Form 8-K - Current report

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

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FORM 8-K

 

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CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of Report (Date of earliest event reported):

 

October 15, 2024

 

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GANNETT CO., INC.

 

(Exact Name of Registrant as Specified in Charter)

 

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Delaware	001-36097	38-3910250
(State or other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)

175 Sully's Trail, Suite 203, Pittsford, NY 14534

(Address of Principal Executive Offices)

 

[phone]

(Registrant’s telephone number, including area code)

 

Not Applicable

(Former name or former address if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

	Title of each class		Trading Symbol(s)		Name of each exchange on which registered
	Common Stock, par value $0.01 per share		GCI		New York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.

 

Emerging growth company ☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.

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Item 1.01

Entry into a Material Definitive Agreement.

 

Senior Secured Notes Exchange Offer

 

On October 15, 2024 (the “Early Settlement Date”), Gannett Co., Inc. (“Gannett”, “our” or the “Company”) and its wholly-owned subsidiary, Gannett Holdings LLC (“Gannett Holdings”), completed early settlement of their previously announced offer to exchange (the “Exchange Offer”) any and all outstanding 6.000% Senior Secured Notes due 2026 (the “Senior Secured Notes”) of Gannett Holdings, for, at the election of each holder of Senior Secured Notes, either (a) (i) first lien term loans (the “Term Loans”) under the Amended Credit Agreement (as defined below) and (ii) an upfront fee equal to 1.5% of such Term Loans (together with the Term Loans, the “Loan Option Consideration”); or (b) cash (the “Cash Option Consideration”). Pursuant to the Exchange Offer, $274,681,000 in aggregate principal amount of Senior Secured Notes, representing 98.61% of the Senior Secured Notes outstanding prior to the Exchange Offer, were tendered and accepted prior to 5:00 p.m., New York City time, on October 10, 2024, and were subsequently canceled. Senior Secured Notes in an aggregate principal amount of $40,428,000 were exchanged for the Loan Option Consideration, and Senior Secured Notes in an aggregate principal amount of $234,253,000 were exchanged for the Cash Option Consideration.

 

Pursuant to the Exchange Offer, Gannett (a)(i) issued Term Loans in an aggregate principal amount of $40,428,000 and (ii) paid aggregate cash upfront fees of $606,420, in each case, to holders of Senior Secured Notes who validly tendered and did not validly withdraw their Senior Secured Notes in the Exchange Offer and elected the Loan Option Consideration, and (b) paid aggregate cash consideration of $234,253,000 to holders of Senior Secured Notes who validly tendered and did not validly withdraw their Senior Secured Notes in the Exchange Offer and elected the Cash Option Consideration.

 

Following early settlement of the Exchange Offer, Gannett Holdings had outstanding $3,860,000 aggregate principal amount of Senior Secured Notes.

 

Senior Secured Notes Consent Solicitation

 

In connection with the Exchange Offer, the Company and Gannett Holdings solicited consents of the holders of the Senior Secured Notes to amend the indenture, dated as of October 15, 2021 (the “Senior Secured Notes Indenture”) governing the Senior Secured Notes to (i) eliminate substantially all of the restrictive covenants contained in the Senior Secured Notes Indenture, (ii) eliminate certain of the default provisions contained in the  Senior Secured Notes Indenture and (iii) amend certain related provisions to conform for such eliminations (collectively, the “Senior Secured Notes Proposed Amendments”). On October 10, 2024, Gannett announced that the requisite number of consents had been received to adopt the Senior Secured Notes Proposed Amendments. In connection therewith, on the Early Settlement Date, Gannett and Gannett Holdings entered into a supplemental indenture (the “Senior Secured Notes Supplemental Indenture”) with the trustee for the Senior Secured Notes to effect the Senior Secured Notes Proposed Amendments, but these amendments will become operative only upon final settlement of the Exchange Offer.

 

The foregoing description of the Senior Secured Notes Supplemental Indenture does not purport to be complete and is qualified in its entirety by reference to the Senior Secured Notes Supplemental Indenture, a copy of which is attached as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein by reference.

 

Convertible Notes Exchange and 2031 Convertible Notes Sale

 

On October 15, 2024, the Company completed privately negotiated transactions with certain holders of  Gannett’s 6.000% Convertible Senior Secured Notes due 2027 (the “2027 Convertible Notes), including, as previously announced, funds, accounts or other clients managed by Apollo Capital Management, L.P. or its affiliates (the “Apollo Funds”), pursuant to which it (i) repurchased a total of $223,613,869 in aggregate principal amount of 2027 Convertible Notes for cash at a rate of $1,110 per $1,000 principal amount of 2027 Convertible Notes and (ii) exchanged a total of $223,613,869 in aggregate principal amount of 2027 Convertible Notes for new 6.000% Senior Secured Convertible Notes due 2031 (as described below) (the “2031 Convertible Notes” and such repurchase and exchange, collectively, the “Convertible Notes Exchange” ). The $447,227,737 in aggregate principal amount of 2027 Convertible Notes exchanged pursuant to the Convertible Notes Exchange was subsequently canceled. Following such cancellation, Gannett had outstanding $38,058,263 aggregate principal amount of 2027 Convertible Notes.

 

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Pursuant to the Convertible Notes Exchange, on October 15, 2024, Gannett (a) issued 2031 Convertible Notes in an aggregate principal amount of $223,613,868 to former holders of 2027 Convertible Notes and (b) paid aggregate cash consideration of $248,211,394 to former holders of 2027 Convertible Notes.

 

Additionally, on October 15, 2024, the Company issued and sold $110,000 aggregate principal amount of 2031 Convertible Notes to certain of the Apollo Funds in a privately negotiated transaction (the “2031 Convertible Notes Sale”).

 

Following the completion of the Convertible Notes Exchange and the 2031 Convertible Notes Sale, the Company had outstanding $38,058,263 aggregate principal amount of 2027 Convertible Notes and $223,723,868 aggregate principal amount of 2031 Convertible Notes.

 

In connection with the Convertible Notes Exchange, on the Early Settlement Date, Gannett entered into a supplemental indenture (the “2027 Convertible Notes Supplemental Indenture”) with the trustee for the 2027 Convertible Notes to effect certain amendments to the indenture, dated as of November 17, 2020 (as amended, supplemented or otherwise modified, the “2027 Convertible Notes Indenture”), governing the 2027 Convertible Notes. The 2027 Convertible Notes Supplemental Indenture (i) eliminated substantially all of the restrictive covenants contained in the 2027 Convertible Notes Indenture, (ii) eliminated certain of the default provisions contained in the 2027 Convertible Notes Indenture and (iii) amended certain related provisions to conform for such eliminations.

 

The foregoing description of the 2027 Convertible Notes Supplemental Indenture does not purport to be complete and is qualified in its entirety by reference to the 2027 Convertible Notes Supplemental Indenture, a copy of which is attached as Exhibit 4.2 to this Current Report on Form 8-K and is incorporated herein by reference.

 

New 2031 Convertible Notes

 

The 2031 Convertible Notes were issued pursuant to an indenture, dated as of October 15, 2024, between the Company, the subsidiary guarantors party thereto from time to time and U.S. Bank Trust Company, National Association, as trustee (the “2031 Convertible Notes Indenture”).

 

The 2031 Convertible Notes are guaranteed by Gannett Holdings and all subsidiaries of the Company that are guarantors under the Amended Credit Agreement. The 2031 Convertible Notes rank as senior secured debt of the Company and are secured by liens that are junior to the liens securing the Term Loans and the Senior Secured Notes, but senior to the liens securing the 2027 Convertible Notes.

 

The Company will pay interest on the 2031 Convertible Notes at an annual rate of 6.000% payable on June 1 and December 1 of each year, beginning on December 1, 2024. The 2031 Convertible Notes will mature on December 1, 2031, unless earlier repurchased or converted.

 

 Each 2031 Convertible Note is convertible into that number of shares of common stock (“Common Stock”) of the Company equal to $1,000 divided by the Conversion Price. The 2031 Convertible Notes may be converted at any time by the holders into cash, Common Stock or any combination of cash and Common Stock, at the Company’s election, based on an initial conversion rate of 200 shares of Common Stock per $1,000 principal amount of the 2031 Convertible Notes (which is equal to a conversion price of $5.00 per share of Common Stock (the “Conversion Price”).

 

The conversion rate is subject to customary adjustment provisions as provided in the 2031 Convertible Notes Indenture. In addition, the conversion rate will be subject to adjustment in the event of any issuance or sale of Common Stock (or securities convertible into Common Stock) at a price equal to or less than the Conversion Price in order to ensure that following such issuance or sale, the 2031 Convertible Notes would be convertible into approximately 23.3% of the Common Stock after giving effect to such issuance or sale (assuming the initial principal amount of the 2031 Convertible Notes remains outstanding).

 

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If a “Make-Whole Fundamental Change” (as defined in the 2031 Convertible Notes Indenture) occurs, the Company will in certain circumstances increase the conversion rate for a specified period of time. If a “Fundamental Change” (as defined in the 2031 Convertible Notes Indenture) occurs, the Company will be required to offer to repurchase the 2031 Convertible Notes at a repurchase price of 110% of the principal amount thereof.

 

 Until December 1, 2030, the Company will have the right to redeem for cash up to 30% of the 2031 Convertible Notes at a redemption price of 140% of the principal amount thereof, with such amount reduced ratably by any principal amount of 2031 Convertible Notes that has been converted by the holders or redeemed or purchased by the Company.

 

Following an Event of Default (as defined in the 2031 Convertible Notes Indenture), the 2031 Convertible Notes will be subject to an “asset sale” sweep and “unrestricted cash” sweep substantially identical to the corresponding provisions in the Amended Credit Agreement.

 

Before paying a dividend, unless the Company’s pro forma Total Gross Leverage Ratio (as defined in the 2031 Convertible Notes Indenture) is less than 1.50x, the Company must offer to redeem an aggregate principal amount of 2031 Convertible Notes equal to the proposed amount of such dividend at a redemption price equal to the principal amount thereof. To the extent the redemption offer is not required by the 2031 Convertible Notes Indenture or is rejected by the noteholders, the Company may pay the dividend, subject to a customary adjustment to the conversion rate, if applicable.

 

The 2031 Convertible Notes Indenture includes affirmative and negative covenants that are substantially consistent with the Amended Credit Agreement, as well as customary events of default.

 

The foregoing description of the 2031 Convertible Notes Indenture does not purport to be complete and is qualified in its entirety by reference to the 2031 Convertible Notes Indenture, a copy of which is attached as Exhibit 4.3 to this Current Report on Form 8-K and is incorporated herein by reference.

 

Registration Rights Agreement

 

In connection with the issuance of the 2031 Convertible Notes, the Company also entered into a registration rights agreement, dated as of October 15, 2024 (the “Registration Rights Agreement”), by and among the Company and the other persons signatory thereto, which will give holders of the 2031 Convertible Notes customary registration rights with respect to their as-converted Common Stock (subject to minimum registration amounts, blackout periods and limitations on the number of demands) following the 30-day anniversary of the closing date. A copy of the Registration Rights Agreement is filed as Exhibit 4.4 hereto and is incorporated herein by reference in its entirety.

 

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Credit Facility

 

On the Early Settlement Date, the Company entered into an Amendment and Restatement Agreement (the “Amendment and Restatement Agreement”) among the Company, as a guarantor, Gannett Holdings, as the borrower (in such capacity, the “Borrower”), certain subsidiaries of the Borrower as guarantors, the lenders party thereto, Citibank, N.A., as the existing collateral agent and administrative agent for the lenders, and Apollo Administrative Agency, LLC, as the successor collateral agent and administrative agent for the lenders, which amended and restated the First Lien Credit Agreement dated as of October 15, 2021 (the “Existing Credit Agreement”; the Existing Credit Agreement as amended and restated by the Amendment and Restatement Agreement, the “Amended Credit Agreement”) among the Company, as a guarantor, the Borrower, certain subsidiaries of the Borrower as guarantors, the lenders from time to time party thereto and Citibank, N.A., as collateral agent and administrative agent for the lenders. The Amended Credit Agreement provides for a five-year senior secured term loan facility in an aggregate principal amount not to exceed $900 million (the “Amended Credit Facility”), comprised of an initial Term Loan funded (including as Loan Option Consideration in exchange for Senior Secured Notes) on the Early Settlement Date in an aggregate principal amount of $850,428,000 and delayed-draw Term Loan commitments in an aggregate amount of $49,572,000. The delayed-draw Term Loan commitments may be drawn, subject to the satisfaction of customary conditions precedent, on or prior to the date that is six months after the Early Settlement Date. The initial Term Loan and any delayed-draw Term Loans under the Amended Credit Facility will constitute the same class of Term Loans under the Amended Credit Agreement. The proceeds of the initial Term Loan under the Amended Credit Facility were applied on the Early Settlement Date to prepay the term loans outstanding under the Existing Credit Agreement on the Early Settlement Date, to repurchase the Senior Secured Notes that were tendered by the holders thereof on or prior to the Early Settlement Date pursuant to the Exchange Offer, to repurchase the 2027 Convertible Notes that were exchanged by the holders thereof on or prior to October 15, 2024 pursuant to the Convertible Notes Exchange and to pay fees, costs and expenses in connection with the foregoing. The proceeds of any delayed-draw Term Loans under the Amended Credit Facility that are funded after the Early Settlement Date may be used by the Borrower to repurchase, redeem, defease or otherwise discharge Senior Secured Notes or 2027 Convertible Notes that are outstanding after the Early Settlement Date and to pay fees and expenses in connection with the foregoing. The obligations of the Borrower under the Amended Credit Facility are guaranteed by the Company and each material domestic restricted subsidiary of the Borrower. The Amended Credit Facility is secured by substantially all assets, including material real property, of the Company, the Borrower and each of the other guarantors.

 

At the Borrower’s option, loans issued under the Amended Credit Facility will bear interest at a rate of the “term” secured overnight financing rate (SOFR) (which shall not be less than 1.50% per annum) plus a margin equal to 5.00% per annum or an alternate base rate (which shall not be less than 2.50% per annum) plus a margin equal to 4.00% per annum. Loans under the Amended Credit Facility may be prepaid, at the option of the Borrower, at any time without premium. Loans under the Amended Credit Facility are required to be prepaid from time to time with the proceeds of non-ordinary course asset sales and casualty and condemnation events (except that, prior to the date that is six months after the Early Settlement Date, any such proceeds will be required to be applied by the Company to repurchase, redeem, defease or otherwise discharge the Senior Secured Notes, with any such repurchase, redemption, defeasance or other discharge resulting in a dollar-for-dollar reduction in the aggregate delayed-draw Term Loan commitments under the Amended Credit Facility), the proceeds of indebtedness not permitted under the Amended Credit Agreement, and the aggregate amount of cash and cash equivalents on hand at the Company and its restricted subsidiaries in excess of $100 million at the end of each fiscal year of the Company. The Term Loans under the Amended Credit Facility amortize in equal quarterly installments (commencing with the first full fiscal quarter of the Company ending after the Early Settlement Date) at a rate equal to $17,000,000 per annum, with such rate to be adjusted upon the borrowing of any delayed-draw Term Loans under the Amended Credit Facility to the extent necessary to cause such delayed-draw Term Loans to be fungible (including for U.S. federal income tax purposes) with the initial Term Loan under the Amended Credit Facility.

 

The Amended Credit Agreement contains usual and customary representations and warranties, and usual and customary affirmative and negative covenants, including: a financial covenant requiring minimum liquidity of $30 million at the end of each fiscal quarter and limitations on liens, indebtedness, fundamental changes and dispositions, changes in the nature of the business of the Company and its restricted subsidiaries, loans, advances and investments, sale and leaseback transactions, restricted payments, use of proceeds in violation of Federal Reserve regulations and anti-corruption, anti-terrorism and anti-money laundering regulations, transactions with affiliates, limitations on dividends and other payment restrictions affecting subsidiaries, limitations on negative pledges, modifications of indebtedness, organizational documents and certain other agreements, violations of the Investment Company Act of 1940, as amended, violations of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA”) and environmental regulations, and plans of division, in each case with customary exceptions including an exception that permits restricted payments in (a) an amount of up to $25 million per fiscal quarter if the First Lien Net Leverage Ratio (as defined in the Amended Credit Agreement) for such fiscal quarter is equal to or less than 2.00 to 1.00, (b) an amount of up to $50 million per fiscal quarter if the First Lien Net Leverage Ratio for such fiscal quarter is equal to or less than 1.50 to 1.00 and (c) an unlimited amount if First Lien Net Leverage Ratio for such fiscal quarter is equal to or less than 1.00 to 1.00. The Amended Credit Agreement also contains usual and customary events of default, including: non-payment of principal, interest, fees and other amounts; material breach of a representation or warranty; default on other material debt; bankruptcy or insolvency; incurrence of certain material ERISA liabilities; material judgments; impairment of loan documentation; violation of subordination provisions; and change of control.

 

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The foregoing summary of the Amendment and Restatement Agreement and the Amended Credit Agreement does not purport to be complete and is subject to, and qualified in its entirety by reference to, the Amendment and Restatement Agreement filed herewith as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.

Item 2.03

Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of the Registrant.

The information relating to the incurrence of debt set forth under the headings “New 2031 Convertible Notes” and “Credit Facility” in Item 1.01 of this Report is incorporated herein by reference.

Item 3.02

Unregistered Sales of Equity Securities.

The information set forth under the headings “Convertible Notes Exchange and 2031 Convertible Notes Sale” and “New 2031 Convertible Notes” in Item 1.01 of this Report is incorporated herein by reference.

 

Item 7.01

Regulation FD Disclosure.

 

As of October 15, 2024, after giving effect to the transactions described above, the Company had indebtedness outstanding under the instruments referenced below as follows:

 

Credit Facility – Term Loans:	$850,428,000
6.000% Senior Secured Notes due 2026:	$3,860,000
6.000% Convertible Notes due 2027:	$38,058,263
6.000% Convertible Notes due 2031:	$223,723,868

In addition, there were $49,572,000 of undrawn commitments under the delayed-draw Term Loan commitments under the Amended Credit Agreement as of such date.

Item 9.01

Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit Number	Description of Exhibit
4.1	First Supplemental Indenture, dated as of October 15, 2024, by and among Gannett Co., Inc., Gannett Holdings LLC, the Guarantors party thereto and U.S. Bank Trust Company, National Association as trustee.
4.2	Fifth Supplemental Indenture, dated as of October 15, 2024, among Gannett Co., Inc., the Subsidiary Guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee.
4.3	Indenture, dated as of October 15, 2024, among Gannett Co., Inc., the Subsidiary Guarantors party thereto from time to time and U.S. Bank Trust Company, National Association, as trustee.
4.4	Registration Rights Agreement, dated as of October 15, 2024, by and among Gannett Co., Inc. and the other Persons signatory thereto.
4.5	First Lien/Second Lien Intercreditor Agreement, dated as of October 15, 2024, among Apollo Administrative Agency, LLC, as First Lien Agreement Agent, Apollo Administrative Agency, LLC, as First Lien Agreement Collateral Agent, U.S. Bank Trust Company, National Association, as Initial Other First-Priority Agent, U.S. Bank Trust Company, National Association, as Initial Other First-Priority Collateral Agent, U.S. Bank Trust Company, National Association, as Initial Second-Priority Agent, and Alter Domus Products Corp., as Initial Second-Priority Collateral Agent.
10.1	Amendment and Restatement Agreement dated as of October 15, 2024, among Gannett Co., Inc., Gannett Holdings LLC, the other Guarantors party thereto, the Lenders party thereto, Citibank, N.A., as the existing administrative agent and collateral agent, and Apollo Administrative Agency, LLC, as successor administrative agent and collateral agent.
104	Cover Page Interactive Data File (embedded within the Inline XBRL document)

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Forward Looking Statements

 

Certain items in this Form 8-K may constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, including, among others, statements regarding our ability to refinance our debt facilities, maturity of debt, note repurchases, exchanges and redemptions, uses of proceeds, expectations (including timing) with respect to the Exchange Offer and Consent Solicitation, the Convertible Notes Exchange, the Amended Credit Agreement, availability of future financing and interest expense. Words and phrases such as “may”, “will”, “are set to”, “to be” and similar expressions are intended to identify such forward-looking statements. These statements are based on management’s current expectations and beliefs and are subject to a number of risks and uncertainties. These and other risks and uncertainties could cause actual results to differ materially from those described in the forward-looking statements, many of which are beyond our control. The Company can give no assurance its expectations regarding the Exchange Offer and Consent Solicitation, the Convertible Notes Exchange, the Amended Credit Agreement or any other proposed financing or liability management transactions, or otherwise, will be attained. Accordingly, you should not place undue reliance on any forward-looking statements contained in this Form 8-K. For a discussion of some of the risks and important factors that could cause actual results to differ from such forward-looking statements, see the section entitled “Risk Factors” in the confidential offer to exchange and consent solicitation statement dated September 26, 2024 and the risks and other factors detailed in the Company’s 2023 Annual Report on Form 10-K and from time to time in other filings with the Securities and Exchange Commission. Furthermore, new risks and uncertainties emerge from time to time, and it is not possible for the Company to predict or assess the impact of every factor that may cause its actual results to differ from those contained in any forward-looking statements. Such forward-looking statements speak only as of the date of this Form 8-K. Except to the extent required by law, the Company expressly disclaims any obligation to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in the Company’s expectations with regard thereto or change in events, conditions or circumstances on which any statement is based.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

	GANNETT CO., INC.
	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer
Dated: October 16, 2024

 

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Exhibit 4.1

FIRST SUPPLEMENTAL INDENTURE

 

FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of October 15, 2024, by and among GANNETT CO., INC., a Delaware corporation (the “Company”), GANNETT HOLDINGS, LLC, a Delaware limited liability company and wholly-owned subsidiary of the Company (the “Issuer”), the Guarantors party hereto and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as trustee under the indenture referred to below (the “Trustee”).

 

W I T N E S S E T H :

 

WHEREAS, the Company, the Issuer, the Guarantors and the Trustee have heretofore executed an indenture, dated as of October 15, 2021 (as amended, supplemented or otherwise modified, the “Indenture”), providing for the issuance of the Company’s 6.000% First Lien Notes due 2026 (the “Notes”), initially in the aggregate principal amount of $400,000,000;

 

WHEREAS, the Company and the Issuer have distributed an Offer to Exchange and Consent Solicitation Statement (the “Offer to Exchange”) and the accompanying Consent to the holders of the Notes in connection with the solicitation of consents to the proposed amendments as described in the Offer to Exchange (the “Proposed Amendments”) that provide for the elimination of substantially all of the restrictive covenants and certain of the default provisions and the elimination or amendment of certain related provisions in the Indenture;

 

WHEREAS, the holders of at least a majority of the aggregate principal amount of the Notes outstanding, not owned by the Company or any of its affiliates, have consented to the Proposed Amendments;

 

WHEREAS, pursuant to Section 9.02 of the Indenture, the Issuer, the Trustee and the Guarantors are authorized to execute and deliver this Supplemental Indenture with the consent of the holders of at least a majority of the aggregate principal amount of the Notes outstanding;

 

WHEREAS, the execution and delivery of this instrument has been duly authorized and all conditions and requirements necessary to make this instrument a valid and binding agreement have been duly performed and complied with.

 

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto hereby mutually agree as follows:

 

1.

Defined Terms.  All capitalized terms used but not defined in this Supplemental Indenture shall have the meanings ascribed to such terms in the Indenture  The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular Section hereof.

 

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2.	Amendment.

 

(a)

Section 4.03 (Reports) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted.]”

 

(b)

Section 4.04 (Compliance Certificate) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted.]”

 

(c)

Section 4.07 (Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted.]”

 

(d)

Section 4.08 (Limitation on Incurrence of Layered Indebtedness) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted.]”

 

(e)

Section 4.09 (Limitation on Restricted Payments) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted.]”

 

(f)

Section 4.10 (Liens) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted.]”

 

(g)

Section 4.11 (Change of Control) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted.]”

 

(h)

Section 4.12 (Company Existence) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted.]”

 

(i)

Section 4.13 (Future Guarantors) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted.]”

 

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(j)

Section 4.14 (Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted.]”

 

(k)

Section 4.15 (Asset Sales) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted.]”

 

(l)

Section 4.17 (Limitations on Transactions with Affiliates) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted.]”

 

(m)

Section 4.18 (Suspension of Covenants) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted.]”

 

(n)

Section 5.01(b) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted;] and”

 

(o)

Section 6.01(5) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted;]”

 

(p)

Section 6.01(6) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted;]”

 

(q)

Section 6.01(7) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted;]”

 

(r)

Section 6.01(8) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted;]”

 

(s)

Section 6.01(10) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted.]”

 

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(t)

The Indenture is hereby amended by deleting (i) any definitions from the Indenture with respect to which references would be eliminated as a result of the amendments to the Indenture pursuant to clauses (a) through (s) above and (ii) any references in the Indenture to the sections or clauses that have been deleted from the Indenture pursuant to this Section 2.

 

(u)

Effective as of the date hereof, none of the Company, the Issuer, any Guarantor, the Trustee, the Notes Collateral Agent, the Registrar, the Paying Agent and the Authenticating Agent or other parties to or beneficiaries of the Indenture shall have any rights, obligations or liabilities under such sections or clauses that have been deleted from the Indenture pursuant to this Section 2 and such sections or clauses shall not be considered in determining whether a Default or Event of Default has occurred or whether the Company, the Issuer or the Guarantors have observed, performed or complied with the provisions of the Indenture.

 

3.

Ratification of Indenture; Supplemental Indentures Part of Indenture.  Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.  This Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

 

4.

Effectiveness and Operative Date.  This Supplemental Indenture shall become effective and binding upon execution by all parties hereto.  Notwithstanding the foregoing sentence, the Proposed Amendments to the Indenture set forth in Section 2 hereof shall become operative only upon the Final Settlement Date (as defined in the Offer to Exchange) in accordance with the terms and conditions set forth in the Offer to Exchange.

 

5.	Governing Law.  THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

 

6.	Trustee Makes No Representation.  The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.

 

7.

