Investment, acquisition (including any one-time costs incurred in connection with any Permitted Acquisition or any other Investment permitted hereunder after the Closing Date), non-ordinary course Disposition, recapitalization or the issuance, incurrence, redemption, exchange or repayment of Indebtedness (including, with respect to Indebtedness, a refinancing thereof), including any costs and expenses relating to any registration statement, or registered exchange offer, in respect of any Indebtedness permitted hereunder, (y) any amendment, waiver, consent or modification to any documentation governing the terms of any transaction described in the immediately preceding subclause (x) or (z) any amendment, waiver, consent or modification to any Loan Document or any other document governing any Indebtedness, in each case under subclauses (x), (y) and (z), whether or not such transaction or amendment, waiver, consent or modification is successful, and (II) fees, costs, expenses and charges to the extent payable or reimbursable by third parties, pursuant to indemnification provisions, in each case, deducted in computing Consolidated Net Income; plus

(v) to the extent deducted in calculating Consolidated Net Income, any charges, losses or expenses related to signing, retention, relocation, recruiting or completion bonuses or recruiting costs, severance costs, transition costs, curtailments or modifications to pension and post-retirement employee benefit plans (including any settlement of pension liabilities), pre-opening, opening, closing and consolidation costs and expenses with respect to any facilities, facility start-up costs, costs and expenses relating to implementation of operational and reporting systems and technology initiatives, costs incurred in connection with product and intellectual property development and new systems design, project start-up costs, integration and systems establishment costs, business optimization expenses or costs (including costs and expenses relating to intellectual property restructurings) and cash restructuring charges, expenses and reserves; plus

(vi) at the option of the Borrower in its reasonable discretion, the Booked But Not Billed Adjustments; plus

(vii) any other non-cash charges, expenses, losses or items, including any write offs or write downs, reducing such Consolidated Net Income for such period (provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, (1) the Borrower may determine not to add back such non-cash charge in the current period and (2) to the extent the Borrower does decide to add back such non-cash charge, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period); plus

 

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(viii) the amount of any minority interest expense consisting of Subsidiary income attributable to minority equity interests of third parties in any non-Wholly Owned Subsidiary deducted in such period in computing Consolidated Net Income; plus

(ix) the amount of fees, out-of-pocket costs, indemnities and expenses paid or accrued in such period to any Permitted Holder or any of their Affiliates to the extent permitted under Section 7.08 and deducted in such period in computing Consolidated Net Income; plus

(x) the pro forma amount of “run rate” cost savings, operating expense reductions, business optimization, other operating improvements, synergies, restructuring expenses, charges, costs, accruals, reserves or losses, integration expenses, charges, costs, accruals, reserves or losses, transition expenses, charges, costs, accruals, reserves or losses, facilities opening and pre-opening expenses, charges, costs, accruals, reserves or losses (net of the amount of actual benefits realized during such period from such actions) which result (or are projected to result) from or are related to the Transaction and other acquisitions, dispositions, operating improvements, restructurings, cost savings initiatives and similar initiatives, actions or events (including, without limitation, inventory optimization programs, software development costs and costs related to the closure or consolidation of facilities and curtailments, costs related to entry into new markets or geographic regions, consulting and other professional fees, signing costs, retention or completion bonuses, relocation and recruitment expenses, severance payments, modifications to or losses on settlement of pension and post-retirement employee benefit plans, new systems design and implementation costs and project startup costs), which shall be reasonably identifiable and projected by the Borrower in good faith; plus

(xi) to the extent actually incurred and reducing Consolidated Net Income, the amount of any business optimization, operating improvements, synergies, integration, transition, facilities opening and pre-opening, operating expense reductions, restructuring costs, cost savings initiatives and similar initiative related expenses, charges, costs, accruals, reserves or losses (including, without limitation, inventory optimization programs, software development costs and costs related to the closure or consolidation of facilities and curtailments, costs related to entry into new markets or geographic regions, consulting and other professional fees, signing costs, retention or completion bonuses, relocation and recruitment expenses, severance payments, modifications to or losses on settlement of pension and post-retirement employee benefit plans, new systems design and implementation costs and project startup costs); plus

(xii) to the extent reducing such Consolidated Net Income, any costs or expenses incurred by the Borrower or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or stockholders agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Borrower or net cash proceeds of issuance of Equity Interests of Holdings or the Borrower (other than Disqualified Equity Interests), in each case, solely to the extent that such cash proceeds are excluded from the calculation of the Available Amount and have not been used as an Excluded Contribution; plus

 

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(xiii) (a) to the extent deducted in calculating Consolidated Net Income, Specified Legal Expenses in an amount not to exceed the greater of (x) $17,750,000 and (y) 1.0% of Consolidated Tangible Assets for the applicable four quarter period and (b) except to the extent reimbursed from the proceeds of insurance that increased Consolidated Net Income for such period, contract cancellation costs, network reconfiguration costs or costs with respect to acts of god or force majeure; plus

(xiv) accruals and reserves that are established or adjusted within 12 months after the closing of any acquisition or similar Investment that are so required as a result of such acquisition or similar Investment in accordance with GAAP, or changes as a result of the adoption or modification of accounting policies, whether effected through a cumulative effect adjustment, restatement or a retroactive application; plus

(xv) the amount of any call premium, tender premium or other similar expense and other fees and expenses paid or to be paid by the Borrower or any Restricted Subsidiary in connection with the refinancing, repayment, repurchase or extinguishment of any Indebtedness during such period; plus

(xvi) the amount of loss or discount on the sale of Transferred Assets to any Receivables Financing SPC in connection with the Securitization Facility, the Factoring Facility and/or any other Permitted Receivables Financing; plus

(xvii) Public Company Costs; plus

(xviii) other add-backs of the type reflected in the Sponsor Model and/or the Quality of Earnings Report and any other quality of earnings analysis prepared by a nationally recognized or “big four” accounting firm or any other accounting firm reasonably acceptable to the Administrative Agent and delivered to the Administrative Agent in connection with any acquisition or similar Investment other than the Transaction; and

(b) decreased by (without duplication, and as determined in accordance with GAAP to the extent applicable) any non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any gains that represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period (other than such cash charges that have been added back to Consolidated Net Income in calculating Consolidated EBITDA in accordance with this definition).

Notwithstanding anything to the contrary contained herein, for purposes of determining Consolidated EBITDA under this Agreement, Consolidated EBITDA for the fiscal quarters ended September 30, 2020, December 31, 2020, March 31, 2021 and June 30, 2021 shall be deemed to be $99,900,000, $105,800,000, $106,100,000 and $104,200,000, respectively. For the avoidance of doubt, Consolidated EBITDA shall be calculated, including pro forma adjustments, in accordance with Section 1.08.

“Consolidated Net Income” means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP; provided, however, that, without duplication:

(a) any net after-tax extraordinary, non-recurring or unusual gains or losses, charges or expenses and Transaction Expenses, severance costs and expenses and one-time compensation charges shall be excluded;

 

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(b) the Net Income for such period shall not include the cumulative effect of a change in accounting principles or the adoption or modification of accounting policies during such period, whether effected through a cumulative effect adjustment or a retroactive application, in each case in accordance with GAAP;

(c) effects of adjustments (including the effects of such adjustments pushed down to the Borrower and its Subsidiaries) in such Person’s consolidated financial statements pursuant to GAAP (including in the property and equipment, software, goodwill, intangible assets, deferred revenue and debt line items thereof) resulting from the application of recapitalization accounting or purchase accounting, as the case may be, in relation to the Transaction or any consummated acquisition or the amortization or write-off of any amounts thereof (including any write-off of in process research and development), net of taxes, shall be excluded;

(d) any net after-tax income (loss) from disposed, abandoned, transferred, closed or discontinued operations and any net after-tax gains or losses on disposal of disposed, abandoned, transferred, closed or discontinued operations shall be excluded;

(e) any net after-tax gains or losses (less all fees and expenses relating thereto) attributable to asset sales or other dispositions or impairments or the sale or other disposition of any Equity Interests of any Person, in each case, other than in the ordinary course of business, as determined in good faith by the Borrower, shall be excluded;

(f) the Net Income for such period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that the Borrower’s or any Restricted Subsidiary’s equity in the Net Income of such Person or Unrestricted Subsidiary shall be included in the Consolidated Net Income of the Borrower or such Restricted Subsidiary up to the aggregate amount of dividends or distributions or other payments that are actually paid in cash or Cash Equivalents (or to the extent converted into cash or Cash Equivalents) by such Person or Unrestricted Subsidiary to the Borrower or a Restricted Subsidiary in respect of such period;

(g) solely for the purpose of determining the Available Amount for application pursuant to Section 7.06(c), the Net Income for such period of any Restricted Subsidiary (other than any Subsidiary Guarantor) shall be excluded to the extent the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation applicable to that Restricted Subsidiary or its equity holders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived; provided that Consolidated Net Income of the Borrower will be increased by the amount of dividends or other distributions or other payments actually paid in cash or Cash Equivalents (or to the extent converted into cash or Cash Equivalents) to the Borrower or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein;

(h) (i) any net unrealized gain or loss (after any offset) resulting in such period from obligations in respect of Swap Contracts and the application of Accounting Standards Codification 815 (Derivatives and Hedging) or any ineffectiveness recognized in earnings related to qualifying hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge transactions, in each case, in respect of Swap Contracts, (ii) any net gain or loss resulting in such period from currency translation gains or losses related to currency re-measurements of Indebtedness (including the net loss or gain resulting from Swap Contracts for currency exchange risk

 

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and all other foreign currency translation gains or losses, and (iii) any net after-tax income (loss) for such period attributable to the early extinguishment or conversion of (A) Indebtedness, (B) obligations under any Swap Contracts or (C) other derivative instruments and all deferred financing costs written off or amortized and premiums paid or other expenses incurred directly in connection therewith, shall be excluded;

(i) any goodwill or impairment charge or asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to intangible assets, long-lived assets, investments in debt and equity securities or as a result of a Change in Law or change in regulation, in each case pursuant to GAAP, the amortization of intangibles arising pursuant to GAAP and the amortization of Capitalized Software Expenditures, shall be excluded;

(j) any expenses, charges or losses that are covered by indemnification, escrow, insurance or other reimbursement provisions in connection with the Transactions or any Investment, Permitted Acquisition, acquisitions, sale, conveyance, transfer or other Disposition permitted under this Agreement or that were consummated prior to the Closing Date, to the extent actually reimbursed, or, so long as the Borrower has made a determination that a reasonable basis exists for indemnification or reimbursement and only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 365 days), shall be excluded;

(k) to the extent covered by insurance and actually reimbursed, or, so long as the Borrower has made a determination that a reasonable basis exists that such amount will in fact be reimbursed within 365 days of the date of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within such 365 days), expenses, charges or losses with respect to liability or Casualty Events or business interruption and the costs and expenses for the realization thereof shall be excluded;

(l) any non-cash compensation charge or expense, including any such charge or expense arising from the grants of stock appreciation or similar rights, stock options, restricted stock or other rights or equity incentive programs shall be excluded and any cash charges associated with the rollover, acceleration or payout of Equity Interests by, or to, management or other holders, direct or indirect, of Equity Interests of the Borrower or any of its Restricted Subsidiaries, in each case, in connection with the Transaction, shall be excluded;

(m) any income (loss) attributable to deferred compensation plans or trusts and any non-cash deemed finance charges in respect of any pension liabilities or other provisions or on the revaluation of any benefit plan obligation shall be excluded;

(n) proceeds from any business interruption insurance, to the extent not already included in Consolidated Net Income, shall be included;

(o) the amount of any expense to the extent a corresponding amount relating to such expense is received in cash by the Borrower and its Restricted Subsidiaries from a Person other than the Borrower or any Restricted Subsidiaries; provided that such amount received has not been included in determining Consolidated Net Income, shall be excluded (it being understood that if the amounts received in cash under any such agreement in any period exceed the amount of expense in respect of such period, such excess amounts received may be carried forward and applied against expense in future periods);

 

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(p) any adjustments resulting from the application of Accounting Standards Codification Topic No. 460, Guarantees, or any comparable regulation, shall be excluded;

(q) earn-out and contingent consideration obligations (including adjustments thereof and purchase price adjustments) incurred in connection with any Permitted Acquisition or other permitted Investment, and any acquisitions completed prior to the Closing Date, shall be excluded; and

(r) there shall be excluded from Consolidated Net Income for any period the effects from applying acquisition method accounting, including applying acquisition method accounting to inventory, property and equipment, loans and leases, software and other intangible assets and deferred revenue (including deferred costs related thereto and deferred rent) required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to such Person and its Restricted Subsidiaries), as a result of the Transactions, any acquisition consummated prior to the Closing Date and any other acquisition (by merger, consolidation, amalgamation or otherwise) or other Investment or the amortization or write-off of any amounts thereof.

“Consolidated Secured Net Debt” means, as of any date of determination, (a) Consolidated Total Debt of the Borrower and its Restricted Subsidiaries that is secured by a Lien on the Collateral of the Borrower or any Subsidiary Guarantor minus (b) the aggregate amount of Unrestricted cash and Cash Equivalents of the Borrower and its Restricted Subsidiaries as of such date; provided that in calculating the Secured Net Leverage Ratio for the purposes of determining the Available Incremental Amount on any date of determination in respect of any New Term Loans, New Revolving Credit Commitments or Incremental Equivalent Debt, in each case incurred as such, (i) the proceeds thereof issued or otherwise incurred on such date shall be excluded from the immediately preceding clause (b) and (ii) the full amount of such New Revolving Credit Commitment shall be deemed to be Indebtedness outstanding on such date; provided, further, that (and without limiting the application of Section 1.08(e)) to the extent proceeds of any New Term Loans, New Revolving Credit Commitments or Incremental Equivalent Debt are to be used to repay Indebtedness (including by repurchase, redemption, retirement, extinguishment, defeasance, discharge, escrow or similar arrangements), the Borrower shall be permitted to give Pro Forma Effect to such repayment of Indebtedness.

“Consolidated Tangible Assets” means, as of any date of determination, Consolidated Total Assets, less the net book value of all Intangible Assets of Holdings, the Borrower and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP, as at the end of the most recently ended fiscal quarter reflected in the Unaudited Financial Statements or the Audited Financial Statements or for which financial statements have been made available (or were required to be made available) pursuant to Section 6.01(a) or 6.01(b).

“Consolidated Total Assets” means, as of any date of determination, the net book value of all assets of Holdings, the Borrower and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP, as at the end of the most recently ended fiscal quarter reflected in the Unaudited Financial Statements or the Audited Financial Statements or for which financial statements have been made available (or were required to be made available) pursuant to Section 6.01(a) or 6.01(b).

“Consolidated Total Debt” means, as of any date of determination, the aggregate principal amount of Indebtedness of the type described in clauses (a), (b) (to the extent such letters of credit are drawn and not reimbursed within three (3) Business Days thereafter (less the amount of any cash collateral securing such letters of credit)), (f) and (g) of the definition thereof and clause (h) of the definition thereof (solely as clause (h) thereof relates to such Indebtedness of the type described in clauses (a), (b) (to the extent such letters of credit are drawn and not reimbursed within three (3) Business Days thereafter (less the amount of any cash collateral securing such letters of credit) and (f) of

 

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the definition thereof) of the Borrower and its Restricted Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of Indebtedness resulting from the application of recapitalization accounting or purchase accounting in connection with the Transaction, any Permitted Acquisition or any other Investment permitted hereunder, acquisitions completed prior to the Closing Date or for any other purpose), consisting of Indebtedness for borrowed money, unreimbursed obligations in respect of drawn letters of credit, Capitalized Lease Obligations and the Attributed Principal Amount under any Permitted Receivables Financing of the Borrower or any of its Restricted Subsidiaries (excluding, for the avoidance of doubt, to the extent in the form of performance guarantees in respect of an applicable Permitted Receivables Financing or constituting obligations to sell receivables or other relevant assets to the seller under an applicable Permitted Receivables Financing); provided that Consolidated Total Debt shall not include Indebtedness in respect of (i) any Letter of Credit or any other letter of credit, except pursuant to the provisions above or Guarantees in respect thereof, (ii) obligations under Swap Contracts or Guarantees in respect thereof, (iii) any Non-Recourse Debt, Specified Non-Recourse Obligation or Guarantees in respect thereof constituting Specified Non-Recourse Obligations.

“Consolidated Working Capital” means, as at any date of determination, the excess of Consolidated Current Assets over Consolidated Current Liabilities; provided that Consolidated Working Capital shall be calculated without giving effect to (w) recapitalization or purchase accounting, (x) any assets or liabilities acquired, assumed, sold or transferred in any acquisition or Disposition (other than a sale of any current assets in the ordinary course of business), (y) changes as a result of the reclassification of items from short-term to long-term and vice versa or (z) changes to Consolidated Working Capital resulting from non-cash charges and credits to Consolidated Current Assets and Consolidated Current Liabilities (including, without limitation, derivatives and deferred income tax).

“Contract Consideration” has the meaning specified in Section 2.05(b)(i).

“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controls”, “Controlling” and “Controlled” have meanings correlative thereto.

“Corrective Loan Extension Amendment” means a Corrective Revolving Credit Extension Amendment and/or a Corrective Term Loan Extension Amendment, as the context requires.

“Corrective Revolving Credit Extension Amendment” has the meaning specified in Section 2.18(f).

“Corrective Term Loan Extension Amendment” has the meaning specified in Section 2.17(f).

“Covered Party” has the meaning specified in Section 10.25(a).

“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.

 

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“Cure Expiration Date” has the meaning specified in Section 8.04(a).

“Cure Right” has the meaning specified in Section 8.04(a).

“DCSA” means the Defense Counterintelligence and Security Agency.

“Debtor Relief Laws” means Title 11 of the United States Code (11 U.S.C. § 101 et seq.) and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and, in each case, affecting the rights of creditors generally.

“Declined Amounts” has the meaning specified in Section 2.05(b)(viii).

“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both (in each case, as required hereunder), would be an Event of Default.

“Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate applicable to Base Rate Loans plus (c) 2.0% per annum; provided that with respect to a Eurocurrency RateSOFR Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan (giving effect to Section 2.02(c)) plus 2.0% per annum.

“Defaulting Lender” means, subject to Section 2.19(f), any Lender that (a) has failed to fund any portion of the Term Loans, Revolving Credit Loans, participations in L/C Obligations or participations in Swing Line Loans required to be funded by it hereunder within two (2) Business Days of the date required to be funded by it hereunder, (b) has otherwise failed to pay over to the Administrative Agent, any L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due, (c) has notified the Borrower, the Administrative Agent, any L/C Issuer, the Swing Line Lender or any other Lender in writing that it does not intend to comply with its funding obligations hereunder, or generally under other agreements in which it commits to extend credit, or has made a public statement to that effect, (d) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower, in a manner reasonably satisfactory to the Administrative Agent or the Borrower, as applicable, that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (d) upon receipt of such written confirmation by the Administrative Agent and the Borrower) or (e) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any

 

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determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (e) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.19(f)) upon delivery of written notice of such determination to the Borrower, each L/C Issuer and each Lender; provided that, for the avoidance of doubt, such a determination by the Administrative Agent shall not be required for a Lender to constitute a Defaulting Lender.

“Designated Non-Cash Consideration” means the fair market value (as determined in good faith by the Borrower) of non-cash consideration received by the Borrower or a Restricted Subsidiary in connection with a Disposition pursuant to Section 7.05(j) (which amount will be reduced by the fair market value of the portion of the non-cash consideration converted to cash or Cash Equivalents following the consummation of the applicable Disposition) (including as a result of a subsequent payment, redemption, retirement, sale or other disposition of such Designated Non-Cash Consideration).