Counterparts.  The parties may sign any number of copies of this Supplemental Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.  Delivery by electronic transmission of an executed counterpart of a signature page to this Amendment shall be effective as delivery of an original executed counterpart of this Amendment.

 

8.	Effect of Headings.  The Section headings herein are for convenience only and shall not affect the construction thereof.

[Remainder of page intentionally left blank.]

4

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IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture to be duly executed as of the day and year first written above.

	GANNETT CO., INC.
	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to First Supplemental Indenture]

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	GANNETT HOLDINGS LLC
	By: GANNETT CO., INC., as its Sole Member
	By:	/s/ Michael E. Reed
		Name: Michael E. Reed
		Title: President and Chief Executive Officer

[Signature Page to First Supplemental Indenture]

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	BRIDGETOWER MEDIA HOLDING COMPANY
	CA ALABAMA HOLDINGS, INC.
	CA LOUISIANA HOLDINGS, INC.
	CA MASSACHUSETTS HOLDINGS, INC.
	CA NORTH CAROLINA HOLDINGS, INC.
	CA SOUTH CAROLINA HOLDINGS, INC.
	COPLEY OHIO NEWSPAPERS, INC.
	DAILY JOURNAL OF COMMERCE, INC.
	DAILY REPORTER PUBLISHING COMPANY
	DB ACQUISITION, INC.
	DB ARKANSAS HOLDINGS, INC.
	DB IOWA HOLDINGS, INC.
	DB NORTH CAROLINA HOLDINGS, INC.
	DB OKLAHOMA HOLDINGS, INC.
	DB TENNESSEE HOLDINGS, INC.
	DB TEXAS HOLDINGS, INC.
	DB WASHINGTON HOLDINGS, INC.
	FINANCE AND COMMERCE, INC.
	GATEHOUSE MEDIA ALASKA HOLDINGS, INC.
	GATEHOUSE MEDIA ARKANSAS HOLDINGS, INC.
	GATEHOUSE MEDIA CALIFORNIA HOLDINGS, INC.
	GATEHOUSE MEDIA COLORADO HOLDINGS, INC.
	GATEHOUSE MEDIA CONNECTICUT HOLDINGS, INC.
	GATEHOUSE MEDIA CORNING HOLDINGS, INC.
	GATEHOUSE MEDIA DELAWARE HOLDINGS, INC.
	GATEHOUSE MEDIA DIRECTORIES HOLDINGS, INC.
	GATEHOUSE MEDIA FREEPORT HOLDINGS, INC.
	GATEHOUSE MEDIA GEORGIA HOLDINGS, INC.
	GATEHOUSE MEDIA ILLINOIS HOLDINGS II, INC.
	GATEHOUSE MEDIA ILLINOIS HOLDINGS, INC.
	GATEHOUSE MEDIA INDIANA HOLDINGS, INC.
	GATEHOUSE MEDIA IOWA HOLDINGS, INC.
	GATEHOUSE MEDIA KANSAS HOLDINGS II, INC.
	GATEHOUSE MEDIA KANSAS HOLDINGS, INC.
	GATEHOUSE MEDIA LANSING PRINTING, INC.
	GATEHOUSE MEDIA LOUISIANA HOLDINGS, INC.
	GATEHOUSE MEDIA MACOMB HOLDINGS, INC.
	GATEHOUSE MEDIA MANAGEMENT SERVICES, INC.
	GATEHOUSE MEDIA MARYLAND HOLDINGS, INC.
	GATEHOUSE MEDIA MASSACHUSETTS I, INC.
	GATEHOUSE MEDIA MASSACHUSETTS II, INC.
	GATEHOUSE MEDIA MICHIGAN HOLDINGS II, INC.
	GATEHOUSE MEDIA MICHIGAN HOLDINGS, INC.
	GATEHOUSE MEDIA MINNESOTA HOLDINGS, INC.

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	Director

[Signature Page to First Supplemental Indenture]

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	GATEHOUSE MEDIA MISSOURI HOLDINGS II, INC.
	GATEHOUSE MEDIA MISSOURI HOLDINGS, INC.
	GATEHOUSE MEDIA NEBRASKA HOLDINGS, INC.
	GATEHOUSE MEDIA NEW YORK HOLDINGS, INC.
	GATEHOUSE MEDIA NORTH DAKOTA HOLDINGS, INC.
	GATEHOUSE MEDIA OHIO HOLDINGS II, INC.
	GATEHOUSE MEDIA OHIO HOLDINGS, INC.
	GATEHOUSE MEDIA OKLAHOMA HOLDINGS, INC.
	GATEHOUSE MEDIA OREGON HOLDINGS, INC.
	GATEHOUSE MEDIA PENNSYLVANIA HOLDINGS, INC.
	GATEHOUSE MEDIA SOUTH DAKOTA HOLDINGS, INC.
	GATEHOUSE MEDIA SUBURBAN NEWSPAPERS, INC.
	GATEHOUSE MEDIA TENNESSEE HOLDINGS, INC.
	GATEHOUSE MEDIA TEXAS HOLDINGS II, INC.
	GATEHOUSE MEDIA TEXAS HOLDINGS, INC.
	GATEHOUSE MEDIA VIRGINIA HOLDINGS, INC.
	LMG MAINE HOLDINGS, INC.
	LMG MASSACHUSETTS, INC.
	LMG NATIONAL PUBLISHING, INC.
	LMG RHODE ISLAND HOLDINGS, INC.
	LMG STOCKTON, INC.
	LOCAL MEDIA GROUP HOLDINGS LLC
	LOCAL MEDIA GROUP, INC.
	MINERAL DAILY NEWS TRIBUNE, INC.
	NEWS LEADER, INC.
	SEACOAST NEWSPAPERS, INC.
	SUREWEST DIRECTORIES
	TERRY NEWSPAPERS, INC.
	LMG NANTUCKET, INC.
	THE MAIL TRIBUNE, INC.
	THE NICKEL OF MEDFORD, INC.
	THE PEORIA JOURNAL STAR, INC.
	THRIVEHIVE, INC.
	UPCURVE, INC.
	W-SYSTEMS CORP.

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	Director

[Signature Page to First Supplemental Indenture]

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	ARIZONA NEWS SERVICE, LLC
	By: Dolco Acquisition, LLC, as its Manager
	By: GateHouse Media Operating, LLC, as its Sole Member
	By: GateHouse Media Holdco, LLC, as its Sole Member
	By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
	By: GateHouse Media, LLC, as its Sole Member
	By: New Media Holdings II LLC, as its Sole Member
	By: New Media Holdings I LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	Chief Executive Officer

	BRIDGETOWER MEDIA DLN, LLC
	By: Dolco Acquisition, LLC, as its Manager
	By: GateHouse Media Operating, LLC, as its Sole Member
	By: GateHouse Media Holdco, LLC, as its Sole Member
	By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
	By: GateHouse Media, LLC, as its Sole Member
	By: New Media Holdings II LLC, as its Sole Member
	By: New Media Holdings I LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member
	BRIDGETOWER MEDIA, LLC
	By: Dolco Acquisition, LLC, as its Sole Member
	By: GateHouse Media Operating, LLC, as its Sole Member
	By: GateHouse Media Holdco, LLC, as its Sole Member
	By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
	By: GateHouse Media, LLC, as its Sole Member
	By: New Media Holdings II LLC, as its Sole Member
	By: New Media Holdings I LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member
	CA FLORIDA HOLDINGS, LLC
	By: Cummings Acquisition, LLC, as its Sole Member
	By: GateHouse Media Operating, LLC, as its Sole Member
	By: GateHouse Media Holdco, LLC, as its Sole Member
	By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
	By: GateHouse Media, LLC, as its Sole Member
	By: New Media Holdings II LLC, as its Sole Member
	By: New Media Holdings I LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to First Supplemental Indenture]

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	CUMMINGS ACQUISITION, LLC
	By: GateHouse Media Operating, LLC, as its Sole Member
	By: GateHouse Media Holdco, LLC, as its Sole Member
	By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
	By: GateHouse Media, LLC, as its Sole Member
	By: New Media Holdings II LLC, as its Sole Member
	By: New Media Holdings I LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member
	CYBERINK, LLC
	By: GateHouse Media Pennsylvania Holdings, Inc., as its Sole Member
	DOLCO ACQUISITION, LLC
	By: GateHouse Media Operating, LLC, as its Sole Member
	By: GateHouse Media Holdco, LLC, as its Sole Member
	By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
	By: GateHouse Media, LLC, as its Sole Member
	By: New Media Holdings II LLC, as its Sole Member
	By: New Media Holdings I LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member
	ENHE ACQUISITION, LLC
	By: GateHouse Media Operating, LLC, as its Sole Member
	By: GateHouse Media Holdco, LLC, as its Sole Member
	By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
	By: GateHouse Media, LLC, as its Sole Member
	By: New Media Holdings II LLC, as its Sole Member
	By: New Media Holdings I LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member
	ENTERPRISE NEWSMEDIA HOLDING, LLC
	By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	ENTERPRISE NEWSMEDIA, LLC
	By: Enterprise NewsMedia Holding, LLC, as its Sole Member
	By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	ENTERPRISE PUBLISHING COMPANY, LLC
	By: Enterprise NewsMedia, LLC, as its Sole Member
	By: Enterprise NewsMedia Holding, LLC, as its Sole Member
	By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	GANNETT VENTURES LLC
	By: New Media Ventures Group LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to First Supplemental Indenture]

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	GATEHOUSE MEDIA HOLDCO, LLC
	By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
	By: GateHouse Media, LLC, as its Sole Member
	By: New Media Holdings II LLC, as its Sole Member
	By: New Media Holdings I LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member
	GATEHOUSE MEDIA INTERMEDIATE HOLDCO, LLC
	By: GateHouse Media, LLC, as its Member
	By: New Media Holdings II LLC, as its Sole Member
	By: New Media Holdings I LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member
	GATEHOUSE MEDIA OPERATING, LLC
	By: GateHouse Media Holdco, LLC, as its Sole Member
	By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
	By: GateHouse Media, LLC, as its Sole Member
	By: New Media Holdings II LLC, as its Sole Member
	By: New Media Holdings I LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member
	GATEHOUSE MEDIA, LLC
	By: New Media Holdings II LLC, as its Sole Member
	By: New Media Holdings I LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member
	GEORGE W. PRESCOTT PUBLISHING COMPANY, LLC
	By: Enterprise NewsMedia, LLC, as its Sole Member
	By: Enterprise NewsMedia Holding, LLC, as its Sole Member
	By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	IDAHO BUSINESS REVIEW, LLC
	By: Dolco Acquisition, LLC, as its Manager
	By: GateHouse Media Operating, LLC, as its Sole Member
	By: GateHouse Media Holdco, LLC, as its Sole Member
	By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
	By: GateHouse Media, LLC, as its Sole Member
	By: New Media Holdings II LLC, as its Sole Member
	By: New Media Holdings I LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member
	LAWYER’S WEEKLY, LLC
	By: Dolco Acquisition, LLC, as its Manager
	By: GateHouse Media Operating, LLC, as its Sole Member
	By: GateHouse Media Holdco, LLC, as its Sole Member
	By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
	By: GateHouse Media, LLC, as its Sole Member
	By: New Media Holdings II LLC, as its Sole Member
	By: New Media Holdings I LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to First Supplemental Indenture]

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	LIBERTY SMC, L.L.C.
	By: GateHouse Media Operating, LLC, as its Sole Member
	By: GateHouse Media Holdco, LLC, as its Sole Member
	By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
	By: GateHouse Media, LLC, as its Sole Member
	By: New Media Holdings II LLC, as its Sole Member
	By: New Media Holdings I LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member
	LONG ISLAND BUSINESS NEWS, LLC
	By: Dolco Acquisition, LLC, as its Manager
	By: GateHouse Media Operating, LLC, as its Sole Member
	By: GateHouse Media Holdco, LLC, as its Sole Member
	By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
	By: GateHouse Media, LLC, as its Sole Member
	By: New Media Holdings II LLC, as its Sole Member
	By: New Media Holdings I LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member
	LOW REALTY, LLC
	By: Enterprise NewsMedia, LLC, as its Sole Member
	By: Enterprise NewsMedia Holding, LLC, as its Sole Member
	By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	LRT FOUR HUNDRED, LLC
	By: Enterprise NewsMedia, LLC, as its Sole Member
	By: Enterprise NewsMedia Holding, LLC, as its Sole Member
	By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	MISSOURI LAWYERS MEDIA, LLC
	By: Dolco Acquisition, LLC, as its Manager
	By: GateHouse Media Operating, LLC, as its Sole Member
	By: GateHouse Media Holdco, LLC, as its Sole Member
	By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
	By: GateHouse Media, LLC, as its Sole Member
	By: New Media Holdings II LLC, as its Sole Member
	By: New Media Holdings I LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member
	NEW MEDIA HOLDINGS I LLC
	By: Gannett Media Corp., as its Sole Member
	NEW MEDIA HOLDINGS II LLC
	By: New Media Holdings I LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to First Supplemental Indenture]

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	NEW MEDIA VENTURES GROUP LLC
	By: Gannett Media Corp., as its Sole Member
	NEW ORLEANS PUBLISHING GROUP, L.L.C.
	By: Dolco Acquisition, LLC, as its Manager
	By: GateHouse Media Operating, LLC, as its Sole Member
	By: GateHouse Media Holdco, LLC, as its Sole Member
	By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
	By: GateHouse Media, LLC, as its Sole Member
	By: New Media Holdings II LLC, as its Sole Member
	By: New Media Holdings I LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member
	NOPG, L.L.C.
	By: New Orleans Publishing Group, L.L.C., as its Sole Member
	By: Dolco Acquisition, LLC, as its Manager
	By: GateHouse Media Operating, LLC, as its Sole Member
	By: GateHouse Media Holdco, LLC, as its Sole Member
	By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
	By: GateHouse Media, LLC, as its Sole Member
	By: New Media Holdings II LLC, as its Sole Member
	By: New Media Holdings I LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member
	THE DAILY RECORD COMPANY, LLC
	By: Dolco Acquisition, LLC, as its Manager
	By: GateHouse Media Operating, LLC, as its Sole Member
	By: GateHouse Media Holdco, LLC, as its Sole Member
	By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
	By: GateHouse Media, LLC, as its Sole Member
	By: New Media Holdings II LLC, as its Sole Member
	By: New Media Holdings I LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member
	THE JOURNAL RECORD PUBLISHING CO., LLC
	By: Dolco Acquisition, LLC, as its Manager
	By: GateHouse Media Operating, LLC, as its Sole Member
	By: GateHouse Media Holdco, LLC, as its Sole Member
	By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
	By: GateHouse Media, LLC, as its Sole Member
	By: New Media Holdings II LLC, as its Sole Member
	By: New Media Holdings I LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to First Supplemental Indenture]

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	THE NWS COMPANY, LLC
	By: Dolco Acquisition, LLC, as its Manager
	By: GateHouse Media Operating, LLC, as its Sole Member
	By: GateHouse Media Holdco, LLC, as its Sole Member
	By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
	By: GateHouse Media, LLC, as its Sole Member
	By: New Media Holdings II LLC, as its Sole Member
	By: New Media Holdings I LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member
	UPCURVE CLOUD LLC
	By: UpCurve, Inc., as its Sole Member
	VENTURES ENDURANCE, LLC
	By: Gannett Ventures LLC, as its Sole Member
	By: New Media Ventures Group LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member
	VENTURES ENDURANCE EVENTS, LLC
	By: Ventures Endurance, LLC, as its Sole Member
	By: Gannett Ventures LLC, as its Sole Member
	By: New Media Ventures Group LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to First Supplemental Indenture]

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	ACTION ADVERTISING, INC.
	ALEXANDRIA NEWSPAPERS, INC.
	BAXTER COUNTY NEWSPAPERS, INC.
	BIZZY, INC.
	BOAT SPINCO, INC.
	CITIZEN PUBLISHING COMPANY
	DES MOINES REGISTER AND TRIBUNE COMPANY
	DESK SPINCO, INC.
	DETROIT FREE PRESS, INC.
	DIGICOL, INC.
	EVANSVILLE COURIER COMPANY, INC.
	FEDERATED PUBLICATIONS, INC.
	GANNETT GP MEDIA, INC.
	GANNETT INTERNATIONAL COMMUNICATIONS, INC.
	GANNETT MEDIA CORP.
	GANNETT MHC MEDIA, INC.
	GANNETT MISSOURI PUBLISHING, INC.
	GANNETT RETAIL ADVERTISING GROUP, INC.
	GANNETT RIVER STATES PUBLISHING CORPORATION
	GANNETT SB, INC.
	GANNETT SUPPLY CORPORATION
	GANNETT VERMONT PUBLISHING, INC.
	JOURNAL COMMUNITY PUBLISHING GROUP, INC.
	JOURNAL MEDIA GROUP, INC.
	JOURNAL SENTINEL INC.
	KICKSERV, LLC
	MEMPHIS PUBLISHING COMPANY
	MULTIMEDIA, INC.
	PHOENIX NEWSPAPERS, INC.
	PRESS-CITIZEN COMPANY, INC.
	REACHLOCAL CANADA, INC.
	REACHLOCAL DP, INC.
	REACHLOCAL INTERNATIONAL, INC.
	REACHLOCAL, INC.
	RENO NEWSPAPERS, INC.
	SEDONA PUBLISHING COMPANY, INC.
	THE ADVERTISER COMPANY
	THE COURIER-JOURNAL, INC.
	THE DESERT SUN PUBLISHING CO.
	THE TIMES HERALD COMPANY
	WORDSTREAM, INC.
	X.COM, INC.

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	Director

[Signature Page to First Supplemental Indenture]

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	GANNETT INTERNATIONAL FINANCE LLC
	By:	/s/ Michael E. Reed
		Name: Michael E. Reed
		Title: Manager
	By:	/s/ Douglas E. Horne
		Name: Douglas E. Horne
		Title: Manager
	By:	/s/ Polly Grunfeld Sack
		Name: Polly Grunfeld Sack
		Title: Manager

[Signature Page to First Supplemental Indenture]

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	AMERICAN INFLUENCER AWARDS, LLC
	By: Gannett Ventures LLC, as its Sole Member
	ENMOTIVE COMPANY LLC
	By: Gannett Ventures LLC, as its Sole Member
	GIDDYUP EVENTS, LLC
	By: Ventures Endurance, LLC, as its Sole Member
	LOCO SPORTS, LLC
	By: Ventures Endurance, LLC, as its Sole Member

	By:	/s/ Michael E. Reed
		Name:  Michael E. Reed
		Title: Chief Executive Officer

[Signature Page to First Supplemental Indenture]

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	DEALON, LLC
	By: ReachLocal, Inc., as its Sole Member
	DES MOINES PRESS CITIZEN LLC
	By: Des Moines Register and Tribune Company, as its Sole Member
	FOODBLOGS, LLC
	By: Grateful Media, LLC, as its Sole Member
	By: Gannett Satellite Information Network, LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member
	GANNETT PUBLISHING SERVICES, LLC
	By: Gannett Satellite Information Network, LLC, as its Managing Member
	By: Gannett Media Corp., as its Sole Member
	GANNETT SATELLITE INFORMATION NETWORK, LLC
	By: Gannett Media Corp., as its Sole Member
	GANNETT UK MEDIA, LLC
	By: Gannett Media Corp., as its Sole Member
	GCCC, LLC
	By: Gannett Missouri Publishing, Inc., as its Sole Member
	GCOE, LLC
	By: Gannett Satellite Information Network, LLC, as its Managing Member
	By: Gannett Media Corp., as its Sole Member
	GFHC, LLC
	By: Gannett Media Corp., as its Sole Member
	GNSS LLC
	By: Gannett Media Corp., as its Sole Member
	GRATEFUL MEDIA, LLC
	By: Gannett Satellite Information Network, LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member
	IMAGN CONTENT SERVICES, LLC
	By: USA Today Sports Media Group, LLC, as its Sole Member
	By: Gannett Satellite Information Network, LLC, as its Managing Member
	By: Gannett Media Corp., as its Sole Member
	LOCALIQ LLC
	By: Gannett Media Corp., as its Sole Member
	MILWAUKEE MARATHON LLC
	By: Ventures Endurance Events, LLC, as Member and Majority In Interest

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to First Supplemental Indenture]

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	REACHLOCAL INTERNATIONAL GP LLC
	By: ReachLocal International, Inc., as its Sole Member
	SCRIPPS NP OPERATING, LLC
	By: Desk Spinco, Inc., as its Sole Member
	THANKSGIVING VENTURES, LLC
	By: Grateful Media, LLC, as its Sole Member
	By: Gannett Satellite Information Network, LLC, as its Sole Member
	By: Gannett Media Corp., as its Sole Member
	USA TODAY SPORTS MEDIA GROUP, LLC
	By: Gannett Satellite Information Network, LLC, as its Managing Member
	By: Gannett Media Corp., as its Sole Member
	YORK DAILY RECORD-YORK SUNDAY NEWS LLC
	By: York Newspaper Company, as its Manager
	By: York Newspaper Holdings, L.P., as its General Partner
	By: York Partnership Holdings, LLC, as its General Partner
	By: Texas-New Mexico Newspapers, LLC, as its Managing Member
	By: The Sun Company of San Bernardino, California LLC, as its Managing Member
	By: Gannett Media Services, LLC, as its Sole Member
	By: Gannett Media Corp., as its Member
	By: The Desert Sun Publishing Co., as its Member
	By: Gannett Satellite Information Network, LLC, as its Member
	By: Gannett Media Corp., as its Sole Member
	By: Gannett International Communications, Inc. as its Member
	By: York Partnership Holdings, LLC, as its General Partner
	By: Texas-New Mexico Newspapers, LLC, as its Managing Member
	By: The Sun Company of San Bernardino, California LLC, as its Managing Member
	By: Gannett Media Services, LLC, as its Sole Member
	By: Gannett Media Corp., as its Member
	By: The Desert Sun Publishing Co., as its Member
	By: Gannett Satellite Information Network, LLC, as its Member
	By: Gannett Media Corp., as its Sole Member
	By: Gannett International Communications, Inc. as its Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to First Supplemental Indenture]

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	YORK DISPATCH LLC
	By: York Newspaper Company, as its Manager
	By: York Newspaper Holdings, L.P., as its General Partner
	By: York Partnership Holdings, LLC, as its General Partner
	By: Texas-New Mexico Newspapers, LLC, as its Managing Member
	By: The Sun Company of San Bernardino, California LLC, as its Managing Member
	By: Gannett Media Services, LLC, as its Sole Member
	By: Gannett Media Corp., as its Member
	By: The Desert Sun Publishing Co., as its Member
	By: Gannett Satellite Information Network, LLC, as its Member
	By: Gannett Media Corp., as its Sole Member
	By: Gannett International Communications, Inc. as its Member
	By: York Partnership Holdings, LLC, as its General Partner
	By: Texas-New Mexico Newspapers, LLC, as its Managing Member
	By: The Sun Company of San Bernardino, California LLC, as its Managing Member
	By: Gannett Media Services, LLC, as its Sole Member
	By: Gannett Media Corp., as its Member
	By: The Desert Sun Publishing Co., as its Member
	By: Gannett Satellite Information Network, LLC, as its Member
	By: Gannett Media Corp., as its Sole Member
	By: Gannett International Communications, Inc. as its Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to First Supplemental Indenture]

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	YORK NEWSPAPER COMPANY
	By: York Newspaper Holdings, L.P., as its General Partner
	By: York Partnership Holdings, LLC, as its General Partner
	By: York Newspaper Holdings, L.P., as its General Partner
	By: Texas-New Mexico Newspapers, LLC, as its Managing Member
	By: The Sun Company of San Bernardino, California LLC, as its Managing Member
	By: Gannett Media Services, LLC, as its Sole Member
	By: Gannett Media Corp., as its Member
	By: The Desert Sun Publishing Co., as its Member
	By: Gannett Satellite Information Network, LLC, as its Member
	By: Gannett Media Corp., as its Sole Member
	By: Gannett International Communications, Inc. as its Member
	By: York Partnership Holdings, LLC, as its General Partner
	By: Texas-New Mexico Newspapers, LLC, as its Managing Member
	By: The Sun Company of San Bernardino, California LLC, as its Managing Member
	By: Gannett Media Services, LLC, as its Sole Member
	By: Gannett Media Corp., as its Member
	By: The Desert Sun Publishing Co., as its Member
	By: Gannett Satellite Information Network, LLC, as its Member
	By: Gannett Media Corp., as its Sole Member
	By: Gannett International Communications, Inc. as its Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to First Supplemental Indenture]

---

	YORK NEWSPAPERS HOLDINGS, L.P.
	By: York Partnership Holdings, LLC, as its General Partner
	By: Texas-New Mexico Newspapers, LLC, as its Managing Member
	By: The Sun Company of San Bernardino, California LLC, as its Managing Member
	By: Gannett Media Services, LLC, as its Sole Member
	By: Gannett Media Corp., as its Member
	By: The Desert Sun Publishing Co., as its Member
	By: Gannett Satellite Information Network, LLC, as its Member
	By: Gannett Media Corp., as its Sole Member
	By: Gannett International Communications, Inc., as its Member
	YORK NEWSPAPERS HOLDINGS, LLC
	By: York Newspaper Holdings, L.P., as its Sole Member
	By: York Partnership Holdings, LLC, as its General Partner
	By: Texas-New Mexico Newspapers, LLC, as its Managing Member
	By: The Sun Company of San Bernardino, California LLC, as its Managing Member
	By: Gannett Media Services, LLC, as its Sole Member
	By: Gannett Media Corp., as its Member
	By: The Desert Sun Publishing Co., as its Member
	By: Gannett Satellite Information Network, LLC, as its Member
	By: Gannett Media Corp., as its Sole Member
	By: Gannett International Communications, Inc. as its Member
	YORK PARTNERSHIP HOLDINGS, LLC
	By: Texas-New Mexico Newspapers, LLC, as its Managing Member
	By: The Sun Company of San Bernardino, California LLC, as its Managing Member
	By: Gannett Media Services, LLC, as its Sole Member
	By: Gannett Media Corp., as its Member
	By: The Desert Sun Publishing Co., as its Member
	By: Gannett Satellite Information Network, LLC, as its Member
	By: Gannett Media Corp., as its Sole Member
	By: Gannett International Communications, Inc. as its Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to First Supplemental Indenture]

---

	DESERT SUN PUBLISHING, LLC
	By: Gannett Media Services, LLC, as its Sole Member
	By: Gannett Co., Inc., as its Member
	By: The Desert Sun Publishing Co., as its Member
	By: Gannett Satellite Information Network, LLC, as its Member
	By: Gannett Media Corp., as its Sole Member
	By: Gannett International Communications, Inc. as its Member
	GANNETT MEDIA SERVICES, LLC
	By: Gannett Media Corp., as its Member
	By: The Desert Sun Publishing Co., as its Member
	By: Gannett Satellite Information Network, LLC, as its Member
	By: Gannett Media Corp., as its Sole Member
	By: Gannett International Communications, Inc. as its Member
	SALINAS NEWSPAPERS LLC
	By: Gannett Media Services, LLC, as its Sole Member
	By: Gannett Media Corp., as its Member
	By: The Desert Sun Publishing Co., as its Member
	By: Gannett Satellite Information Network, LLC, as its Member
	By: Gannett Media Corp., as its Sole Member
	By: Gannett International Communications, Inc. as its Member
	TEXAS-NEW MEXICO NEWSPAPERS, LLC
	By: The Sun Company of San Bernardino, California LLC, as its Member
	By: Gannett Media Services, LLC, as its Sole Member
	By: Gannett Media Corp., as its Member
	By: The Desert Sun Publishing Co., as its Member
	By: Gannett Satellite Information Network, LLC, as its Member
	By: Gannett Media Corp., as its Sole Member
	By: Gannett International Communications, Inc. as its Member
	THE SUN COMPANY OF SAN BERNARDINO, CALIFORNIA LLC
	By: Gannett Media Services, LLC, as its Sole Member
	By: Gannett Media Corp., as its Member
	By: The Desert Sun Publishing Co., as its Member
	By: Gannett Satellite Information Network, LLC, as its Member
	By: Gannett Media Corp., as its Sole Member
	By: Gannett International Communications, Inc., as its Member
	VISALIA NEWSPAPERS LLC
	By: Gannett Media Services, LLC, as its Sole Member
	By: Gannett Media Corp., as its Member
	By: The Desert Sun Publishing Co., as its Member
	By: Gannett Satellite Information Network, LLC, as its Member
	By: Gannett Media Corp., as its Sole Member
	By: Gannett International Communications, Inc., as its Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to First Supplemental Indenture]

---

	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
	as Trustee
	By:	/s/ William Sicking
		Name:	William Sicking
		Title:	Vice President

[Signature Page to First Supplemental Indenture]

---

---

Exhibit 4.2

FIFTH SUPPLEMENTAL INDENTURE

 

FIFTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of October 15, 2024, among GANNETT CO., INC., a Delaware corporation (the “Company”), the Subsidiary Guarantors party hereto and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as trustee under the indenture referred to below (the “Trustee”).

 

W I T N E S S E T H :

 

WHEREAS, the Company, the Subsidiary Guarantors and the Trustee have heretofore executed an indenture, dated as of November 17, 2020 (as amended, supplemented or otherwise modified, the “Indenture”), providing for the issuance of the Company’s 6.000% Convertible Senior Secured Notes due 2027 (the “Notes”), initially in the aggregate principal amount of $497,094,000;

 

WHEREAS, the Company has requested that certain provisions of the Indenture be amended as set forth herein;

 

WHEREAS, pursuant to Section 10.02 of the Indenture, the Trustee, the Company and the Subsidiary Guarantors are authorized to execute and deliver this Supplemental Indenture with the consent of the holders of at least a majority of the aggregate principal amount of the Notes outstanding;

 

WHEREAS, the holders of at least a majority of the aggregate principal amount of the Notes outstanding (determined in accordance with Article 8 of the Indenture) have consented to all of the amendments effected by this Supplemental Indenture in accordance with the provisions of the Indenture, and evidence of such consents has been provided by the Company to the Trustee; and

 

WHEREAS, the execution and delivery of this instrument has been duly authorized and all conditions and requirements necessary to make this instrument a valid and binding agreement have been duly performed and complied with.

 

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto hereby mutually agree as follows:

 

1.

Defined Terms.  All capitalized terms used but not defined in this Supplemental Indenture shall have the meanings ascribed to such terms in the Indenture  The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular Section hereof.

---

2.	Amendment.

 

(a)

The definition of “Excluded Securities” in Section 1.01 of the Indenture is amended and restated in its entirely to read as follows:

 

““Excluded Securities” means (i) Equity Interests of the Company issued to directors, officers, employees or consultants of the Company in connection with their service, employment or retention by the Company pursuant to an equity incentive or similar plan approved by the Board of Directors of the Company, (ii) shares of Common Stock issued upon the conversion or exercise of options, warrants, rights or other convertible securities of the Company that are outstanding as of the Issue Date and (iii) the Company’s 6.000% Senior Secured Notes due 2031 and any shares of Common Stock issued upon the conversion of such 6.000% Senior Secured Notes due 2031.”

 

(b)

Section 4.07 (Stay, Extension and Usury Laws) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted.]”

 

(c)

Section 4.08 (Compliance Certificate; Statements as to Defaults) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted.]”

 

(d)

Section 4.09 (Further Instruments and Acts) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted.]”

 

(e)

Section 4.11 (Affirmative Covenants) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted.]”

 

(f)

Section 4.12 (Negative Covenants) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted.]”

 

(g)

Section 4.13 (Minimum Liquidity) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted.]”

 

(h)

Section 4.14 (Dividend Event) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted.]”

 

(i)

Section 4.15 (Remaining Term Loan) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted.]”

 

---

(j)

Section 4.16 (Designation of Subsidiaries) of the Indenture is amended and restated in its entirety to read as follows:

 

“The Company may at any time designate any of its Restricted Subsidiaries as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary.”

 

(k)

Section 6.01(g) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted;]”

 

(l)

Section 6.01(h) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted;]”

 

(m)

Section 6.01(i) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted;]”

 

(n)

Section 6.01(j) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted;]”

 

(o)

Section 6.01(k) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted;]”

 

(p)

Section 6.01(m) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted;]”

 

(q)

Section 11.01(b) of the Indenture is amended and restated in its entirety to read as follows:

 

“[Intentionally omitted;] and”

 

(r)

The Indenture is hereby amended by deleting (i) any definitions from the Indenture with respect to which references would be eliminated as a result of the amendments to the Indenture pursuant to clauses (a) through (q) above and (ii) any references in the Indenture to the sections or clauses that have been deleted from the Indenture pursuant to this Section 2.

 

---

(s)

Effective as of the date hereof, none of the Company, any Subsidiary Guarantor and the Trustee or other parties to or beneficiaries of the Indenture shall have any rights, obligations or liabilities under such sections or clauses that have been deleted from the Indenture pursuant to this Section 2 and such sections or clauses shall not be considered in determining whether a Default or Event of Default has occurred or whether the Company or the Subsidiary Guarantors have observed, performed or complied with the provisions of the Indenture.

 

3.

Ratification of Indenture; Supplemental Indentures Part of Indenture.  Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.  This Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

 

4.	Governing Law.  THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

 

5.	Trustee Makes No Representation.  The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.

 

6.

Counterparts.  The parties may sign any number of copies of this Supplemental Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.  Delivery by electronic transmission of an executed counterpart of a signature page to this Amendment shall be effective as delivery of an original executed counterpart of this Amendment.

 

7.	Effect of Headings.  The Section headings herein are for convenience only and shall not affect the construction thereof.

 

[Remainder of page intentionally left blank.]

 

---

IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture to be duly executed as of the day and year first written above.

	GANNETT CO., INC.
	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

---

	GANNETT HOLDINGS LLC
	By: GANNETT CO., INC., as its Sole Member
	By:	/s/ Michael E. Reed
		Name: Michael E. Reed
		Title: President and Chief Executive Officer

---

	BRIDGETOWER MEDIA HOLDING COMPANY
	CA ALABAMA HOLDINGS, INC.
	CA LOUISIANA HOLDINGS, INC.
	CA MASSACHUSETTS HOLDINGS, INC.
	CA NORTH CAROLINA HOLDINGS, INC.
	CA SOUTH CAROLINA HOLDINGS, INC.
	COPLEY OHIO NEWSPAPERS, INC.
	DAILY JOURNAL OF COMMERCE, INC.
	DAILY REPORTER PUBLISHING COMPANY
	DB ACQUISITION, INC.
	DB ARKANSAS HOLDINGS, INC.
	DB IOWA HOLDINGS, INC.
	DB NORTH CAROLINA HOLDINGS, INC.
	DB OKLAHOMA HOLDINGS, INC.
	DB TENNESSEE HOLDINGS, INC.
	DB TEXAS HOLDINGS, INC.
	DB WASHINGTON HOLDINGS, INC.
	FINANCE AND COMMERCE, INC.
	GATEHOUSE MEDIA ALASKA HOLDINGS, INC.
	GATEHOUSE MEDIA ARKANSAS HOLDINGS, INC.
	GATEHOUSE MEDIA CALIFORNIA HOLDINGS, INC.
	GATEHOUSE MEDIA COLORADO HOLDINGS, INC.
	GATEHOUSE MEDIA CONNECTICUT HOLDINGS, INC.
	GATEHOUSE MEDIA CORNING HOLDINGS, INC.
	GATEHOUSE MEDIA DELAWARE HOLDINGS, INC.
	GATEHOUSE MEDIA DIRECTORIES HOLDINGS, INC.
	GATEHOUSE MEDIA FREEPORT HOLDINGS, INC.
	GATEHOUSE MEDIA GEORGIA HOLDINGS, INC.
	GATEHOUSE MEDIA ILLINOIS HOLDINGS II, INC.
	GATEHOUSE MEDIA ILLINOIS HOLDINGS, INC.
	GATEHOUSE MEDIA INDIANA HOLDINGS, INC.
	GATEHOUSE MEDIA IOWA HOLDINGS, INC.
	GATEHOUSE MEDIA KANSAS HOLDINGS II, INC.
	GATEHOUSE MEDIA KANSAS HOLDINGS, INC.
	GATEHOUSE MEDIA LANSING PRINTING, INC.
	GATEHOUSE MEDIA LOUISIANA HOLDINGS, INC.
	GATEHOUSE MEDIA MACOMB HOLDINGS, INC.
	GATEHOUSE MEDIA MANAGEMENT SERVICES, INC.
	GATEHOUSE MEDIA MARYLAND HOLDINGS, INC.
	GATEHOUSE MEDIA MASSACHUSETTS I, INC.
	GATEHOUSE MEDIA MASSACHUSETTS II, INC.
	GATEHOUSE MEDIA MICHIGAN HOLDINGS II, INC.
	GATEHOUSE MEDIA MICHIGAN HOLDINGS, INC.
	GATEHOUSE MEDIA MINNESOTA HOLDINGS, INC.

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	Director

---

	GATEHOUSE MEDIA MISSOURI HOLDINGS II, INC.
	GATEHOUSE MEDIA MISSOURI HOLDINGS, INC.
	GATEHOUSE MEDIA NEBRASKA HOLDINGS, INC.
	GATEHOUSE MEDIA NEW YORK HOLDINGS, INC.
	GATEHOUSE MEDIA NORTH DAKOTA HOLDINGS, INC.
	GATEHOUSE MEDIA OHIO HOLDINGS II, INC.
	GATEHOUSE MEDIA OHIO HOLDINGS, INC.
	GATEHOUSE MEDIA OKLAHOMA HOLDINGS, INC.
	GATEHOUSE MEDIA OREGON HOLDINGS, INC.
	GATEHOUSE MEDIA PENNSYLVANIA HOLDINGS, INC.
	GATEHOUSE MEDIA SOUTH DAKOTA HOLDINGS, INC.
	GATEHOUSE MEDIA SUBURBAN NEWSPAPERS, INC.
	GATEHOUSE MEDIA TENNESSEE HOLDINGS, INC.
	GATEHOUSE MEDIA TEXAS HOLDINGS II, INC.
	GATEHOUSE MEDIA TEXAS HOLDINGS, INC.
	GATEHOUSE MEDIA VIRGINIA HOLDINGS, INC.
	LMG MAINE HOLDINGS, INC.
	LMG MASSACHUSETTS, INC.
	LMG NATIONAL PUBLISHING, INC.
	LMG RHODE ISLAND HOLDINGS, INC.
	LMG STOCKTON, INC.
	LOCAL MEDIA GROUP HOLDINGS LLC
	LOCAL MEDIA GROUP, INC.
	MINERAL DAILY NEWS TRIBUNE, INC.
	NEWS LEADER, INC.
	SEACOAST NEWSPAPERS, INC.
	SUREWEST DIRECTORIES
	TERRY NEWSPAPERS, INC.
	LMG NANTUCKET, INC.
	THE MAIL TRIBUNE, INC.
	THE NICKEL OF MEDFORD, INC.
	THE PEORIA JOURNAL STAR, INC.
	THRIVEHIVE, INC.
	UPCURVE, INC.
	W-SYSTEMS CORP.

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	Director

---

	ARIZONA NEWS SERVICE, LLC
		By: Dolco Acquisition, LLC, as its Manager
		By: GateHouse Media Operating, LLC, as its Sole Member
		By: GateHouse Media Holdco, LLC, as its Sole Member
		By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
		By: GateHouse Media, LLC, as its Sole Member
		By: New Media Holdings II LLC, as its Sole Member
		By: New Media Holdings I LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	Chief Executive Officer

	BRIDGETOWER MEDIA DLN, LLC
		By: Dolco Acquisition, LLC, as its Manager
		By: GateHouse Media Operating, LLC, as its Sole Member
		By: GateHouse Media Holdco, LLC, as its Sole Member
		By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
		By: GateHouse Media, LLC, as its Sole Member
		By: New Media Holdings II LLC, as its Sole Member
		By: New Media Holdings I LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member
	BRIDGETOWER MEDIA, LLC
		By: Dolco Acquisition, LLC, as its Sole Member
		By: GateHouse Media Operating, LLC, as its Sole Member
		By: GateHouse Media Holdco, LLC, as its Sole Member
		By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
		By: GateHouse Media, LLC, as its Sole Member
		By: New Media Holdings II LLC, as its Sole Member
		By: New Media Holdings I LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member
	CA FLORIDA HOLDINGS, LLC
		By: Cummings Acquisition, LLC, as its Sole Member
		By: GateHouse Media Operating, LLC, as its Sole Member
		By: GateHouse Media Holdco, LLC, as its Sole Member
		By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
		By: GateHouse Media, LLC, as its Sole Member
		By: New Media Holdings II LLC, as its Sole Member
		By: New Media Holdings I LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

---

	CUMMINGS ACQUISITION, LLC
		By: GateHouse Media Operating, LLC, as its Sole Member
		By: GateHouse Media Holdco, LLC, as its Sole Member
		By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
		By: GateHouse Media, LLC, as its Sole Member
		By: New Media Holdings II LLC, as its Sole Member
		By: New Media Holdings I LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member
	CYBERINK, LLC
		By: GateHouse Media Pennsylvania Holdings, Inc., as its Sole Member
	DOLCO ACQUISITION, LLC
		By: GateHouse Media Operating, LLC, as its Sole Member
		By: GateHouse Media Holdco, LLC, as its Sole Member
		By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
		By: GateHouse Media, LLC, as its Sole Member
		By: New Media Holdings II LLC, as its Sole Member
		By: New Media Holdings I LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member
	ENHE ACQUISITION, LLC
		By: GateHouse Media Operating, LLC, as its Sole Member
		By: GateHouse Media Holdco, LLC, as its Sole Member
		By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
		By: GateHouse Media, LLC, as its Sole Member
		By: New Media Holdings II LLC, as its Sole Member
		By: New Media Holdings I LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member
	ENTERPRISE NEWSMEDIA HOLDING, LLC
		By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	ENTERPRISE NEWSMEDIA, LLC
		By: Enterprise NewsMedia Holding, LLC, as its Sole Member
		By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	ENTERPRISE PUBLISHING COMPANY, LLC
		By: Enterprise NewsMedia, LLC, as its Sole Member
		By: Enterprise NewsMedia Holding, LLC, as its Sole Member
		By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	GANNETT VENTURES LLC
		By: New Media Ventures Group LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

---

	GATEHOUSE MEDIA HOLDCO, LLC
		By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
		By: GateHouse Media, LLC, as its Sole Member
		By: New Media Holdings II LLC, as its Sole Member
		By: New Media Holdings I LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member
	GATEHOUSE MEDIA INTERMEDIATE HOLDCO, LLC
		By: GateHouse Media, LLC, as its Member
		By: New Media Holdings II LLC, as its Sole Member
		By: New Media Holdings I LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member
	GATEHOUSE MEDIA OPERATING, LLC
		By: GateHouse Media Holdco, LLC, as its Sole Member
		By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
		By: GateHouse Media, LLC, as its Sole Member
		By: New Media Holdings II LLC, as its Sole Member
		By: New Media Holdings I LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member
	GATEHOUSE MEDIA, LLC
		By: New Media Holdings II LLC, as its Sole Member
		By: New Media Holdings I LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member
	GEORGE W. PRESCOTT PUBLISHING COMPANY, LLC
		By: Enterprise NewsMedia, LLC, as its Sole Member
		By: Enterprise NewsMedia Holding, LLC, as its Sole Member
		By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	IDAHO BUSINESS REVIEW, LLC
		By: Dolco Acquisition, LLC, as its Manager
		By: GateHouse Media Operating, LLC, as its Sole Member
		By: GateHouse Media Holdco, LLC, as its Sole Member
		By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
		By: GateHouse Media, LLC, as its Sole Member
		By: New Media Holdings II LLC, as its Sole Member
		By: New Media Holdings I LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member
	LAWYER’S WEEKLY, LLC
		By: Dolco Acquisition, LLC, as its Manager
		By: GateHouse Media Operating, LLC, as its Sole Member
		By: GateHouse Media Holdco, LLC, as its Sole Member
		By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
		By: GateHouse Media, LLC, as its Sole Member
		By: New Media Holdings II LLC, as its Sole Member
		By: New Media Holdings I LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

---

	LIBERTY SMC, L.L.C.
		By: GateHouse Media Operating, LLC, as its Sole Member
		By: GateHouse Media Holdco, LLC, as its Sole Member
		By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
		By: GateHouse Media, LLC, as its Sole Member
		By: New Media Holdings II LLC, as its Sole Member
		By: New Media Holdings I LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member
	LONG ISLAND BUSINESS NEWS, LLC
		By: Dolco Acquisition, LLC, as its Manager
		By: GateHouse Media Operating, LLC, as its Sole Member
		By: GateHouse Media Holdco, LLC, as its Sole Member
		By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
		By: GateHouse Media, LLC, as its Sole Member
		By: New Media Holdings II LLC, as its Sole Member
		By: New Media Holdings I LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member
	LOW REALTY, LLC
		By: Enterprise NewsMedia, LLC, as its Sole Member
		By: Enterprise NewsMedia Holding, LLC, as its Sole Member
		By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	LRT FOUR HUNDRED, LLC
		By: Enterprise NewsMedia, LLC, as its Sole Member
		By: Enterprise NewsMedia Holding, LLC, as its Sole Member
		By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	MISSOURI LAWYERS MEDIA, LLC
		By: Dolco Acquisition, LLC, as its Manager
		By: GateHouse Media Operating, LLC, as its Sole Member
		By: GateHouse Media Holdco, LLC, as its Sole Member
		By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
		By: GateHouse Media, LLC, as its Sole Member
		By: New Media Holdings II LLC, as its Sole Member
		By: New Media Holdings I LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member
	NEW MEDIA HOLDINGS I LLC
		By: Gannett Media Corp., as its Sole Member
	NEW MEDIA HOLDINGS II LLC
		By: New Media Holdings I LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

---

	NEW MEDIA VENTURES GROUP LLC
		By: Gannett Media Corp., as its Sole Member
	NEW ORLEANS PUBLISHING GROUP, L.L.C.
		By: Dolco Acquisition, LLC, as its Manager
		By: GateHouse Media Operating, LLC, as its Sole Member
		By: GateHouse Media Holdco, LLC, as its Sole Member
		By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
		By: GateHouse Media, LLC, as its Sole Member
		By: New Media Holdings II LLC, as its Sole Member
		By: New Media Holdings I LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member
	NOPG, L.L.C.
		By: New Orleans Publishing Group, L.L.C., as its Sole Member
		By: Dolco Acquisition, LLC, as its Manager
		By: GateHouse Media Operating, LLC, as its Sole Member
		By: GateHouse Media Holdco, LLC, as its Sole Member
		By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
		By: GateHouse Media, LLC, as its Sole Member
		By: New Media Holdings II LLC, as its Sole Member
		By: New Media Holdings I LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member
	THE DAILY RECORD COMPANY, LLC
		By: Dolco Acquisition, LLC, as its Manager
		By: GateHouse Media Operating, LLC, as its Sole Member
		By: GateHouse Media Holdco, LLC, as its Sole Member
		By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
		By: GateHouse Media, LLC, as its Sole Member
		By: New Media Holdings II LLC, as its Sole Member
		By: New Media Holdings I LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member
	THE JOURNAL RECORD PUBLISHING CO., LLC
		By: Dolco Acquisition, LLC, as its Manager
		By: GateHouse Media Operating, LLC, as its Sole Member
		By: GateHouse Media Holdco, LLC, as its Sole Member
		By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
		By: GateHouse Media, LLC, as its Sole Member
		By: New Media Holdings II LLC, as its Sole Member
		By: New Media Holdings I LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

---

	THE NWS COMPANY, LLC
		By: Dolco Acquisition, LLC, as its Manager
		By: GateHouse Media Operating, LLC, as its Sole Member
		By: GateHouse Media Holdco, LLC, as its Sole Member
		By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member
		By: GateHouse Media, LLC, as its Sole Member
		By: New Media Holdings II LLC, as its Sole Member
		By: New Media Holdings I LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member
	UPCURVE CLOUD LLC
		By: UpCurve, Inc., as its Sole Member
	VENTURES ENDURANCE, LLC
		By: Gannett Ventures LLC, as its Sole Member
		By: New Media Ventures Group LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member
	VENTURES ENDURANCE EVENTS, LLC
		By: Ventures Endurance, LLC, as its Sole Member
		By: Gannett Ventures LLC, as its Sole Member
		By: New Media Ventures Group LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

---

	ACTION ADVERTISING, INC.
	ALEXANDRIA NEWSPAPERS, INC.
	BAXTER COUNTY NEWSPAPERS, INC.
	BIZZY, INC.
	BOAT SPINCO, INC.
	CITIZEN PUBLISHING COMPANY
	DES MOINES REGISTER AND TRIBUNE COMPANY
	DESK SPINCO, INC.
	DETROIT FREE PRESS, INC.
	DIGICOL, INC.
	EVANSVILLE COURIER COMPANY, INC.
	FEDERATED PUBLICATIONS, INC.
	GANNETT GP MEDIA, INC.
	GANNETT INTERNATIONAL COMMUNICATIONS, INC.
	GANNETT MEDIA CORP.
	GANNETT MHC MEDIA, INC.
	GANNETT MISSOURI PUBLISHING, INC.
	GANNETT RETAIL ADVERTISING GROUP, INC.
	GANNETT RIVER STATES PUBLISHING CORPORATION
	GANNETT SB, INC.
	GANNETT SUPPLY CORPORATION
	GANNETT VERMONT PUBLISHING, INC.
	JOURNAL COMMUNITY PUBLISHING GROUP, INC.
	JOURNAL MEDIA GROUP, INC.
	JOURNAL SENTINEL INC.
	KICKSERV, LLC
	MEMPHIS PUBLISHING COMPANY
	MULTIMEDIA, INC.
	PHOENIX NEWSPAPERS, INC.
	PRESS-CITIZEN COMPANY, INC.
	REACHLOCAL CANADA, INC.
	REACHLOCAL DP, INC.
	REACHLOCAL INTERNATIONAL, INC.
	REACHLOCAL, INC.
	RENO NEWSPAPERS, INC.
	SEDONA PUBLISHING COMPANY, INC.
	THE ADVERTISER COMPANY
	THE COURIER-JOURNAL, INC.
	THE DESERT SUN PUBLISHING CO.
	THE TIMES HERALD COMPANY
	WORDSTREAM, INC.
	X.COM, INC.