“Designated Person” means a person or entity:

(a) listed in the annex to, or otherwise subject to the provisions of, the Executive Order;

(b) named as a “Specially Designated National and Blocked Person” (“SDN”) on the most current list published by OFAC at its official website or any replacement website or other replacement official publication of such list;

(c) in which an entity on the SDN list has 50% or greater ownership interest or that is otherwise controlled by an SDN; or

(d) included on Her Majesty’s Treasury’s Consolidated List of Financial Sanctions Targets and the Investment Ban List, or any similar list enforced by any other relevant sanctions authority.

“Designated Wireless Subsidiary” means (i) on the Closing Date, Wireless LLC and (ii) at any time after the Closing Date, any Subsidiary of the Borrower, substantially all the assets of which consists of (or will upon prompt completion of transfers and contributions contemplated at the time of such designation consist of) Transitional Wireless Assets and/or cash and Cash Equivalents.

“Discount Prepayment Accepting Lender” has the meaning specified in Section 2.05(a)(v)(B)(2).

“Discount Range” has the meaning specified in Section 2.05(a)(v)(C)(1).

“Discount Range Prepayment Amount” has the meaning specified in Section 2.05(a)(v)(C)(1).

“Discount Range Prepayment Notice” means a written notice of a Borrower Solicitation of Discount Range Prepayment Offers made pursuant to Section 2.05(a)(v)(C) substantially in the form of Exhibit J or any other form approved by the Administrative Agent and the Borrower.

“Discount Range Prepayment Offer” means the irrevocable written offer by a Lender, substantially in the form of Exhibit K or any other form approved by the Administrative Agent and the Borrower, submitted in response to an invitation to submit offers following the Auction Agent’s receipt of a Discount Range Prepayment Notice.

 

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“Discount Range Prepayment Response Date” has the meaning specified in Section 2.05(a)(v)(C)(1).

“Discount Range Proration” has the meaning specified in Section 2.05(a)(v)(C)(3).

“Discounted Loan Prepayment” has the meaning specified in Section 2.05(a)(v)(A).

“Discounted Prepayment Determination Date” has the meaning specified in Section 2.05(a)(v)(D)(3).

“Discounted Prepayment Effective Date” means in the case of a Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offer or Borrower Solicitation of Discounted Prepayment Offer, eight (8) Business Days following the Specified Discount Prepayment Response Date, the Discount Range Prepayment Response Date or the Solicited Discounted Prepayment Response Date, as applicable, in accordance with Section 2.05(a)(v)(B), Section 2.05(a)(v)(C) or Section 2.05(a)(v)(D), respectively, unless a shorter period is agreed to between the applicable Borrower Party and the Auction Agent.

“Disposition” or “Dispose” means the sale, transfer, license tantamount to a sale, lease or other disposition (including any sale-leaseback transaction and any sale or issuance of Equity Interests in a Restricted Subsidiary) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith; provided that “Disposition” and “Dispose” shall not include any issuance by Holdings of any of its Equity Interests to another Person or by the Borrower of any of its Equity Interests to Holdings.

“Disqualified Equity Interests” means 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 of the Borrower or any direct or indirect parent of the Borrower), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control, initial public offering or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control, initial public offering 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 (other than (i) contingent obligations that by their terms survive and (ii) Obligations under Secured Hedge Agreements and Secured Cash Management Agreements) and the termination of the Commitments and Cash Collateralization of all outstanding Letters of Credit), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests of the Borrower or any direct or indirect parent of the Borrower and other than as a result of a change of control, initial public offering or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control, initial public offering 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 (other than (i) contingent obligations that by their terms survive and (ii) Obligations under Secured Hedge Agreements and Secured Cash Management Agreements) and the termination of the Commitments and Cash Collateralization of all outstanding Letters of Credit), in whole or in part or (c) is or becomes automatically or at the option of the holder convertible into or exchangeable for Indebtedness or any other Equity Interests that are not Qualified Equity Interests of the Borrower or any direct or indirect parent of the Borrower, in the case of each of clauses (a), (b), and (c), prior to the date that is ninety-one (91) days after the Latest Maturity Date of the Loans at the time of issuance; provided that if

 

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such Equity Interests are issued to any employees, other service providers, directors, officers or members of management or pursuant to a plan for the benefit of employees, other service providers, directors, officers or members of management of Holdings, the Borrower or their respective Subsidiaries or by any such plan to such employees, other service providers, directors, officers or members of management, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by Holdings, the Borrower or their respective Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employees’, other service providers’, directors’, officers’ or management members’ termination, death or disability.

“Disqualified Institution” means (a) financial institutions and/or other Persons that have been specified in writing by Holdings to the Lead Arrangers and the Initial Co-ManagerAdministrative Agent on or prior to May 7, 2020the Amendment No. 1 Effective Date, (b) competitors of Holdings, the Borrower or any of its Subsidiaries that are in the same or a similar line of business as Holdings, the Borrower and their respective Subsidiaries that have been specified in writing by Holdings or the Borrower (i) to the Lead Arrangers and the Initial Co-ManagerAdministrative Agent on or prior to May 7, 2020the Amendment No. 1 Effective Date or (ii) to the Administrative Agent from time to time after the Closing Date and (c) Affiliates of any of the Persons described in preceding clauses (a) and (b) (other than Affiliated Debt Funds of such Persons) to the extent such Affiliates are (i) reasonably identifiable on the basis of such Affiliate’s name or (ii) to the extent not reasonably identifiable on the basis of such Affiliate’s name, have been specified in writing by Holdings in accordance with preceding clauses (a) and (b); provided that “Disqualified Institutions” shall exclude any Person that the Borrower has designated as no longer being a “Disqualified Institution” by written notice delivered to the Administrative Agent from time to time.

“Distressed Agent-Related Person” has the meaning specified in the definition of “Agent-Related Distress Event.”

“Dollar” and “$” mean lawful money of the United States.

“Dollar Amount” means, at any time:

(a) with respect to any Loan (including with respect to any Swing Line Loan) denominated in Dollars, the principal amount thereof then outstanding (or in which such participation is held);

(b) with respect to any Loan denominated in any Alternative Currency, the principal amount thereof then outstanding in the relevant Alternative Currency, converted to Dollars based on the Exchange Rate (determined in respect of the most recent Revaluation Date or other relevant date of determination); and

(c) with respect to any L/C Obligation (or any risk participation therein) and any other amounts referenced in this Agreement, (A) if denominated in Dollars, the amount thereof and (B) if denominated in any Alternative Currency, the amount thereof converted to Dollars based on the Exchange Rate (determined in respect of the most recent Revaluation Date or other relevant date of determination).

“Domestic Subsidiary” means any Subsidiary that is organized under the Laws of the United States, any state thereof or the District of Columbia.

“ECF Payment Amount” has the meaning specified in Section 2.05(b)(i).

 

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“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Eligible Assignee” means any Person that meets the requirements to be an assignee under Sections 10.07(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 10.07(b)(iii)); provided that, in any event, Eligible Assignees shall not include (x) any natural person, (y) any Disqualified Institution unless consented to in writing by the Borrower in its sole discretion (which consent shall be required regardless of whether a Default or Event of Default shall be continuing and shall specifically provide that it is given despite an assignee being a Disqualified Institution), or (z) any Defaulting Lender.

“Environment” means ambient air, indoor air, surface water, drinking water, land surface, sediments, and subsurface strata & natural resources such as wetlands, flora and fauna.

“Environmental Claim” means any administrative, regulatory or judicial action, suits, demand letter, claim, lien, notice of noncompliance or violation, investigation (other than internal reports prepared by any Loan Party or any of its Subsidiaries) with respect to any Environmental Liability (hereinafter “Claims”), including (i) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any Environmental Law and (ii) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief pursuant to any Environmental Law.

“Environmental Laws” means applicable Laws relating to pollution and the protection of the Environment or of human health (to the extent related to exposure to Hazardous Materials), including those related to the manufacture, generation, handling, transport, storage, treatment, Release or threatened Release of Hazardous Materials.

“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities) of any Loan Party or any Restricted Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials into the Environment or (e) any contract or other written agreement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.

 

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“Equity Interests “ means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in, including any limited or general partnership interest and any limited liability company membership interest) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities, but excluding debt securities).

“Equity Sponsor” means (i) MIP V (FCC) AIV, L.P. (“MIP V”), (ii) Macquarie Infrastructure and Real Assets Inc. (“MIRA” and, together with MIP V, “Macquarie”), (iii) any of the entities or funds, including Subsidiaries, which are managed by Macquarie, (iv) any successor of Macquarie, (v) any Affiliate of Macquarie that in the future acquires any direct or indirect Equity Interests in Holdings and/or the Borrower (other than any other portfolio company of Macquarie) and (vi) solely for purposes of Sections 2.05(a)(v), 7.08(j) and 10.05 and the definition of Affiliated Debt Fund and Transaction Expenses, Ares and any Affiliate of Ares that in the future acquires any direct or indirect Equity Interests in Holdings and/or the Borrower (other than any other portfolio company of Ares).

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower or any Guarantor within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Borrower or any of its ERISA Affiliates from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) the failure to satisfy the minimum funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA), whether or not waived, with respect to a Pension Plan; (d) the failure to make any required contribution to a Multiemployer Plan; (e) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to a complete or partial withdrawal by the Borrower or any of its ERISA Affiliates from a Multiemployer Plan or notification that a Multiemployer Plan is “insolvent” (within the meaning of Section 4245 of ERISA) or in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA); (f) a failure by the Borrower or any of its ERISA Affiliates to pay when due (after expiration of any applicable grace period) any installment payment with respect to withdrawal liability (within the meaning of Title IV of ERISA); (g) a determination that any Pension Plan is in “at-risk” status (within the meaning of Section 430(i)(4) of the Code or Section 303(i)(4) of ERISA); (h) the filing under Section 4041(c) of ERISA of a notice of intent to terminate a Pension Plan, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Section 4041 or Section 4041A of ERISA, or the receipt by the Borrower or any of its ERISA Affiliates from the PBGC of any notice relating to the intention to terminate a Pension Plan or Multiemployer Plan; or (i) the imposition of any liability under Title IV of ERISA with respect to the termination of any Pension Plan or Multiemployer Plan, other than for the payment of PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any of its ERISA Affiliates.

“Erroneous Payment” has the meaning specified in Section 9.16(a).

“Erroneous Payment Deficiency Assignment” has the meaning specified in Section 9.16(d).

“Erroneous Payment Impacted Class” has the meaning specified in Section 9.16(d).

 

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“Erroneous Payment Return Deficiency” has the meaning specified in Section 9.16(d).

“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

“Euro” means the single currency of the participating member states introduced in accordance with the provisions of Article 109(i)4 of the EU Treaty.

“Eurocurrency Rate” means, for any Interest Period:

(a) for any Interest Period with respect to a Eurocurrency Rate Loan, the rate per annum equal to the London Interbank Offered Rate (“LIBOR”) or a comparable or successor rate, which rate is approved by the Administrative Agent, as published on the applicable Reuters Screen LIBOR01 Page (or otherwise on any successor Reuters screen page as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; and if the Eurocurrency Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement; and

(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m., London time, determined two (2) Business Days prior to such date for Dollar deposits with a term of one month commencing that day.

“Eurocurrency Rate Borrowing” means a Borrowing comprised of Eurocurrency Rate Loans.

“Eurocurrency Rate Loan” means a Loan that bears interest at a rate based on the applicable Adjusted Eurocurrency Rate (other than a Base Rate Loan). All Loans denominated in an Alternative Currency shall be Eurocurrency Rate Loans.

“Eurocurrency Successor Rate” has the meaning specified in Section 3.03(c).

“Event of Default” has the meaning specified in Section 8.01.

“Excess Cash Flow” means, for any period, an amount equal to the excess of:

(a) the sum, without duplication, of:

(i) Consolidated Net Income of the Borrower for such period; plus

(ii) an amount equal to the amount of all non-cash charges (including Consolidated Depreciation and Amortization Expense) to the extent deducted in arriving at such Consolidated Net Income, but excluding any such non-cash charges representing an accrual or reserve for potential cash items in any future period and excluding amortization of a prepaid cash item that was paid in a prior period; plus

(iii) decreases in Consolidated Working Capital for such period (other than any such decreases arising from changes in deferred revenue); plus

 

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(iv) an amount equal to the aggregate net non-cash loss on Dispositions by the Borrower and its Restricted Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income; plus

(v) the amount deducted as tax expense in determining Consolidated Net Income to the extent in excess of cash taxes paid or payable in respect of such periods; plus

(vi) cash receipts in respect of Swap Contracts during such fiscal year to the extent not otherwise included in such Consolidated Net Income; over

(b) the sum, without duplication; of:

(i) an amount equal to the amount of all non-cash gains or credits (including, to the extent constituting non-cash credits, without limitation, amortization of deferred revenue acquired as a result of any Permitted Acquisition or any other Investment) included in arriving at such Consolidated Net Income (but excluding any non-cash gains or credit to the extent representing the reversal of an accrual or reserve described in clause (a)(ii) above) and cash charges, losses, expenses added back or excluded by virtue of clauses (a) through (r) of the definition of “Consolidated Net Income”; plus

(ii) [reserved]; plus

(iii) to the extent not deducted from Excess Cash Flow by the Borrower pursuant to Section 2.05(b)(i)(B), the aggregate amount of all principal payments of Indebtedness of the Borrower and its Restricted Subsidiaries (including (A) the principal component of payments in respect of Capitalized Leases, (B) the amount of any scheduled repayment of Loans pursuant to Section 2.07, and (C) the amount of any mandatory prepayment of Term Loans pursuant to Section 2.05(b)(ii) or 2.05(b)(iii) to the extent required due to a Disposition or Casualty Event that resulted in an increase to such Consolidated Net Income and not in excess of the amount of such increase, but excluding (W) all other prepayments of Term Loans (other than those specified in preceding clauses (B) and (C)) and all voluntary prepayments of Refinancing Equivalent Debt and Incremental Equivalent Debt, (X) all prepayments of Revolving Credit Loans and Swing Line Loans, (Y) all prepayments in respect of any other revolving credit facility (except, in the case of clauses (X) and (Y), to the extent there is an equivalent permanent reduction in commitments thereunder) and (Z) payments of any Indebtedness that is unsecured or constitutes a Junior Financing, except in each case under this clause (Z) to the extent permitted to be paid pursuant to Section 7.12(a), in each case except to the extent financed with the proceeds of other long term Indebtedness (other than revolving or intercompany Indebtedness) of the Borrower or its Restricted Subsidiaries and, in the case of clause (Z) above, except to the extent made in reliance on clause (b) of the definition of “Available Amount” in any basket; plus

(iv) an amount equal to the aggregate net non-cash gain on Dispositions by the Borrower and its Restricted Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income and the net cash loss on Dispositions to the extent otherwise added to arrive at Consolidated Net Income; plus

 

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(v) increases in Consolidated Working Capital for such period (excluding any such increases to the extent resulting from changes in deferred revenue); plus

(vi) cash payments by the Borrower and its Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower and its Restricted Subsidiaries (other than Indebtedness) to the extent such payments are not expensed during such period or are not deducted in calculating Consolidated Net Income; plus

(vii) [reserved]; plus

(viii) the amount of cash taxes paid or tax reserves set aside or payable (without duplication) in such period, to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period; plus

(ix) cash expenditures in respect of Swap Contracts during such fiscal year to the extent not deducted in arriving at such Consolidated Net Income; plus

(x) to the extent not expensed or deducted in calculating Consolidated Net Income, the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by Holdings, the Borrower and its Restricted Subsidiaries during such period that are made in connection with any prepayment of any principal of Indebtedness; plus

(xi) any increase to Consolidated Net Income from the effects of adjustments made pursuant to clause (r) of the definition thereof; plus

(xii) to the extent not deducted in calculating Consolidated Net Income, the amount of any Specified Legal Expenses.

“Excess Cash Flow Period” means each full fiscal year of the Borrower ending after December 31, 2021.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Exchange Rate” means, on any date with respect to any currency, the rate at which such currency may be exchanged into any other currency, as set forth at approximately 11:00 a.m., London time, on such date on the applicable Bloomberg page for such currency. In the event that such rate does not appear on any Bloomberg page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying the exchange rates as may be selected by the Administrative Agent, or, in the event no such service is selected, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency exchange operations in respect of such currency are then being conducted, at or about 10:00 a.m., local time, on such date for the purchase of the relevant currency for delivery two (2) Business Days later; provided that, if at the time of any such determination, for any reason no such spot rate is being quoted, the Administrative Agent, after consultation with the Borrower, may use any reasonable method that it deems appropriate to determine such rate, and such determination shall be presumed correct absent manifest error.

 

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“Excluded Assets” means any of the following:

(a) (x) (i) any assets for which the grant of a security interest, therein (A) is prohibited by or in violation of any Laws (including, without limitation, financial assistance laws, corporate benefit laws, communications laws or otherwise), rule, regulation or requires Governmental Authority consent, license, permit, or other approval or similar third party consent (unless such consent, license, permit, or other approval has been obtained) or (B) is prohibited by contract permitted hereunder and existing on the Closing Date (and not entered into in contemplation thereof) or, in the case of any Subsidiary acquired or designated as a Restricted Subsidiary after the Closing Date, at the time of acquisition or designation of such Subsidiary (and not entered into in contemplation thereof) or would trigger termination or a termination right under any such permitted contract binding on such assets, in each case after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code or other applicable Laws and other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under applicable Laws notwithstanding such prohibition, or (ii) any lease, license, franchise, charter, authorization, contract or other agreement (including any purchase money security interest, capital lease obligation or other similar arrangement) to the extent a security interest therein is prohibited by or in violation of a term, provision or condition of, or would invalidate or give any other party thereto (other than the Borrower or any Guarantor) the right to terminate, any such lease, license, franchise, charter, authorization, contract or agreement (in each case, after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code or other applicable Laws in any relevant jurisdiction); provided, however, that the Collateral shall include (and such security interest shall attach) at such time as the contractual prohibition shall no longer be applicable and to the extent severable, shall attach to any portion of any lease, license, franchise, charter, authorization, contract, agreement or other asset not subject to the prohibitions specified above; provided, further, that the exclusions referred to in this clause (a)(x) shall not include any proceeds of any such lease, license, franchise, charter, authorization, contract or agreement the assignment of which is expressly deemed effective under applicable Law notwithstanding such prohibition (unless such proceeds or receivables would independently constitute Excluded Assets) or (y) at any time the Paniolo Financing is outstanding and a pledge thereof is restricted by the terms of the Paniolo Financing Documents, the Paniolo Collateral; provided, however, that the Collateral shall include the Paniolo Collateral (and such security interest shall attach thereto) at such time as the Paniolo Subordination Agreement is in full force and effect, so long as, after giving effect thereto, the Liens under the Loan Documents on the Paniolo Collateral are permitted (or not prohibited) pursuant to the terms of the Paniolo Financing Documents;

(b) (i) Equity Interests in excess of 65% of the total issued and outstanding voting Equity Interests of (x) any CFC or (y) any CFC Holdco, (ii) Equity Interests in any Excluded Subsidiary (other than any CFC or CFC Holdco) or any other Person excluding the Borrower, any Subsidiary Guarantor, and any Wholly Owned Restricted Subsidiaries of the Borrower or of any Subsidiary Guarantors that are Material Subsidiaries (other than any CFC or CFC Holdco), (iii) Equity Interests in partnerships, joint ventures and any non-Wholly Owned Subsidiaries and other assets (including equity interests) which cannot be pledged without the consent of one or more third-parties (including any governmental or regulatory parties) (it being understood that the Loan Parties shall be under no obligation to seek such consent), (iv) Equity Interests of any Subsidiary of the Borrower that is a Subsidiary of an Excluded Subsidiary and (v) Margin Stock and Equity Interests in minority investments, Immaterial Subsidiaries, non-profit subsidiaries, special purpose entities, Unrestricted Subsidiaries, Foreign Subsidiaries and any Person other than the Borrower and any Subsidiary Guarantor (including, for the avoidance of doubt, the CoBank Equities);

(c) any “intent-to-use” application for registration of a trademark or service mark filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, prior to the filing of a “Statement of Use” pursuant to Section 1(d), or an “Amendment to Allege Use” pursuant to Section 1(c), of the Lanham Act, and acceptance by the United States Patent and Trademark Office of such “Statement of Use” or “Amendment to Allege Use”, as applicable, to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal Laws;

 

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(d) (i) any leasehold interest in real property and leased property (including any ground lease interest)(it being agreed that no Loan Party shall be required to deliver landlord or other third party lien waivers, bailee letters, estoppels, collateral access letters or any other third party lien waivers), (ii) any fee interest in owned real property and (iii) any fixtures affixed to any real property to the extent a security interest in such fixtures may not be perfected by a Uniform Commercial Code financing statement in the jurisdiction of organization of the applicable Loan Party (it being agreed that no Loan Party shall be required to deliver landlord or other third party lien waivers, bailee letters, estoppels, collateral access letters or any other third party lien waivers);

(e) vehicles and other assets subject to certificates of title or ownership, rail cars and aircraft;

(f) non-U.S. intellectual property and (to the extent a security interest in such letters of credit or letter of credit rights cannot be perfected by filing a Uniform Commercial Code financing statement) letters and credit and letter of credit rights;

(g) commercial tort claims that, in the reasonable determination of the Borrower, are not expected to result in a judgment (or settlement) in excess of the greater of $20,000,000 and 1.0% of Consolidated Tangible Assets;

(h) assets for which the grant of security interest therein would result in material adverse tax or regulatory costs or consequences as reasonably determined by the Borrower in good faith;

(i) assets of any Excluded Subsidiary (to the extent such Excluded Subsidiary is not a Guarantor);

(j) cash and Cash Equivalents, deposit, commodities and securities accounts (including securities entitlements and related assets) and any other asset requiring perfection through control agreements or perfection by “control” (other than in respect of certificated Equity Interests in the Borrower and the Subsidiary Guarantors);

(k) any assets of Holdings, other than the Pledged Borrower Equity Interests;

(l) any spectrum license granted by the FCC;

(m) any Transferred Assets;

(n) any assets subject to Liens of the type described in Section 7.01 (ww);

(o) at any time any IRBs are outstanding, IRB Collateral securing such IRBs and/or Permitted Refinancings thereof; and

(p) particular assets if and for so long as, in the reasonable judgment of the Borrower in good faith and in consultation with the Administrative Agent, the cost, difficulty, burden or consequences of obtaining, perfecting or maintaining a security interest in such assets exceeds the practical benefits to the Lenders afforded thereby;

provided, however, that Excluded Assets shall not include any proceeds of any Excluded Assets referred to in clauses (a) through and including (p) above (unless such proceeds would constitute Excluded Assets referred to in any such clause).