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	Director

---

	GANNETT INTERNATIONAL FINANCE LLC
	By:	/s/ Michael E. Reed
		Name: Michael E. Reed
		Title: Manager
	By:	/s/ Douglas E. Horne
		Name: Douglas E. Horne
		Title: Manager
	By:	/s/ Polly Grunfeld Sack
		Name: Polly Grunfeld Sack
		Title: Manager

---

	AMERICAN INFLUENCER AWARDS, LLC
		By: Gannett Ventures LLC, as its Sole Member
	ENMOTIVE COMPANY LLC
		By: Gannett Ventures LLC, as its Sole Member
	GIDDYUP EVENTS, LLC
		By: Ventures Endurance, LLC, as its Sole Member
	LOCO SPORTS, LLC
		By: Ventures Endurance, LLC, as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	Chief Executive Officer

---

	DEALON, LLC
		By: ReachLocal, Inc., as its Sole Member
	DES MOINES PRESS CITIZEN LLC
		By: Des Moines Register and Tribune Company, as its Sole Member
	FOODBLOGS, LLC
		By: Grateful Media, LLC, as its Sole Member
		By: Gannett Satellite Information Network, LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member
	GANNETT PUBLISHING SERVICES, LLC
		By: Gannett Satellite Information Network, LLC, as its Managing Member
		By: Gannett Media Corp., as its Sole Member
	GANNETT SATELLITE INFORMATION NETWORK, LLC
		By: Gannett Media Corp., as its Sole Member
	GANNETT UK MEDIA, LLC
		By: Gannett Media Corp., as its Sole Member
	GCCC, LLC
		By: Gannett Missouri Publishing, Inc., as its Sole Member
	GCOE, LLC
		By: Gannett Satellite Information Network, LLC, as its Managing Member
		By: Gannett Media Corp., as its Sole Member
	GFHC, LLC
		By: Gannett Media Corp., as its Sole Member
	GNSS LLC
		By: Gannett Media Corp., as its Sole Member
	GRATEFUL MEDIA, LLC
		By: Gannett Satellite Information Network, LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member
	IMAGN CONTENT SERVICES, LLC
		By: USA Today Sports Media Group, LLC, as its Sole Member
		By: Gannett Satellite Information Network, LLC, as its Managing Member
		By: Gannett Media Corp., as its Sole Member
	LOCALIQ LLC
		By: Gannett Media Corp., as its Sole Member
	MILWAUKEE MARATHON LLC
		By: Ventures Endurance Events, LLC, as Member and Majority In Interest

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

---

	REACHLOCAL INTERNATIONAL GP LLC
		By: ReachLocal International, Inc., as its Sole Member
	SCRIPPS NP OPERATING, LLC
		By: Desk Spinco, Inc., as its Sole Member
	THANKSGIVING VENTURES, LLC
		By: Grateful Media, LLC, as its Sole Member
		By: Gannett Satellite Information Network, LLC, as its Sole Member
		By: Gannett Media Corp., as its Sole Member
	USA TODAY SPORTS MEDIA GROUP, LLC
		By: Gannett Satellite Information Network, LLC, as its Managing Member
		By: Gannett Media Corp., as its Sole Member
	YORK DAILY RECORD-YORK SUNDAY NEWS LLC
		By: York Newspaper Company, as its Manager
		By: York Newspaper Holdings, L.P., as its General Partner
		By: York Partnership Holdings, LLC, as its General Partner
		By: Texas-New Mexico Newspapers, LLC, as its Managing Member
		By: The Sun Company of San Bernardino, California LLC, as its Managing Member
		By: Gannett Media Services, LLC, as its Sole Member
		By: Gannett Media Corp., as its Member
		By: The Desert Sun Publishing Co., as its Member
		By: Gannett Satellite Information Network, LLC, as its Member
		By: Gannett Media Corp., as its Sole Member
		By: Gannett International Communications, Inc. as its Member
		By: York Partnership Holdings, LLC, as its General Partner
		By: Texas-New Mexico Newspapers, LLC, as its Managing Member
		By: The Sun Company of San Bernardino, California LLC, as its Managing Member
		By: Gannett Media Services, LLC, as its Sole Member
		By: Gannett Media Corp., as its Member
		By: The Desert Sun Publishing Co., as its Member
		By: Gannett Satellite Information Network, LLC, as its Member
		By: Gannett Media Corp., as its Sole Member
		By: Gannett International Communications, Inc. as its Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

---

	YORK DISPATCH LLC
		By: York Newspaper Company, as its Manager
		By: York Newspaper Holdings, L.P., as its General Partner
		By: York Partnership Holdings, LLC, as its General Partner
		By: Texas-New Mexico Newspapers, LLC, as its Managing Member
		By: The Sun Company of San Bernardino, California LLC, as its Managing Member
		By: Gannett Media Services, LLC, as its Sole Member
		By: Gannett Media Corp., as its Member
		By: The Desert Sun Publishing Co., as its Member
		By: Gannett Satellite Information Network, LLC, as its Member
		By: Gannett Media Corp., as its Sole Member
		By: Gannett International Communications, Inc. as its Member
		By: York Partnership Holdings, LLC, as its General Partner
		By: Texas-New Mexico Newspapers, LLC, as its Managing Member
		By: The Sun Company of San Bernardino, California LLC, as its Managing Member
		By: Gannett Media Services, LLC, as its Sole Member
		By: Gannett Media Corp., as its Member
		By: The Desert Sun Publishing Co., as its Member
		By: Gannett Satellite Information Network, LLC, as its Member
		By: Gannett Media Corp., as its Sole Member
		By: Gannett International Communications, Inc. as its Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

---

	YORK NEWSPAPER COMPANY
		By: York Newspaper Holdings, L.P., as its General Partner
		By: York Partnership Holdings, LLC, as its General Partner
		By: York Newspaper Holdings, L.P., as its General Partner
		By: Texas-New Mexico Newspapers, LLC, as its Managing Member
		By: The Sun Company of San Bernardino, California LLC, as its Managing Member
		By: Gannett Media Services, LLC, as its Sole Member
		By: Gannett Media Corp., as its Member
		By: The Desert Sun Publishing Co., as its Member
		By: Gannett Satellite Information Network, LLC, as its Member
		By: Gannett Media Corp., as its Sole Member
		By: Gannett International Communications, Inc. as its Member
		By: York Partnership Holdings, LLC, as its General Partner
		By: Texas-New Mexico Newspapers, LLC, as its Managing Member
		By: The Sun Company of San Bernardino, California LLC, as its Managing Member
		By: Gannett Media Services, LLC, as its Sole Member
		By: Gannett Media Corp., as its Member
		By: The Desert Sun Publishing Co., as its Member
		By: Gannett Satellite Information Network, LLC, as its Member
		By: Gannett Media Corp., as its Sole Member
		By: Gannett International Communications, Inc. as its Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

---

	YORK NEWSPAPERS HOLDINGS, L.P.
		By: York Partnership Holdings, LLC, as its General Partner
		By: Texas-New Mexico Newspapers, LLC, as its Managing Member
		By: The Sun Company of San Bernardino, California LLC, as its Managing Member
		By: Gannett Media Services, LLC, as its Sole Member
		By: Gannett Media Corp., as its Member
		By: The Desert Sun Publishing Co., as its Member
		By: Gannett Satellite Information Network, LLC, as its Member
		By: Gannett Media Corp., as its Sole Member
		By: Gannett International Communications, Inc., as its Member
	YORK NEWSPAPERS HOLDINGS, LLC
		By: York Newspaper Holdings, L.P., as its Sole Member
		By: York Partnership Holdings, LLC, as its General Partner
		By: Texas-New Mexico Newspapers, LLC, as its Managing Member
		By: The Sun Company of San Bernardino, California LLC, as its Managing Member
		By: Gannett Media Services, LLC, as its Sole Member
		By: Gannett Media Corp., as its Member
		By: The Desert Sun Publishing Co., as its Member
		By: Gannett Satellite Information Network, LLC, as its Member
		By: Gannett Media Corp., as its Sole Member
		By: Gannett International Communications, Inc. as its Member
	YORK PARTNERSHIP HOLDINGS, LLC
		By: Texas-New Mexico Newspapers, LLC, as its Managing Member
		By: The Sun Company of San Bernardino, California LLC, as its Managing Member
		By: Gannett Media Services, LLC, as its Sole Member
		By: Gannett Media Corp., as its Member
		By: The Desert Sun Publishing Co., as its Member
		By: Gannett Satellite Information Network, LLC, as its Member
		By: Gannett Media Corp., as its Sole Member
		By: Gannett International Communications, Inc. as its Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

---

	DESERT SUN PUBLISHING, LLC
		By: Gannett Media Services, LLC, as its Sole Member
		By: Gannett Co., Inc., as its Member
		By: The Desert Sun Publishing Co., as its Member
		By: Gannett Satellite Information Network, LLC, as its Member
		By: Gannett Media Corp., as its Sole Member
		By: Gannett International Communications, Inc. as its Member
	GANNETT MEDIA SERVICES, LLC
		By: Gannett Media Corp., as its Member
		By: The Desert Sun Publishing Co., as its Member
		By: Gannett Satellite Information Network, LLC, as its Member
		By: Gannett Media Corp., as its Sole Member
		By: Gannett International Communications, Inc. as its Member
	SALINAS NEWSPAPERS LLC
		By: Gannett Media Services, LLC, as its Sole Member
		By: Gannett Media Corp., as its Member
		By: The Desert Sun Publishing Co., as its Member
		By: Gannett Satellite Information Network, LLC, as its Member
		By: Gannett Media Corp., as its Sole Member
		By: Gannett International Communications, Inc. as its Member
	TEXAS-NEW MEXICO NEWSPAPERS, LLC
		By: The Sun Company of San Bernardino, California LLC, as its Member
		By: Gannett Media Services, LLC, as its Sole Member
		By: Gannett Media Corp., as its Member
		By: The Desert Sun Publishing Co., as its Member
		By: Gannett Satellite Information Network, LLC, as its Member
		By: Gannett Media Corp., as its Sole Member
		By: Gannett International Communications, Inc. as its Member
	THE SUN COMPANY OF SAN BERNARDINO, CALIFORNIA LLC
		By: Gannett Media Services, LLC, as its Sole Member
		By: Gannett Media Corp., as its Member
		By: The Desert Sun Publishing Co., as its Member
		By: Gannett Satellite Information Network, LLC, as its Member
		By: Gannett Media Corp., as its Sole Member
		By: Gannett International Communications, Inc., as its Member
	VISALIA NEWSPAPERS LLC
		By: Gannett Media Services, LLC, as its Sole Member
		By: Gannett Media Corp., as its Member
		By: The Desert Sun Publishing Co., as its Member
		By: Gannett Satellite Information Network, LLC, as its Member
		By: Gannett Media Corp., as its Sole Member
		By: Gannett International Communications, Inc., as its Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

---

	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
	as Trustee
	By:	/s/ William Sicking

		Name:	William Sicking
		Title:	Vice President

---

---

Exhibit 4.3

GANNETT CO., INC.,

 

THE SUBSIDIARY GUARANTORS PARTY HERETO FROM TIME TO TIME

 

and

 

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,

 

as Trustee

 

INDENTURE

 

Dated as of October 15, 2024

 

6.000% Convertible Senior Secured Notes due 2031

 

---

TABLE OF CONTENTS

 

Page

 

ARTICLE 1 DEFINITIONS			1
	Section 1.01	Definitions	1
	Section 1.02	References to Interest	47
	Section 1.03	Terms Generally	47
	Section 1.04	Certain Matters of Construction	48
	Section 1.05	Pro Forma Calculations	48
	Section 1.06	Accounting and Other Terms	49
	Section 1.07	Time References	50
ARTICLE 2 ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES			50
	Section 2.01	Designation and Amount	50
	Section 2.02	Form of Notes	50
	Section 2.03	Date and Denomination of Notes; Payments of Interest and Defaulted Amounts	51
	Section 2.04	Execution, Authentication and Delivery of Notes	52
	Section 2.05	Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary	53
	Section 2.06	Mutilated, Destroyed, Lost or Stolen Notes	60
	Section 2.07	Temporary Notes	61
	Section 2.08	Cancellation of Notes Paid, Converted, Etc.	61
	Section 2.09	CUSIP Numbers	62
	Section 2.10	Additional Notes; Repurchases	62
ARTICLE 3 SATISFACTION AND DISCHARGE			62
	Section 3.01	Satisfaction and Discharge	62
ARTICLE 4 PARTICULAR COVENANTS OF THE COMPANY			63
	Section 4.01	Payment of Principal and Interest	63
	Section 4.02	Maintenance of Office or Agency	63
	Section 4.03	Appointments to Fill Vacancies in Trustee’s Office	63
	Section 4.04	Provisions as to Paying Agent	63
	Section 4.05	[Reserved]	65

i

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	Section 4.06	[Reserved]	65
	Section 4.07	Stay, Extension and Usury Laws	65
	Section 4.08	Compliance Certificate; Statements as to Defaults	65
	Section 4.09	Further Instruments and Acts	65
	Section 4.10	Additional Interest	65
	Section 4.11	Affirmative Covenants	66
	Section 4.12	Negative Covenants	71
	Section 4.13	Minimum Liquidity	77
	Section 4.14	Dividend Event	77
	Section 4.15	2024 Term Loan	77
	Section 4.16	Designation of Subsidiaries	77
ARTICLE 5 LISTS OF HOLDERS AND REPORTS BY THE COMPANY AND THE TRUSTEE			78
	Section 5.01	Lists of Holders	78
	Section 5.02	Preservation and Disclosure of Lists	78
ARTICLE 6 DEFAULTS AND REMEDIES			78
	Section 6.01	Events of Default	78
	Section 6.02	Acceleration; Rescission and Annulment	81
	Section 6.03	[Reserved]	82
	Section 6.04	Payments of Notes on Default; Suit Therefor	82
	Section 6.05	Application of Monies Collected by Trustee	83
	Section 6.06	Proceedings by Holders	84
	Section 6.07	Proceedings by Trustee	85
	Section 6.08	Remedies Cumulative and Continuing	85
	Section 6.09	Direction of Proceedings and Waiver of Defaults by Majority of Holders	86
	Section 6.10	Notice of Defaults	86
	Section 6.11	Undertaking to Pay Costs	86
ARTICLE 7 CONCERNING THE TRUSTEE			87
	Section 7.01	Duties and Responsibilities of Trustee	87
	Section 7.02	Reliance on Documents, Opinions, Etc.	88
	Section 7.03	No Responsibility for Recitals, Etc.	89

ii

---

	Section 7.04	Trustee, Paying Agents, Conversion Agents or Note Registrar May Own Notes	90
	Section 7.05	Monies and Shares of Common Stock to Be Held in Trust	90
	Section 7.06	Compensation and Expenses of Trustee	90
	Section 7.07	Officer’s Certificate as Evidence	91
	Section 7.08	Eligibility of Trustee	91
	Section 7.09	Resignation or Removal of Trustee	91
	Section 7.10	Acceptance by Successor Trustee	92
	Section 7.11	Succession by Merger, Etc.	93
	Section 7.12	Trustee’s Application for Instructions from the Company	94
	Section 7.13	Limitation on Duty of Trustee; Indemnification	94
	ARTICLE 8 CONCERNING THE HOLDERS		94
	Section 8.01	Action by Holders	94
	Section 8.02	Proof of Execution by Holders	94
	Section 8.03	Who Are Deemed Absolute Owners	95
	Section 8.04	Company-Owned Notes Disregarded	95
	Section 8.05	Revocation of Consents; Future Holders Bound	95
ARTICLE 9 HOLDERS’ MEETINGS			96
	Section 9.01	Purpose of Meetings	96
	Section 9.02	Call of Meetings by Trustee	96
	Section 9.03	Call of Meetings by Company or Holders	96
	Section 9.04	Qualifications for Voting	97
	Section 9.05	Regulations	97
	Section 9.06	Voting	97
	Section 9.07	No Delay of Rights by Meeting	98
ARTICLE 10 SUPPLEMENTAL INDENTURES			98
	Section 10.01	Supplemental Indentures Without Consent of Holders	98
	Section 10.02	Supplemental Indentures with Consent of Holders	99
	Section 10.03	Effect of Supplemental Indentures	101
	Section 10.04	Notation on Notes	101
	Section 10.05	Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee	101

iii

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ARTICLE 11 CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE			102
	Section 11.01	Company May Consolidate, Etc. on Certain Terms	102
	Section 11.02	Successor Corporation to Be Substituted	102
	Section 11.03	Subsidiary Guarantors May Consolidate, Etc. on Certain Terms	103
ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS			104
	Section 12.01	Indenture and Notes Solely Corporate Obligations	104
ARTICLE 13 CONVERSION OF NOTES			104
	Section 13.01	Conversion Privilege	104
	Section 13.02	Conversion Procedure; Settlement Upon Conversion	105
	Section 13.03	Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes	109
	Section 13.04	Adjustment of Conversion Rate	111
	Section 13.05	Adjustments of Prices	122
	Section 13.06	Shares to Be Fully Paid	123
	Section 13.07	Effect of Recapitalizations, Reclassifications and Changes of the Common Stock	123
	Section 13.08	Certain Covenants	125
	Section 13.09	Responsibility of Trustee	125
	Section 13.10	Notice to Holders Prior to Certain Actions	126
	Section 13.11	Stockholder Rights Plans	126
	Section 13.12	Exchange in Lieu of Conversion	126
ARTICLE 14 REPURCHASE OF NOTES AT OPTION OF HOLDERS			127
	Section 14.01	Repurchase at Option of Holders Upon a Repurchase Event	127
	Section 14.02	Withdrawal of Repurchase Event Repurchase Notice	130
	Section 14.03	Deposit of Repurchase Event Repurchase Price	130
	Section 14.04	Covenant to Comply with Applicable Laws Upon Repurchase of Notes	131
ARTICLE 15 OPTIONAL REDEMPTION			132
	Section 15.01	Optional Redemption	132
	Section 15.02	Notice of Optional Redemption; Selection of Notes	132
	Section 15.03	Payment of Notes Called for Redemption	133

iv

---

	Section 15.04	Restrictions on Redemption	133
ARTICLE 16 RANKING OF NOTES LIENS			134
	Section 16.01	Relative Rights	134
ARTICLE 17 COLLATERAL			135
	Section 17.01	Security Documents	135
	Section 17.02	Notes Collateral Agent	136
	Section 17.03	Authorization of Actions to Be Taken	137
	Section 17.04	Release of Liens	138
	Section 17.05	Powers Exercisable by Receiver or Trustee	140
	Section 17.06	Release Upon Termination of the Company’s Obligations	141
	Section 17.07	Designations	141
	Section 17.08	Limitation on Duty of Notes Collateral Agent in Respect of Collateral; Indemnification	141
ARTICLE 18 GUARANTEE			142
	Section 18.01	Subsidiary Guarantee	142
	Section 18.02	Limitation on Liability	144
	Section 18.03	[Intentionally Omitted]	145
	Section 18.04	Successors and Assigns	145
	Section 18.05	No Waiver	145
	Section 18.06	Modification	146
	Section 18.07	Execution of Supplemental Indenture for Future Subsidiary Guarantors	146
	Section 18.08	Non-Impairment	146
ARTICLE 19 MISCELLANEOUS PROVISIONS			146
	Section 19.01	Provisions Binding on Company’s Successors	146
	Section 19.02	Official Acts by Successor Corporation	146
	Section 19.03	Addresses for Notices, Etc	146
	Section 19.04	Governing Law; Jurisdiction	147
	Section 19.05	Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee	148
	Section 19.06	Legal Holidays	148
	Section 19.07	No Security Interest Created	148

v

---

	Section 19.08	Benefits of Indenture	148
	Section 19.09	Table of Contents, Headings, Etc.	148
	Section 19.10	Authenticating Agent	149
	Section 19.11	Execution in Counterparts	150
	Section 19.12	Severability	150
	Section 19.13	Waiver of Jury Trial	150
	Section 19.14	Force Majeure	150
	Section 19.15	Calculations	150
	Section 19.16	Tax Matters	150
	Section 19.17	USA PATRIOT Act	151

Exhibit A	Form of Note
Exhibit B	Form of Supplemental Indenture (Future Guarantors)

Schedule 1.01(C)	Issue Date Immaterial Subsidiaries
Schedule 4.12(b)	Existing Indebtedness
Schedule 4.12(e)	Existing Investments
Schedule 4.12(k)	Limitations on Dividends and Other Payment Restrictions

vi

---

INDENTURE, dated as of October 15, 2024, among GANNETT CO., INC., a Delaware corporation, as issuer (the “Company,” as more fully set forth in Section 1.01), the Subsidiary Guarantors (as defined below) party hereto from time to time and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States, as trustee (the “Trustee,” as more fully set forth in Section 1.01).

 

W I T N E S S E T H:

 

WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issuance of its 6.000% Convertible Senior Secured Notes due 2031 (the “Notes”), initially in an aggregate principal amount not to exceed $223,723,868, and in order to provide the terms and conditions upon which the Notes are to be authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Indenture; and

 

WHEREAS, the Form of Note, the certificate of authentication to be borne by each Note, the Form of Notice of Conversion, the Form of Repurchase Event Repurchase Notice and the Form of Assignment and Transfer to be borne by the Notes are to be substantially in the forms hereinafter provided; and

 

WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee or a duly authorized authenticating agent, as in this Indenture provided, the valid, binding and legal obligations of the Company, and this Indenture a valid agreement according to its terms, have been done and performed, and the execution of this Indenture and the issuance hereunder of the Notes have in all respects been duly authorized.

 

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

 

That in order to declare the terms and conditions upon which the Notes are, and are to be, authenticated, issued and delivered, and in consideration of the premises and of the purchase and acceptance of the Notes by the Holders thereof, the Company covenants and agrees with the Trustee for the equal and proportionate benefit of the respective Holders from time to time of the Notes (except as otherwise provided below), as follows:

 

ARTICLE 1

 

DEFINITIONS

 

Section 1.01         Definitions.  The terms defined in this Section 1.01 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.01.

 

“2024 Term Loan” means the Amended and Restated First Lien Credit Agreement, dated as of October 15, 2024, by and among the Company, Gannett Holdings, the other Subsidiaries of the Company party thereto as guarantors, the lenders from time to time party thereto, and Apollo Administrative Agency, LLC, as administrative agent and collateral agent, as the same may be amended, supplemented or otherwise modified from time to time.

 

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“Account” has the meaning specified for such term in § 9.102 of the UCC.

 

“Account Debtor” means, with respect to any Person, each debtor, customer or obligor in any way obligated on or in connection with any Account of such Person.

 

“Acquisition” means the acquisition (whether by means of a merger, consolidation or otherwise) of all of the Equity Interests of any Person or all or substantially all of the assets of (or any division or business line of) any Person.

 

“Additional Shares” shall have the meaning specified in Section 13.03(a).

 

“Affiliate” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Person.  For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the Equity Interests having ordinary voting power for the election of members of the Board of Directors of such Person or (b) direct or cause the direction of the management and policies of such Person whether through the ownership of voting securities, by contract or otherwise.

 

“After-Acquired Property” means any property or assets (other than Excluded Property) of the Company or any Subsidiary Guarantor that secures any Notes Obligations that is not already subject to the Lien under the Security Documents.

 

“All-in Yield” shall mean, as to any loans or notes, the yield thereon payable to all holders thereof, whether in the form of interest rate, margin, original issue discount, upfront fees, rate floors or otherwise; and provided, further, that “All-in Yield” shall not include arrangement, commitment, underwriting, structuring, ticking or similar fees and customary consent fees for an amendment paid generally to consenting lenders.

 

“Anti-Corruption Laws” means the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the anti-bribery and anti-corruption laws, rules and regulations of any jurisdictions applicable to the Notes Parties or their Subsidiaries from time to time (collectively, the “Anti-Corruption Laws”).

 

“Anti-Money Laundering and Anti-Terrorism Laws” means any Requirement of Law relating to terrorism, economic sanctions or money laundering, including, without limitation, (a) the Money Laundering Control Act of 1986 (i.e., 18 U.S.C. §§ 1956 and 1957), (b) the Bank Secrecy Act of 1970 (31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959), and the implementing regulations promulgated thereunder, (c) the USA PATRIOT Act and the implementing regulations promulgated thereunder, (d) the laws, regulations and Executive Orders administered under any Sanctions Programs, (e) any law prohibiting or directed against terrorist activities or the financing or support of terrorist activities (e.g., 18 U.S.C. §§ 2339A and 2339B), and (f) any similar laws enacted in the United States or any other jurisdictions in which the parties to this Indenture operate, as any of the foregoing laws have been, or shall hereafter be, amended, renewed, extended, or replaced and all other present and future legal requirements of any Governmental Authority governing, addressing, relating to, or attempting to eliminate, terrorist acts and acts of war and any regulations promulgated pursuant thereto, in each case applicable to the Company or any Subsidiary.

 

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“Apollo” means, collectively, Apollo Capital Management, L.P., Apollo Global Funding, LLC and Apollo Global Securities, LLC.

 

“Apollo Funds” means funds, accounts or other clients managed by Apollo or its affiliates.

 

“Asset Sale Repurchase Event” shall mean following the occurrence of an Event of Default and so long as such Event of Default is continuing, the occurrence of a Sale and Leaseback Transaction or any Disposition (excluding Dispositions which qualify as Permitted Dispositions under clauses (a), (b), (c), (d), (e), (f), (g), (h), (i) (but only to the extent the fair market value of such property does not exceed $100,000 per Disposition or series of related Dispositions) or (j) of the definition of Permitted Dispositions) by any Notes Party or its Restricted Subsidiaries (other than Sale and Leaseback Transactions and Dispositions resulting in aggregate Net Cash Proceeds not exceeding $250,000 in the case of any single Sale and Leaseback Transaction or Disposition).

 

“Asset Sale Repurchase Event Amount” shall mean the Net Cash Proceeds from the Disposition or Sale and Leaseback Transaction triggering the related Asset Sale Repurchase Event.

 

“Asset Sale Repurchase Event Price” shall mean with respect to any Notes to be repurchased in connection with an Asset Sale Repurchase Event, 100% of the principal amount thereof.

 

“Blocked Person” means any Person:

 

(a)          that (i) is identified on the list of “Specially Designated Nationals and Blocked Persons” published by OFAC; (ii) resides, is organized or chartered in a country, region or territory that is the target of comprehensive sanctions under any Sanctions Program; or (iii) a Person listed in any economic or financial sanctions-related or trade embargoes-related list of designated Persons maintained under any of the Anti-Money Laundering and Anti-Terrorism Laws; and

 

(b)         that is owned or controlled by or that is acting for or on behalf of, any Person described in clause (a) above.

 

“Board of Directors” means with respect to (a) a corporation, the board of directors of the corporation or a committee of such board duly authorized to act for it hereunder, (b) a partnership, the board of directors of the general partner of the partnership, (c) a limited liability company, the managing member or members or any controlling committee or board of directors of such company or the sole member or the managing member thereof, and (d) any other Person, the board or committee of such Person serving a similar function.

 

“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors of the Company, and to be in full force and effect on the date of such certification and delivered to the Trustee.

 

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“BridgeTower Asset Purchase Agreement” means that certain asset purchase agreement, dated as of October 30, 2020, by and among BridgeTower Media, LLC, a Delaware limited liability company, as seller, the other sellers party thereto, BridgeTower OpCo, LLC, a Delaware limited liability company, as purchaser and BridgeTower Media, LLC, a Delaware limited liability company, solely in its capacity as the representative for the sellers party thereto.

 

“Business Day” means, with respect to any Note, any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.

 

“Capitalized Lease” means, with respect to any Person, any lease of (or other arrangement conveying the right to use) real or personal property by such Person as lessee that is required under GAAP to be classified and accounted for as a finance lease on the balance sheet of such Person.

 

“Capitalized Lease Obligations” means, with respect to any Person, obligations of such Person and its Restricted Subsidiaries under Capitalized Leases, and, for purposes hereof, the amount of any such obligation shall be the capitalized amount thereof determined in accordance with GAAP.

 

“Cash Equivalents” means (a) marketable direct obligations issued or unconditionally guaranteed by the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case, maturing within six months from the date of acquisition thereof; (b) commercial paper, maturing not more than 270 days after the date of issue rated P‑1 by Moody’s or A‑1 by Standard & Poor’s; (c) certificates of deposit maturing not more than 270 days after the date of issue, issued by commercial banking institutions and money market or demand deposit accounts maintained at commercial banking institutions, each of which is a member of the Federal Reserve System and has a combined capital and surplus and undivided profits of not less than $500,000,000; (d) repurchase agreements having maturities of not more than 90 days from the date of acquisition which are entered into with major money center banks included in the commercial banking institutions described in clause (c) above and which are secured by readily marketable direct obligations of the United States Government or any agency thereof; (e) money market accounts maintained with mutual funds having assets in excess of $2,500,000,000, which assets are primarily comprised of Cash Equivalents described in another clause of this definition; (f) marketable tax exempt securities rated A or higher by Moody’s or A+ or higher by Standard & Poor’s, in each case, maturing within 270 days from the date of acquisition thereof; and (g) in the case of any Foreign Subsidiary, other short-term investments that are analogous to the foregoing, are of comparable credit quality and are customarily used by companies in the jurisdiction of such Foreign Subsidiary for cash management purposes.

 

“CFC” means (a) any Person that is a “controlled foreign corporation” (within the meaning of Section 957), but only if a “United States person” (within the meaning of Section 7701(a)(30)) that is an Affiliate of a Notes Party is, with respect to such Person, a “United States shareholder” (within the meaning of Section 951(b)) described in Section 951(a)(1); and (b) each Subsidiary of a Person described in clause (a).  For purposes of this definition, all Section references are to the Internal Revenue Code.

 

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“Cash Settlement” shall have the meaning specified in Section 13.02(a).

 

The term “close of business” means 5:00 p.m. (New York City time).

 

“Collateral” means all of the property and assets and all interests therein and proceeds thereof now owned or hereafter acquired by any Person upon which a Lien is granted or purported to be granted by such Person as security for all or any part of the Notes Obligations.

 

“Combination Settlement” shall have the meaning specified in Section 13.02(a).

 

“Commission” means the U.S. Securities and Exchange Commission.

 

“Common Equity” of any Person means Equity Interests of such Person that is generally entitled (a) to vote in the election of directors of such Person or (b) if such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners, managers or others that will control the management or policies of such Person, but, for the avoidance of doubt, excluding any debt securities convertible into or exchangeable for any securities otherwise constituting Common Equity pursuant to this definition.

 

“Common Stock” means the common stock of the Company, par value $0.01 per share, at the date of this Indenture, subject to Section 13.07.

 

“Company” shall have the meaning specified in the first paragraph of this Indenture, and subject to the provisions of Article 11, shall include its successors and assigns.

 

“Company Order” means a written order of the Company, signed by one of its Officers, and delivered to the Trustee.

 

“Consolidated EBITDA” means, with respect to any Person for any period:

 

(a)          the Consolidated Net Income of such Person for such period,

 

plus

 

(b)          without duplication, the sum of the following amounts for such period to the extent (except in the case of clause (xi)) deducted in the calculation of Consolidated Net Income for such period:

 

(i)          any provision for United States federal income taxes or other taxes measured by net income,

 

(ii)         Consolidated Net Interest Expense (but excluding interest expense related to operating leases that are not Capitalized Leases),

 

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(iii)         any depreciation and amortization expense (but excluding depreciation and amortization related to operating leases that are not Capitalized Leases),

 

(iv)         any aggregate net loss on the Disposition of property (other than accounts and Inventory) outside the ordinary course of business,

 

(v)          any other non-cash expenditure, charge or loss for such period (other than any non-cash expenditure, charge or loss relating to write-offs, write-downs or reserves with respect to accounts and Inventory),

 

(vi)         any restructuring and integration costs, any other extraordinary, non-recurring or unusual charges and expenses or deductions (collectively, “Extraordinary Expenses”); provided that, for any period of four consecutive Fiscal Quarters, the aggregate amount of cash Extraordinary Expenses that are added back pursuant to this clause (vi) in calculating Consolidated EBITDA (when taken together with add-backs pursuant to clause (xi) below for such period of four consecutive Fiscal Quarters) shall not exceed 20% of Consolidated EBITDA of such Person (which percentage shall be calculated prior to giving effect to any such add-backs and adjustments),

 

(vii)        deferred financing costs,

 

(viii)       management fee incentive expense incurred and paid using common Equity Interests,

 

(ix)         fees, costs and expenses in connection with the Transactions,

 

(x)          fees, costs and expenses relating to any contemplated or completed acquisitions or dispositions or to any contemplated or completed offering of securities or other Indebtedness, and

 

(xi)          (x) [reserved]; and (y) pro forma “run rate” cost savings, operating expense reductions and synergies related to acquisitions, dispositions and other specified transactions (including, for the avoidance of doubt, acquisitions occurring prior to the Issue Date), restructurings, cost savings initiatives and other initiatives that are reasonably identifiable, factually supportable and projected by the Company in good faith to result from actions that have been taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Company) within 18 months after such acquisition, disposition or other specified transaction, restructuring, cost savings initiative or other initiative (in the case of subclauses (x) and (y), without duplication of any actual benefits realized from such steps prior to or during the applicable test period); provided that (1) the Company shall have delivered to the Trustee a certificate of the chief financial officer of the Company, in form and substance reasonably satisfactory to the Trustee (acting at the written direction of the Holders of a majority in aggregate principal amount of the Notes then outstanding), certifying that such cost savings meet the requirements set forth in subclause (x) or (y), as applicable, together with reasonably detailed evidence in support thereof, (2) cost savings, operating expense reductions and synergies will cease to be included in the determination of Consolidated EBITDA if the Company ceases to reasonably expect substantial steps with respect thereto to be taken within such 18-month period or if the benefits thereof are no longer expected by the Company to be achieved and (3) for any period of four Fiscal Quarters, the aggregate amount added back to Consolidated EBITDA for such period pursuant to this clause (xi) (when taken together with add-backs pursuant to clause (vi) above for such period of four consecutive Fiscal Quarters) shall not exceed 20% of Consolidated EBITDA for such period (which percentage shall be calculated prior to giving effect to any such add-backs and adjustments),

 

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minus

 

(c)          without duplication, the sum of the following amounts for such period to the extent included in the calculation of such Consolidated Net Income for such period:

 

(i)           any credit for United States federal income taxes or other taxes measured by net income,

 

(ii)          any gain from extraordinary items,

 

(iii)        any aggregate net gain from the Disposition of property (other than accounts and Inventory) outside the ordinary course of business; and

 

(iv)         any other non-cash gain, including any reversal of a charge referred to in clause (b)(v) above by reason of a decrease in the value of any Equity Interest, but excluding any such non-cash gains (A) in respect of which cash was received in a prior period or will be received in a future period and (B) that represent the reversal of any accrual in a prior period for, or the reversal of any cash reserves established in a prior period for, anticipated cash charges.

 

“Consolidated Net Income” means, with respect to any Person, for any period, the consolidated net income (or loss) of such Person and its Restricted Subsidiaries for such period; provided, however, that the following shall be excluded:  (a) the net income of any other Person in which such Person or one of its Restricted Subsidiaries has a joint interest with a third-party (which interest does not cause the net income of such other Person to be consolidated into the net income of such Person), except to the extent of the amount of dividends or distributions paid to such Person or Restricted Subsidiary, (b) the net income of any Restricted Subsidiary (other than a Notes Party) of such Person that is, on the last day of such period, subject to any restriction or limitation on the payment of dividends or the making of other distributions, to the extent of such restriction or limitation, and (c) the net income of any other Person arising prior to such other Person becoming a Restricted Subsidiary of such Person or merging or consolidating into such Person or its Restricted Subsidiaries.

 

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“Consolidated Net Interest Expense” means, with respect to any Person for any period, (a) gross interest expense of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis and in accordance with GAAP, less (b) the sum of (i) interest income for such period and (ii) gains for such period on Hedging Agreements (to the extent not included in interest income above and to the extent not deducted in the calculation of gross interest expense), plus (c) the sum of (i) losses for such period on Hedging Agreements (to the extent not included in gross interest expense), (ii) the upfront costs or fees for such period associated with Hedging Agreements (to the extent not included in gross interest expense) and (iii) amortization of original issue discount resulting from the issuance of Indebtedness at less than par or debt discount associated with the Notes, in each case, determined on a consolidated basis and in accordance with GAAP.

 

“Contingent Indemnity Obligations” means any Obligation constituting a contingent, unliquidated indemnification obligation of any Notes Party, in each case, to the extent (a) such obligation has not accrued and is not yet due and payable and (b) no claim has been made or is reasonably anticipated to be made with respect thereto.

 

“Contingent Obligation” means, with respect to any Person, any obligation of such Person guaranteeing any Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, (a) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of a primary obligor, (b) the obligation to make take-or-pay or similar payments, if required, regardless of nonperformance by any other party or parties to an agreement, (c) any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, assets, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term “Contingent Obligation” shall not include any product warranties extended in the ordinary course of business.  The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation with respect to which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto (assuming such Person is required to perform thereunder), as determined by such Person in good faith.

 

“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 Agreement” means, with respect to any deposit account, any securities account, any commodity account, any securities entitlement or any commodity contract, an agreement among, among others, the Notes Collateral Agent, the financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried and the Notes Party maintaining such account or entitlement or contract, effective to grant “control” (as defined under the applicable UCC) over such account, entitlement or contract to the Notes Collateral Agent.

 

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“Conversion Agent” shall have the meaning specified in Section 4.02.

 

“Conversion Date” shall have the meaning specified in Section 13.02(c).

 

“Conversion Obligation” shall have the meaning specified in Section 13.01(a).

 

“Conversion Price” means as of any time, $1,000, divided by the Conversion Rate as of such time.

 

“Conversion Rate” shall have the meaning specified in Section 13.01(a).

 

“Convertible Notes Exchange” means (i) the exchange by the Company of the Existing 2L Notes held by the Apollo Funds and the delivery of consents with respect to certain amendments to the Existing 2L Notes Indenture as follows: (x) 50% of the aggregate principal amount of Existing 2L Notes will be exchanged for cash at a rate of $1,110 per $1,000 principal amount of Existing 2L Notes exchanged and (y) 50% of the aggregate principal amount of Existing 2L Notes will be exchanged for Notes issued pursuant to this Indenture; and (ii) one or more additional exchanges with other holders of the Existing 2L Notes on terms and conditions no more favorable to such holders (unless as may otherwise be agreed by Apollo) than the terms of the exchange described in the immediately preceding clause (i) (including with respect to the amount of cash, aggregate principal amount of Notes or any other consideration delivered).

 

“Corporate Trust Office” means the designated office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 425 Walnut Street, 6th Floor, Mail Drop CN-OH-W6CT, Cincinnati, Ohio 45202, Attention: Corporate Trust Services—Administrator for Gannett Co., Inc., or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the designated corporate trust office of any successor trustee (or such other address as such successor trustee may designate from time to time by notice to the Holders and the Company).

 

“Custodian” means the Trustee, as custodian for The Depository Trust Company, with respect to the Global Notes, or any successor entity thereto.

 

“Daily Conversion Value” means, for each of the 40 consecutive Trading Days during the Observation Period, 1/40th of the product of (a) the Conversion Rate on such Trading Day and (b) the Daily VWAP for such Trading Day.

 

“Daily Measurement Value” means the Specified Dollar Amount (if any), divided by 40.

 

“Daily Settlement Amount,” for each of the 40 consecutive Trading Days during the Observation Period, shall consist of:

 

(a) cash in an amount equal to the lesser of (i) the Daily Measurement Value and (ii) the Daily Conversion Value on such Trading Day; and

 

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(b) if the Daily Conversion Value on such Trading Day exceeds the Daily Measurement Value, a number of shares of Common Stock equal to (i) the difference between the Daily Conversion Value and the Daily Measurement Value, divided by (ii) the Daily VWAP for such Trading Day.

 

“Daily VWAP” means, for each of the 40 consecutive Trading Days during the relevant Observation Period, the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “GCI <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one share of the Common Stock on such Trading Day determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for this purpose by the Company).  The “Daily VWAP” shall be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.

 

“Debt Parameters” means the requirements of clauses (c) through (h) of the definition of “Refinancing Facilities”.

 

“Debtor Relief Law” means the Bankruptcy Code and any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief law of the United States or other applicable jurisdiction from time to time in effect.

 

“Default” means any event that is, or after notice or passage of time, or both, would be, an Event of Default.

 

“Defaulted Amounts” means any amounts on any Note (including, without limitation, the Redemption Price, the Repurchase Event Repurchase Price, principal and interest) that are payable but are not punctually paid or duly provided for.

 

“Depositary” means, with respect to each Global Note, the Person specified in Section 2.05(c) as the Depositary with respect to such Notes, until a successor shall have been appointed and become such pursuant to the applicable provisions of this Indenture, and thereafter, “Depositary” shall mean or include such successor.

 

“Designated Non-Cash Consideration” means the fair market value of non-cash consideration received by Gannett Holdings or a Restricted Subsidiary in connection with a Disposition pursuant to Section 4.12(c) that is designated as Designated Non-Cash Consideration pursuant to a certificate of an Authorized Officer of Gannett Holdings, setting forth the basis of such valuation (which amount will be reduced by the fair market value of the portion of the non-cash consideration converted to cash within 180 days following the consummation of such Disposition).

 

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“Discharge” means, with respect to any Obligations, except to the extent otherwise provided herein with respect to the reinstatement or continuation of any such Obligations, the payment in full in cash (except for contingent indemnities and cost and reimbursement obligations to the extent no claim has been made) of all such Obligations then outstanding, if any, and, with respect to letters of credit or letter of credit guaranties outstanding under the agreements or instruments (collectively, the “Relevant Instruments”) governing such Obligations, delivery of cash collateral, backstop letters of credit or other accommodations in respect thereof in a manner consistent with such agreement or instrument, in each case after or concurrently with the termination of all commitments to extend credit thereunder, and the termination of all commitments of “secured parties” under the Relevant Instruments; provided that the Discharge of First-Priority Obligations shall not be deemed to have occurred if such payments are made with the proceeds of other First-Priority Obligations that constitute an exchange or replacement for or a refinancing of such First-Priority Obligations.  In the event any Obligations are modified and such Obligations are paid over time or otherwise modified, in each case, pursuant to Section 1129 of the Bankruptcy Code, such Obligations shall be deemed to be discharged when the final payment is made, in cash, in respect of such indebtedness and any obligations pursuant to such new or modified indebtedness shall have been satisfied.  The term “Discharged” shall have a corresponding meaning.

 

“Disposition” means any transaction, or series of related transactions, pursuant to which any Person or any of its Subsidiaries sells, assigns, transfers, leases, licenses (as licensor) or otherwise disposes of any property or assets (whether now owned or hereafter acquired) to any other Person, in each case, whether or not the consideration therefor consists of cash, securities or other assets owned by the acquiring Person.  For purposes of clarification, “Disposition” shall include (a) the sale or other disposition for value of any contracts, (b) the early termination or modification of any contract resulting in the receipt by any Notes Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course for accrued and unpaid amounts due through the date of termination or modification), (c) any sale of merchant accounts (or any rights thereto (including any rights to any residual payment stream with respect thereto)) by any Notes Party or (d) any disposition of property through a “plan of division” under the Delaware Limited Liability Company Act or any comparable transaction under any similar law.

 

“Disqualified Equity Interests” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interest 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, pursuant to a sinking fund obligation or otherwise (except as a result of (i) the payment in full of the Notes Obligations (other than Contingent Indemnity Obligations) and (ii) a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Notes and all other Notes Obligations (other than Contingent Indemnity Obligations)), (b) is redeemable at the option of the holder thereof, in whole or in part, (c) provides for the scheduled payments of dividends or distributions in cash, or (d) is convertible into or exchangeable for (i) Indebtedness or (ii) any other Equity Interests that would constitute Disqualified Equity Interests, in each case of clauses (a) through (d), prior to the date that is 91 days after the Maturity Date.

 

“Distributed Property” shall have the meaning specified in Section 13.04(c).

 

“Dividend Repurchase Event” shall mean the Board of Directors of the Company approving the declaration of a dividend or distribution (other than a dividend or distribution consisting solely of Common Stock of the Company) on account of the Company’s Equity Interests if the Total Gross Leverage Ratio of the Company for the most recent four Fiscal Quarter period for which financial statements are available is greater than 1.50 to 1.00 on a pro forma basis after giving effect to such dividend or distribution.

 

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“Dividend Repurchase Event Amount” shall mean the Company’s proposed amount of dividend or distribution in connection with the related Dividend Repurchase Event; in the case of a dividend or distribution of non-cash property, the value of such dividend or distribution shall be determined in good faith by the Board of Directors of the Company.

 

“Dividend Repurchase Event Price” shall mean with respect to any Notes, 100% of the principal amount thereof.

 

“Dividend Threshold” shall have the meaning specified in Section 13.04(d).

 

“Dollar,” “Dollars” and the symbol “$” each means lawful money of the United States of America.

 

“Domestic Notes Party” means (a) the Company and (b) each Subsidiary Guarantor that is a Domestic Subsidiary.

 

“Domestic Subsidiaries” means all Subsidiaries incorporated or organized under the laws of the United States of America, any State thereof or the District of Columbia.

 

“Effective Date” shall have the meaning specified in Section 13.03(c), except that, as used in Section 13.04 and Section 13.05, shall mean the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, reflecting the relevant share split or share combination, as applicable.

 

“Employee Plan” means an employee benefit plan (other than a Multiemployer Plan) covered by Title IV of ERISA that is maintained by any Notes Party or with respect to which any Notes Party has any liability (including on account of any of its ERISA Affiliates).

 

“Environmental Actions” means any complaint, summons, citation, written notice or directive, order, claim, litigation, investigation, judicial or administrative proceeding or judgment by or before any Governmental Authority or a consent, approval, satisfaction, determination, judgment, acceptance or similar action by any Person involving violations of Environmental Laws or Releases of or exposure of any Person to Hazardous Materials (a) from any assets, properties or businesses owned or operated by any Notes Party or any of its Subsidiaries or any legal predecessor in interest; (b) from adjoining properties or businesses onto or otherwise impacting any assets or properties owned or operated by any Notes Party or any of its Subsidiaries; or (c) onto any facilities which received Hazardous Materials generated by any Notes Party or any of its Subsidiaries or any predecessor in interest.

 

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“Environmental Laws” means, as applicable, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601, et seq.), the Hazardous Materials Transportation Act (49 U.S.C. § 1801, et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901, et seq.), the Federal Clean Water Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.) and, as it relates to exposure to hazardous or toxic materials, the Occupational Safety and Health Act (29 U.S.C. § 651 et seq.), as such laws may be amended or otherwise modified from time to time, and any other Requirement of Law, permit, license or other binding determination of any Governmental Authority imposing liability or establishing standards of conduct for protection of the environment or other binding government restrictions relating to the protection of the environment or the generation, storage, use, labelling, transport, distribution, Release, deposit or migration of, or exposure of any Person to, any hazardous or toxic materials or materials listed, defined, or regulated as “hazardous”, “toxic”, a “pollutant”, or a “contaminant” or words of similar meaning under applicable Requirements of Law into the environment.

 

“Environmental Liabilities and Costs” means all liabilities, monetary obligations, Remedial Actions, losses, damages, punitive damages, consequential damages, treble damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts and consultants and costs of investigations and feasibility studies), fines, penalties, sanctions and interest incurred as a result of any claim or demand by any Governmental Authority or any third party, and which, in each case, relate to any Notes Party’s noncompliance with Environmental Laws, or any environmental condition at or a Release of Hazardous Materials from or onto (a) any property presently or formerly owned by any Notes Party or any of its Subsidiaries or (b) any facility which received Hazardous Materials generated by any Notes Party or any of its Subsidiaries.

 

“Environmental Lien” means any Lien in favor of any Governmental Authority for Environmental Liabilities and Costs.

 

“Equity Interests” means (a) all shares of capital stock (whether denominated as common stock or preferred stock), equity interests, beneficial, partnership or membership interests, joint venture interests, participations or other ownership or profit interests in or equivalents (regardless of how designated) of or in a Person (other than an individual), whether voting or non-voting and (b) all securities convertible into or exchangeable for any of the foregoing and all warrants, options or other rights to purchase, subscribe for or otherwise acquire any of the foregoing, whether or not presently convertible, exchangeable or exercisable.

 

“Equity Issuance” means either (a) the sale or issuance by any Notes Party or any of its Restricted Subsidiaries of any shares of its Equity Interests or (b) the receipt by the Company of any cash capital contributions.

 

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute of similar import, and regulations thereunder, in each case, as in effect from time to time.  References to sections of ERISA shall be construed also to refer to any successor sections.

 

“ERISA Affiliate” means, with respect to any Person, any trade or business (whether or not incorporated) which is a member of a group of which such Person is a member and which would be deemed to be a “controlled group” within the meaning of Sections 414(b), (c), (m) and (o) of the Internal Revenue Code.

 

“Event of Default” shall have the meaning specified in Section 6.01.

 

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“Ex-Dividend Date” means the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from the seller of Common Stock on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

“Exchange Election” shall have the meaning specified in Section 13.12.

 

“Excluded Property” means (i) the property and other assets of the Company and the Subsidiary Guarantors that is excluded from the grant of security interest in favor of the Notes Collateral Agent, on behalf of the Holders, pursuant to the terms of this Indenture and the Security Documents or (ii) any property or assets of the Company or any Subsidiary Guarantor for which neither Company nor any Subsidiary Guarantor is required pursuant to the 2024 Term Loan or any Refinancing Facilities in respect thereof to be used to secure the Obligations under the 2024 Term Loan or any Refinancing Facilities in respect thereof.

 

“Excluded Securities” means (i) Equity Interests of the Company issued to directors, officers, employees or consultants of the Company in connection with their service, employment or retention by the Company pursuant to an equity incentive or similar plan approved by the Board of Directors of the Company, (ii) shares of Common Stock issued upon the conversion or exercise of options, warrants, rights or other convertible securities of the Company that are outstanding as of the Issue Date and (iii) Notes issued pursuant to this Indenture and any shares of Common Stock issued upon the conversion of such Notes.

 

“Excluded Subsidiary” means any of the following:  (a) an Unrestricted Subsidiary, (b) a Restricted Subsidiary that is a Foreign Subsidiary or a FSHCO, (c) an Immaterial Subsidiary, (d) Newsquest Media Group Limited and each of its Subsidiaries or (e) a Restricted Subsidiary that either (i) is not wholly owned, directly or indirectly, by the Company on the Issue Date or (ii) becomes a Restricted Subsidiary that is not wholly owned, directly or indirectly, by the Company after the Issue Date pursuant to a bona fide transaction with a non-affiliated party the primary purpose of which was other than causing such Restricted Subsidiary to become an Excluded Subsidiary, unless in the case of clauses (b), (c), (d) and (e), such Subsidiary is an obligor or guarantor under the Existing 1L Notes, the Existing 2L Notes, the 2024 Term Loan or any other Indebtedness of the Company or any of its Restricted Subsidiaries (excluding Indebtedness evidenced by this Indenture) in each case in an aggregate principal amount in excess of $50,000,000.

 

“Existing 1L Notes” means the notes issued pursuant to the Existing 1L Notes Indenture.  As of the Issue Date and after giving effect to the initial closing of the Senior Secured Notes Exchange Offer, there are $3,860,000 principal amount of Existing 1L Notes outstanding.

 

“Existing 1L Notes Collateral Agent” means U.S. Bank Trust Company, National Association (f/k/a U.S. Bank, National Association), as collateral agent in respect of the Existing 1L Notes.

 

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“Existing 1L Notes Indenture” means the Indenture, dated as of October 15, 2021, among Gannett Holdings, the guarantors party thereto from time to time and U.S. Bank Trust Company, National Association (f/k/a U.S. Bank National Association), as trustee (as amended, restated, supplemented or otherwise modified from time to time).

 

“Existing 1L Notes Trustee” means U.S. Bank Trust Company, National Association (f/k/a U.S. Bank, National Association) in its capacity as trustee under the Existing 1L Notes Indenture.

 

“Existing 2L Notes” means the notes issued pursuant to the Existing 2L Notes Indenture.  As of the Issue Date, there are $38,058,263 principal amount of Existing 2L Notes outstanding.

 

“Existing 2L Notes Collateral Agent” means Alter Domus Products Corp., as collateral agent in respect of the Existing 2L Notes.

 

“Existing 2L Notes Indenture” means the Indenture, dated as of November 17, 2020, by and between the Company and the Trustee (as has been amended, supplemented or otherwise modified from time to time prior to the Issue Date).

 

“Existing Intercreditor Agreement” means the first lien/second lien intercreditor agreement, dated as of October 15, 2021, among the Apollo Administrative Agency, LLC (as administrative agent and collateral agent on behalf of the lenders), the Existing 1L Notes Trustee, the Existing 1L Notes Collateral Agent, the Existing 2L Notes Trustee and the Existing 2L Notes Collateral Agent.

 

“Extraordinary Receipts” means any cash received by the Company or any of its Subsidiaries from casualty or condemnation awards (and payments in lieu thereof).

 

“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.

 

“Fair Market Value” means, with respect to any asset, the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, determined in good faith by the Company’s Board of Directors or a senior officer of the Company, which determination shall be conclusive absent fraud or gross negligence.

 

“First Lien Intercreditor Agreement” means the first lien/second lien intercreditor agreement among the Notes Collateral Agent, the Trustee, the Existing 1L Notes Collateral Agent, the Existing 1L Notes Trustee, the Term Loan Administrative Agent, the Term Loan Collateral Agent, and the other parties from time to time party thereto, entered into on the Issue Date, as it may be amended, restated, supplemented or otherwise modified from time to time in accordance with this Indenture.