 

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“Excluded Contribution” means (1) the cash, Cash Equivalents or other assets (valued at their fair market value as determined in good faith by the Borrower) received by the Borrower after the Closing Date from:

(a) contributions in respect of its Qualified Equity Interests, and

(b) the sale (other than to a Subsidiary of the Borrower) of Qualified Equity Interests of the Borrower (or Holdings, to the extent such proceeds are contributed to the Borrower), plus

(2) the Net Cash Proceeds and Cash Equivalents received by the Borrower or any of its Restricted Subsidiaries from issuances of debt securities or Disqualified Equity Interests incurred or issued by the Borrower or any of its Restricted Subsidiaries (or Holdings, to the extent such Net Cash Proceeds are contributed to the Borrower) that have been converted into or exchanged for Qualified Equity Interests of the Borrower or any direct or indirect parent thereof,

in each case, other than Specified Equity Contributions, and so long as same is designated as Excluded Contributions pursuant to a certificate of a Responsible Officer of the Borrower.

“Excluded Subsidiary” means (a) Immaterial Subsidiaries, (b) Unrestricted Subsidiaries, (c) any Subsidiary that is prohibited or restricted by Law, rule, regulation or Contractual Obligation (so long as, in respect to any such Contractual Obligation, such prohibition existed on the Closing Date or, if later, on the date the applicable Subsidiary is acquired and is not incurred in contemplation of such acquisition) from providing a Guaranty or that would require a governmental (including regulatory) consent, approval, license or authorization in order to provide a Guaranty (including, in each case, under any financial assistance, corporate benefit or thin capitalization rule), in each case, for so long as such prohibition or circumstance exists, (d) any Subsidiary that is not a Wholly Owned Subsidiary of the Borrower or any Subsidiary Guarantor, (e) any Foreign Subsidiary, (f) any Domestic Subsidiary that is a Subsidiary of a Foreign Subsidiary that is a CFC, (g) any CFC Holdco, (h) any Subsidiary that is a not-for-profit organization, (i) Captive Insurance Subsidiaries, (j) Cincinnati Bell Funding LLC, Cincinnati Bell Funding Canada Ltd., each other Receivables Financing SPC, and any other similar special purpose entity created in connection with the Securitization Facility, the Factoring Facility and/or any other Permitted Receivables Financing or other securitization transaction permitted hereunder, (k) any Subsidiary with respect to which providing a Guaranty would result in material adverse tax cost or consequences (including as a result of Section 956 of the Code or any similar Law in any applicable jurisdiction) to Holdings or any of its Subsidiaries or Red Fiber Holdings LLC (the direct or indirect parent entity of Holdings) as reasonably determined by the Borrower or Holdings, (l) any Restricted Subsidiary acquired pursuant to a Permitted Acquisition or similar investment financed with Indebtedness permitted to be assumed pursuant to this Agreement (and not incurred in contemplation of such acquisition) and any Restricted Subsidiary thereof that guarantees such Indebtedness, in each case to the extent, and so long as, such Indebtedness prohibits any such Subsidiary from becoming a Guarantor, (m) any Designated Wireless Subsidiary, (n) any FOCI Subsidiary and (o) any other Subsidiary with respect to which, as reasonably agreed by the Borrower and the Administrative Agent, the difficulty, burden, cost or consequences of providing a Guaranty outweighs, or is excessive in relation to, the benefits or value afforded to the Lenders thereby.

“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the U.S. Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined

 

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in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal 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).

“Excluded Taxes” means, with respect to any Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, (i) any Taxes imposed on or measured by such recipient’s net income (however denominated, and including branch profits and similar Taxes), and franchise Taxes (in lieu of net income Taxes), in each case, imposed by a jurisdiction (or any political subdivision thereof) as a result of (a) such recipient being organized or having its principal office or, in the case of any Lender, its applicable Lending Office in such jurisdiction, or (b) any other present or former connection between such recipient and such jurisdiction, other than any connection arising solely from such recipient having executed or entered into any Loan Document, having delivered, having received payments thereunder or having been a party to, having performed its obligations under, having received or perfected a security interest under, having entered into any other transaction pursuant to and/or having enforced, any Loan Documents, (ii) with respect to any Lender (other than any Lender becoming a party hereto pursuant to a request under Section 3.07), any U.S. federal withholding Tax that is imposed on amounts payable to such Lender pursuant to Laws in effect at the time such Lender becomes a party hereto (or changes its applicable Lending Office), except to the extent that such Lender (or its assignor, if any), immediately prior to the time of designation of a new Lending Office (or assignment), was entitled to receive additional amounts from a Loan Party in respect of such withholding Tax pursuant to Section 3.01, (iii) any withholding Taxes imposed as a result of the failure of a Lender to comply with the provisions of Section 3.01(b) or Section 3.01(c), and (iv) any U.S. federal withholding Taxes imposed pursuant to FATCA.

“Executive Order” means the Executive Order No. 13224 of September 23, 2001, entitled Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism.

“Existing Credit Facility” means the credit facility evidenced by that certain Credit Agreement, dated as of October 2, 2017, (as amended, supplemented or otherwise modified prior to the Closing Date), by and among the Company, Morgan Stanley Senior Funding, Inc., as administrative agent and collateral agent, the lenders party thereto and the other parties party thereto.

“Existing Letter of Credit” has the meaning specified in Section 2.03(a)(ii).

“Existing Revolving Credit Loan Facility” has the meaning provided in Section 2.18(a).

“Existing Secured 2023 Notes” means the Company’s outstanding 7.25% Senior Notes due 2023 issued pursuant to the Existing Secured 2023 Notes Indenture.

“Existing Secured 2023 Notes Documents” means the Existing Secured 2023 Notes, the Existing Secured 2023 Notes Indenture and the Existing Secured 2023 Notes Security Documents.

 

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“Existing Secured 2023 Notes Indenture” means that certain Indenture, dated July 1, 1993, among the Company, as issuer, and The Bank of New York Mellon, as trustee.

“Existing Secured 2023 Notes Security Documents “ means subject to the terms of an applicable Intercreditor Agreement, the security agreements, pledge agreements, mortgages and other security documents entered into pursuant to the Existing Secured 2023 Notes Indenture in which Liens are granted on the Collateral to the Existing Secured 2023 Notes Trustee for its benefit and the benefit of the holders of the Existing Secured 2023 Notes.

“Existing Secured 2023 Notes Trustee” means The Bank of New York Mellon in its capacity as trustee pursuant to the Existing Secured 2023 Notes Documents and any successor appointed in accordance with the Existing Secured 2023 Notes Documents.

“Existing Secured 2024 Notes” means the Company’s outstanding 7.000% Senior Notes due 2024 issued pursuant to the Existing Secured 2024 Notes Indenture.

“Existing Secured 2024 Notes Documents” means the Existing Secured 2024 Notes, the Existing Secured 2024 Notes Indenture and the Existing Secured 2024 Notes Security Documents.

“Existing Secured 2024 Notes Indenture” means that certain Indenture, dated September 22, 2016, among the Company, as issuer, the guarantors, as defined therein, and Regions Bank, as trustee.

“Existing Secured 2024 Notes Security Documents “ means subject to the terms of an applicable Intercreditor Agreement, the security agreements, pledge agreements, mortgages and other security documents entered into pursuant to the Existing Secured 2024 Notes Indenture in which Liens are granted on the Collateral to the Existing Secured 2024 Notes Trustee for its benefit and the benefit of the holders of the Existing Secured 2024 Notes.

“Existing Secured 2024 Notes Trustee “ means Regions Bank in its capacity as trustee pursuant to the Existing Secured 2024 Notes Documents and any successor appointed in accordance with the Existing Secured 2024 Notes Documents.

“Existing Secured 2025 Notes” means the Company’s outstanding 8.000% Senior Notes due 2025 issued pursuant to the Existing Secured 2025 Notes Indenture.

“Existing Secured 2025 Notes Documents” means the Existing Secured 2025 Notes, the Existing Secured 2025 Notes Indenture and the Existing Secured 2025 Notes Security Documents.

“Existing Secured 2025 Notes Indenture” means that certain Indenture, dated October 6, 2017, among the Company, as issuer, the guarantors, as defined therein, and Regions Bank, as trustee.

“Existing Secured 2025 Notes Security Documents “ means subject to the terms of an applicable Intercreditor Agreement, the security agreements, pledge agreements, mortgages and other security documents entered into pursuant to the Existing Secured 2025 Notes Indenture in which Liens are granted on the Collateral to the Existing Secured 2025 Notes Trustee for its benefit and the benefit of the holders of the Existing Secured 2025 Notes.

“Existing Secured 2025 Notes Trustee “ means Regions Bank in its capacity as trustee pursuant to the Existing Secured 2025 Notes Documents and any successor appointed in accordance with the Existing Secured 2025 Notes Documents.

 

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“Existing Secured 2028 Notes” means CBT’s outstanding 6.30% Senior Notes due 2028 issued pursuant to the Existing Secured 2028 Notes Indenture.

“Existing Secured 2028 Notes Documents” means the Existing Secured 2028 Notes, the Existing Secured 2028 Notes Indenture and the Existing Secured 2028 Notes Security Documents.

“Existing Secured 2028 Notes Indenture” means that certain Indenture, dated November 30, 1998, among CBT, as issuer, the Company, as guarantor, and The Bank of New York Mellon, as trustee.

“Existing Secured 2028 Notes Security Documents “ means subject to the terms of an applicable Intercreditor Agreement, the security agreements, pledge agreements, mortgages and other security documents entered into pursuant to the Existing Secured 2028 Notes Indenture in which Liens are granted on the Collateral to the Existing Secured 2028 Notes Trustee for its benefit and the benefit of the holders of the Existing Secured 2028 Notes.

“Existing Secured 2028 Notes Trustee” means The Bank of New York Mellon in its capacity as trustee pursuant to the Existing Secured 2028 Notes Documents and any successor appointed in accordance with the Existing Secured 2028 Notes Documents.

“Existing Secured Notes” means the Existing Secured 2023 Notes, the Existing Secured 2024 Notes, the Existing Secured 2025 Notes and the Existing Secured 2028 Notes, or any of them, as applicable.

“Existing Term Loan Facility” has the meaning specified in Section 2.17(a).

“Extended Commitments” means the Extended Term Commitments and/or the Extended Revolving Credit Commitments, as the context may require.

“Extended Loans” means Extended Term Loans and/or Extended Revolving Credit Loans, as the context may require.

“Extended Revolving Credit Commitments” has the meaning specified in Section 2.18(a), as the same may be adjusted from time to time in accordance with the terms of this Agreement (including as a result of permitted increases thereto, and reductions thereto, in accordance with the terms of this Agreement and adjusted for assignments effected in accordance with the provisions of Section 10.07(b)).

“Extended Revolving Credit Loans” has the meaning specified in Section 2.18(a) and includes each Revolving Credit Loan made by an Extending Revolving Credit Lender pursuant to its Extended Revolving Credit Commitment (or originally made pursuant to a Revolving Credit Commitment to the extent the same has been converted into an Extended Revolving Credit Commitment).

“Extended Term Commitment” means one or more commitments hereunder to convert Term Loans under an Existing Term Loan Facility to Extended Term Loans of a given Term Loan Extension Series pursuant to an Extension Amendment.

“Extended Term Loans” has the meaning specified in Section 2.17(a).

“Extending Revolving Credit Lender” has the meaning specified in Section 2.18(b).

 

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“Extending Term Lender” has the meaning specified in Section 2.17(b).

“Extension” means the establishment of an Extension Series by amending a Loan or a Commitment pursuant to Section 2.17 or Section 2.18, as applicable, and the applicable Extension Amendment.

“Extension Amendment” means an amendment to this Agreement in form and substance reasonably satisfactory to the Administrative Agent and the Borrower executed by each of (a) the Borrower, (b) the Administrative Agent and (c) each Lender that agrees to provide any Extended Commitments or Extended Loans being incurred pursuant thereto, in accordance with Section 2.17 or Section 2.18.

“Extension Minimum Condition” means a condition to consummating any Extension Amendment that a minimum amount (to be determined and specified by the Borrower in its sole discretion in the relevant Extension Request) of any Loans or Commitments or all applicable Class(es) be submitted for Extension.

“Extension Request” means a notice to the Administrative Agent setting forth the proposed terms of (i) Extended Term Loans in accordance with Section 2.17(a) or (ii) Extended Revolving Credit Commitments in accordance with Section 2.18(a).

“Extension Series” means and includes each Revolving Credit Loan Extension Series and each Term Loan Extension Series.

“Facility” means the Initial Term B-1 Loans, the Term B-2 Loans, the Initial Revolving Credit Facility and all extensions of credit pursuant thereto, the Swing Line Sublimit, any Refinancing Term Loans, any Refinancing Revolving Credit Loan, any Extended Term Loans, any Extended Revolving Credit Commitments (including any Extended Revolving Credit Loans thereunder), any New Term Loans, any New Revolving Credit Loans or any Replacement Term Loans, or any other Loans and/or Commitments of the same Class, as the context may require.

“Factoring Facility” means the credit facility evidenced by the Factoring Facility Documents.

“Factoring Facility Documents” means the Factoring Facility Receivables Purchase Agreement, the “Loan Documents” (as defined in the Factoring Facility Receivables Purchase Agreement), the Factoring Facility Guaranty and the Factoring Facility Security Documents.

“Factoring Facility Guaranty” means, the Performance Guaranty, dated as of May 10, 2018, by the Borrower in favor of PNC Bank, National Association, as buyer, under the Factoring Facility Receivables Purchase Agreement.

“Factoring Facility Receivables Purchase Agreement” means the Receivables Purchase Agreement, dated as of May 10, 2018, among the Borrower, as servicer, Cincinnati Bell Funding, LLC, as seller, PNC Bank, National Association, as buyer, and PNC Capital Markets LLC, as structuring agent.

“Factoring Facility Security Documents” means the security agreements, pledge agreements, mortgages and other security documents entered into in connection with the Factoring Facility Receivables Purchase Agreement in which Liens are granted on the Collateral to PNC Bank, National Association, as buyer, under the Factoring Facility Receivables Purchase Agreement.

 

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“Farm Credit Lender” means a federally-chartered Farm Credit System lending institution organized under the Farm Credit Act of 1971, as the same may be amended or supplemented from time to time.

“FATCA” means Section 1471 through Section 1474 of the Code as in effect on the date hereof or any amended or successor provision that is substantively comparable and not materially more onerous to comply with (and, in each case, any current or future regulations promulgated thereunder or official interpretations or guidance thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor provision described above)) and any intergovernmental agreement relating to the foregoing.

“FCC” means the Federal Communications Commission or any successor commission or agency of the United States having jurisdiction over the federal telecommunications licensing of the Borrower or any of its Subsidiaries.

“FCPA” means the United States Foreign Corrupt Practices Act of 1977 (Pub. L. No. 95213, §§ 101.104), as amended.

“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System of the United States arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Goldman Sachs (or if a successor Administrative Agent has succeeded Goldman Sachs as Administrative Agent, such other bank as is designated by such Administrative Agent at the time it becomes Administrative Agent) on such day on such transactions as determined by the Administrative Agent.

“Fee Letters” means (a) that certain Amended and Restated Fee Letter, dated May 7, 2020, by and among Goldman Sachs, Regions Bank, Regions Capital Markets, Société Générale, Fifth Third Bank, National Association and Holdings and (b) that certain Fee Letter, dated April 14, 2021, between CoBank and Holdings (the “CoBank Fee Letter”).

“First Lien Intercreditor Agreement “ means (x) that certain First Lien Intercreditor Agreement, dated as of the Closing Date, among the Administrative Agent, Regions Bank and each additional representative party thereto from time to time (the “Closing Date First Lien Intercreditor Agreement”) and/or (y) any other customary (at the time required to be entered into, as determined by the Borrower (provided that a certificate of the Borrower delivered to the Administrative Agent at least five (5) Business Days prior to such required time (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) stating that the Borrower has reasonably determined in good faith that such agreement is customary shall be conclusive evidence that such agreement satisfies the foregoing requirement unless the Administrative Agent notifies the Borrower within such five (5) Business Day period (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) that it disagrees with such determination (including a reasonably detailed description of the basis upon which it disagrees))) “pari passu” intercreditor agreement among the Administrative Agent and one or more Representatives for holders of applicable Indebtedness that is secured on a pari passu basis with the Obligations.

 

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“FOCI DSCA Commitment Letter” means that certain Commitment to Mitigate Foreign Ownership, Control or Influence Re: CFIUS Case 20-174: Macquarie Group Limited (Australia)/Cincinnati Bell Inc. (including the Special Security Agreement attached thereto as Annex A), entered into as of (or in connection with the occurrence of) the Closing Date by Holdings and the FOCI Mitigated entities) among Holdings, the FOCI Mitigated Entities and the DCSA, with such changes as required by applicable Governmental Authorities (including the DCSA) as are reasonably acceptable to the Borrower in its commercially reasonably judgment (including in connection with obtaining approval of the FOCI Mitigation Plan and such FOCI Entity Shared Services Agreement from an applicable Governmental Authority).