 

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“First Lien Net Leverage Ratio” means, with respect to any Person for any period, the ratio of (a) Total Indebtedness of such Person and its Restricted Subsidiaries on a consolidated basis outstanding as of the end of such period (excluding any Indebtedness to the extent unsecured or secured by a Lien on all or any portion of the Collateral ranking junior to the Liens securing the First-Priority Obligations), minus Unrestricted Cash of such Person and its Restricted Subsidiaries to (b) Consolidated EBITDA of such Person and its Restricted Subsidiaries for the period of four consecutive Fiscal Quarters then last ended for which financial statements have been (or were required to be) delivered pursuant to Section 4.11(a)(ii) or Section 4.11(a)(iii), as applicable.  Unless otherwise specified, references to the “First Lien Net Leverage Ratio” herein shall mean the First Lien Net Leverage Ratio of the Company and its Restricted Subsidiaries.

 

“First-Priority Obligations” means any Obligations in respect of (i) the 2024 Term Loan, (ii) the Existing 1L Notes Indenture and (iii) Indebtedness that is both permitted to be incurred hereunder and permitted to be secured by a Lien on the Collateral on a senior basis to the Notes Obligations.

 

“Fiscal Quarter” means a fiscal quarter of the Company and its Subsidiaries.

 

“Fiscal Year” means the fiscal year of the Company and its Subsidiaries ending on December 31 of each calendar year.

 

“FSHCO” means any Restricted Subsidiary substantially all of whose assets consists of (a) Equity Interests or (b) Equity Interests and Indebtedness of one or more Foreign Subsidiaries that are CFCs.

 

“Foreign Official” means any employee, official, or other person acting on behalf of any foreign (i.e., non-U.S.) Governmental Authority, or of any public international organization, or any foreign political party or official thereof, or candidate for foreign political office.

 

“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.

 

“Form of Assignment and Transfer” means the “Form of Assignment and Transfer” attached as Attachment 3 to the Form of Note attached hereto as Exhibit A.

 

“Form of Note” means the “Form of Note” attached hereto as Exhibit A.

 

“Form of Notice of Conversion” means the “Form of Notice of Conversion” attached as Attachment 1 to the Form of Note attached hereto as Exhibit A.

 

“Form of Repurchase Event Repurchase Notice” means the “Form of Repurchase Event Repurchase Notice” attached as Attachment 2 to the Form of Note attached hereto as Exhibit A.

 

“Fundamental Change” shall be deemed to have occurred at the time after the Notes are originally issued if any of the following occurs:

 

(a)          a “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than the Company, its direct or indirect Wholly Owned Subsidiaries and the employee benefit plans of the Company and its direct or indirect Wholly Owned Subsidiaries, files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Company’s Common Equity representing more than 50% of the voting power of the Company’s Common Equity;

 

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(b)         the consummation of (A) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination) as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets; (B) any share exchange, consolidation or merger of the Company pursuant to which the Common Stock will be converted into cash, securities or other property or assets; or (C) any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, to any Person other than one or more of the Company’s direct or indirect Wholly Owned Subsidiaries; provided, however, that a transaction described in clause (A) or clause (B) in which the holders of all classes of the Company’s Common Equity immediately prior to such transaction own, directly or indirectly, more than 50% of all classes of Common Equity of the continuing or surviving corporation or transferee or the parent thereof immediately after such transaction in substantially the same proportions (relative to each other) as such ownership immediately prior to such transaction shall not be a Fundamental Change pursuant to this clause (b);

 

(c)          the stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company;

 

(d)          the Common Stock (or other common stock underlying the Notes) ceases to be listed or quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors); provided, however, that a transaction or transactions described in clause (a) or clause (b) above shall not constitute a Fundamental Change, if at least 90% of the consideration received or to be received by the holders of the Common Stock, excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights, in connection with such transaction or transactions consists of shares of common stock that are listed or quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors) or will be so listed or quoted when issued or exchanged in connection with such transaction or transactions and as a result of such transaction or transactions the Notes become convertible into such consideration, excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights (subject to the provisions of Section 13.02(a)).  If any transaction in which the Common Stock is replaced by the common stock of another entity occurs, following completion of any related Make-Whole Fundamental Change Period (or, in the case of a transaction that would have been a Fundamental Change or a Make-Whole Fundamental Change but for the proviso immediately following clause (d) of the definition thereof, following the effective date of such transaction) references to the Company in this definition shall instead be references to such other entity; or

 

(e)          a “Change of Control” under the 2024 Term Loan or the Refinancing Facilities.

 

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Any transaction that constitutes a Fundamental Change pursuant to both clause (a) and clause (b) of this definition shall be deemed a Fundamental Change solely under clause (b) of this definition.

 

“Fundamental Change Repurchase Amount” shall mean all of the outstanding Notes.

 

“Fundamental Change Repurchase Price” shall mean with respect to any Notes to be repurchased in connection with a Fundamental Change, 110% of the principal amount thereof.

 

“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect on the Issue Date.

 

“Gannett Holdings” means Gannett Holdings LLC, a Delaware limited liability company.

 

The term “given” with respect to any notice to be given to a Holder pursuant to this Indenture, shall mean notice (x) given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee, including by electronic mail in accordance with accepted practices or procedures at the Depositary (in the case of a Global Note) or (y) mailed to such Holder by first class mail, postage prepaid, at its address as it appears on the Note Register, in each case in accordance with Section 19.03.  Notice so “given” shall be deemed to include any notice to be “mailed” or “delivered,” as applicable, under this Indenture.

 

“Global Note” shall have the meaning specified in Section 2.05(b).

 

“Governing 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 the operating agreement; (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture, declaration or other applicable agreement or documentation evidencing or otherwise relating to its formation or organization, governance and capitalization; and (d) with respect to any of the entities described above, any other 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.

 

“Governmental Authority” means any nation or government, any Federal, state, province, city, town, municipality, county, local or other political subdivision thereof or thereto and any department, commission, board, bureau, instrumentality, agency 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).

 

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“Hazardous Material” means (a) any element, compound or chemical that is defined, listed or otherwise classified as a contaminant, pollutant, toxic pollutant, toxic or hazardous substance, extremely hazardous substance or chemical, hazardous waste, special waste, or solid waste under Environmental Laws or that is likely to cause immediately, or at some future time, harm to or have an adverse effect on, the environment or human health or safety, including, without limitation, any pollutant, contaminant, waste, hazardous waste, toxic substance or dangerous good which is defined or identified in any Environmental Law and which is present in the environment in such quantity or state that it contravenes any Environmental Law; (b) petroleum and its refined products; (c) polychlorinated biphenyls; (d) any substance exhibiting a hazardous waste characteristic, including corrosivity, ignitability, toxicity or reactivity, that subjects it to regulation under Environmental Law, as well as any radioactive or explosive materials; and (e) any raw materials, building components (including asbestos-containing materials) and manufactured products containing hazardous substances listed or classified as such under Environmental Laws.

 

“Hedging Agreement” means any interest rate, foreign currency, commodity or equity swap, collar, cap, floor or forward rate agreement, or other agreement or arrangement designed to protect against fluctuations in interest rates or currency, commodity or equity values (including, without limitation, any option with respect to any of the foregoing and any combination of the foregoing agreements or arrangements), and any confirmation executed in connection with any such agreement or arrangement.

 

“Holder,” as applied to any Note, or other similar terms (but excluding the term “beneficial holder” or “beneficial owner” or similar terms), means any Person in whose name at the time a particular Note is registered on the Note Register.

 

“Immaterial Subsidiary” means each Restricted Subsidiary that is not a Material Subsidiary.  As of the Issue Date, the Restricted Subsidiaries that are not Material Subsidiaries are listed on Schedule 1.01(C) hereto.

 

“Indebtedness” means, with respect to any Person, without duplication, (a) all indebtedness of such Person for borrowed money; (b) all obligations of such Person for the deferred purchase price of property or services (other than trade payables or other accounts payable incurred in the ordinary course of such Person’s business and any earn-out, purchase price adjustment or similar obligation until such obligation appears in the liabilities section of the balance sheet of such Person and is no longer contingent); (c) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; (d) all reimbursement, payment or other obligations and liabilities of such Person created or arising under any conditional sales or other title retention agreement with respect to property used and/or acquired by such Person, even though the rights and remedies of the lessor, seller and/or lender thereunder may be limited to repossession or sale of such property; (e) all Capitalized Lease Obligations of such Person; (f) all obligations and liabilities, contingent or otherwise, of such Person, in respect of letters of credit, acceptances and similar facilities other than obligations that are cash collateralized; (g) all net obligations and liabilities, calculated in good faith by the Company and in accordance with accepted practice, of such Person under Hedging Agreements; (h) all monetary obligations under any receivables factoring, receivable sales or similar transactions and all monetary obligations under any synthetic lease, tax ownership/operating lease, off-balance sheet financing or similar financing; (i) all Contingent Obligations in respect of obligations referred to in clauses (a) through (h) and (j) of this definition of another Person; (j) all Disqualified Equity Interests; and (k) all obligations referred to in clauses (a) through (j) of this definition of another Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) a Lien upon property owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness.  The Indebtedness of any Person shall include the Indebtedness of any partnership of or joint venture in which such Person is a general partner or a joint venturer so long as, in the case of a joint venture, such Indebtedness is recourse to any Notes Party.

 

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“Indenture” means this instrument as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented.

 

“Insolvency Proceeding” means any proceeding commenced by or against any Person under any provision of any Debtor Relief Law.

 

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

 

“Intercompany Subordination Agreement” means an Intercompany Subordination Agreement made by the Company and its Subsidiaries in favor of the Notes Collateral Agent for the benefit of the Trustee, in form and substance reasonably satisfactory to the Notes Collateral Agent.

 

“Intercreditor Agreements” means (i) the First Lien Intercreditor Agreement, (ii) the Existing Intercreditor Agreement and (iii) any other intercreditor agreement in form and substance reasonably satisfactory to the Holders of a majority in aggregate principal amount of the Notes then outstanding, governing the relative rights of the Holders and the holders of other Indebtedness permitted hereunder to be incurred and secured by a Lien on the Collateral.

 

“Interest Payment Date” means each June 1 and December 1 of each year, beginning on December 1, 2024 (or such other date as may be specified in the certificate representing the relevant Note).

 

“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended (or any successor statute thereto) and the regulations thereunder.

 

“Inventory” means, with respect to any Person, all goods and merchandise of such Person leased or held for sale or lease by such Person, including all raw materials, work-in-process and finished goods, and all packaging, supplies and materials of every nature used or usable in connection with the shipping, storing, advertising or sale of such goods and merchandise, whether now owned or hereafter acquired, and all such other property the sale or other disposition of which would give rise to an Account or cash.

 

“Investment” means, with respect to any Person, (a) any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees, advances or other extensions of credit (excluding Accounts arising in the ordinary course of business), capital contributions or acquisitions of Indebtedness (including, any bonds, notes, debentures or other debt securities), Equity Interests, or all or substantially all of the assets of such other Person (or of any division or business line of such other Person), (b) the purchase or ownership of any futures contract or liability for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or (c) any investment in any other items that are or would be classified as investments on a balance sheet of such Person prepared in accordance with GAAP. The amount of any Investment shall be the amount actually invested (determined by reference to Fair Market Value) without adjustment for subsequent increases or decreases in value.

 

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“Issue Date” means October 15, 2024.

 

“Junior Indebtedness” means any Indebtedness of the Company or any of its Restricted Subsidiaries that (a) is secured by a Lien that is junior in priority to the Lien securing the Notes Obligations), (b) has been expressly subordinated in right of payment to the Notes Obligations or (c) is unsecured.

 

“Last Reported Sale Price” of the Common Stock on any date means the closing sale price (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) per share on that date as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is traded.  If the Common Stock is not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “Last Reported Sale Price” shall be the last quoted bid price per share for the Common Stock in the over-the-counter market on the relevant date as reported by OTC Markets Group Inc. or a similar organization.  If the Common Stock is not so quoted, the “Last Reported Sale Price” shall be the average of the mid-point of the last bid and ask prices per share for the Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose.

 

“Lease” means any lease of real property to which any Notes Party or any of its Subsidiaries is a party as lessor or lessee.

 

“Lien” means any mortgage, deed of trust, pledge, lien (statutory or otherwise), security interest, charge or other encumbrance or security or preferential arrangement of any nature, including, any conditional sale or title retention arrangement, any Capitalized Lease and any assignment, deposit arrangement or financing lease intended as, or having the effect of, security, but not including the interest of a lessor under a lease that is an operating lease.

 

“Make-Whole Fundamental Change” means any transaction or event that constitutes a Fundamental Change (as defined above and determined after giving effect to any exceptions to or exclusions from such definition, but without regard to the proviso in clause (b) of the definition thereof).

 

“Make-Whole Fundamental Change Period” shall have the meaning specified in Section 13.03(a).

 

“Market Disruption Event” means, for the purposes of determining amounts due upon conversion (a) a failure by the primary U.S. national or regional securities exchange or market on which the Common Stock is listed or admitted for trading to open for trading during its regular trading session or (b) the occurrence or existence prior to 1:00 p.m., New York City time, on any Scheduled Trading Day for the Common Stock for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the Common Stock or in any options contracts or futures contracts relating to the Common Stock.

 

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“Material Adverse Effect” means a material adverse effect on any of (a) the operations, assets, liabilities, or financial condition of the Notes Parties taken as a whole, (b) the ability of the Notes Parties taken as a whole to perform any of their obligations under this Indenture or any Security Document or (c) the rights and remedies of the Trustee or Notes Collateral Agent under this Indenture or any Security Document.

 

“Material Asset” means any asset or property that is owned by a Notes Party and material to the business of the Company and its Subsidiaries, taken as a whole (in each case, as determined by the Company in good faith).

 

“Material Contract” means, with respect to any Person, (a) each contract or agreement to which such Person or any of its Subsidiaries is a party involving aggregate consideration payable to or by such Person or such Subsidiary of $5,000,000 or more in any Fiscal Year (other than purchase orders in the ordinary course of the business of such Person or such Subsidiary and other than contracts that by their terms may be terminated by such Person or Subsidiary upon less than 60 days’ notice without penalty or premium) and (b) all other contracts or agreements as to which the breach, nonperformance, cancellation or failure to renew by any party thereto would reasonably be expected to have a Material Adverse Effect.

 

“Material Intellectual Property” means any Intellectual Property that is owned by a Notes Party and material to the business of the Company and its Subsidiaries, taken as a whole (in each case, as determined by the Company in good faith).

 

“Material Real Property” means any fee interest in any real property (wherever located) with an appraisal or current value in a Notes Party’s good-faith estimate in excess of $5,000,000.

 

“Material Subsidiary” means each Restricted Subsidiary, that, as of the last day of the Fiscal Quarter then last ended for which financial statements have been (or were required to be) delivered pursuant to Section 4.11(a)(ii) or Section 4.11(a)(iii), had revenues or total assets (determined on a consolidated basis for such Restricted Subsidiary and its Restricted Subsidiaries) for such Fiscal Quarter in excess of 2.5% of the consolidated revenues or consolidated total assets, as applicable, of the Company and the Restricted Subsidiaries for such Fiscal Quarter or that is designated in writing by the Company as a Material Subsidiary; provided that if, as of the last day of the Fiscal Quarter most recently ended for which financial statements have been (or were required to be) delivered pursuant to Section 4.11(a)(ii) or Section 4.11(a)(iii), the revenues or total assets of all Restricted Subsidiaries that do not constitute Material Subsidiaries as defined above in this definition (determined on a consolidated basis) for such Fiscal Quarter exceeds 5.0% of the consolidated revenues or consolidated total assets, as applicable, of the Company and the Restricted Subsidiaries for such Fiscal Quarter, then one or more of such excluded Restricted Subsidiaries shall for all purposes of this Indenture be deemed to be Material Subsidiaries in descending order based on the amounts of their consolidated revenues or consolidated total assets, as applicable, until such excess shall have been eliminated.

 

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“Maturity Date” means December 1, 2031.

 

“Merger Event” shall have the meaning specified in Section 13.07(a).

 

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

 

“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which any Notes Party or any of its ERISA Affiliates contributes or is obligated to contribute.

 

“Net Cash Proceeds” means, with respect to any issuance or incurrence of any Indebtedness, any Equity Issuance, any Disposition (including, for the avoidance of doubt, any Sale and Leaseback Transaction) or the receipt of any Extraordinary Receipts by any Person or any of its Restricted Subsidiaries, the aggregate amount of cash received (directly or indirectly) from time to time (whether as initial consideration or through the payment or disposition of deferred consideration) by or on behalf of such Person or such Restricted Subsidiary, in connection therewith after deducting therefrom only (a) in the case of any Disposition or the receipt of any Extraordinary Receipts consisting of insurance proceeds or condemnation awards, the amount of any Indebtedness secured by any Permitted Lien on any asset (other than Indebtedness assumed by the purchaser of such asset) which is required to be, and is, repaid in connection therewith (other than Indebtedness under this Indenture), (b) all expenses related thereto incurred by such Person or such Restricted Subsidiary in good faith in connection therewith (including, with respect to any Permitted Disposition or Sale and Leaseback Transaction permitted under Section 4.12(f), expenditures in respect of moving and build-out costs), (c) transfer taxes paid or reasonably estimated to be payable to any taxing authorities by such Person or such Restricted Subsidiary in connection therewith, and (d) net income taxes to be paid in connection therewith (after taking into account any tax credits or deductions and any tax sharing arrangements), in each case, to the extent, but only to the extent, that the amounts so deducted are (i) actually paid (or reasonably estimated to be payable) to a Person that, except in the case of out-of-pocket expenses and tax payments, is not an Affiliate of such Person or any of its Restricted Subsidiaries and (ii) properly attributable to such transaction or to the asset that is the subject thereof.

 

“Note” or “Notes” shall have the meaning specified in the first paragraph of the recitals of this Indenture.

 

“Note Register” shall have the meaning specified in Section 2.05(a).

 

“Note Registrar” shall have the meaning specified in Section 2.05(a).

 

“Notes Collateral Agent” means Alter Domus Products Corp. in its capacity as collateral agent for the holders of the Notes and the Trustee, together with its successors and permitted assigns.

 

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“Notes Obligations” means all present and future indebtedness, obligations, and liabilities of each Notes Party to the Trustee or the Notes Collateral Agent arising under or in connection with this Indenture or any Security Document, whether or not the right of payment in respect of such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed, legal, equitable, secured or unsecured, and whether or not such claim is discharged, stayed or otherwise affected by any proceeding referred to in Section 6.01.  Without limiting the generality of the foregoing, the Obligations of each Notes Party under this Indenture and the Security Documents include (a) the obligation (irrespective of whether a claim therefor is allowed in an Insolvency Proceeding) to pay principal, interest, charges, expenses, fees, premiums, attorneys’ fees and disbursements, indemnities and other amounts payable by such Person under the this Indenture and the Security Documents, and (b) the obligation of such Person to reimburse any amount in respect of any of the foregoing that any Person (in its sole discretion) may elect to pay or advance on behalf of such Person.

 

“Notes Party” means the Company and any Subsidiary Guarantor.

 

“Notice of Conversion” shall have the meaning specified in Section 13.02(b).

 

“Obligations” means any principal, interest, penalties, fees, indemnifications, reimbursements (including, without limitation, reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other liabilities payable under the documentation governing any Indebtedness (including interest, fees, expenses, indemnity claims and other monetary obligations accrued during the pendency of an insolvency proceeding, whether or not constituting an allowed claim in such proceeding); provided that Obligations with respect to the Notes shall not include fees or indemnifications in favor of third parties other than the Trustee and the Notes Collateral Agent.

 

“Observation Period” with respect to any Note surrendered for conversion means: (i) subject to clause (iii), if the relevant Conversion Date occurs prior to September 1, 2031, the 40 consecutive Trading Day period beginning on, and including, the second Trading Day immediately succeeding such Conversion Date; (ii) if the relevant Conversion Date occurs on or after September 1, 2031, the 40 consecutive Trading Days beginning on, and including, the 41st Scheduled Trading Day immediately preceding the Maturity Date; and (iii) if the relevant Conversion Date occurs on or after the date the Company has delivered a Redemption Notice pursuant to Section 15.02 (but prior to the close of business on the second Scheduled Trading Day immediately preceding the relevant Redemption Date), the 40 consecutive Trading Days beginning on, and including, the 41st Scheduled Trading Day immediately preceding the relevant Redemption Date.

 

“Officer” means, with respect to the Company, the President, the Chief Executive Officer, the Chief Financial Officer, the General Counsel, the Treasurer, the Secretary, any Managing Director, Executive or Senior Vice President or any Vice President (whether or not designated by a number or numbers or word or words added before or after the title “Vice President”).

 

“Officer’s Certificate,” when used with respect to the Company, means a certificate that is delivered to the Trustee and that is signed by an Officer of the Company.  Each such certificate shall include the statements provided for in Section 19.05 if and to the extent required by the provisions of such Section.  The Officer giving an Officer’s Certificate pursuant to Section 4.08 shall be the principal executive, financial or accounting officer of the Company.

 

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The term “open of business” means 9:00 a.m. (New York City time).

 

“Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, or other counsel acceptable to the Trustee, that is delivered to the Trustee, which opinion may contain customary exceptions and qualifications as to the matters set forth therein.  Each such opinion shall include the statements provided for in Section 19.05 if and to the extent required by the provisions of such Section 19.05.

 

“Optional Redemption” shall have the meaning specified in Section 15.01.

 

The term “outstanding,” when used with reference to Notes, shall, subject to the provisions of Section 8.04, mean, as of any particular time, all Notes authenticated and delivered by the Trustee under this Indenture, except:

 

(a)          Notes theretofore canceled by the Trustee or accepted by the Trustee for cancellation;

 

(b)          Notes, or portions thereof, that have become due and payable and in respect of which monies in the necessary amount shall have been deposited in trust with the Trustee or with any Paying Agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent);

 

(c)          Notes that have been paid pursuant to Section 2.06 or Notes in lieu of which, or in substitution for which, other Notes shall have been authenticated and delivered pursuant to the terms of Section 2.06 unless proof satisfactory to the Trustee is presented that any such Notes are held by protected purchasers in due course;

 

(d)          Notes converted pursuant to Article 13 and required to be cancelled pursuant to Section 2.08;

 

(e)          Notes redeemed pursuant to Article 15; and

 

(f)          Notes repurchased by the Company pursuant to the penultimate sentence of Section 2.10 or pursuant to Sections 14.01(a).

 

“Pari Passu Indebtedness” means: (a) with respect to the Company, the Notes and any Indebtedness which ranks pari passu in right of payment to the Notes; and (b) with respect to any Subsidiary Guarantor, its Subsidiary Guarantee and any Indebtedness which ranks pari passu in right of payment to such Subsidiary Guarantor’s Subsidiary Guarantee.

 

“Paying Agent” shall have the meaning specified in Section 4.02.

 

“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.

 

“Permitted Acquisition” means any Acquisition by a Notes Party or any wholly-owned Restricted Subsidiary of a Notes Party to the extent that each of the following conditions shall have been satisfied:

 

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(a)          no Event of Default shall have occurred and be continuing or would result from the consummation of the proposed Acquisition;

 

(b)          the Company shall have furnished to the Trustee at least 10 Business Days prior to the consummation of such Acquisition a certificate of the chief financial officer of the Company, demonstrating on a pro forma basis compliance, as at the end of the most recently ended Fiscal Quarter for which internally prepared financial statements are available, with the covenant set forth in Section 4.13 hereof after the consummation of such Acquisition;

 

(c)          the agreements, instruments and other documents pursuant to which the Acquisition is to be consummated shall provide that (i) neither the Notes Parties nor any of their Restricted Subsidiaries shall, in connection with such Acquisition, assume or remain liable in respect of any Indebtedness of the applicable Seller or Sellers, or other obligation of the applicable Seller or Sellers (except for obligations incurred in the ordinary course of business in operating the property so acquired and necessary or desirable to the continued operation of such property and except for Permitted Indebtedness), and (ii) all property to be so acquired in connection with such Acquisition shall be free and clear of any and all Liens, except for Permitted Liens (and if any such property is subject to any Lien not permitted by this clause (ii) then concurrently with such Acquisition such Lien shall be released);

 

(d)          the aggregate consideration in respect of Equity Interests in Persons that do not become Notes Parties upon the consummation of such Acquisition, and in respect of assets that are acquired by Restricted Subsidiaries that are not Notes Parties in connection with such Acquisition, shall not for all such Acquisitions made after the Issue Date (when taken together with the aggregate amount of Investments then outstanding under clause (d) of “Permitted Intercompany Investments”) exceed $100,000,000;

 

(e)          [reserved];

 

(f)          [reserved];

 

(g)          the assets being acquired (other than a de minimis amount of assets in relation to the Notes Parties’ and their Restricted Subsidiaries’ total assets), or the Person whose Equity Interests are being acquired, are useful in or engaged in, as applicable, the business of the Notes Parties and their Restricted Subsidiaries or a business reasonably related thereto;

 

(h)          [reserved];

 

(i)          the applicable Notes Party or Restricted Subsidiary shall execute and deliver the agreements, instruments and other documents required by Section 4.11(b) on or prior to the date of the consummation of such Acquisition (or arrangements for the taking of such actions within the grace periods provided in Section 4.11(b) for a newly-formed or acquired Restricted Subsidiary shall have been made);

 

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(j)          the consideration for any such Acquisition shall consist solely of (x) Equity Interests of the Company or cash generated by the issuance of Equity Interests of the Company or (y) unrestricted cash on the balance sheet; and

 

(k)          the Total Net Leverage Ratio, recomputed on a pro forma basis as of the last day of the most recently ended Fiscal Quarter, is equal to or less than 3.00 to 1.00 after giving effect to such Permitted Acquisition.

 

“Permitted Disposition” means:

 

(a)          sale of Inventory in the ordinary course of business;

 

(b)          licensing or sub-licensing, on a non-exclusive basis, Intellectual Property rights in the ordinary course of business;

 

(c)          leasing or subleasing assets (including ground leases) in the ordinary course of business;

 

(d)          (i) the lapse of Registered Intellectual Property of the Company and its Restricted Subsidiaries to the extent not economically desirable in the conduct of their business or (ii) the abandonment of Intellectual Property rights in the ordinary course of business so long as (in each case under clauses (i) and (ii)), (A) with respect to copyrights, such copyrights are not material revenue generating copyrights, and (B) such lapse is not materially adverse to the interests of the Holders;

 

(e)          any involuntary loss, damage or destruction of property;

 

(f)          any condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property;

 

(g)          so long as no Event of Default has occurred and is continuing or would result therefrom, Dispositions of assets from Gannett Holdings, the Company or any of its Restricted Subsidiaries to Gannett Holdings, the Company or any of its Restricted Subsidiaries; provided that if the transferor of such property is a Notes Party (i) (x) the transferee thereof must be a Notes Party or (y) if the transferee thereof is not a Notes Party, (I) such Disposition must be for Fair Market Value or (II) if not for Fair Market Value, if such transaction constitutes an Investment, such Investment must be permitted by Section 4.12(e);

 

(h)          the granting of Permitted Liens;

 

(i)          (x) Disposition of obsolete or worn-out equipment or equipment that is no longer used or useful in the business of Gannett Holdings, the Company and its Restricted Subsidiaries, in each case in the ordinary course of business and (y) Dispositions of equipment to the extent such equipment is exchanged for credit against the purchase price of similar replacement property;

 

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(j)          Dispositions of accounts receivable in connection with a compromise, write-down or collection thereof in the ordinary course of business or in connection with the bankruptcy or reorganization of the applicable counterparty and Dispositions of any securities received in any such bankruptcy or reorganization;

 

(k)          Dispositions of property or assets the aggregate amount of consideration received for which does not exceed, for all such Dispositions made pursuant to this clause (k), $10,000,000; and

 

(l)          Dispositions of property or assets not otherwise permitted in clauses (a) through (j) above as long as (i) the aggregate amount of consideration received is not less than the fair market value of such property or assets and (ii) 75% of the purchase price is payable in cash or Cash Equivalents; provided that (A) any liabilities (as shown on the Company’s, Gannett Holdings’ or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Company, Gannett Holdings or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Notes Obligations, that are assumed by the transferee with respect to the applicable Disposition shall be deemed to be cash consideration in an amount equal to the liabilities so assumed and (B) any Designated Non-Cash Consideration received by the Company, Gannett Holdings or such Restricted Subsidiary in respect of any Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (B) that is at that time outstanding, not in excess of $5,000,000 at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash consideration.

 

“Permitted Indebtedness” means:

 

(a)          any Indebtedness represented by the Notes and the Subsidiary Guarantees;

 

(b)          Indebtedness existing on the Issue Date (other than Indebtedness described in clauses (a) and (c)), and any Permitted Refinancing Indebtedness in respect of such Indebtedness;

 

(c)          the 2024 Term Loan and any Refinancing Facilities;

 

(d)          Permitted Intercompany Investments;

 

(e)          Indebtedness incurred in the ordinary course of business under performance, surety, statutory, and appeal bonds and similar obligations (other than in respect of other Indebtedness);

 

(f)          Indebtedness owed to any Person (including obligations in respect of letters of credit, bank guarantees and similar instruments for the benefit of such Person) providing property, casualty, liability, or other insurance to the Notes Parties, so long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the period in which such Indebtedness is incurred and such Indebtedness is outstanding only during such period;

 

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(g)          the incurrence by any Notes Party of Indebtedness under Hedging Agreements that are incurred for the bona fide purpose of hedging the interest rate, commodity, or foreign currency risks associated with such Notes Party’s operations and not for speculative purposes;

 

(h)          Indebtedness incurred in respect of credit cards, credit card processing services, debit cards, stored value cards, purchase cards (including so-called “procurement cards” or “P-cards”) or other similar cash management services, in each case, incurred in the ordinary course of business;

 

(i)          contingent liabilities in respect of any indemnification obligation, adjustment of purchase price, non-compete, or similar obligation of any Notes Party incurred in connection with the consummation of one or more Permitted Acquisitions;

 

(j)          Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within five Business Days of incurrence;

 

(k)          Indebtedness consisting of the financing of insurance premiums to the extent non-recourse (other than to the insurance premiums) incurred in the ordinary course of business;

 

(l)          customer deposits and advance payments received in the ordinary course of business from customers for goods purchased in the ordinary course of business;

 

(m)          Indebtedness in respect of Contingent Obligations of the Company, Gannett Holdings or any of its Restricted Subsidiaries in respect of Indebtedness of the Company, Gannett Holdings or any of its Restricted Subsidiaries permitted hereunder; provided that, in the case of a Contingent Obligation of a Notes Party in respect of Indebtedness of a Restricted Subsidiary that is not a Notes Party, such Contingent Obligation is permitted under Section 4.12(e); provided further that no Notes Party shall guarantee any Indebtedness for borrowed money or other debt obligations evidenced by promissory notes, bonds, debentures, loan agreements or similar instruments incurred by Newsquest Media Group Limited or any of its Subsidiaries.

 

(n)          other unsecured Indebtedness in an aggregate principal amount not exceeding $25,000,000 at any time outstanding;

 

(o)          the Existing 1L Notes and the Existing 2L Notes, in each case in an aggregate principal amount not to exceed the aggregate principal amount thereof on the Issue Date, and Permitted Refinancing Indebtedness in respect of the Existing 2L Notes;

 

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(p)          (i) Indebtedness of Gannett Holdings or any of its Restricted Subsidiaries incurred to finance the acquisition, construction, lease or improvement of any fixed or capital assets, including Capitalized Lease Obligations and any Indebtedness assumed by Gannett Holdings or any of its Restricted Subsidiaries in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof; provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or lease or the completion of such construction or improvement, and (ii) Permitted Refinancing Indebtedness in respect of Indebtedness incurred or assumed pursuant to clause (i) above; provided further that the aggregate principal amount of Indebtedness permitted by this clause (p) shall not exceed, at any time outstanding, the greater of (x) $10,000,000 and (y) 2.5% of Consolidated EBITDA of Gannett Holdings, the Company and its Restricted Subsidiaries for the most recently ended period of four consecutive Fiscal Quarters for which financial statements are required to have been delivered pursuant to Section 4.11(a)(ii) or Section 4.11(a)(iii), as applicable;

 

(q)          (i) Indebtedness in the form of one or more series of senior notes or credit facilities (“Ratio Debt”) of the Company secured by the Collateral on either a senior basis to the Notes or a junior basis to the Notes or unsecured, in an aggregate principal amount not to exceed, at any one time outstanding, an amount if, immediately after giving effect to the incurrence of such amount and the application of the proceeds therefrom, (1) in the case of any Ratio Debt that will be secured by the Collateral on a senior basis to the Notes, the First Lien Net Leverage Ratio, recomputed on a pro forma basis as of the last day of the most recently ended Fiscal Quarter giving effect to the incurrence of such Ratio Debt, is equal to or less than 2.00 to 1.00, (2) in the case of any Ratio Debt that will be secured by the Collateral on a junior basis to the Notes, the Secured Net Leverage Ratio, recomputed on a pro forma basis as of the last day of the most recently ended Fiscal Quarter giving effect to the incurrence of such Ratio Debt, is equal to or less than 3.00 to 1.00 or (3) in the case of any Ratio Debt that will be unsecured, the Total Net Leverage Ratio, recomputed on a pro forma basis as of the last day of the most recently ended Fiscal Quarter giving effect to the incurrence of such Ratio Debt, is equal to or less than 3.50 to 1.00; provided that no Event of Default shall have occurred and be continuing at the time of incurrence of such Indebtedness or would result therefrom, and (ii) any Permitted Refinancing Indebtedness in respect of such Indebtedness; provided, that any secured Indebtedness incurred under this clause (q) must (I) satisfy the Debt Parameters and (II) be subject to an intercreditor agreement in form and substance reasonably satisfactory to the Holders of a majority in aggregate principal amount of the Notes then outstanding;

 

(r)          Indebtedness of the Company or any Restricted Subsidiary in the form of purchase price adjustments, earn-outs, non-competition agreements or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any Permitted Acquisition or other Permitted Investment;

 

(s)          Indebtedness of Foreign Subsidiaries, including in respect of local lines of credit, letters of credit, bank guarantees, receivables financings, factoring arrangements, sale and leaseback transactions and similar extensions of credit in the ordinary course of business, in an aggregate principal amount not to exceed, at any time outstanding, the greater of (i) $20,000,000 and (ii) 5% of Consolidated EBITDA of Gannett Holdings, the Company and its Restricted Subsidiaries for the most recently ended period of four consecutive Fiscal Quarters for which financial statements are required to have been delivered pursuant to Section 4.11(a)(ii) or Section 4.11(a)(iii), as applicable; provided that if such Indebtedness is secured, it shall be secured only by the assets of such Foreign Subsidiary; and

 

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(t)          Indebtedness of the Company or any Restricted Subsidiary under the Paycheck Protection Program of the U.S. Small Business Administration in an aggregate principal amount not to exceed, at any time outstanding, $20,000,000;

 

provided that notwithstanding anything to the contrary set forth herein, no Notes Party shall be permitted to create, incur, assume, guaranty or otherwise become or remain directly or indirectly liable with respect to any Indebtedness that is from or of a Restricted Subsidiary that is a not a Subsidiary Guarantor (such creation, incurrence, assumption or guaranty being referred to as “Non-Notes Party Indebtedness of Notes Parties”), in each case, to the extent that the structuring of any claims with respect to any Indebtedness created, assumed, incurred or guaranteed by such Notes Parties, together with any Non-Notes Party Indebtedness of Notes Parties, could or would result in two or more bankruptcy claims against the same Notes Party for direct and indirect obligations against the same Notes Party, arising from one transaction or series of transactions relating to the same underlying Non-Notes Party Indebtedness of Notes Parties.

 

“Permitted Intercompany Investments” means Investments made by (a) a Notes Party to or in another Notes Party, (b) a Restricted Subsidiary that is not a Notes Party to or in another Restricted Subsidiary that is not a Notes Party, (c) a Restricted Subsidiary that is not a Notes Party to or in a Notes Party, so long as, in the case of a loan or advance made pursuant to this clause (c), such loan or advance is unsecured and subordinated to the Notes Obligations pursuant to the Intercompany Subordination Agreement, (d) a Notes Party to or in a Restricted Subsidiary that is not a Notes Party; provided that the aggregate amount of Investments made after the Issue Date pursuant to this clause (d) (when taken together with any Permitted Acquisitions made pursuant to clause (d) of the definition of “Permitted Acquisitions” after the Issue Date) shall not exceed $100,000,000 at any time outstanding; provided, further, that intercompany current liabilities incurred in the ordinary course of business and in good faith in connection with cash management operations of the Company and its Restricted Subsidiaries shall not count in calculating the limitation set forth in the immediately preceding proviso, and (e) Notes Parties as specified in Part II to Schedule 4.12(e) hereto.

 

“Permitted Investments” means:

 

(a)          Investments in cash and Cash Equivalents;

 

(b)          Investments in negotiable instruments deposited or to be deposited for collection in the ordinary course of business;

 

(c)          advances made in connection with purchases of goods or services in the ordinary course of business;

 

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(d)          Investments received in settlement of amounts due to any Notes Party or any of its Restricted Subsidiaries effected in the ordinary course of business or owing to any Notes Party or any of its Restricted Subsidiaries as a result of Insolvency Proceedings involving an Account Debtor or upon the foreclosure or enforcement of any Lien in favor of a Notes Party or its Restricted Subsidiaries;

 

(e)          Investments existing on the Issue Date, but not any increase in the amount thereof or any other modification of the terms thereof;

 

(f)           Permitted Intercompany Investments;

 

(g)          Permitted Acquisitions;

 

(h)          (i) earn-outs that become due and payable to any Notes Party or its Restricted Subsidiaries pursuant to the terms of Section 1.8 of the BridgeTower Asset Purchase Agreement and (ii) other purchase price adjustments, earn-outs, non-competition agreements or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any Permitted Acquisition or other Permitted Investment;

 

(i)           Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;

 

(j)           Investments in Hedging Agreements permitted under Section 4.12(b);

 

(k)          extensions of trade credit in the ordinary course of business, and investments received in satisfaction or partial satisfaction thereof from financially troubled Account Debtors in the ordinary course of business;

 

(l)           Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;

 

(m)         Investments consisting of the purchase of outstanding minority interests in non-wholly owned subsidiaries of the Notes Parties pursuant to obligations existing as of the Issue Date and set forth on Schedule 4.12(e);

 

(n)          Investments in the form of guarantees of third-party lease obligations arising in connection with Permitted Dispositions;

 

(o)          Investments of any Person (other than an Unrestricted Subsidiary) existing at the time such Person becomes a Restricted Subsidiary or consolidates or merges with the Company or any of its Restricted Subsidiaries so long as such Investments were not made in contemplation of such Person becoming a Restricted Subsidiary or of such consolidation or merger;

 

(p)          Guarantees by any Notes Party or any Restricted Subsidiary of obligations in respect of leases (including subleases) and other obligations, in each case that do not constitute Indebtedness; and

 

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(q)          other Investments by the Company or any of its Restricted Subsidiaries in an aggregate amount, as valued at cost at the time each such Investment is made and including all related commitments for future Investments (and the principal amount of any Indebtedness that is assumed or otherwise incurred in connection with such Investment), in an aggregate amount at any time outstanding not in excess of, for any Fiscal Quarter, the RP/Investment Amount for such Fiscal Quarter (less the sum of (x) the aggregate amount of Restricted Payments that have been made pursuant to clause (g) of the definition of “Permitted Restricted Payments” during such Fiscal Quarter and (y) the aggregate principal amount of Junior Indebtedness that has been repaid pursuant to Section 4.12(m)(ii)(A) during such Fiscal Quarter, in each case on or prior to the applicable date of determination); provided that (x) at the time such Investment is made pursuant to this clause (q), no Event of Default shall have occurred and be continuing or would result therefrom and (y) such Investment shall be made in the form of cash or Cash Equivalents;

 

provided that (a) the Company shall not permit any Subsidiary that is not a Notes Party to own, or hold exclusive rights in, any Material Intellectual Property and (b) no Notes Party may transfer (by means of Investment, Disposition, Restricted Payment or otherwise) any Material Assets to any other Subsidiary that is not a Notes Party or permit any Subsidiary that holds Material Assets to be designated as an Unrestricted Subsidiary pursuant to Section 4.16.

 

“Permitted Jurisdiction” shall have the meaning specified in Section 11.01(a).

 

“Permitted Liens” means:

 

(a)          Liens securing the Notes Obligations;

 

(b)          Liens for taxes, assessments and governmental charges the payment of which is not required under Section 4.11(c)(ii);

 

(c)          Liens imposed by law, such as carriers’, warehousemen’s, mechanics’, materialmen’s and other similar Liens arising in the ordinary course of business and securing obligations (other than Indebtedness for borrowed money) that are not overdue by more than 30 days or are being contested in good faith and by appropriate proceedings initiated as promptly as practicable and diligently conducted, and a reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made therefor;

 

(d)          Liens existing on the Issue Date (other than Liens in favor of the holders of the 2024 Term Loan and the Notes), provided that any such Lien shall only secure the Indebtedness that it secures on the Issue Date and any Permitted Refinancing Indebtedness in respect thereof;

 

(e)          (i) Liens in favor of the holders of the 2024 Term Loan or (ii) Liens in respect of the Refinancing Facilities and subject to the First Lien Intercreditor Agreement or another senior first lien intercreditor agreement in form and substance reasonably satisfactory to the Holders of a majority in aggregate principal amount of the Notes then outstanding;

 

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(f)          Deposits and pledges of cash securing (i) obligations incurred in respect of workers’ compensation, unemployment insurance or other forms of governmental insurance or benefits, (ii) the performance of bids, tenders, leases, contracts (other than for the payment of money) and statutory obligations or (iii) obligations on surety or appeal bonds (and, in the case of each of the foregoing, deposits and pledges of cash in respect of letters of credit, bank guarantees or similar instruments issued for the account of Gannett Holdings, the Company or any Subsidiary in support of any such obligations), but only to the extent such deposits or pledges are made or otherwise arise in the ordinary course of business and secure obligations not past due;

 

(g)          with respect to any fee interest in any real property, covenants, easements, zoning restrictions and similar encumbrances on real property and minor irregularities in the title thereto that do not (i) secure obligations for the payment of money (other than Indebtedness otherwise permitted hereunder) or (ii) materially impair the value of such property or its use by any Notes Party or any of its Subsidiaries in the normal conduct of such Person’s business;

 

(h)          Liens of landlords and mortgagees of landlords securing unpaid rents (i) arising by statute or under any lease or related Contractual Obligation entered into in the ordinary course of business, (ii) on fixtures and movable tangible property located on the real property leased or subleased from such landlord, or (iii) for amounts not yet due or that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves or other appropriate provisions are maintained on the books of such Person in accordance with GAAP;

 

(i)           the title and interest of a lessor or sublessor, or of a licensor or a sublicensor, in and to personal property leased or subleased (other than through a Capitalized Lease), or licensed or sublicensed, in each case extending only to such personal property;

 

(j)           non-exclusive licenses of Intellectual Property granted in the ordinary course of business, consistent with past practice or industry norm;

 

(k)          judgment liens securing judgments and other proceedings not constituting an Event of Default under Section 6.01(h);

 

(l)           rights of set-off, bankers’ liens or similar rights and remedies upon deposits of cash in favor of banks or other depository institutions, solely to the extent incurred in connection with the maintenance of such deposit accounts in the ordinary course of business;

 

(m)         Liens granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent the financing is permitted under the definition of Permitted Indebtedness;

 

(n)          Liens solely on any cash earnest money deposits made by any Notes Party in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition;

 

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(o)          Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;

 

(p)          Liens (i) of a collection bank arising under Section 4-208 of the Uniform Commercial Code (or any comparable or successor provision) on items in the course of collection, and (ii) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business;

 

(q)          Liens that are contractual rights of set-off relating to purchase orders and other agreements entered into by the Company or any of its Subsidiaries in the ordinary course of business;

 

(r)          Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Company or any of its Subsidiaries in the ordinary course of business and in accordance with the past practices of such Person;

 

(s)          leases, subleases, licenses or sublicenses granted to others in the ordinary course of business which do not materially interfere with the ordinary conduct of the business of the Company or any of its Subsidiaries and do not secure any Indebtedness;

 

(t)           Liens arising from UCC or other applicable personal property financing statement filings regarding operating leases entered into by the Company and its Subsidiaries in the ordinary course of business and in accordance with the past practices of such Person;

 

(u)          Liens on fixed or capital assets acquired, constructed or improved (including any such assets made the subject of a Capitalized Lease Obligation incurred) by Gannett Holdings or any of its Restricted Subsidiaries; provided that (i) such Liens only secure Indebtedness incurred to finance such acquisition, construction or improvement and permitted by clause (p)(i) of the definition of “Permitted Indebtedness” or any Permitted Refinancing Indebtedness in respect thereof permitted by clause (p)(ii) of the definition of “Permitted Indebtedness”, (ii) such Liens and the Indebtedness secured thereby are incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement (provided that this clause (ii) shall not apply to any Permitted Refinancing Indebtedness permitted by clause (p)(ii) of the definition of “Permitted Indebtedness” or any Lien securing such Permitted Refinancing Indebtedness), (iii) the Indebtedness secured thereby does not exceed the lesser of the cost of acquiring, constructing or improving such fixed or capital asset or, in the case of Indebtedness permitted by clause (p)(i) of the definition of “Permitted Indebtedness”, its fair market value at the time such security interest attaches, and in any event, the aggregate principal amount of such Indebtedness does not exceed the principal amount of Indebtedness permitted under clause (p) of the definition of “Permitted Indebtedness” and (iv) such Liens shall not attach to any other property or assets of Gannett Holdings or any of its Restricted Subsidiaries (except individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender);

 

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(v)          Liens arising from Cash Equivalents described in clause (d) of the definition of “Cash Equivalents”;

 

(w)         [reserved];

 

(x)          in the case of (i) any Restricted Subsidiary that is not a wholly owned Subsidiary or (ii) the Equity Interests in any Person that is not a Restricted Subsidiary, any encumbrance or restriction, including any put and call arrangements, related to Equity Interests in such Restricted Subsidiary or such other Person set forth in the organizational documents of such Restricted Subsidiary or such other Person or any related joint venture, shareholders’ or similar agreement;

 

(y)          Liens granted by a Restricted Subsidiary that is not a Notes Party on assets that do not constitute Collateral which secure Indebtedness permitted to be incurred by such Restricted Subsidiary under Section 4.12(b);

 

(z)          Liens granted by (i) the Company or any other Notes Party in respect of Indebtedness permitted to be incurred on a secured basis under clause (q) of the definition of “Permitted Indebtedness” and (ii) any Foreign Subsidiary in respect of Indebtedness permitted to be incurred under clause (s) of the definition of “Permitted Indebtedness”;

 

(aa)        Liens not otherwise permitted by clauses (a) through (z) of this definition to the extent that neither (i) the aggregate outstanding principal amount of the obligations secured thereby nor (ii) the aggregate fair market value (determined as of the date such Lien is incurred) of the assets subject thereto exceeds $10,000,000 at any time outstanding; and

 

(bb)        (i) Liens securing the Existing 2L Notes and subject to the Existing Intercreditor Agreement and (ii) Liens securing the Existing 1L Notes and subject to the First Lien Intercreditor Agreement.

 

“Permitted Refinancing” means the refunding, refinancing, replacement or exchange of all remaining Indebtedness under the 2024 Term Loan (or any Refinancing Facilities in respect thereof) with Refinancing Facilities.

 

“Permitted Refinancing Indebtedness” means the extension of maturity, refinancing or modification of the terms of Indebtedness so long as:

 

(a)          after giving effect to such extension, refinancing or modification, the aggregate principal amount of such Indebtedness is not greater than the aggregate principal amount of Indebtedness and unused commitments outstanding immediately prior to such extension, refinancing or modification (other than by the amount of accrued and unpaid interest with respect thereto and premiums paid thereon and the fees and expenses incurred in connection therewith and by the amount of unfunded commitments with respect thereto);

 

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(b)          such extension, refinancing or modification does not result in (i) the average weighted maturity (measured as of the extension, refinancing or modification) of the Indebtedness so extended, refinanced or modified being shorter than the shorter of (x) the remaining average weighted maturity of the Notes and (y) the remaining average weighted maturity of such Indebtedness prior to giving effect to such extension, refinancing or modification or (ii) the maturity date of the Indebtedness so extended, refinanced or modified being earlier than the earlier of (x) the Maturity Date and (y) the maturity date of such Indebtedness prior to giving effect to such extension, refinancing or modification;

 

(c)          such extension, refinancing or modification is pursuant to terms (including, without limitation, terms relating to the payment of cash interest (which, in the case of any Permitted Refinancing Indebtedness in respect of any Indebtedness outstanding as of the Issue Date, cannot exceed the amount of cash interest payable on such Indebtedness as of the Issue Date)) that are not less favorable, when taken as a whole, to the Notes Parties and the Holders than the terms of the Indebtedness being extended, refinanced or modified;

 

(d)          the Indebtedness that is extended, refinanced or modified is not recourse to any Notes Party or any of its Subsidiaries that is liable on account of the obligations other than those Persons which were obligated with respect to the Indebtedness that was refinanced, renewed, or extended;

 

(e)          if the Indebtedness that is extended, refinanced or modified is subordinated to the Notes Obligations, then such extension, refinancing or modification shall also be subordinated to the Notes Obligations on terms not less favorable in any material respect to the Holders; and

 

(f)           such extension, refinancing or modification shall not be secured by any Lien on any asset other than the assets that secured such Indebtedness (or would have been required to secure such Indebtedness pursuant to the terms thereof).

 

“Permitted Restricted Payments” means any of the following Restricted Payments made by:

 

(a)          the Company or any of its Restricted Subsidiaries to the Company, Gannett Holdings or any of its Restricted Subsidiaries; provided that, if the Person making such Restricted Payment is a Notes Party, then the recipient of such Restricted Payment shall also be a Notes Party,

 

(b)          the Company to make Restricted Payments in the form of common Equity Interests,

 

(c)          [reserved],

 

(d)          the Company to make cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchange for Equity Interests in the Company,

 

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(e)          the Company to repurchase Equity Interests upon the exercise of stock options if such Equity Interests represent a portion of the exercise price of such stock options,

 

(f)           Detroit Newspaper Partnership, L.P., a Michigan limited partnership, to Detroit News, Inc., a Michigan corporation and a wholly owned subsidiary of Media News Group, Inc. (“Detroit News”), as required pursuant to the Amended and Restated Joint Operating Agreement dated as of August 3, 2005 (as amended as of February 6, 2009), by and between Detroit Free Press, Incorporated, a Michigan corporation, and Detroit News, as such agreement is in effect as of the Issue Date, and in an amount not to exceed $2,000,000 in any Fiscal Year,

 

(g)          the Company to make Restricted Payments in an aggregate amount not in excess of, for any Fiscal Quarter, the RP/Investment Amount for such Fiscal Quarter (less the sum of (x) the aggregate amount of Investments outstanding (without giving effect to any write-off or write-down) that have been made pursuant to clause (q) of the definition of “Permitted Investment” during such Fiscal Quarter and (y) the aggregate principal amount of Junior Indebtedness that has been repaid pursuant to Section 4.12(m)(ii)(A) during such Fiscal Quarter, in each case on or prior to the applicable date of determination); provided that at the time any such Restricted Payment is made pursuant to this clause (g), no Event of Default shall have occurred and be continuing or would result therefrom;

 

(h)          the Company to repurchase the Existing 2L Notes pursuant to and in accordance with any Convertible Notes Exchange conducted or prior to the Delayed Draw Term Loan Commitment Termination Date (as defined in the 2024 Term Loan), the cash portion of which is funded with the proceeds of Delayed Draw Term Loans (as defined in the 2024 Term Loan); provided that at the time any such repurchase is made pursuant to this clause (h), no Event of Default shall have occurred and be continuing or would result therefrom; and

 

(i)           an Optional Redemption of the Notes in accordance with Article XV hereof.