“FOCI Entity Shared Services Agreement “ means the special security agreements and related affiliated operations plans and services agreement to be entered into pursuant to the FOCI Mitigation Plan and between Holdings, the Borrower and/or its Restricted Subsidiaries (including the FOCI Mitigated Entities) and the FOCI Subsidiaries on terms substantially consistent with Annex A to the FOCI DSCA Commitment Letter and the AOPs described therein, with such changes as are required by applicable Governmental Authorities (including the DCSA) as are reasonably acceptable to the Borrower in its commercially reasonable judgment (including in connection with obtaining approval of the FOCI Mitigation Plan and such FOCI Entity Shared Services Agreement from an applicable Governmental Authority).

“FOCI Mitigated Entities” means Hawaiian Telcom Inc. and CBTS Technology Solutions LLC.

“FOCI Mitigation Plan” means that certain plan of Holdings and the FOCI Mitigated Entities to mitigate foreign ownership, control or influence, to be implemented after the Closing Date in connection with the Closing Date Acquisition, substantially in accordance with the FOCI DSCA Commitment Letter, with such changes as are required by applicable Governmental Authorities (including the DCSA) as are reasonably acceptable to the Borrower in its commercially reasonable judgment (including in connection with obtaining approval of the FOCI Mitigation Plan and any FOCI Entity Shared Services Agreement from an applicable Governmental Authority).

“FOCI Subsidiary” means CBTS Federal LLC and Hawaiian Telcom Federal LLC and their respective Subsidiaries, if any.

“Foreign Casualty Event” has the meaning specified in Section 2.05(b)(vii).

“Foreign Disposition” has the meaning specified in Section 2.05(b)(vii).

“Foreign Lender” has the meaning specified in Section 3.01(c)(i).

“Foreign Plan” means any retirement benefit or pension plan maintained or contributed to by, or entered into with, the Borrower or any Restricted Subsidiary with respect to any employees employed outside the United States other than a retirement benefit or pension plan maintained exclusively by a Governmental Authority.

“Foreign Subsidiary” means any direct or indirect Subsidiary of the Borrower that is not a Domestic Subsidiary.

“FRB” means the Board of Governors of the Federal Reserve System of the United States.

 

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“Fund” means any Person (other than a natural Person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of its activities.

“Fund Affiliate” means, collectively, any Affiliated Debt Fund and any Non-Debt Fund Affiliate.

“Funded Debt” means, in respect of any Person, all third-party Indebtedness of such Person for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including, to the extent applicable, Indebtedness in respect of the Loans.

“GAAP” means generally accepted accounting principles in the United States of America, as in effect from time to time; provided, however, that if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof (including through conforming changes made consistent with IFRS) on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof (including through conforming changes made consistent with IFRS), then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.

“Goldman Sachs” has the meaning specified in the introductory paragraph to this Agreement.

“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state, local, county, provincial or otherwise and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“Granting Lender” has the meaning specified in Section 10.07(g).

“Guarantee” means, as to any Person, without duplication, any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other monetary obligation, (b) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance of such Indebtedness or other monetary obligation, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other monetary obligation, or (d) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided that the term “Guarantee” shall not

 

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include endorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or Disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

“Guarantors” has the meaning specified in the definition of “Collateral and Guarantee Requirement.” The Borrower may cause any Restricted Subsidiary that is a Domestic Subsidiary or a Subsidiary organized under the laws of any Approved Jurisdiction or any province, territory or municipality therein and not a Guarantor to Guarantee the Obligations by causing such Restricted Subsidiary to execute a Guaranty, and any such Restricted Subsidiary shall be a Guarantor hereunder and under the other Loan Documents for all purposes.

“Guaranty” means (a) the guaranty made by the Guarantors in favor of the Administrative Agent on behalf of the Secured Parties pursuant to clause (b) of the definition of “Collateral and Guarantee Requirement,” substantially in the form of Exhibit F and (b) each other guaranty and guaranty supplement or joinder delivered pursuant to this Agreement or any other Loan Document.

“Hazardous Materials” means any substance, pollutant or contaminant material or waste that is regulated, pursuant to or which can give rise to liability under any Environmental Law.

“Hedge Bank” means any Person that is the Administrative Agent, a Lender, a Lead Arranger, a Co-Manager or an Affiliate of any of the foregoing at the time (or within thirty (30) days after) it enters into a Secured Hedge Agreement (or, in the case of Secured Hedge Agreements existing on the Closing Date, on the Closing Date), in its capacity as a party to a Secured Hedge Agreement, whether or not such Person subsequently ceases to be the Administrative Agent, a Lender, a Lead Arranger, a Co-Manager or an Affiliate of any of the foregoing.

“Holdings” has the meaning specified in the introductory paragraph to this Agreement (such Person, “Initial Holdings”); provided that any Person organized under the laws of the United States or any state thereof or the District of Columbia ( “New Holdings”) (x) that is a direct or indirect wholly owned Subsidiary of Initial Holdings or (y) that has merged, or consolidated with Initial Holdings (or, in either case, the previous New Holdings, as the case may be) (“Previous Holdings”) with such Person surviving such merger or consolidation may be named a successor to Initial Holdings hereunder so long as, substantially simultaneously with the consummation of such merger or consolidation, (i) New Holdings directly owns 100% of the Equity Interests of the Borrower as and to the extent required pursuant to the definition of “Change of Control” and (ii) New Holdings expressly assumes all the obligations of Previous Holdings under the Loan Documents to which it is a party (including, without limitation, a pledge of 100% of the Equity Interests of the Borrower it owns as Collateral) pursuant to a supplement hereto and thereto in form and substance reasonably satisfactory to the Administrative Agent, it being understood that if the foregoing conditions are satisfied, Previous Holdings shall be automatically released of all its obligations under the Loan Documents and any reference to “Holdings” in the Loan Documents shall be meant to refer to the “New Holdings”.

“Holdings Pledge Agreement” means, collectively, the Holdings Pledge Agreement executed by Holdings, substantially in the form of Exhibit G-2, together with any supplement thereto executed and delivered pursuant to the definition of “Holdings”, as amended, restated amended and restated, supplemented or otherwise modified from the time to time.

 

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“Honor Date” has the meaning specified in Section 2.03(c)(i).

“Identified Participating Lenders” has the meaning specified in Section 2.05(a)(v)(C)(3).

“Identified Qualifying Lenders” has the meaning specified in Section 2.05(a)(v)(D)(3).

“IFRS” means International Financial Reporting Standards and applicable accounting requirements set by the International Accounting Standards Board or any successor thereto (or the Financial Accounting Standards Board, the Accounting Principles Board of the American Institute of Certified Public Accountants, or any successor to either such Board, or the SEC, as the case may be), as in effect from time to time.

“Immaterial Subsidiaries” means any Restricted Subsidiary with respect to which, as of the last day of the most recently ended Test Period on or prior to the date of determination, LQA Consolidated EBITDA and/or Consolidated Total Assets attributable to such Restricted Subsidiary for the period of four consecutive fiscal quarters ending on such date does not equal or exceed 5.0% of the Consolidated EBITDA and/or Consolidated Total Assets of Holdings, the Borrower and its Restricted Subsidiaries for such period; provided that if the aggregate Consolidated EBITDA and Consolidated Total Assets attributable to Restricted Subsidiaries that are Immaterial Subsidiaries shall equal or exceed 10.0% of Consolidated EBITDA and Consolidated Total Assets of Holdings, the Borrower and its Restricted Subsidiaries for such four-quarter period, then the Borrower shall re-designate one or more of such Restricted Subsidiaries to not be Immaterial Subsidiaries within ten (10) Business Days after delivery of the Compliance Certificate for such fiscal quarter such that only Restricted Subsidiaries as shall then have aggregate Consolidated EBITDA and Consolidated Total Assets of less than 10.0% of the Consolidated EBITDA and Consolidated Total Assets of Holdings, the Borrower and its Restricted Subsidiaries shall constitute Immaterial Subsidiaries.

“Incremental Amendment” has the meaning specified in Section 2.14(c).

“Incremental Amount Date” has the meaning specified in Section 2.14(c).

“Incremental Equivalent Debt” means one or more series of senior unsecured notes or loans, senior secured first lien or junior lien notes or loans, subordinated (secured or unsecured) notes or loans, or secured (first lien or junior lien) or unsecured mezzanine Indebtedness, in the case of securities, whether issued in a public offering, Rule 144A or other private placement or any bridge facility in lieu of the foregoing or otherwise, unsecured or secured by all or a portion of the Collateral on a pari passu (but without regard to control of remedies) or junior basis with the Obligations, which Indebtedness is issued or incurred in lieu of New Revolving Credit Commitments, New Term Commitments and/or New Term Loans pursuant to an indenture, loan agreement, credit agreement, note purchase agreement or otherwise; provided that (i) the aggregate principal amount of any Incremental Equivalent Debt incurred or issued pursuant to this Agreement shall not, together with the aggregate principal amount of any New Revolving Credit Commitments, New Term Commitments and/or New Term Loans incurred or issued substantially simultaneously with such Incremental Equivalent Debt, exceed the Available Incremental Amount at the time of incurrence or issuance thereof, (ii) such Incremental Equivalent Debt shall be incurred by the Borrower and shall not be subject to any Guarantee by any Person other than a Loan Party (or a Person who becomes a Loan Party substantially concurrently with the incurrence of such Incremental Equivalent Debt), (iii) the optional prepayment or redemption provisions and the interest rate (including margin and

 

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floors) applicable to any such Incremental Equivalent Debt will be determined by the Borrower and the Persons providing such Incremental Equivalent Debt; provided that, with respect to any Dollar-denominated Incremental Equivalent Debt incurred in reliance on clause (d) of the definition of “Available Incremental Amount” prior to the (6) month anniversary of the ClosingAmendment No. 1 Effective Date that constitutes broadly syndicated term “B” loans that are pari passu in right of payment with, and secured by Collateral on a pari passu basis (but without regard to control of remedies) with, the Obligations that would be permitted to be incurred as a New Term Loan pursuant to Section 2.14 (excluding bridge facilities and facilities maturing more than (12) months after the Maturity Date of the Initial Term B-1 Loans or Term B-2 Loans, as applicable), and not in connection with a Permitted Acquisition or other permitted Investment, if the All-In Yield applicable to any such Incremental Equivalent Debt exceeds the All-In Yield of the Initial Term B-1 Loans made on the Closingor Term B-2 Loans, as applicable, outstanding on the Amendment No. 1 Effective Date at such time by more than 75 basis points, then the interest rate margins for the Initialsuch Term B-1 Loans (including any Initialor Term B-2 Loans made after the Closing Date), as applicable, shall be increased to the extent necessary so that the All-In Yield of the Initialsuch Term B-1 Loans made on the Closingor Term B-2 Loans, as applicable, outstanding on the Amendment No. 1 Effective Date is equal to the All-In Yield of such Incremental Equivalent Debt minus 75 basis points; provided that any increase in All-In Yield to any Initial Term B-1 Loan or Term B-2 Loan, as applicable, due solely to the application or imposition of a Eurocurrency Rate an Adjusted Term SOFR or Base Rate floor on any such Incremental Equivalent Debt shall be effected, at the Borrower’s option, (x) through an increase in (or implementation of, as applicable) any Eurocurrency RateAdjusted Term SOFR or Base Rate floor applicable to such Initial Term B-1 Loan or Term B-2 Loan, as applicable, (y) through an increase in the Applicable Rate for such Initial Term B-1 Loan or Term B-2 Loan, as applicable, or (z) any combination of (x) and (y) above, and in each case, solely to the extent that the application or imposition of such floor would cause an increase in the effective interest rate then in effect under the Initial Term B-1 Loans or Term B-2 Loans, as applicable, (iv) in the case of Incremental Equivalent Debt that is secured, (A) the obligations in respect thereof shall not be secured by any Lien on any asset of Holdings, the Borrower or any Restricted Subsidiary other than any asset constituting Collateral, (B) [reserved] and (C) such Incremental Equivalent Debt shall be subject to a First Lien Intercreditor Agreement, a Junior Lien Intercreditor Agreement, a Subordination Agreement or another Intercreditor Agreement, as appropriate, (v) immediately after the incurrence of such Indebtedness (or, in the case of Indebtedness to be incurred in connection with a Permitted Acquisition or other permitted Investment, on the date of the execution of (x) the definitive agreement in connection therewith and (y) any commitment in respect of such Incremental Equivalent Debt), no Event of Default exists (or, in the case of Indebtedness to be incurred in connection with a Permitted Acquisition or other permitted Investment, no Specified Default exists), provided that with respect to any incurrence of Incremental Equivalent Debt the purpose of which is to finance a permitted Investment or Permitted Acquisition, this condition may be waived or omitted in full or in part by lenders holding more than 50% of the applicable aggregate commitments in respect of such Indebtedness, (vi) [reserved], (vii) no Incremental Equivalent Debt in the form of term loans or notes (other than any Incremental Equivalent Debt constituting a bridge facility which converts into Indebtedness complying with this clause (vii)) shall mature earlier than the Latest Maturity Date (as of the time of incurrence of such Incremental Equivalent Debt) and no Incremental Equivalent Debt in the form of revolving debt shall mature earlier than the Latest Maturity Date applicable to the Initial Revolving Credit Commitments (as of the time of incurrence of such Incremental Equivalent Debt), (viii) no Incremental Equivalent Debt in the form of term loans or notes (other than any Incremental Equivalent Debt constituting a bridge facility which converts into Indebtedness complying with this clause (viii)) shall have a Weighted Average Life to Maturity of less than the Weighted Average Life to Maturity as then in effect for any Term Loans outstanding as of the time of incurrence of such Incremental Equivalent Debt (prior to any extension thereto), (ix) any Incremental Equivalent Debt (to the extent pari passu in right of payment with, and secured by all or a portion of the Collateral on a pari passu basis with, the Obligations) may provide for the ability to participate on a pro rata basis or less

 

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than pro rata basis in any mandatory repayments or prepayments of principal of Term Loans hereunder and (x) the covenants and events of default applicable to such Incremental Equivalent Debt shall not be, when taken as a whole, materially more favorable, to the holders of such Indebtedness than those applicable to the Term Loans (except for covenants or other provisions applicable only to periods after the Latest Maturity Date) unless such covenants and events of default for such Incremental Equivalent Debt are reflective of market terms and conditions for the type of Indebtedness incurred or issued at the time of issuance or incurrence thereof (in each case, as determined by the Borrower in good faith); provided, that a certificate of the Borrower delivered to the Administrative Agent at least two (2) Business Days prior to the incurrence of such Indebtedness stating that the Borrower has reasonably determined in good faith that such covenants and defaults satisfy the foregoing requirement shall be conclusive evidence that such covenants and defaults satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such two (2) Business Day period that it disagrees with such determination (including a reasonably detailed description of the basis upon which it disagrees).

“Incremental Facility” has the meaning specified in Section 2.14(a).

“Incremental Facility Closing Date” has the meaning specified in Section 2.14(c).

“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a) the obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

(b) the maximum amount (after giving effect to any prior drawings or reductions that may have been reimbursed and less the amount of cash collateral securing the same) of all outstanding letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar instruments issued or created for the account of such Person;

(c) net obligations of such Person under any Swap Contract;

(d) all obligations of such Person to pay the deferred purchase price of property or services (other than (i) trade accounts payable and accrued expenses payable in the ordinary course of business, (ii) any earn-out obligation until such obligation is not paid after becoming due and payable and (iii) accruals for payroll and other liabilities accrued in the ordinary course of business);

(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development bond and similar financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

(f) all Attributable Indebtedness;

(g) all obligations of such Person in respect of Disqualified Equity Interests; and

(h) all Guarantees of such Person in respect of any of the foregoing;

provided that notwithstanding anything to the contrary set forth above, any obligations of Holdings, the Borrower or any of its Restricted Subsidiaries under any note, bond or loan agreement shall not be deemed to be “Indebtedness” for any purpose of this Agreement so long as (i) such note, bond or loan was issued solely to the trustee for any IRBs for purposes of creating a customary back-to-back payment arrangement for such IRBs and (ii) 100% of such IRBs are held by the Borrower or a Guarantor.

 

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For all purposes hereof, the Indebtedness of any Person shall (A) include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, except to the extent such Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness would be included in the calculation of Consolidated Total Debt (and, in any event, excluding any Capitalized Lease Obligations) and (B) in the case of Non-Loan Parties, exclude loans and advances made by Loan Parties having a term not exceeding 364 days and made in the ordinary course of business. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of Indebtedness of any Person for purposes of clause (e) shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value (as determined by such Person in good faith) of the property encumbered thereby as determined by such Person in good faith. Indebtedness shall not include Indebtedness of any direct or indirect parent company appearing on the balance sheet of such Person solely by reason of push down accounting under GAAP.

“Indemnified Liabilities” has the meaning specified in Section 10.05(a).

“Indemnified Taxes” means (a) all Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

“Indemnitees” has the meaning specified in Section 10.05(a).

“Independent Financial Advisor” means an accounting, appraisal, investment banking firm or consultant of nationally recognized standing that is, in the good faith judgment of the Borrower, qualified to perform the task for which it has been engaged and that is independent of the Borrower and its Affiliates.

“Information” has the meaning specified in Section 10.08.

“Initial Borrower” has the meaning specified in the introductory paragraph to this Agreement.

“Initial Co-Manager” has the meaning specified in the definition of “Co-Managers”.

“Initial Holdings” has the meaning specified in the definition of “Holdings”.

“Initial Revolving Credit Commitment” means, as to each Revolving Credit Lender, its obligation to (a) make Revolving Credit Loans to the Borrower pursuant to Section 2.01(b), (b) purchase participations in L/C Obligations in respect of Letters of Credit and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth, and opposite such Revolving Credit Lender’s name on Schedule 2.01I to Amendment No. 1 under the caption “Initial Revolving Credit Commitment” or in the Assignment and Assumption pursuant to which such Revolving Credit Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement (including, without limitation, pursuant to an Incremental Amendment). The aggregate amount of the Initial Revolving Credit Commitments on the Closing Date iswas $275,000,000. The aggregate amount of the Initial Revolving Credit Commitments on the Amendment No. 1 Effective Date is $400,000,000.

 

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“Initial Revolving Credit Exposure” means, at any time, as to each Revolving Credit Lender, the sum of the outstanding principal amount of such Revolving Credit Lender’s Initial Revolving Credit Loans at such time.

“Initial Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving Credit Lenders’ Initial Revolving Credit Commitments at such time.

“Initial Revolving Credit Lender” means, at any time, any Revolving Credit Lender that has an Initial Revolving Credit Commitment and/or Initial Revolving Credit Exposure at such time.

“Initial Revolving Credit Loan” means any revolving credit loan made by the Revolving Credit Lenders pursuant to the Initial Revolving Credit Commitments of the Revolving Credit Lenders on the Closing Date or Amendment No. 1 Effective Date, as applicable, pursuant to Section 2.01(b).

“Initial Term Commitment” means, as to each Term Lender, its obligation to make an Initial Term Loan to the Borrower pursuant to Section 2.01(a) in an aggregate amount not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 (as in effect on the Closing Date) under the caption “Initial Term Commitment,” or in the Assignment and Assumption pursuant to which such Term Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement (including, without limitation, pursuant to an Incremental Amendment). The initial aggregate amount of the Initial Term Commitments is $150,000,000.

“Initial Term Loan” and “Initial Term Loans” have the meanings specified in Section 2.01(a).

“Initial Term Loan Facility” means, at any time, the aggregate amount of the Lenders’ Initial Term Loans at such time.

“Intangible Assets” means (a) all intellectual property, goodwill and other like intangibles, (b) organizational and development costs, (c) deferred charges, other than prepaid items, including insurance, taxes, interest, commissions, rents, pensions, compensation and similar items; and (d) unamortized debt discount and expense, less unamortized premium.

“Intellectual Property Security Agreements” has the meaning specified in the Security Agreement.

“Intercompany Note” means any intercompany note substantially in the form of Exhibit I.

“Intercreditor Agreements” means each First Lien Intercreditor Agreement, each Junior Lien Intercreditor Agreement, each Subordination Agreement and other customary (at the time required to be entered into, as determined by the Borrower (provided that a certificate of the Borrower delivered to the Administrative Agent at least five (5) Business Days prior to such required time (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) stating that the Borrower has reasonably determined in good faith that such agreements or arrangements are customary shall be conclusive evidence that such agreements or arrangements satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five (5) Business Day period (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) that it disagrees with such determination (including a reasonably detailed description of the basis upon which it disagrees))) intercreditor agreements or arrangements, collectively, in each case to the extent in effect.

 

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“Interest Payment Date” means, (a) as to any Loan of any Class other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided that if any Interest Period for a Eurocurrency RateSOFR Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates with respect to such Eurocurrency RateSOFR Loan; and (b) as to any Base Rate Loan of any Class (including a Swing Line Loan), the last Business Day of each March, June, September and December (commencing with the last Business Day of December 2021), and the Maturity Date of the Facility under which such Loan was made.

“Interest Period” means, as to each Eurocurrency RateSOFR Loan, the period commencing on the date such Eurocurrency RateSOFR Loan is disbursed or converted to or continued as a Eurocurrency RateSOFR Loan and ending (i) on the date one, two, three or six months thereafter (in each case, subject to availability), (ii) to the extent consented to by each applicable Lender of such Eurocurrency RateSOFR Loan, such other period as selected by the Borrower in its Loan Notice or (iii) to the extent consented to by the Administrative Agent, such period shorter than one month as selected by the Borrower in its Loan Notice; provided that:

(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless, in the case of a Eurocurrency RateSOFR Loan such Business Day falls in another calendar month, in which case such Interest Period shall end on the immediately preceding Business Day;

(b) any Interest Period pertaining to a Eurocurrency RateSOFR Loan having a duration of less than one month that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

(c) no Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made.

“Investment “ means, as to any Person, the acquisition or investment by such Person, by means of (a) the purchase or other acquisition (including without limitation by merger or otherwise) of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other Indebtedness or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person (excluding, in the case of the Borrower and its Subsidiaries, intercompany loans, advances, or Indebtedness having a term not exceeding 364 days and made in the ordinary course of business) or (c) the purchase or other acquisition (in one transaction or a series of transactions, including without limitation by merger or otherwise) of all or substantially all of the property and assets of another Person or assets constituting a business unit, line of business or division of such Person; provided that, in the event that any Investment is made by Holdings, the Borrower or any Restricted Subsidiary in any Person through substantially concurrent interim transfers of any amount through Holdings, the Borrower or any Restricted Subsidiaries, then such other substantially concurrent interim transfers shall be disregarded for purposes of Section 7.02. For purposes of covenant compliance, the amount of any Investment at any time shall be the amount actually invested (measured at the time made (which, in the case of any Investment constituting the contribution of an asset or property, shall be based on the Borrower’s good faith estimate of the fair market value of such asset or property at the time such Investment is made)), without adjustment for subsequent changes in the value of such Investment (including any write-downs or write-offs thereof), net of any Returns with respect to such Investment.

 

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“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other nationally recognized statistical rating agency selected by the Borrower.

“Investors” means, collectively, (a) the Equity Sponsor, (b) Ares and (c) at the option of Ares and/or the Equity Sponsor, certain other investors disclosed to the Lead Arrangers prior to the Closing Date and members of management of the Company.

“IP Rights” has the meaning specified in Section 5.15.

“IRB Collateral” means any assets or facilities of the Borrower or any Restricted Subsidiary, the acquisition, lease, construction, repair or improvement of which are financed by IRBs, together with all proceeds and products thereof, contracts in relation thereof and assets ancillary thereto.

“IRBs” means industrial revenue bonds or other tax exempt or taxable bond financings issued by or at the request of the Borrower or any of its Restricted Subsidiaries.

“IRS” means the Internal Revenue Service of the United States.

“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).

“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the applicable L/C Issuer and the Borrower (or any Restricted Subsidiary) or in favor of the applicable L/C Issuer and relating to such Letter of Credit.

“IT Services Business” means the business segment (and related assets) of the Borrower and its Restricted Subsidiaries relating to its IT Services and Hardware Segment, as described in the Form 10-K of the Company for the fiscal year of the Company ended December 31, 2020 that was filed with the SEC, which business segment, among other related services (a) provides end-to-end solutions from consulting to implementation to ongoing optimization, including cloud, communications and consulting services along with the sale and maintenance of major branded telecom and information technology hardware, (b) offers a full range of equipment and strategic services in conjunction with the Company’s fiber and copper networks, and (c) provides customers with related consulting and support services.

“Joint Venture” means (a) any Person which would constitute an “equity method investee” of the Borrower or any of its Restricted Subsidiaries and (b) any Person in whom the Borrower or any of its Restricted Subsidiaries beneficially owns any Equity Interest that is not a Subsidiary.

“Junior Financing” has the meaning specified in Section 7.12(a).

“Junior Financing Documentation” means any documentation governing any Junior Financing.

 

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“Junior Lien Intercreditor Agreement” means a customary (at the time required to be entered into, as determined by the Borrower (provided that a certificate of the Borrower delivered to the Administrative Agent at least five (5) Business Days prior to such required time (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) stating that the Borrower has reasonably determined in good faith that such agreement is customary shall be conclusive evidence that such agreement satisfies the foregoing requirement unless the Administrative Agent notifies the Borrower within such five (5) Business Day period (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) that it disagrees with such determination (including a reasonably detailed description of the basis upon which it disagrees))) “junior lien” intercreditor agreement among the Administrative Agent and one or more Representatives for the holders of applicable Indebtedness that is secured on a junior basis to the Obligations.

“Latest Maturity Date “ means, at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration date of any Initial Term B-1 Loan, Term B-2 Loan, any Initial Revolving Credit Commitment, any New Revolving Credit Commitment, any New Term Commitment, any New Term Loan, any New Revolving Credit Loan, any Refinancing Loan, any Refinancing Commitment, any Extended Loan, any Extended Commitment or any Replacement Term Loan, in each case as extended in accordance with this Agreement from time to time.

“Laws “ means, collectively, all applicable international, foreign, federal, state and local statutes, treaties, rules, regulations, ordinances, codes and executive orders, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, licenses, authorizations and permits of, and agreements with, any Governmental Authority.

“L/C Advances” means with respect to each Revolving Credit Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Pro Rata Share or other applicable share provided for under this Agreement.

“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing.

“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.

“L/C Issuer” means each of (i) PNC Bank, National Association, (ii) Regions Bank, and (iii) any other Lender or Affiliate of a Lender that becomes an L/C Issuer in accordance with Section 2.03(l), 9.09(d) or 10.07(l), in each case, in its capacity as an issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder. Any L/C Issuer may arrange for one or more Letters of Credit to be issued indirectly through any other financial institution reasonably acceptable to such L/C Issuer.

“L/C Obligations” means, as at any date of determination (without duplication) (a) the aggregate stated amount available to be drawn under all outstanding Letters of Credit plus (b) the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

“LCT Election” has the meaning specified in Section 1.13(a).

 

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“LCT Test Date” has the meaning specified in Section 1.13(a).

“Lead Arrangers” means, collectively, Goldman Sachs, Regions Capital Markets, a division of Regions Bank, Société Générale, CoBank and MUFG Union Bank, N.A., each in its capacity as a joint lead arranger and joint bookrunner under this Agreement, and the “Lead Arrangers” (as defined in Amendment No. 1).

“Lender” and “Lenders” have the meanings specified in the introductory paragraph to this Agreement and, as the context requires, includes an L/C Issuer and the Swing Line Lender, and their respective successors and assigns as permitted hereunder, each of which is referred to herein as a “Lender.” Each Additional Lender shall be a Lender to the extent any such Person has executed and delivered a Refinancing Amendment, an Incremental Amendment or an amendment to this Agreement in respect of Replacement Term Loans, as the case may be, and such Refinancing Amendment, Incremental Amendment or amendment to this Agreement in respect of Replacement Term Loans, as the case may be, shall have become effective in accordance with the terms hereof and thereof, and each Extending Revolving Credit Lender and Extending Term Lender shall continue to be a Lender. As of the Closing Date, Schedule 2.01 sets forth the name of each Lender.

“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent by not less than five (5) Business Days’ written notice.

“Letter of Credit” means any letter of credit issued hereunder (or, with respect to Existing Letters of Credit, deemed issued hereunder). A Letter of Credit may be a standby letter of credit or, if agreed by the applicable L/C Issuer(s), a commercial or documentary letter of credit.

“Letter of Credit Application” means an application and agreement for the issuance or extension of, or amendment to, a Letter of Credit substantially in the form of Exhibit B-1 or, if required by an L/C Issuer, such other form as may be agreed by the Borrower and such L/C Issuer.

“Letter of Credit Commitment” means, as to each L/C Issuer, the amounts set forth opposite such L/C Issuer’s name on Schedule 2.01 under the caption “Letter of Credit Commitment” (as such amount may be increased from time to time as agreed by the Borrower and the applicable L/C Issuer) or, if an L/C Issuer has entered into an Assignment and Assumption with respect to such Letter of Credit Commitment, set forth for such L/C Issuer in the Register as such L/C Issuer’s “Letter of Credit Commitment”; provided that any Revolving Credit Lender may, from time to time, become an L/C Issuer with a Letter of Credit Commitment under this Agreement in accordance with Section 2.03(l).

“Letter of Credit Exposure” means, at any time, the aggregate amount of all L/C Obligations at such time in respect of Letters of Credit. The Letter of Credit Exposure of any Revolving Credit Lender at any time shall be its Revolving Credit Percentage of the aggregate Letter of Credit Exposure at such time.

“Letter of Credit Facility Expiration Date” means the day that is three (3) Business Days prior to the latest scheduled Maturity Date then in effect for any Revolving Credit Commitments (or, if such day is not a Business Day, the next preceding Business Day).

“Letter of Credit Sublimit” means, at any time an amount equal to the lesser of (a) a Dollar Amount of $40,000,000, as such amount may be adjusted hereunder from time to time and (b) the aggregate amount of the Revolving Credit Commitments as in effect at such time. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility.

 

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“Lien” means any mortgage, pledge, hypothecation, collateral assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever; provided that in no event shall an operating lease in and of itself be deemed a Lien. For purposes of Section 7.01, assets leased by the Borrower or a Restricted Subsidiary under a Capitalized Lease giving rise to a Capitalized Lease Obligation shall be deemed to be assets of the Borrower or such Restricted Subsidiary subject to a Lien securing such Capitalized Lease Obligation.

“Limited Condition Transaction” means (a) any Permitted Acquisition or other Investment or similar transaction (whether by merger, amalgamation, consolidation or other business combination or the acquisition of capital stock or otherwise), (b) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness and/or (c) any Restricted Payment requiring irrevocable notice in advance thereof.

“Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a loan pursuant to any Commitment, including any Swing Line Loan.

“Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) any Refinancing Amendment, Incremental Amendment, Extension Amendment or amendment to this Agreement in respect of Replacement Term Loans, (d) the Collateral Documents, (e) each Letter of Credit Application and, (f) each Intercreditor Agreement and (g) Amendment No. 1.

“Loan Notice” means a notice of (a) a Term Borrowing, (b) a Revolving Credit Borrowing, (c) a conversion of Loans from one Type to the other, or (d) a continuation of Eurocurrency RateSOFR Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed or authenticated by a Responsible Officer of the Borrower.

“Loan Parties” means, collectively, (a) the Borrower and (b) each other Guarantor.

“LQA Consolidated EBITDA” means, as to any Person as of any date of determination, the product of (x) Consolidated EBITDA for the most recently ended fiscal quarter of the Borrower for which financial statements have been or were required to be delivered pursuant to Sections 6.01(a) and (b), as the case may be multiplied by (y) four (4). Notwithstanding anything contained herein to the contrary, LQA Consolidated EBITDA shall be deemed to be, for any date of determination prior to the date that the financial statements for the fiscal quarter ending September 30, 2021 have been delivered, $416,800,000. For the avoidance of doubt, LQA Consolidated EBITDA shall be calculated, including pro forma adjustments, in accordance with Section 1.08.

“Macquarie” has the meaning set forth in the definition of Equity Sponsor.

“Management Equityholders” means any of (i) any current or former director, officer, employee or member of management of Holdings or any of its Subsidiaries or any direct or indirect parent thereof who, at any time, is an investor in Holdings or any direct or indirect parent thereof, (ii) any trust, partnership, limited liability company, corporate body or other entity established by any such director, officer, employee or member of management of Holdings or any of their respective Subsidiaries (or by any Person described in the succeeding clauses (iii) and (iv), as applicable) to hold an investment

 

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in Holdings or any direct or indirect parent thereof in connection with such Person’s estate or tax planning, (iii) any spouse, parents or grandparents of any such director, officer, employee or member of management of Holdings or any of its Subsidiaries and any and all descendants of the foregoing, together with any spouse of any of the foregoing Persons, who are transferred an investment in Holdings or any direct or indirect parent thereof by any such director, officer, employee or member of management of Holdings or any of its Subsidiaries in connection with such Person’s estate or tax planning and (iv) any Person who acquires an investment in Holdings or any direct or indirect parent thereof by will or by the Laws of intestate succession as a result of the death of an employee of Holdings or any of its respective Subsidiaries.

“Margin Stock” has the meaning set forth in Regulation U of the FRB, or any successor thereto.

“Market Capitalization” means an amount equal to (1) the total number of issued and outstanding shares of common Equity Interests of Holdings or its direct or indirect parent entity, as applicable, on the date of the declaration of a Restricted Payment multiplied by (2) the arithmetic mean of the closing prices per share of such common Equity Interests on the principal securities exchange on which such common Equity Interests are traded for the 30 consecutive trading days immediately preceding the date of declaration of such Restricted Payment.

“Master Agreement” has the meaning specified in the definition of “Swap Contract.”

“Material Adverse Effect” means (i) on and/or as of the Closing Date, a Company Material Adverse Effect and (ii) after the Closing Date, (a) a material adverse effect on the business, assets, financial condition or results of operations of the Borrower and its Restricted Subsidiaries, taken as a whole, (b) a material adverse effect on the material rights and remedies of the Lenders and the Administrative Agent, taken as a whole, under the Loan Documents or (c) a material adverse effect on the ability of the Loan Parties, taken as a whole, to perform their material payment obligations under the Loan Documents.

“Material Debt Instrument” means any physical instrument evidencing obligations in excess of the greater of (x) $2,500,000 and (y) 0.5% of Consolidated Tangible Assets evidencing Indebtedness owed by an Excluded Subsidiary to the Borrower or a Subsidiary Guarantor.

“Material Subsidiary” means any Restricted Subsidiary that is not an Immaterial Subsidiary.

“Maturity Date” means (i) with respect to the Revolving Credit Commitments that have not been extended pursuant to Section 2.18, the date that is five (5) years after the Closing Date, (ii) with respect to the Initial Term B-1 Loans and Term B-2 Loans incurred on or prior to the Amendment No. 1 Effective Date that have not been extended pursuant to Section 2.172.18, the date that is seven (7) years after the ClosingAmendment No. 1 Effective Date, (iii) with respect to any Extended Term Loans of a given Term Loan Extension Series, the final maturity date as specified in the applicable Extension Amendment accepted by the respective Lender or Lenders, (iv) with respect to any Extended Revolving Credit Commitments of a given Revolving Credit Loan Extension Series, the final maturity date as specified in the applicable Extension Amendment accepted by the respective Lender or Lenders, (v) with respect to any Refinancing Term Loans, Refinancing Revolving Credit Commitments or Refinancing Revolving Credit Loans, the final maturity date as specified in the applicable Refinancing Amendment, (vi) with respect to any New Term Loan, New Revolving Credit Commitments or New Revolving Credit Loans, the final maturity date as specified in the applicable Incremental Amendment and (vii) with respect to Replacement Term Loans, the final maturity date as specified in the applicable amendment to this Agreement in respect of such Replacement Term Loans; provided, in each case, that if such day is not a Business Day, the applicable Maturity Date shall be the Business Day immediately preceding such day.

 

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“Maximum Rate” has the meaning specified in Section 10.10.

“Merger Sub” has the meaning specified in the introductory paragraph to this Agreement.

“MIP Inc.” means Macquarie Infrastructure Partners Inc., a Delaware corporation.

“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

“Multiemployer Plan” means any multiemployer plan as defined in Section 4001(a)(3) of ERISA and subject to Title IV of ERISA, to which the Borrower, any Guarantor or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

“Net Cash Proceeds” means:

(a) with respect to the Disposition of any asset by the Borrower or any of its Restricted Subsidiaries or any Casualty Event, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such Disposition or Casualty Event (including any cash and Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received and, with respect to any Casualty Event, any insurance proceeds or condemnation awards in respect of such Casualty Event actually received by or paid to or for the account of the Borrower or any of its Restricted Subsidiaries) over (ii) the sum of (A) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness that is secured by the asset subject to such Disposition or Casualty Event and required to be repaid in connection with such Disposition or Casualty Event (other than Indebtedness under the Loan Documents, Incremental Equivalent Debt, Refinancing Equivalent Debt, and any other Indebtedness secured by a Lien that is pari passu with or expressly subordinated to the Lien on the Collateral securing the Obligations), (B) the out-of-pocket fees and expenses (including attorneys’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, other customary expenses and brokerage, consultant and other customary fees) actually incurred by the Borrower or such Restricted Subsidiary in connection with such Disposition or Casualty Event and restoration costs following a Casualty Event, (C) Taxes (including Restricted Payments in respect thereof pursuant to Section 7.06) paid or reasonably estimated to be payable in connection therewith (including Taxes imposed on, or that would be payable upon, the distribution or repatriation of any such Net Cash Proceeds), (D) in the case of any Disposition or Casualty Event by a non-Wholly Owned Restricted Subsidiary, the pro-rata portion of the Net Cash Proceeds thereof (calculated without regard to this clause (D)) attributable to minority interests and not available for distribution to or for the account of the Borrower or a Wholly Owned Restricted Subsidiary as a result thereof, and (E) any reserve for adjustment in respect of (x) the sale price of such asset or assets established in accordance with GAAP and (y) any liabilities associated with such asset or assets and retained by the Borrower or any Restricted Subsidiary after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction, it being understood that “Net Cash Proceeds” shall include the amount of any reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in this clause (E); provided that for purposes of Section 2.05(b)(ii) no such net cash proceeds calculated in accordance with the foregoing realized in any fiscal year shall constitute Net Cash Proceeds under this clause (a) in such fiscal year until the aggregate amount of all such net cash proceeds in such fiscal year shall exceed the greater of $50,000,000 and 2.5% of Consolidated Tangible Assets (and thereafter only net cash proceeds in excess of such amount shall constitute Net Cash Proceeds under this clause (a));

 

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(b) with respect to the incurrence or issuance of any Indebtedness by the Borrower or any Restricted Subsidiary or any Permitted Equity Issuance by the Borrower or any direct or indirect parent of the Borrower, the excess, if any, of (A) the sum of the cash and Cash Equivalents received in connection with such incurrence or issuance over (B) the investment banking fees, underwriting discounts, commissions, costs and other out-of-pocket expenses and other customary expenses, incurred in connection with such incurrence or issuance; and

(c) with respect to any Permitted Equity Issuance by any direct or indirect parent of the Borrower, the amount of cash from such Permitted Equity Issuance contributed to the capital of the Borrower.

“Net Income” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP.

“New Holdings” has the meaning specified in the definition of “Holdings”.

“New Refinancing Revolving Credit Commitments” has the meaning specified in

Section 2.15(a).

“New Refinancing Term Commitments” has the meaning specified in Section 2.15(a).

“New Revolving Commitment Tranche” has the meaning specified in Section 2.14(a).

“New Revolving Credit Commitments” has the meaning specified in Section 2.14(a).

“New Revolving Credit Lender” means each existing Lender or Additional Lender that provides New Revolving Credit Commitments.

“New Revolving Credit Loans” means any revolving credit loan made by New Revolving Credit Lenders pursuant to New Revolving Credit Commitments.

“New Term B-1 Commitment” has the meaning specified in Amendment No. 1.

“New Term B-1 Lenders” has the meaning specified in Amendment No. 1.

“New Term B-1 Loans” has the meaning specified in Amendment No. 1.

“New Term Commitments” has the meaning specified in Section 2.14(a).

“New Term Lender” means each existing Lender or Additional Lender that provides New Term Loans.

“New Term Loans” has the meaning specified in Section 2.14(a).

“Non-Bank Certificate” has the meaning specified in Section 3.01(c)(i).

 

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“Non-Cash Compensation Liabilities” means any non-cash liabilities recorded in connection with stock-based awards, partnership interest-based awards, awards of profits interests, deferred compensation awards and similar incentive based compensation awards or arrangements.

“Non-Consenting Lender” has the meaning specified in the penultimate paragraph of Section 3.07.

“Non-Debt Fund Affiliate” means an Affiliate of an Investor that is neither Holdings, the Borrower, a Subsidiary nor an Affiliated Debt Fund.

“Non-Defaulting Lender” means and includes each Lender other than a Defaulting Lender.

“Non-Loan Party” means any Subsidiary that is not a Loan Party.

“Non-Recourse Debt” means indebtedness of any Unrestricted Subsidiary incurred to fund expansion into new markets and/or increase density in existing markets (a) as to which no Loan Party or any Restricted Subsidiary (i) provides credit support of any kind other than pursuant to a Specified Non-Recourse Obligation or any arrangement to provide, or provide a Guarantee for, the provision of goods and services on an arm’s length basis or (ii) is directly or indirectly liable as a guarantor or otherwise, other than pursuant to a Specified Non-Recourse Obligation and (b) as to which the lenders have been notified in writing, or have otherwise agreed, that they will not have any recourse to the stock or assets of any Loan Party or any Restricted Subsidiary except as otherwise permitted by preceding clause (a).

“Nonrenewal Notice Date” has the meaning specified in Section 2.03(b)(iii).

“Not Otherwise Applied” means, with reference to any amount of net cash proceeds of any transaction or event that is proposed to be applied to a particular use or transaction, that such amount has not previously been (and is not simultaneously being) applied to anything other than that such particular use or transaction.

“Note” means a Term Note, a Revolving Credit Note or the Swing Line Note, as the context may require.

“Obligations “ means all (a) advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, fees and expenses that accrue after the commencement by or against any Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, fees and expenses are allowed claims in such proceeding, (b) for purposes of the Collateral Documents and Section 8.03 only, obligations of any Loan Party arising under any Secured Hedge Agreement now existing or hereafter arising and including interest, fees and expenses that accrue after the commencement by or against any Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, fees and expenses are allowed claims in such proceeding and (c) for purposes of the Collateral Documents and Section 8.03 only, obligations under Secured Cash Management Agreements now existing or hereafter arising and including interest, fees and expenses that accrue after the commencement by or against any Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, fees and expenses are allowed claims in such proceeding; provided

 

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that in the case of clauses (b) and (c), only to the extent that, and for so long as, the other Obligations with respect to any Guarantor are so secured or guaranteed, and any release of Collateral or Guarantees effected in a manner permitted by this Agreement shall not require the consent of holders of obligations under Secured Hedge Agreements or obligations under Secured Cash Management Agreements; provided, further, that the Obligations with respect to any Guarantor shall exclude all Excluded Swap Obligations of such Guarantor. Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents include the obligation (including guarantee obligations) to pay principal, interest, Letter of Credit commissions, reimbursement obligations, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Loan Party under any Loan Document.

“OECD” means the Organisation for Economic Co-operation and Development and its successors.

“OFAC” has the meaning specified in the definition of “Sanctions Laws and Regulations.”

“Offered Amount” has the meaning specified in Section 2.05(a)(v)(D)(1).

“Offered Discount” has the meaning specified in Section 2.05(a)(v)(D)(1).

“OID” means original issue discount.

“Organization Documents” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction).

“Other Applicable Indebtedness” has the meaning specified in Section 2.05(b)(ii)(A).

“Other Taxes” has the meaning specified in Section 3.01(e).

“Outstanding Amount” means (a) with respect to the Term Loans of any Class, Revolving Credit Loans of any Class and Swing Line Loans on any date, the Dollar Amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans of any Class and Revolving Credit Loans of any Class (including any refinancing of outstanding Unreimbursed Amounts under Letters of Credit or L/C Credit Extensions as a Revolving Credit Borrowing) and Swing Line Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the Dollar Amount thereof on such date after giving effect to any related L/C Credit Extension occurring on such date and any other changes thereto as of such date, including as a result of any reimbursements of outstanding Unreimbursed Amounts under related Letters of Credit (including any refinancing of outstanding Unreimbursed Amounts under related Letters of Credit or related L/C Credit Extensions as a Revolving Credit Borrowing) or any reductions in the maximum amount available for drawing under related Letters of Credit taking effect on such date.

 

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“Overpaid Lender’s Payment Rights under the Loan Documents” has the meaning specified in Section 9.16(d).

“Paniolo Acquisition” means the (a) acquisition of the Purchased Assets and the Incidental Rights (each, as defined in the Paniolo Acquisition Agreement) by Company and its Restricted Subsidiaries, (b) the assumption of the Assumed Liabilities (as defined in the Paniolo Acquisition Agreement) by Company and its Restricted Subsidiaries, and (c) the assignment to the Company and its Restricted Subsidiaries of the “Assigned Claims”, “Designated Contracts”, “Assigned Permits” and “Assigned Rights” (each, as defined in the Paniolo Acquisition Agreement), in each case, pursuant to the Paniolo Acquisition Agreement.

“Paniolo Acquisition Agreement “ means that certain Asset Purchase Agreement by and between Michael Katzenstein, as seller (solely in his capacity as chapter 11 trustee for the bankruptcy estate of Paniolo Cable Company, LLC, as debtor) and Hawaiian Telcom, Inc., as buyer, dated November 30, 2020 and approved by an order of the United States Bankruptcy Court in the District of Hawaii.

“Paniolo Collateral” means the “Collateral” as defined in the Paniolo Collateral Documents.

“Paniolo Collateral Documents” means the “Collateral Documents” as defined in the Paniolo Financing Agreement and any similar term in any Permitted Refinancing thereof.

“Paniolo Financing” means the “Financing” as defined in the Paniolo Acquisition Agreement and any Permitted Refinancing thereof.

“Paniolo Financing Documents” means the “Financing Documents” as defined in the Paniolo Acquisition Agreement.

“Paniolo Subordination Agreement” means a customary subordination agreement reasonably acceptable to the Borrower, the Administrative Agent and the “Collateral Agent” as defined in the Paniolo Financing Documents, subordinating the Liens on the Paniolo Collateral granted in favor of the Administrative Agent for the benefit of the Secured Parties under any Loan Document to the Liens granted in favor the “Collateral Agent” as defined in the Paniolo Financing Documents pursuant to one or more of the Paniolo Collateral Documents.

“Participant” has the meaning specified in Section 10.07(d).

“Participant Register” has the meaning specified in Section 10.07(e).

“Participating Lender” has the meaning specified in Section 2.05(a)(v)(C)(2).

“PATRIOT Act” has the meaning specified in the definition of “Sanctions Laws and Regulations.”

“Payment Recipient” has the meaning specified in Section 9.16(a).

“PBGC” means the Pension Benefit Guaranty Corporation.

“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan or a Foreign Plan, that is subject to Title IV of ERISA or Section 412 of the Code and is sponsored or maintained by the Borrower, any Guarantor or any ERISA Affiliate or to which the Borrower, any Guarantor or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time in the preceding five plan years.

 

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“Periodic Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.

“Permitted Acquisition” has the meaning specified in Section 7.02(i).

“Permitted Equity Issuance” means any sale or issuance of any Qualified Equity Interests of the Borrower or any direct or indirect parent of the Borrower, in each case to the extent not prohibited hereunder.

“Permitted Holder “ means any of (i) Macquarie, any of its Affiliates and any funds, investment vehicles or partnerships managed, advised or sub-advised by any of them or any of their respective Affiliates, but not including, however, any portfolio operating company of any of the foregoing, (ii) the Management Equityholders, (iii) the Permitted Transferees of any of the foregoing Persons and (iv) any “group” (within the meaning of Section 13(d) or Section 14(d) of the Exchange Act) of which any of the foregoing are members; provided that in the case of such “group” and without giving effect to the existence of such “group” or any other “group,” such Persons specified in clauses (i), (ii) and/or (iii) above, collectively, have beneficial ownership, directly or indirectly, of more than 50% of the aggregate ordinary voting power for election of directors represented by the issued and outstanding Equity Interests of Holdings held, directly or indirectly, by such “group.”

“Permitted IPO Reorganization” means any transaction or action taken in connection with and reasonably related to a Qualifying IPO, so long as, after giving effect thereto, neither the value of the Guaranty nor the security interest of the Administrative Agent in the Collateral, in either case, taken as a whole, is materially impaired (as reasonably determined by the Borrower in good faith); provided that no Specified Default would be continuing immediately after the occurrence of such Permitted IPO Reorganization or would result therefrom.

“Permitted Junior Secured Refinancing Debt” has the meaning specified in Section 2.15(i).

“Permitted Pari Passu Secured Refinancing Debt” has the meaning specified in Section 2.15(i).

“Permitted Ratio Debt” means Indebtedness of the Borrower or any Subsidiary Guarantor; provided that (a) such Indebtedness is pari passu or junior in right of payment to the Obligations and pari passu, junior or unsecured with respect to security with the Revolving Credit Loans or the Term Loans made on the Closing Date or the Amendment No. 1 Effective Date, as applicable, (b) immediately after giving effect thereto and to the use of the proceeds thereof, the Secured Net Leverage Ratio after giving Pro Forma Effect to the incurrence of such Indebtedness is less than or equal to the greater of (i) 3.75 to 1.00 and (ii) the Secured Net Leverage Ratio as in effect immediately prior to the incurrence of such Indebtedness (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination; provided that, for purposes of determining compliance with this clause (b), notwithstanding if such Permitted Ratio Debt then being incurred is unsecured or secured by assets not constituting Collateral, such Permitted Ratio Debt then being incurred shall be included as Consolidated Secured Net Debt in the Secured Net Leverage Ratio (but, for the avoidance of doubt, not for any subsequent calculations determining compliance with this clause (b) or other calculations of the Secured Net Leverage Ratio), (c) such Indebtedness is issued on market terms for the type of Indebtedness issued or with covenants in all material respects that are not more restrictive

 

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(taken as a whole) with respect to the Borrower and its Restricted Subsidiaries than the covenants in this Agreement as reasonably determined by the Borrower in good faith; provided that a certificate of the Borrower as to the satisfaction of the conditions described in clause (c) above delivered at least two (2) Business Days prior to the incurrence of such Indebtedness stating that the Borrower has reasonably determined in good faith that such covenants satisfy the foregoing requirements, shall be conclusive unless the Administrative Agent notifies the Borrower within such two (2) Business Day period that it disagrees with such determination (including a reasonably detailed description of the basis upon which it disagrees), (d) if secured, may not be secured by any assets other than Collateral, (e) if such Indebtedness is secured on a pari passu basis with the Obligations, such Liens are subject to a First Lien Intercreditor Agreement, (f) if such Indebtedness is secured on a junior basis to the Obligations, such Liens are subject to a Junior Lien Intercreditor Agreement and (g) if unsecured and junior in right of payment, such Indebtedness is subject to a Subordination Agreement.

“Permitted Receivables Financing” means any transaction or series of transactions that may be entered into by the Borrower or any Restricted Subsidiary or Unrestricted Subsidiary (a) under the Securitization Facility, (b) under the Factoring Facility and/or (c) pursuant to which it may otherwise sell, convey, contribute to capital or otherwise transfer (which sale, conveyance, contribution to capital or transfer may include or be supported by the grant of a security interest) Transferred Assets (i) to any Receivables Financier, which transfer is funded in whole or in part, directly or indirectly, by the incurrence or issuance by the transferee or any successor transferee of Indebtedness, fractional undivided interests or other securities that are to receive payments from, or that represent interests in, the cash flow derived from such Transferred Assets or interests in such Transferred Assets or (ii) directly to one or more investors or other purchasers (other than the Borrower or any Subsidiary), it being understood that a Permitted Receivables Financing may involve (A) one or more sequential transfers or pledges of the same Transferred Assets, or interests therein, e.g., a sale, conveyance or other transfer to a Receivables Financing SPC followed by a pledge of the Transferred Assets to secure Indebtedness incurred by the Receivables Financing SPC, and all such transfers, pledges and Indebtedness incurrences shall be part of and constitute a single Permitted Receivables Financing and (B) periodic transfers or pledges of Transferred Assets and/or revolving transactions in which new Transferred Assets, or interests therein, are transferred or pledged upon collection of previously transferred or pledged Transferred Assets, or interests therein; provided that any such transactions shall provide for recourse to such Subsidiary (other than any Receivables Financing SPC) or the Borrower (as applicable) only in respect of the cash flows in respect of such Transferred Assets and to the extent of other customary securitization undertakings.

“Permitted Refinancing” means, with respect to any Person, any modification, refinancing, refunding, replacement, renewal or extension of any Indebtedness of such Person; provided that (a) except to the extent otherwise permitted under another provision of Section 7.03, the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, replaced, renewed or extended except by an amount equal to unpaid accrued interest, fees, premium (including call and tender premiums) thereon, defeasance costs, and fees and expenses incurred (including OID, upfront fees and similar items), in connection with such modification, refinancing, refunding, replacement, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, (b) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 7.03(b), Section 7.03(e), Section 7.03(g) and (solely with respect to any facility thereunder that is “revolving” (or similar) in nature or would otherwise not have a Weighted Average Life to Maturity, with respect to Weighted Average Life to Maturity) Section 7.03(s), such modification, refinancing, refunding, replacement, renewal or extension has a final maturity date equal to or later than the final maturity date of, and, with respect to term debt, has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, replaced, renewed or extended, (c) if such Indebtedness being modified, refinanced, refunded, replaced, renewed,

 

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or extended is unsecured or constitutes a Junior Financing, (i) to the extent such Indebtedness being modified, refinanced, refunded, replaced, renewed, or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, replacement, renewal, or extension is subordinated in right of payment to the Obligations on terms, taken as a whole, at least as favorable to the Lenders, in all material respects, as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, replaced, renewed or extended, (ii) to the extent such Indebtedness being modified, refinanced, refunded, replaced, renewed, or extended is secured by Liens, (x) such modification, refinancing, refunding, replacement, renewal or extension is unsecured, is not secured by any Liens that do not also secure the Obligations and/or is secured by Liens otherwise permitted under Section 7.01 to the extent the Indebtedness being modified, refinanced, refunded, replaced or extended would have been permitted to be secured by such Lien and (y) to the extent that such Liens are contractually subordinated to the Liens securing the Obligations, such modification, refinancing, refunding, replacement, renewal or extension is either unsecured or is secured (A) by Liens that are contractually subordinated to the Liens securing the Obligations on terms, taken as a whole, at least as favorable to the Lenders, in all material respects, as those contained in the documentation (including any intercreditor or similar agreements) governing the Indebtedness being modified, refinanced, refunded, replaced, renewed or extended or (B) by Liens otherwise permitted under Section 7.01 to the extent the Indebtedness being modified, refinanced, refunded, replaced or extended is then permitted to be secured by such Liens, (iii) to the extent such Indebtedness being modified, refinanced, refunded, replaced, renewed or extended is unsecured, such modification, refinancing, refunding, replacement, renewal or extension shall also be unsecured, (iv) the covenants and defaults of any such modified, refinanced, refunded, replaced, renewed or extended Indebtedness (other than Indebtedness designated by the Borrower with an aggregate original principal amount for all such Indebtedness so designated not to exceed the greater of $125,000,000 and 6.5% of Consolidated Tangible Assets) are (x) not materially more restrictive with respect to the Borrower and its Restricted Subsidiaries, as reasonably determined by the Borrower in good faith, than the covenants and defaults of the Indebtedness being modified, refinanced, refunded, replaced, renewed or extended or (y) reflective of market terms and conditions for the type of Indebtedness incurred or issued at the time of issuance or incurrence thereof (as determined by the Borrower in good faith); provided that a certificate of the Borrower delivered to the Administrative Agent at least two (2) Business Days prior to the incurrence of such Indebtedness stating that the Borrower has reasonably determined in good faith that such covenants and defaults satisfy the foregoing requirement shall be conclusive evidence that such covenants and defaults satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such two (2) Business Day period that it disagrees with such determination (including a reasonably detailed description of the basis upon which it disagrees) and (v) such modification, refinancing, refunding, replacement, renewal or extension is incurred by the Person who is the obligor of the Indebtedness being modified, refinanced, refunded, replaced, renewed or extended and no additional obligors become liable for such Indebtedness except to the extent such Person guaranteed the Indebtedness being modified, refinanced, refunded, replaced, renewed or extended (or (x) with respect to any Permitted Refinancing of the Existing Secured Notes (or any Permitted Refinancing thereof) such Person is a Loan Party or (y) such guarantee would have otherwise been permitted under Section 7.03), (d) in the case of any secured Indebtedness incurred or issued in a Permitted Refinancing in respect of any Incremental Equivalent Debt, any Permitted Pari Passu Secured Refinancing Debt, any Permitted Junior Secured Refinancing Debt or any Permitted Refinancing in respect of any of the foregoing, in each case, such Indebtedness incurred or issued in such Permitted Refinancing is secured only by assets pursuant to one or more security agreements permitted by and subject to a First Lien Intercreditor Agreement, a Junior Lien Intercreditor Agreement or other Intercreditor Agreement, as applicable or (e) in the case of any unsecured Indebtedness that is junior in right of payment incurred or issued in a Permitted Refinancing in respect of any Incremental Equivalent Debt, any Permitted Pari Passu Secured Refinancing Debt, any Permitted Junior Secured Refinancing Debt or any Permitted Refinancing in respect of any of the foregoing, in each case, such Indebtedness incurred or issued in such Permitted Refinancing is subject to a Subordination Agreement or other Intercreditor Agreement, as applicable. Any reference to a Permitted Refinancing in this Agreement or any other Loan Document shall be interpreted to mean (a) a Permitted Refinancing of the subject Indebtedness and (b) any further refinancings constituting a Permitted Refinancing of the Indebtedness resulting from a prior Permitted Refinancing.

 

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“Permitted Transferees” means (i) any Affiliate of any of the Equity Sponsors (other than any portfolio operating company of any of the foregoing), (ii) any managing director, general partner, limited partner, director, officer or employee of an Equity Sponsor or any Person described in clause (i) above (collectively, the “Sponsor Associates”), (iii) the heirs, executors, administrators, testamentary trustees, legatees or beneficiaries of any Sponsor Associate and (iv) any trust, the beneficiaries of which, or a corporation or partnership, the stockholders or partners of which, include only a Sponsor Associate, his or her spouse, parents, siblings, members of his or her immediate family (including adopted children and step children) and/or direct lineal descendants.

“Permitted Unsecured Refinancing Debt” has the meaning specified in Section 2.15(i).

“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership (including any exempted limited partnership), Governmental Authority or other entity.

“Platform” has the meaning specified in the last paragraph of Section 6.02.

“Pledged Borrower Equity Interests” means all of Holdings’ right title and interest in and to the Equity Interests of the Borrower, the certificates, if any, representing such Equity Interests, and all proceeds of such Equity Interests.

“Pledged Collateral” has the meaning specified in the Security Agreement and the Holdings Pledge Agreement, as applicable.

“Previous Holdings” has the meaning specified in the definition of “Holdings”.

“Pro Forma Basis” and “Pro Forma Effect” mean, with respect to compliance with any test or covenant or calculation hereunder, or the calculation of Consolidated Tangible Assets, Consolidated EBITDA or LQA Consolidated EBITDA hereunder, the determination or calculation of such test, covenant, ratio or Consolidated Net Income, Consolidated Tangible Assets, Consolidated EBITDA or LQA Consolidated EBITDA (including in connection with Specified Transactions) in accordance with Section 1.08.

“Pro Rata Share” means, with respect to each Lender under any one or more applicable Facilities or Classes at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Commitment and, if applicable and without duplication, Term Loans of such Lender under the applicable Facility or Facilities (or Class or Classes, as the case may be) at such time and the denominator of which is the amount of the Aggregate Commitments of all Lenders under the applicable Facility or Facilities (or Class or Classes, as the case may be) and, if applicable and without duplication, Term Loans of all Lenders under the applicable Facility or Facilities (or Class or Classes, as the case may be) at such time; provided that, in the case of the Revolving Credit Commitments of any Facility or Class, if such Commitment has been terminated, then the Pro Rata Share of each Lender shall be determined based on the Pro Rata Share of such Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof.

 

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“Public Company Costs” means costs relating to compliance with the Sarbanes-Oxley Act of 2002, as amended, and other expenses arising out of or incidental to Holdings’ (or any direct or indirect parent thereof which do not own other Subsidiaries besides Holdings, its Subsidiaries and any other direct or indirect parents of Holdings) status as a reporting company, including costs, fees and expenses (including legal, accounting and other professional fees) relating to compliance with provisions of the Securities Act and the Exchange Act, the rules of securities exchange companies with listed equity securities, directors’ compensation, fees and expense reimbursement, shareholder meetings and reports to shareholders, directors’ and officers’ insurance and other executive costs, legal and other professional fees, and listing fees.

“Public Lender” has the meaning specified in the last paragraph of Section 6.02.

“QFC Credit Support” has the meaning specified in Section 10.25.

“Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity Interests.

“Qualified Holding Company Debt” means unsecured Indebtedness of Holdings

(A) that is not subject to any Guarantee by any Subsidiary of Holdings, (B) that will not mature prior to the Latest Maturity Date in effect on the date of issuance or incurrence thereof, (C) that has no scheduled amortization or scheduled payments of principal and is not subject to mandatory redemption, repurchase, prepayment or sinking fund obligations (it being understood that such Indebtedness may have mandatory prepayment, repurchase or redemption provisions satisfying the requirements of clause (E) below and AHYDO Catch-Up Payments), (D) that does not require any payments in cash of interest or other amounts in respect of the principal thereof prior to the earlier to occur of (1) the date that is four (4) years from the date of the issuance or incurrence thereof and (2) the date that is not earlier than the Latest Maturity Date in effect on the date of such issuance or incurrence (it being understood that such Indebtedness may have mandatory prepayment, repurchase or redemption provisions satisfying the requirements of the following clause (E)) and (E) that, to the extent the same are included therein, has mandatory prepayment, repurchase or redemption, covenant, default and remedy provisions customary for senior discount notes of an issuer that is the parent of a borrower under secured credit facilities, and in any event, with respect to covenant, default and remedy provisions, no more restrictive (taken as a whole) than those set forth in this Agreement (other than provisions customary for senior discount notes of a holding company); provided that the Borrower shall have delivered a certificate of a Responsible Officer to the Administrative Agent at least two (2) Business Days prior to the incurrence of such Indebtedness stating that the Borrower has reasonably determined in good faith that such terms and conditions satisfy the foregoing requirement (and such certificate shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such two (2) Business Day period that it disagrees with such determination (including a reasonably detailed description of the basis upon which it disagrees)).

“Qualifying IPO “ means any transaction or series of related transactions whereby, or upon the consummation of which common Equity Interests of Holdings (or any direct or indirect parent of Holdings) are offered or sold (whether through an initial primary underwritten public offering or otherwise) pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act, or to the equivalent registration documents filed with the equivalent authority in the applicable foreign jurisdiction, (whether alone or in connection with a secondary public offering).

“Qualifying Lender” has the meaning specified in Section 2.05(a)(v)(D)(3).

 

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“Quality of Earnings Report” means the quality of earnings report with respect to the Company dated 13 February 2020, delivered by the Equity Sponsor to the Lead Arrangers in connection with the Transaction.

“Receivables Financier” means (a) any “Lender” (or similar term, in each case, under and as defined in the Securitization Credit Agreement) and (b) any other Person that is not the Borrower or any Subsidiary or Affiliate of the Borrower (other than a Receivables Financing SPC), in each case, that acts as the investor or lender with respect to the Securitization Facility, the Factoring Facility and/or any other Permitted Receivables Financing.

“Receivables Financing SPC” means, in respect of the Securitization Facility, the Factoring Facility and/or any other Permitted Receivables Financing, Cincinnati Bell Funding LLC, Cincinnati Bell Funding Canada LTD and any other Subsidiary or Affiliate of the Borrower to which the Borrower or any Restricted Subsidiary sells, contributes or otherwise conveys any Transferred Assets in connection with the Securitization Facility, the Factoring Facility and/or such other Permitted Receivables Financing.

“Reference Date” has the meaning specified in the definition of “Available Amount.”

“Refinanced Debt” has the meaning specified in Section 2.15(a).

“Refinanced Loans” has the meaning specified in Section 2.15(i).

“Refinancing Amendment” has the meaning specified in Section 2.15(f).

“Refinancing Commitments” has the meaning specified in Section 2.15(a).

“Refinancing Equivalent Debt” has the meaning specified in Section 2.15(i).

“Refinancing Facility Closing Date” has the meaning specified in Section 2.15(d).

“Refinancing Lenders” has the meaning specified in Section 2.15(c).

“Refinancing Loan” has the meaning specified in Section 2.15(b).

“Refinancing Loan Request” has the meaning specified in Section 2.15(a).

“Refinancing Revolving Credit Commitments” has the meaning specified in Section 2.15(a).

“Refinancing Revolving Credit Lender” has the meaning specified in Section 2.15(c).

“Refinancing Revolving Credit Loan” has the meaning specified in Section 2.15(b).

“Refinancing Term Commitments” has the meaning specified in Section 2.15(a).

“Refinancing Term Lender” has the meaning specified in Section 2.15(c).

“Refinancing Term Loan” has the meaning specified in Section 2.15(b).

 

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“Register” has the meaning specified in Section 10.07(c).

“Regulation S-X” means Regulation S-X under the Securities Act.

“Rejection Notice” has the meaning specified in Section 2.05(b)(viii).

“Related Indemnified Person” of an Indemnitee means (a) any Controlling Person or Controlled Affiliate of such Indemnitee, (b) the respective directors, officers, members, or employees of such Indemnitee or any of its Controlling Persons or Controlled Affiliates and (c) the respective agents of such Indemnitee or any of its Controlling Persons or Controlled Affiliates, in the case of this clause (c), acting at the instructions of such Indemnitee, Controlling Person or such Controlled Affiliate; provided that each reference to a Controlled Affiliate or Controlling Person in this definition shall pertain to a Controlled Affiliate or Controlling Person involved in the negotiation or syndication of the Facilities.

“Release” means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the Environment or within, from or into any building, structure, facility, landfill or fixture.

“Removal Effective Date” has the meaning specified in Section 9.09(b).

“Replaced Term Loans” has the meaning specified in Section 10.01(B)(c).

“Replacement Term Loans” has the meaning specified in Section 10.01(B)(c).

“Reportable Event “ means, with respect to any Pension Plan, any of the events set forth in Section 4043(c) of ERISA or the regulations issued thereunder, other than events for which the thirty (30) day notice period has been waived.

“Representative” means, with respect to any series of Indebtedness and any Permitted Refinancing of the foregoing, the trustee, administrative agent, collateral agent, security agent or similar agent or representative or sole creditor under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.

“Repricing Transaction” means (i) any prepayment or repayment of all or a portion of the Initial Term B-1 Loans or Term B-2 Loans, as applicable, with the proceeds of, or any conversion or replacement of Initial Term B-1 Loans or Term B-2 Loans, as applicable, into, any new, converted or replacement tranche of broadly syndicated Dollar-denominated secured term loans secured by liens on the Collateral on an equal priority basis with the Initialsuch Term B-1 Loans or Term B-2 Loans, as applicable, the primary purpose of which is to reduce the All-In Yield of such term loans relative to the All-In Yield of the Initialsuch Term B-1 Loans made on the Closingor Term B-2 Loans, as applicable, outstanding on the Amendment No. 1 Effective Date that are so prepaid, repaid or converted; and (ii) any amendment to this Agreement the primary purpose of which is to reduce the All-In Yield applicable to the Initial Term B-1 Loans or Term B-2 Loans, as applicable; but excluding, in any such case, any refinancing or repricing of Initialsuch Term B-1 Loans or Term B-2 Loans, as applicable, or amendment to this Agreement in connection with (w) any Change of Control, (x) any Qualifying IPO, (y) any Transformative Event or (z) any other transaction not permitted by the covenants in any Loan Document (including those contained in Articles VI and VII of this Agreement).

“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Term Loans or Revolving Credit Loans, a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.

 

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“Required Facility Lenders” means, with respect to any Facility on any date of determination, Lenders having more than 50% of the sum of (i) the Total Outstandings (with the aggregate Dollar Amount as of such date of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans under such Facility being deemed “held” by such Lender for purposes of this definition) under such Facility and (ii) the aggregate unused Commitments under such Facility; provided that (a) the unused Commitments of, and the portion of the Total Outstandings under such Facility or Facilities held, or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of the Required Facility Lenders, (b) the calculation of Required Facility Lenders is subject to the provisions of Section 10.07(e)(ii) with respect to Voting Participants and (c) to the same extent set forth in Section 10.07(i) with respect to determination of Required Lenders, the Loans of any Affiliated Lender or Fund Affiliate shall in each case be excluded for purposes of making a determination of Required Facility Lenders.

“Required Initial Revolving Credit Lenders” means, as of any date of determination, Initial Revolving Credit Lenders having more than 50% of the sum of the Dollar Amount of (i)(a) the Initial Revolving Credit Commitments or (b) after the termination of Initial Revolving Credit Commitments, the Initial Revolving Credit Exposure plus (ii) the Initial Term B-1 Loans held by such Initial Revolving Credit Lenders; provided that the Revolving Credit Commitment and Revolving Credit Exposure of any Defaulting Lender shall be excluded for the purposes of making a determination of Required Revolving Credit Lenders; provided, further, that the Revolving Credit Commitment and Revolving Credit Exposure of any Affiliated Lender or Fund Affiliate shall in each case be excluded for purposes of making a determination of Required Revolving Credit Lenders to the extent set forth in Section 10.07(i).

“Required Lenders” means, as of any date of determination, Lenders having more than 50% of the sum of the (a) Total Outstandings (with the aggregate Dollar Amount as of such date of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition), (b) aggregate unused Term Commitments and (c) aggregate unused Revolving Credit Commitments; provided that (i) the unused Term Commitment and unused Revolving Credit Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders, (ii) the calculation of Required Lenders is subject to the provisions of Section 10.07(e)(ii) with respect to Voting Participants and (iii) the Loans of any Affiliated Lender or Fund Affiliate shall in each case be excluded for purposes of making a determination of Required Lenders to the extent set forth in Section 10.07(i).

“Required Revolving Credit Lenders” means, as of any date of determination, Revolving Credit Lenders having more than 50% of the sum of the Dollar Amount of (a) the Revolving Credit Commitments or (b) after the termination of Revolving Credit Commitments, the Revolving Credit Exposure; provided that the Revolving Credit Commitment and Revolving Credit Exposure of any Defaulting Lender shall be excluded for the purposes of making a determination of Required Revolving Credit Lenders; provided, further, that the Revolving Credit Commitment and Revolving Credit Exposure of any Affiliated Lender or Fund Affiliate shall in each case be excluded for purposes of making a determination of Required Revolving Credit Lenders to the extent set forth in Section 10.07(i).

 

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“Required Term Lenders” means, as of any date of determination, Term Lenders having more than 50% of the sum of the Outstanding Amount of Term Commitments (to the extent the Loans pursuant thereto would be permitted to be incurred hereunder) and Term Loans; provided that the unused Term Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Term Lenders; provided, further, that, (a) the calculation of Required Term Lenders is subject to the provisions of Section 10.07(e)(ii) with respect to Voting Participants and (b) to the same extent set forth in Section 10.07(i) with respect to determination of Required Lenders, the Term Loans and any Term Commitment of any Affiliated Lender or Fund Affiliate shall in each case be excluded for purposes of making a determination of Required Term Lenders.

“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

“Responsible Officer” means the chief executive officer, president, any senior vice president, vice president, chief financial officer, chief operating officer, chief administrative officer, secretary, assistant secretary, controller, treasurer or assistant treasurer or other similar officer or Person performing similar functions of a Loan Party (or, in the case of any such Person that is a Foreign Subsidiary, director or managing partner or similar official) and, solely for purposes of notices given pursuant to Article II, any other officer of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party. Unless otherwise specified, all references herein to a “Responsible Officer” shall refer to a Responsible Officer of the Borrower.

“Restricted” means, when referring to cash or Cash Equivalents of the Borrower or any of its Restricted Subsidiaries, that such cash or Cash Equivalents appear (or would be required to appear) as “restricted” on a consolidated balance sheet of the Borrower or such Restricted Subsidiary (unless such appearance is related to the Loan Documents (or the Liens created thereunder) or other Indebtedness permitted under Section 7.03 which is permitted to be secured by a Lien on the Collateral).

“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of the Borrower or any of its Restricted Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to the Borrower’s or any Restricted Subsidiary’s equity holders, partners or members (or the equivalent Persons thereof); provided that it is expressly understood and agreed that (i) the payment of compensation in the ordinary course of business to future, present or former officers, directors, members of management or consultants and employees of Holdings, the Borrower or any Restricted Subsidiary shall be deemed not to be Restricted Payments unless such compensation is made to such officers, directors, members of management or consultants and employees solely in their capacities as holders of Equity Interests in the Borrower or any Restricted Subsidiary and (ii) payments of intercompany indebtedness by any Loan Party or its Subsidiaries to the Borrower or any of its Subsidiaries otherwise permitted under this Agreement shall be deemed not to be Restricted Payments but payments on intercompany indebtedness to Holdings or any intercompany investment by the Borrower or any of its Subsidiaries in Holdings shall be treated as a Restricted Payment.

“Restricted Subsidiary” means any Subsidiary of the Borrower other than an Unrestricted Subsidiary.

 

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“Return” means, with respect to any Investment, any dividend, distribution, interest, fee, premium, return of capital, repayment of principal, income, profit (from a disposition or otherwise) and any other amount received or realized in respect thereof.

“Revaluation Date” means, (a) with respect to Revolving Credit Loans denominated in an Alternative Currency the date of the borrowing thereof and, thereafter, as of the first day of each Interest Period applicable thereto and (b) with respect to any Letter of Credit denominated in an Alternative Currency, each of the following: (i) each date of issuance of a Letter of Credit, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof, (iii) each date of any payment by an L/C Issuer under any Letter of Credit denominated in an Alternative Currency and (iv) such additional dates as the Administrative Agent or the applicable L/C Issuer thereof shall reasonably determine.

“Revolving Commitment Increase” has the meaning specified in Section 2.14(a).

“Revolving Credit Borrowing” means a borrowing consisting of Revolving Credit Loans of the same Type and, in the case of Eurocurrency RateSOFR Loans, having the same Interest Period made by each of the Revolving Credit Lenders pursuant to Section 2.01(b).

“Revolving Credit Commitment” means, as to each Revolving Credit Lender, its obligation to (a) make Revolving Credit Loans to the Borrower pursuant to Section 2.01(b), (b) purchase participations in L/C Obligations in respect of Letters of Credit and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth, and opposite such Lender’s name on Schedule 2.01 under the caption “Revolving Credit Commitment” or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be (a) reduced, replaced, extended or otherwise adjusted from time to time in accordance with this Agreement and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Lender pursuant to an Assignment and Assumption, (ii) an Incremental Amendment, (iii) a Refinancing Amendment, or (iv) an Extension Amendment. The amount of each Lender’s Initial Revolving Credit Commitment as of the Closing Date is set forth on Schedule 2.01 under the caption “Initial Revolving Credit Commitment”; the amount of each Lender’s Initial Revolving Credit Commitment as of the Amendment No. 1 Effective Date is set forth on Schedule I to Amendment No. 1 under the caption “Aggregate Revolving Credit Commitments”; and the amount of each Lender’s other Revolving Credit Commitments shall be as set forth in the Assignment and Assumption, Incremental Amendment, Refinancing Amendment, Extension Amendment or other applicable amendment to this Agreement pursuant to which such Lender shall have assumed its Revolving Credit Commitment, as the case may be, as such amounts may be adjusted from time to time in accordance with this Agreement.

“Revolving Credit Exposure” means, at any time, as to each Revolving Credit Lender in connection with each applicable Class or Classes of Revolving Credit Commitments, the sum of the outstanding principal Dollar Amount of such Revolving Credit Lender’s Revolving Credit Loans under such Class or Classes of Revolving Credit Commitments, as applicable, at such time and the Dollar Amount of its Pro Rata Share, or other applicable share provided for under this Agreement, of the L/C Obligations and the Swing Line Obligations at such time.

“Revolving Credit Extension Election” has the meaning specified in Section 2.18(b).

 

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“Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving Credit Lenders’ Revolving Credit Commitments at such time under any Class or Classes of Revolving Credit Commitments, as applicable.

“Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit Commitment and/or Revolving Credit Exposure at such time under any Class or Classes of Revolving Credit Commitments, as applicable.

“Revolving Credit Loan” means any revolving credit loan made by a Revolving Credit Lender pursuant to the applicable Revolving Credit Commitments of such Revolving Credit Lenders.

“Revolving Credit Loan Extension Series” has the meaning specified in Section 2.18(a).

“Revolving Credit Note” means a promissory note of the Borrower payable to any Revolving Credit Lender or its registered assigns, in substantially the form of Exhibit D-2 hereto, evidencing the aggregate Indebtedness of the Borrower to such Revolving Credit Lender resulting from the Revolving Credit Loans held by such Revolving Credit Lender.

“Revolving Credit Percentage” of any Revolving Credit Lender at any time means a fraction (expressed as a percentage) the numerator of which is the Revolving Credit Commitment of such Revolving Credit Lender at such time and the denominator of which is the aggregate Revolving Credit Commitments of all Revolving Credit Lenders at such time; provided that if the Revolving Credit Percentage of any Revolving Credit Lender is to be determined after all Revolving Credit Commitments for the Revolving Credit Facility have been terminated, then the Revolving Credit Percentage of such Revolving Credit Lender shall be determined immediately prior (and without giving effect) to such termination (but giving effect to assignments made thereafter in accordance with the terms hereof); provided, further, that in the case of Section 2.19 when a Defaulting Lender shall exist, “Revolving Credit Percentage” shall mean the percentage of the aggregate Revolving Credit Commitments for the Revolving Credit Facility (disregarding any Defaulting Lender’s Revolving Credit Commitment) represented by such Lender’s Revolving Credit Commitment.

“Rollover Equity Amount” means the fair market value of any equity of management and existing shareholders of the Company or its affiliates retained, rolled over or invested in connection with the Transaction.

“S&P” means Standard & Poor’s Rating Services, or any successor thereto.

“Same Day Funds” means disbursements and payments in immediately available funds.

“Sanctions Laws and Regulations” means any sanctions or requirements imposed by, or based upon the obligations or authorities set forth in, the Executive Order, the USA PATRIOT Act of 2001 (the “PATRIOT Act”), the U.S. Trading with the Enemy Act (50 U.S.C. App. §§ 1 et seq.), the International Emergency Economic Powers Act (50 U.S.C. §§ 1701 et seq.), or any other law or executive order relating to economic or financial sanctions administered by the U.S. Department of the Treasury Office of Foreign Assets Control (“OFAC”), the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority.

“SDN” has the meaning specified in the definition of “Designated Person.”

 

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“SEC” means the U.S. Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

“Secured Cash Management Agreement” means any Cash Management Obligation permitted under Article VII that is entered into by and between Holdings, the Borrower or any Restricted Subsidiary and any Cash Management Bank.

“Secured Hedge Agreement “ means any Swap Contract permitted under Article VII that is entered into by and between Holdings, the Borrower or any Restricted Subsidiary and any Hedge Bank.

“Secured Net Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Secured Net Debt as of the last day of such Test Period to (b) LQA Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for such Test Period.

“Secured Parties” means, collectively, the Administrative Agent, the Lenders, each L/C Issuer, each Hedge Bank, each Cash Management Bank, the Supplemental Administrative Agent and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05.

“Securities Act” means the Securities Act of 1933, as amended.

“Securitization Credit Agreement” means the Receivables Financing Agreement, dated as of May 10, 2018, among Cincinnati Bell Funding, LLC and Cincinnati Bell Funding Canada Ltd., as borrowers, the Borrower and OnX Enterprise Solutions Ltd., as servicers, the Securitization Facility Agent, the lenders party thereto and the other parties party thereto.

“Securitization Facility” means the credit facility evidenced by the Securitization Facility Loan Documents.

“Securitization Facility Agent” means PNC Bank, National Association, as administrator, pursuant to the Securitization Facility Loan Documents, and any successor appointed in accordance with the Securitization Facility Loan Documents.

“Securitization Facility Canadian Purchase Agreement” means the Canadian Purchase and Sale Agreement, dated as of May 10, 2018, among OnX Enterprise Solutions Ltd., as servicer, Cincinnati Bell Funding Canada Ltd., as purchaser, and certain Subsidiaries of the Borrower party thereto, as originators.

“Securitization Facility Guaranty” means the Amended and Restated Performance Guaranty, dated as of May 10, 2018, by the Borrower in favor of PNC Bank, National Association, as administrator, under the Securitization Credit Agreement.

“Securitization Facility Loan Documents” means the Securitization Credit Agreement, the “Transaction Documents” (as defined in the Securitization Credit Agreement), the Securitization Facility Canadian Purchase Agreement, the Securitization Facility U.S. Purchase Agreement, the Securitization Facility Guaranty and the Securitization Facility Security Documents.

“Securitization Facility Security Documents” means the security agreements, pledge agreements, mortgages and other security documents entered into pursuant to the Securitization Credit Agreement in which Liens are granted on the Collateral to the Securitization Facility Agent for its benefit and/or the benefit of any “Lender” under and as defined in the Securitization Credit Agreement.

 

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“Securitization Facility U.S. Purchase Agreement “ means the Second Amended and Restated Purchase and Sale Agreement, dated as of May 10, 2018, among the Borrower, as servicer, Cincinnati Bell Funding, LLC, and certain Subsidiaries of the Borrower party thereto, as originators.

“Security Agreement” means, collectively, the Security Agreement executed by the Loan Parties (other than Holdings), substantially in the form of Exhibit G-1, together with any Security Agreement Supplement executed and delivered pursuant to Section 6.12, as amended, restated amended and restated, supplemented or otherwise modified from time to time.

“Security Agreement Supplement” has the meaning specified in the Security Agreement.

“SOFR ” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.

“SOFR Administrator ” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).

“SOFR Borrowing ” means, as to any Borrowing, the SOFR Loans comprising such Borrowing.

“SOFR Loan” means a Loan that bears interest at a rate based on Adjusted Term SOFR, other than pursuant to clause (c) of the definition of “Base Rate”.

“Solicited Discount Proration” has the meaning specified in Section 2.05(a)(v)(D)(3).

“Solicited Discounted Prepayment Amount” has the meaning specified in Section 2.05(a)(v)(D)(1).

“Solicited Discounted Prepayment Notice” means a written notice of the Borrower of Solicited Discounted Prepayment Offers made pursuant to Section 2.05(a)(v)(D) substantially in the form of Exhibit L.

“Solicited Discounted Prepayment Offer” means the irrevocable written offer by each Lender, substantially in the form of Exhibit M, submitted following the Auction Agent’s receipt of a Solicited Discounted Prepayment Notice.

“Solicited Discounted Prepayment Response Date” has the meaning specified in Section 2.05(a)(v)(D)(1).

“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the assets of such Person and its Subsidiaries, taken as a whole, exceeds the debt (including the contingent liabilities of such Person and its Subsidiaries, taken as a whole, (b) the present fair saleable value of the assets of such Person and its Subsidiaries, taken as a whole, is greater than the amount that will be required to pay the probable liabilities, of such Person and its Subsidiaries, taken as a whole, on their debts as they become absolute and matured, (c) such Person and its Subsidiaries, taken as a whole, are able to pay their debts and liabilities ( subordinated, contingent or otherwise), as such liabilities become absolute and matured in the ordinary course of business and (d) the capital of such Person and its Subsidiaries, taken as a whole, is not unreasonably small in relation to the business of such Person and its Subsidiaries, taken as a whole. 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 and matured liability.

 

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“SPC” has the meaning specified in Section 10.07(g).

“Specified Acquisition Agreement Representations” means the representations and warranties relating to the Company and its businesses made by or with respect to the Company in the Closing Date Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that Holdings or its Affiliates has the right to decline to consummate the Closing Date Acquisition or to terminate the obligations of Holdings under the Closing Date Acquisition Agreement as a result of a breach of such representations and warranties in the Closing Date Acquisition Agreement.

“Specified Default” means any Event of Default under Sections 8.01(a) or (f) (solely with respect to the Borrower).

“Specified Discount” has the meaning specified in Section 2.05(a)(v)(B)(1).

“Specified Discount Prepayment Amount” has the meaning specified in Section 2.05(a)(v)(B)(1).

“Specified Discount Prepayment Notice” means a written notice of the Borrower of an offer of Specified Discount prepayment made pursuant to Section 2.05(a)(v)(B) substantially in the form of Exhibit N.

“Specified Discount Prepayment Response” means the irrevocable written response by each Lender, substantially in the form of Exhibit O, to a Specified Discount Prepayment Notice.

“Specified Discount Prepayment Response Date” has the meaning specified in Section 2.05(a)(v)(B)(1).

“Specified Discount Proration” has the meaning specified in Section 2.05(a)(v)(B)(3).

“Specified Equity Contribution” means any, direct or indirect, cash contribution to the common equity or capital of Holdings or the Borrower and/or any purchase of, or investment in, any Qualified Equity Interest of Holdings or the Borrower, in each case, to the extent contributed to the common equity of the Borrower designated as a “Specified Equity Contribution” in accordance with Section 8.04.

“Specified FOCI Assets” means the assets described on Schedule 1.01(a), and such other assets of the Borrower and its Restricted Subsidiaries as may be required by a Governmental Authority in connection with the approval of the FOCI Mitigation Plan by such Governmental Authority.

“Specified Legal Expenses” means, to the extent not constituting an extraordinary, non-recurring or unusual loss, charge or expense, all attorneys’ and experts’ fees and expenses and all other costs, liabilities (including all damages, penalties, fines and indemnification and settlement payments) and expenses paid or payable in connection with any threatened, pending, completed or future claim, demand, action, suit, proceeding, inquiry or investigation (whether civil, criminal, administrative, governmental or investigative).

 

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“Specified Non-Recourse Obligation” means, as of any date of determination, (a) solely to the extent any such obligation is non-recourse to any stock or assets of any Loan Party or Restricted Subsidiary other than to the equity interests of the relevant Unrestricted Subsidiary, a Guarantee by any Loan Party and/or Restricted Subsidiary of Non-Recourse Debt of any Unrestricted Subsidiary, (b) any contingent obligations of any Loan Party and/or Restricted Subsidiary to make capital contributions to an Unrestricted Subsidiary to the extent such capital contribution was permitted to be made at the time such contingent obligation was entered into, (c) any agreement by any Loan Party and/or Restricted Subsidiary to provide credit support to an Unrestricted Subsidiary in the form of letters of credit or surety instruments issued by, or to the account of, such Loan Party or Restricted Subsidiary, (d) any agreement of any Loan Party and/or Restricted Subsidiary to provide, on an arms’ length basis, corporate, management, marketing, administrative, technical, energy management or marketing, engineering, procurement, construction, operation and/or maintenance services to such Unrestricted Subsidiary and/or (e) any agreement containing hedging obligations, commercial or trading agreements and other similar agreements entered into between any Loan Party with any Unrestricted Subsidiary or otherwise involving any Unrestricted Subsidiary; provided that, in the case of each of preceding clauses (b) through (e), the lenders of any applicable Non-Recourse Debt have agreed that any such Guarantee and/or other agreement is non-recourse to any stock or assets of such Loan Party or such Restricted subsidiary other than to the equity interests of the relevant Unrestricted Subsidiary.

“Specified Representations” means those representations and warranties made by the Borrower and, to the extent applicable, Holdings in Section 5.01(a) (with respect to organizational existence of the Loan Parties only), Section 5.01(b)(ii), Section 5.02(a), Section 5.02(b)(A), Section 5.04, Section 5.13, Section 5.16, Section 5.18 (solely with respect to the use of proceeds of the Loans not violating OFAC, the FCPA or the PATRIOT Act) and Section 5.19 (subject to the penultimate paragraph of Section 4.01 (which paragraph shall be deemed to be modified mutatis mutandis to refer to the closing date of the relevant Incremental Amendment in connection with any condition in connection with an Incremental Amendment)).

“Specified Transaction” means any Investment that results in a Person becoming a Restricted Subsidiary, any designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary, any Permitted Acquisition, any other permitted acquisition or Investment, any Disposition that results in a Restricted Subsidiary ceasing to be a Subsidiary of the Borrower or constitutes a Disposition of a line of business or division that has an identifiable earnings stream, any Disposition contemplated by the Closing Date Acquisition Agreement, any Investment constituting an acquisition of assets constituting a business unit, line of business or division of another Person or any Disposition of a business unit, line of business or division of Holdings, the Borrower or a Restricted Subsidiary, in each case, whether by merger, consolidation, amalgamation or otherwise, any incurrence or repayment of Indebtedness, including any New Term Loans or New Revolving Credit Loans, any Restricted Payment, obtaining of any New Revolving Credit Commitments (other than the incurrence or repayment of Indebtedness under any existing and continuing revolving credit facility in the ordinary course of business for working capital purposes), any Restricted Payment, any material changes in customer, supplier or other commercial contracts or arrangements identified by the Borrower or new material customer, supplier or other commercial contracts or arrangements identified by the Borrower, including (i) material changes to amounts to be paid by or received by Loan Parties and (ii) material changes to contracted or implemented revenue, any restructuring of the business of the Borrower identified by the Borrower, whether by merger, consolidation, amalgamation or otherwise, or any transactions of the type given pro forma effect in (x) the Sponsor Model or (y) the Quality of Earnings Report and/or any quality of earnings report prepared by a nationally recognized accounting firm and furnished to the Administrative Agent in connection with a Permitted Acquisition or other Investment consummated after the Closing Date and/or any other event or action, that by the terms of this Agreement requires Consolidated EBITDA, LQA Consolidated EBITDA, Consolidated Tangible Assets, Consolidated Net Income or a financial ratio or test to be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect.”

 

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“Sponsor Associates” has the meaning specified in the definition of “Permitted Transferees.”

“Sponsor Model” means that certain financial model delivered by the Equity Sponsor to the Joint Lead Arrangers on March 26, 2020 (together with any updates or modifications thereto reasonably agreed between the Equity Sponsor and the Joint Lead Arrangers).

“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the FRB to which the Administrative Agent is subject with respect to the Adjusted Eurocurrency Rate, for Eurocurrency Rate funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the FRB). Such reserve percentages shall include those imposed pursuant to such Regulation D. Eurocurrency Rate Loans shall be deemed to constitute Eurocurrency Rate funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

“Submitted Amount” has the meaning specified in Section 2.05(a)(v)(C)(1).

“Submitted Discount” has the meaning specified in Section 2.05(a)(v)(C)(1).

“Subordination Agreement” means a customary (at the time required to be entered into, as determined by the Borrower (provided that a certificate of the Borrower delivered to the Administrative Agent at least five (5) Business Days prior to such required time (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) stating that the Borrower has reasonably determined in good faith that such agreement is customary shall be conclusive evidence that such agreement satisfies the foregoing requirement unless the Administrative Agent notifies the Borrower within such five (5) Business Day period (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) that it disagrees with such determination (including a reasonably detailed description of the basis upon which it disagrees))) subordination agreement among the Administrative Agent and one or more Representatives for the holders of the applicable unsecured Indebtedness that is junior in right or payment to the Obligations.

“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity (excluding, for the avoidance of doubt, charitable foundations) of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.

“Subsidiary Guarantor” means any Guarantor other than the Borrower and Holdings.

 

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“Supplemental Administrative Agent” and “Supplemental Administrative Agents” have the meanings specified in Section 9.12(a).

“Supported QFC” has the meaning specified in Section 10.25.

“Swap Contract “ means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

“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.

“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined in good faith by the Borrower.

“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.

“Swing Line Facility” means the revolving credit facility made available by the Swing Line Lender pursuant to Section 2.04.

“Swing Line Lender” means Goldman Sachs, in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.

“Swing Line Loan” has the meaning specified in Section 2.04(a).

“Swing Line Loan Exposure” means, at any time, the aggregate principal amount of all Swing Line Loans outstanding at such time. The Swing Line Loan Exposure of any Revolving Credit Lender at any time shall be its Revolving Credit Percentage of the aggregate Swing Line Loan Exposure at such time.

“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit B-2 or such other form as approved by the Swing Line Lender (including any form on an electronic platform or electronic transmission system as shall be approved by the Swing Line Lender), appropriately completed and signed or authenticated by a Responsible Officer of the Borrower.

 

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“Swing Line Note” means the promissory note of the Borrower payable to the Swing Line Lender or its registered assigns, in substantially the form of Exhibit D-3 hereto, evidencing the aggregate Indebtedness of the Borrower to the Swing Line Lender resulting from Swing Line Loans made by the Swing Line Lender.

“Swing Line Obligations” means, as at any date of determination, the aggregate principal amount of all Swing Line Loans outstanding.

“Swing Line Sublimit” means an amount equal to the lesser of (a) $10,000,000 and (b) the aggregate amount of the Revolving Credit Commitments. The Swing Line Sublimit is part of, and not in addition to, the Revolving Credit Commitments.

“Taxes” has the meaning specified in Section 3.01(a).

“Term B-1 Commitments” means, collectively, the Initial Term Commitments and the New Term B-1 Commitments.

“Term B-1 Loans” means the Initial Term Loans as increased by the New Term B-1 Loans on the Amendment No. 1 Effective Date.

“Term B-1 Lenders” means, collectively, the Initial Term Lenders and the New Term B-1 Lenders.

“Term B-2 Commitment” has the meaning specified in Amendment No. 1.

“Term B-2 Lenders” has the meaning specified in Amendment No. 1.

“Term B-2 Loans” has the meaning specified in Amendment No. 1.

“Term B Commitments” means, collectively, the Term B-1 Commitments and Term B-2 Commitments.

“Term Borrowing” means (a) a borrowing consisting of simultaneous Term Loans of the same Class and Type and, in the case of Eurocurrency RateSOFR Loans, having the same Interest Period made by each of the applicable Term Lenders pursuant to Section 2.01, (b) the making of a New Term Loan by a Lender or an Additional Lender to the Borrower pursuant to Section 2.14 and the applicable Incremental Amendment, (c) the making of a Refinancing Term Loan by a Lender or an Additional Lender to the Borrower pursuant to Section 2.15 and the applicable Refinancing Amendment,

(d) the making of an Extended Term Loan of a given Term Loan Extension Series by a Lender to the Borrower pursuant to Section 2.17 and the applicable Corrective Term Loan Extension Amendment and

(e) the making of a Replacement Term Loan by a Lender or an Additional Lender to the Borrower pursuant to Section 10.01(B)(c) and the applicable amendment to this Agreement in respect of such Replacement Term Loan.

“Term B Lenders” means, collectively, the Term B-1 Lenders and Term B-2 Lenders.

“Term B Loans” means, collectively, the Term B-1 Loans and Term B-2 Loans.

 

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“Term Commitment” means, as to each Term Lender, its obligation to make a Term Loan to the Borrower, expressed as an amount representing the maximum principal amount of the Term Loan to be made by such Lender under this Agreement, as such commitment may be (a) reduced from time to time pursuant to Section 2.06 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Lender pursuant to an Assignment and Assumption, (ii) an Incremental Amendment, (iii) a Refinancing Amendment, (iv) an Extension Amendment or (v) an amendment to this Agreement in respect of Replacement Term Loans. The amount of each Lender’s Initial Term Commitment as of the Closing Date is set forth on Schedule 2.01 under the caption “Initial Term Commitment”; the amount of each Lender’s New Term B-1 Commitment as of the Amendment No. 1 Effective Date is set forth on Schedule I to Amendment No. 1 under the caption “New Term B-1 Commitment”; the amount of each Lender’s Term B-2 Commitment as of the Amendment No. 1 Effective Date is set forth on Schedule I to Amendment No. 1 under the caption “Term B-2 Commitment”; and the amount of each Lender’s other Term Commitments shall be as set forth in the Assignment and Assumption, Incremental Amendment, Refinancing Amendment, Extension Amendment or amendment to this Agreement in respect of Replacement Term Loans pursuant to which such Lender shall have assumed its Term Commitment, as the case may be, as such amounts may be adjusted from time to time in accordance with this Agreement.

“Term Lender” means, at any time, any Lender that has a Term Commitment or a Term Loan at such time.

“Term Loan” means (i) the Initial Term B-1 Loans and, (ii) the Term B-2 Loans, and (iii) any New Term Loan, Refinancing Term Loan, Extended Term Loan or Replacement Term Loan effected pursuant to Section 2.14, Section 2.15, Section 2.17 or Section 10.01(B)(c) as applicable, and the related Incremental Amendment, Refinancing Amendment, Extension Amendment or amendment to this Agreement in respect of Replacement Term Loans.

“Term Loan Extension” means any establishment of Extended Term Commitments and Extended Term Loans pursuant to Section 2.17 and the applicable Extension Amendment.

“Term Loan Extension Election” has the meaning specified in Section 2.17(b).

“Term Loan Extension Series” has the meaning specified in Section 2.17(a).

“Term Loan Increase” has the meaning specified in Section 2.14(a).

“Term Note” means a promissory note of the Borrower payable to any Term Lender or its registered assigns, in substantially the form of Exhibit D-1 hereto, evidencing the aggregate Indebtedness of the Borrower to such Term Lender resulting from the Term Loans held by such Term Lender.

“Termination Date” has the meaning specified in Section 9.11(a).

“Term SOFR ” means,

(a) for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day, the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR

 

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Administrator and a Benchmark Transition Event with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and

(b) for any calculation with respect to an Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Transition Event with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate SOFR Determination Day.

“Term SOFR Adjustment” means, for any calculation with respect to a Base Rate Loan or a SOFR Loan, a percentage per annum as set forth below for the applicable Type of such Loan and (if applicable) Interest Period therefor:

Base Rate Loans: 0.10%

SOFR Loans:

 

Interest Period		Percentage
One month			0.10	%
Three months			0.15	%
Six months			0.25	%

“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).

“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.

“Test Period” in effect at any time means (a) with respect to the determination of the Secured Net Leverage Ratio or any calculation of LQA Consolidated EBITDA under any Loan Document, the most recently ended fiscal quarter for which financial statements have been or were required to be delivered pursuant to Section 6.01(b), and (b) for all other purposes hereunder, the most recent period of four consecutive fiscal quarters of the Borrower ended on or prior to such time (taken as one accounting period, in the case of Sections 6.01(a) and (b)) in respect of which financial statements

 

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