 

“Permitted Tax Distribution” means, for any taxable period ending after the Issue Date during which (i) the Company and its Restricted Subsidiaries are part of a consolidated, combined, unitary or similar group for U.S. federal and/or applicable, state, local or foreign Tax purposes (a “Consolidated Group”) or (ii) the Company is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a Person that is a member of a Consolidated Group, distributions to discharge the income Tax liabilities of such Consolidated Group, when and as due, in an amount not to exceed the amount that the Company would be required to pay in respect of income Taxes for such taxable period if the Company were the parent of a separate Consolidated Group consisting of the Company and its Restricted Subsidiaries that are (or are disregarded entities wholly owned by) members of such Consolidated Group (computed at the highest marginal tax rate applicable to a corporation residing in New York, New York and in effect for such taxable period, and taking into account the character and type of income earned and any actual carryovers and carrybacks of Tax attributes (such as net operating losses) of the Company and such Restricted Subsidiaries from other taxable years).

 

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“Person” means an individual, a corporation, a limited liability company, an association, a partnership, a joint venture, a joint stock company, a trust, an unincorporated organization or a government or an agency or a political subdivision thereof.

 

“Physical Notes” means permanent certificated Notes in registered form issued in denominations of $1 principal amount and integral multiples thereof.

 

“Physical Settlement” shall have the meaning specified in Section 13.02(a).

 

“Plan” means any Employee Plan or Multiemployer Plan.

 

“Predecessor Note” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.06 in lieu of or in exchange for a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note that it replaces.

 

“Qualified Cash” means, as of any date of determination, the aggregate amount of unrestricted cash on-hand of (x) the Notes Parties maintained in deposit accounts in the name of a Notes Party in the United States as of such date, which deposit accounts are, on and after the date that is 90 days after the Issue Date (unless a later date is otherwise agreed to by the Applicable Possessory Collateral Agent (as defined in the Security Agreement)), subject to Control Agreements and (y) the Excluded Subsidiaries referenced in clause (d) of the definition thereof.

 

“Qualified Equity Interests” means, with respect to any Person, all Equity Interests of such Person that are not Disqualified Equity Interests.

 

“Record Date” means, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock (or other applicable security) have the right to receive any cash, securities or other property or in which the Common Stock (or such other security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of holders of the Common Stock (or such other security) entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors of the Company, by statute, by contract or otherwise).

 

“Redemption Amount” means the lesser of (x) $72,792,000 and (y) 30% of the aggregate principal amount of the Notes issued pursuant to this Indenture; provided, that such amount shall be reduced by 30% of the principal amount of Notes that have been converted by Holders, purchased or exchanged by the Company, or otherwise extinguished, prior to the date of the Redemption Notice; provided, further, that the Redemption Amount shall never be less than zero.

 

“Redemption Date” shall have the meaning specified in Section 15.02(a).

 

“Redemption Notice” shall have the meaning specified in Section 15.02(a).

 

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“Redemption Price” means, for any Notes to be redeemed pursuant to Section 15.01, 140% of the principal amount of such Notes, plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date (unless the Redemption Date falls after a Regular Record Date but on or prior to the immediately succeeding Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to Holders of record of such Notes on such Regular Record Date, and the “Redemption Price” will be equal to 140% of the principal amount of such Notes).

 

“Reference Property” shall have the meaning specified in Section 13.07(a).

 

“Refinancing Facilities” means, collectively, any notes or loans issued or guaranteed by the Company or any of its Subsidiaries (whether under an indenture, a credit agreement or otherwise) and, in each case, the Indebtedness represented thereby; provided, that (a) 100% of the Net Cash Proceeds of such Refinancing Facilities are used to permanently redeem all (but not a portion) of the 2024 Term Loan (or any Refinancing Facilities in respect thereof) on a dollar-for-dollar basis substantially simultaneously with the incurrence or issuance thereof; (b) the principal amount (or accreted value, if applicable) of such Refinancing Facilities does not exceed the principal amount (or accreted value, if applicable) of the aggregate principal amount of the 2024 Term Loan (or any Refinancing Facilities in respect thereof) plus any fees, premiums, original issue discount and accrued interest associated therewith, and costs and expenses related thereto; (c) the final maturity date of such Refinancing Facilities is on or after the maturity date of the 2024 Term Loan (or any Refinancing Facilities in respect thereof); (d) the All-in-Yield on such Refinancing Facilities is no greater than 9.50% per annum (which, in the case of floating rate debt, shall be determined at the time that any such Refinancing Facilities are first issued or incurred); (e) prepayments of such Refinancing Facilities may be made without fee or premium (other than customary “soft” call protection), except that if the Refinancing Facilities consist of broadly marketed high-yield notes, such notes may include call protections that are customary for high-yield notes; (f) there shall be no assets securing such Refinancing Facilities that are not also Collateral; (g) (1) there shall be no obligor in respect of such Refinancing Facilities that is not a Notes Party and (2) such Refinancing Facilities may not be issued or guaranteed by any Subsidiary that is not an obligor of the Indebtedness being refinanced (it being understood that the roles of such obligors as a borrower or a guarantor with respect to such obligations may be interchanged); and (h) the other terms of such Refinancing Facilities are not otherwise adverse to the interests of the Holders, except for any immaterial adverse terms.

 

“Registered Intellectual Property” means Intellectual Property that is issued, registered, renewed or the subject of a pending application with the U.S. Patent and Trademark Office or the U.S. Copyright Office, or any equivalent office or agency in any other country throughout the world.

 

“Registration Rights Agreement” means the Registration Rights Agreement, dated and effective as the Issue Date, among the Company and the holders party thereto.

 

“Regular Record Date,” with respect to any Interest Payment Date, means the May 15 or November 15 (whether or not such day is a Business Day) immediately preceding the applicable June 1 or December 1 Interest Payment Date, respectively.

 

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“Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, seeping, migrating, dumping or disposing of any Hazardous Material (including the abandonment or discarding of barrels, containers and other closed receptacles containing any Hazardous Material) into the indoor or outdoor environment, including the movement of Hazardous Materials through or in the ambient air, soil, surface or ground water, or property.

 

“Remedial Action” means all actions taken to (a) clean up, remove, remediate, contain, treat, monitor, assess, evaluate or in any other way address Hazardous Materials in the indoor or outdoor environment; (b) prevent or minimize a Release or threatened Release of Hazardous Materials so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment; (c) perform pre-remedial studies and investigations and post-remedial operation and maintenance activities; or (d) perform any other actions authorized by 42 U.S.C. § 9601.

 

“Repurchase Event” shall mean, as applicable, an Asset Sale Repurchase Event, a Fundamental Change, an Unrestricted Cash Repurchase Event or a Dividend Repurchase Event.

 

“Repurchase Event Amount” shall mean, as applicable, the Asset Sale Repurchase Event Amount, the Fundamental Change Repurchase Amount, the Unrestricted Cash Repurchase Event Amount or the Dividend Repurchase Event Amount.

 

“Repurchase Event Company Notice” shall have the meaning specified in Section 14.01(c).

 

“Repurchase Event Repurchase Date” shall have the meaning specified in Section 14.01(a).

 

“Repurchase Event Repurchase Notice” shall have the meaning specified in Section 14.01(b)(i).

 

“Repurchase Event Repurchase Price” shall mean, as applicable, the Asset Sale Repurchase Event Price, the Fundamental Change Repurchase Price, the Unrestricted Cash Repurchase Event Price or the Dividend Repurchase Event Price.

 

“Requirements of Law” means, with respect to any Person, collectively, the common law and all Federal, state, provincial, local, foreign, multinational or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs, injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and other determinations, directives, requirements or requests of, any Governmental Authority, in each case that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

 

“Resale Restriction Termination Date” shall have the meaning specified in Section 2.05(c).

 

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“Responsible Officer” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and, in each case, who shall have direct responsibility for the administration of this Indenture.

 

“Restricted Payment” means (a) the declaration or payment of any dividend or other distribution, direct or indirect, on account of any Equity Interests of any Notes Party or any of its Restricted Subsidiaries, now or hereafter outstanding, (b) the making of any repurchase, redemption, retirement, defeasance, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Equity Interests of any Notes Party or any direct or indirect parent of any Notes Party, now or hereafter outstanding or (c) the making of any payment to retire, or to obtain the surrender of, any outstanding warrants, options or other rights for the purchase or acquisition of shares of any class of Equity Interests of any Notes Party, now or hereafter outstanding.

 

“Restricted Securities” shall have the meaning specified in Section 2.05(c).

 

“Restricted Subsidiary” means each Subsidiary other than an Unrestricted Subsidiary.

 

“RP/Investment Amount” means, for any Fiscal Quarter, (a) if the First Lien Net Leverage Ratio, recomputed on a pro forma basis as of the last day of the immediately preceding Fiscal Quarter, is less than or equal to 2.0 to 1.0 but greater than 1.5 to 1.0, $25,000,000; (b) if the First Lien Net Leverage Ratio, recomputed on a pro forma basis as of the last day of the immediately preceding Fiscal Quarter, is less than or equal to 1.5 to 1.0 but greater than 1.0 to 1.0, $50,000,000; and (c) if the First Lien Net Leverage Ratio, recomputed on a pro forma basis as of the last day of the immediately preceding Fiscal Quarter, is less than or equal to 1.0 to 1.0, an unlimited amount.

 

“Rule 144” means Rule 144 as promulgated under the Securities Act.

 

“Rule 144A” means Rule 144A as promulgated under the Securities Act.

 

“Sale and Leaseback Transaction” means, with respect to the Company or any of its Restricted Subsidiaries, any arrangement, directly or indirectly, with any Person whereby the Company or any of its Restricted Subsidiaries shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property (or any portion thereof) or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred.

 

“Sanctions Programs” means any of the sanctions programs and related Requirements of Law administered by (a) the U.S. government, including those administered by the Treasury Department’s Office of Foreign Assets Control or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, the Government of Canada or Her Majesty’s Treasury of the United Kingdom, in each case, as renewed, extended, amended, or replaced.

 

“Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange or market on which the Common Stock is listed or admitted for trading.  If the Common Stock is not so listed or admitted for trading, “Scheduled Trading Day” means a Business Day.

 

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“Secured Net Leverage Ratio” means, with respect to any Person for any period, the ratio of (a) Total Indebtedness of such Person and its Restricted Subsidiaries on a consolidated basis outstanding as of the end of such period (excluding any Indebtedness to the extent unsecured), minus Unrestricted Cash of such Person and its Restricted Subsidiaries to (b) Consolidated EBITDA of such Person and its Restricted Subsidiaries for the period of four consecutive Fiscal Quarters then last ended for which financial statements have been (or were required to be) delivered pursuant to Section 4.11(a)(ii) or Section 4.11(a)(iii), as applicable.  Unless otherwise specified, references to the “Secured Net Leverage Ratio” herein shall mean the Secured Net Leverage Ratio of the Company and its Restricted Subsidiaries.

 

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

“Security Agreement” means the Pledge and Security Agreement dated as of the Issue Date made by the Domestic Notes Parties in favor of the Notes Collateral Agent for the benefit of the Holders securing the Notes Obligations, as may be amended, restated, supplemented or otherwise modified from time to time.

 

“Security Documents” means, collectively, the Security Agreement and each other security agreement or other instrument, mortgage or document executed and delivered pursuant to any of the foregoing or pursuant to Article 17 to secure any of the Notes Obligations.

 

“Seller” means any Person that sells Equity Interests or other property or assets to a Notes Party or a Restricted Subsidiary of a Notes Party in a Permitted Acquisition.

 

“Senior Secured Notes Exchange Offer” means the exchange offer and consent solicitation made by the Company or Gannett Holdings to each holder of the issued and outstanding Existing 1L Notes to exchange Existing 1L Notes for, at the election of the applicable holder of Existing 1L Notes, cash or term loans under the 2024 Term Loan, pursuant to the Offer to Exchange and Consent Solicitation Statement dated September 26, 2024.

 

“Settlement Amount” has the meaning specified in Section 13.02(a)(iv).

 

“Settlement Method” means, with respect to any conversion of Notes, Physical Settlement, Cash Settlement or Combination Settlement, as elected (or deemed to have been elected) by the Company.

 

“Settlement Notice” has the meaning specified in Section 13.02(a)(iii).

 

“Significant Subsidiary” means a Subsidiary of the Company that meets the definition of “significant subsidiary” in Article 1, Rule 1-02 of Regulation S-X under the Exchange Act.

 

“Specified Dollar Amount” means the maximum cash amount (excluding cash in lieu of any fractional share) per $1,000 principal amount of Notes to be received upon conversion as specified in the Settlement Notice related to any converted Notes or as otherwise deemed to have been elected.

 

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“Spin-Off” shall have the meaning specified in Section 13.04(c).

 

“Standard & Poor’s” means S&P Global Ratings and any successor thereto.

 

“Stated Maturity” means, with respect to any security or loan, the date specified in such security or loan as the fixed date on which the final payment of principal of such security or loan is due and payable.

 

“Stock Price” shall have the meaning specified in Section 13.03(c).

 

“Subordinated Indebtedness” means Indebtedness of any Notes Party which has been expressly subordinated in right of payment to all Indebtedness of such Notes Party under this Indenture and the Security Documents by the execution and delivery of a subordination agreement, in form and substance satisfactory to the Trustee.

 

“Subsidiary” means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Equity Interests or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of such Person.  References to a Subsidiary shall mean a Subsidiary of the Company unless the context expressly provides otherwise.

 

“Subsidiary Guarantee” means any guarantee of the obligations of the Company under this Indenture and the Notes by any Subsidiary Guarantor in accordance with the provisions of this Indenture.

 

“Subsidiary Guarantor” means any Subsidiary that incurs a Subsidiary Guarantee; provided that upon the release or discharge of such Person from its Subsidiary Guarantee in accordance with this Indenture, such Subsidiary ceases to be a Subsidiary Guarantor.

 

“Successor Company” shall have the meaning specified in Section 11.01(a).

 

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

“Term Loan Administrative Agent” means Apollo Administrative Agency, LLC, and its successors as administrative agent under the 2024 Term Loan.

 

“Term Loan Collateral Agent” means Apollo Administrative Agency, LLC, and its successors as collateral agent under the 2024 Term Loan.

 

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“Total Gross Leverage Ratio” means, with respect to any Person and its Subsidiaries for any period, the ratio of (a) all Indebtedness in respect of the Notes, the 2024 Term Loan and any other Indebtedness (excluding, for the avoidance of doubt, pension liabilities and any Indebtedness listed on Schedule 4.12(b) (other than any Permitted Refinancing Indebtedness in respect thereof)), in each case of such Person and its Subsidiaries on a consolidated basis outstanding as of the end of such period to (b) Consolidated EBITDA of such Person and its Subsidiaries for the period of four consecutive Fiscal Quarters then last ended for which financial statements have been (or were required to be) delivered pursuant to Section 4.11(a)(ii) or Section 4.11(a)(iii), as applicable.  Unless otherwise specified, references to the “Total Gross Leverage Ratio” herein shall mean the Total Gross Leverage Ratio of the Company and its Subsidiaries.

 

“Total Indebtedness” means, with respect to any Person, all Indebtedness of such Person and its Restricted Subsidiaries for (i) borrowed money (including any purchase money debt), (ii) Capitalized Lease Obligations, (iii) unreimbursed obligations in respect of drawn letters of credit (to the extent not cash collateralized) and (iv) debt obligations evidenced by promissory notes, bonds, debentures, loan agreements or similar instruments (excluding any Indebtedness listed on Schedule 4.12(b)) (other than any Permitted Refinancing Indebtedness in respect thereof).

 

“Total Net Leverage Ratio” means, with respect to any Person for any period, the ratio of (a) Total Indebtedness of such Person and its Restricted Subsidiaries on a consolidated basis outstanding as of the end of such period, minus Unrestricted Cash of such Person and its Restricted Subsidiaries to (b) Consolidated EBITDA of such Person and its Restricted Subsidiaries for the period of four consecutive Fiscal Quarters then last ended for which financial statements have been (or were required to be) delivered pursuant to Section 4.11(a)(ii) or Section 4.11(a)(iii), as applicable.  Unless otherwise specified, references to the “Total Net Leverage Ratio” herein shall mean the Total Net Leverage Ratio of the Company and its Restricted Subsidiaries.

 

“Trading Day” means a day on which (i) trading in the Common Stock (or other security for which a closing sale price must be determined) generally occurs on The New York Stock Exchange or, if the Common Stock (or such other security) is not then listed on The New York Stock Exchange, on the principal other U.S. national or regional securities exchange on which the Common Stock (or such other security) is then listed or, if the Common Stock (or such other security) is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock (or such other security) is then traded and (ii) a Last Reported Sale Price for the Common Stock (or closing sale price for such other security) is available on such securities exchange or market; provided, however, that if the Common Stock (or such other security) is not so listed or traded, “Trading Day” means a Business Day; and provided, further, that for purposes of determining amounts due upon conversion only, “Trading Day” means a day on which (x) there is no Market Disruption Event and (y) trading in the Common Stock generally occurs on The New York Stock Exchange or, if the Common Stock is not then listed on The New York Stock Exchange, on the principal other U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then listed or admitted for trading, except that if the Common Stock is not so listed or admitted for trading, “Trading Day” means a Business Day.

 

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“Transactions” means, collectively, (i) the consummation of the transactions included in the definition of “Refinancing Transactions” in the Offer to Exchange and Consent Solicitation Statement dated September 26, 2024 relating to the Senior Secured Notes Exchange Offer and (ii) the payment of all fees and expenses to be paid and owing in connection with the foregoing.

 

The term “transfer” shall have the meaning specified in Section 2.05(c).

 

“Trigger Event” shall have the meaning specified in Section 13.04(c).

 

“Triggering Dilutive Issuance” shall have the meaning specified in Section 13.04(g).

 

“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in force at the date of execution of this Indenture; provided, however, that in the event the Trust Indenture Act of 1939 is amended after the date hereof, the term “Trust Indenture Act” shall mean, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended.

 

“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder.

 

“Uniform Commercial Code” or “UCC” has the meaning specified therefor in Section 1.05.

 

The term “unit of Reference Property” shall have the meaning specified in Section 13.07(a).

 

“Unrestricted Cash” means, with respect to any Person as at any date of determination, all cash and Cash Equivalents of such Person and its Restricted Subsidiaries other than cash and Cash Equivalents that would be designated as restricted on the consolidated balance sheet of such Person and its Restricted Subsidiaries prepared in accordance with GAAP.

 

“Unrestricted Cash Repurchase Event” shall mean following the occurrence of an Event of Default and so long as such Event of Default is continuing, each date that the Company delivers to the Trustee or files with the Commission, as applicable, the annual financial statements required to be delivered pursuant to Section 4.11(a)(iii), commencing with the delivery to the Trustee or filing with the Commission, as applicable, of the financial statements for the first Fiscal Year ending after the Issue Date or, if such financial statements are not delivered to the Trustee or filed with the Commission on the date such statements are required to be delivered pursuant to Section 4.11(a)(iii), on the date such statements are required to be delivered to the Trustee or filed with the Commission pursuant to Section 4.11(a)(iii), if the aggregate amount of cash and Cash Equivalents on-hand at the Company and its Restricted Subsidiaries as of the last day of such Fiscal Year exceeds $100,000,000.

 

“Unrestricted Cash Repurchase Event Amount” shall mean the amount by which the aggregate amount of cash and Cash Equivalents on hand at the Company and its Restricted Subsidiaries as of the last day of the applicable Fiscal Year exceeds $100,000,000, provided that the Unrestricted Cash Repurchase Event Remaining Amount shall never be less than zero.

 

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“Unrestricted Cash Repurchase Event Price” shall mean with respect to any Notes to be repurchased in connection with an Unrestricted Cash Repurchase Event, 100% of the principal amount thereof.

 

“Unrestricted Subsidiary” means (a) any Subsidiary that is designated as an Unrestricted Subsidiary by the Company pursuant to Section 4.16 subsequent to the Issue Date and (b) any Subsidiary of an Unrestricted Subsidiary.

 

“Unrestricted Subsidiary Reconciliation Statement” means, with respect to any consolidated balance sheet or statement of operations and retained earnings and or statement of cash flows of the Company and its consolidated Subsidiaries, such financial statement (in substantially the same form) prepared on the basis of consolidating the accounts of the Company and the Restricted Subsidiaries and treating Unrestricted Subsidiaries as if they were not consolidated with the Company and otherwise eliminating all accounts of Unrestricted Subsidiaries, together with an explanation of reconciliation adjustments in reasonable detail.

 

“USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001 (Title III of Pub. L. 107-56, Oct. 26, 2001) as amended by the USA Patriot Improvement and Reauthorization Act of 2005 (Pub. L. 109-177, March 9, 2006) and as the same may have been or may be further renewed, extended, amended, or replaced.

 

“Valuation Period” shall have the meaning specified in Section 13.04(c).

 

“Wholly Owned Subsidiary” means, with respect to any Person, any Subsidiary of such Person, except that, solely for purposes of this definition, the reference to “more than 50%” in the definition of “Subsidiary” shall be deemed replaced by a reference to “100%,” the calculation of which shall exclude nominal amounts of the voting power of shares of Equity Interests or other interests in the relevant Subsidiary as may be required to satisfy local minority interest requirements outside of the United States.

 

Section 1.02         References to Interest.  [reserved]

 

Section 1.03         Terms Generally.  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have the same meaning and effect as the word “shall”.  Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Indenture in its entirety and not to any particular Article, Section or other subdivision, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Indenture and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any right or interest in or to assets and properties of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.

 

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Section 1.04         Certain Matters of Construction.  A Default or Event of Default shall be deemed to exist at all times during the period commencing on the date that such Default or Event of Default occurs to the date on which such Default or Event of Default is waived in writing pursuant to this Indenture or, in the case of a Default, is cured within any period of cure expressly provided for in this Indenture; and an Event of Default shall “continue” or be “continuing” until such Event of Default has been waived pursuant to Section 6.09.  Any Lien referred to in this Indenture or any Security Document as having been created in favor of the Trustee or Notes Collateral Agent, any agreement entered into by the Trustee pursuant to this Indenture or any Security Document, any payment made by or to or funds received by the Trustee or Notes Collateral Agent pursuant to or as contemplated by this Indenture or any Security Document, or any act taken or omitted to be taken by the Trustee or Notes Collateral Agent, shall, unless otherwise expressly provided, be created, entered into, made or received, or taken or omitted, for the benefit or account of the Trustee.  Wherever the phrase “to the knowledge of any Notes Party” or words of similar import relating to the knowledge or the awareness of any Notes Party are used in this Indenture or any Security Document, such phrase shall mean and refer to (i) the actual knowledge of a senior officer of any Notes Party or (ii) the knowledge that a senior officer would have obtained if such officer had engaged in good faith and diligent performance of such officer’s duties, including the making of such reasonably specific inquiries as may be necessary of the employees or agents of such Notes Party and a good faith attempt to ascertain the existence or accuracy of the matter to which such phrase relates.  All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or otherwise within the limitations of, another covenant shall not avoid the occurrence of a default if such action is taken or condition exists.

 

Section 1.05         Pro Forma Calculations.

 

(a)          Notwithstanding anything to the contrary contained herein, financial ratios and tests (including the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio and the Total Net Leverage Ratio) pursuant to this Indenture shall be calculated in the manner prescribed by this Section 1.05.

 

(b)          In the event that the Company or any of its Restricted Subsidiaries redeems, repays, retires or extinguishes any Indebtedness (other than Indebtedness repaid under any revolving credit facility unless such Indebtedness has been permanently repaid and has not been replaced) subsequent to the end of the applicable period for which such financial ratio or test is being calculated but prior to or simultaneously with the event for which such calculation is being made, then such financial ratio or test shall, be calculated giving pro forma effect to such redemption, repayment, retirement or extinguishment of Indebtedness, as if the same had occurred on the last day of the applicable period.

 

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(c)          With respect to any period during which any Permitted Acquisition or any Disposition of material assets outside the ordinary course of business occurs, financial ratios and tests (including the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio and the Total Net Leverage Ratio) pursuant to this Indenture shall be calculated giving pro forma effect to such Permitted Acquisition or Disposition, as if the same had occurred on the first day of the applicable period.

 

Section 1.06         Accounting and Other Terms.

 

(a)          Unless otherwise expressly provided herein, each accounting term used herein shall have the meaning given it under GAAP.  For purposes of determining compliance with any incurrence or expenditure tests set forth in Section 4.11 and Section 4.12, any amounts so incurred or expended (to the extent incurred or expended in a currency other than Dollars) shall be converted into Dollars on the basis of the exchange rates (as shown on the Bloomberg currency page for such currency or, if the same does not provide such exchange rate, by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by the Company or, in the event no such service is selected, on such other basis as is reasonably satisfactory to the Trustee acting at the written direction of the Holders of a majority in aggregate principal amount of the Notes then outstanding) as in effect on the date of such incurrence or expenditure under any provision of any such Section that has an aggregate Dollar limitation provided for therein (and to the extent the respective incurrence or expenditure test regulates the aggregate amount outstanding at any time and it is expressed in terms of Dollars, all outstanding amounts originally incurred or spent in currencies other than Dollars shall be converted into Dollars on the basis of the exchange rates (as shown on the Bloomberg currency page for such currency or, if the same does not provide such exchange rate, by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by the Company or, in the event no such service is selected, on such other basis as is reasonably satisfactory to the Trustee (acting at the written direction of the Holders of a majority in aggregate principal amount of the Notes then outstanding)) as in effect on the date of any new incurrence or expenditures made under any provision of any such Section that regulates the Dollar amount outstanding at any time).  Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Company and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded. Notwithstanding anything to the contrary contained in this Section 1.06(a) or in the definitions of “Capitalized Lease” or “Capitalized Lease Obligations”, any change in accounting for leases pursuant to GAAP resulting from the adoption of Financial Accounting Standards Board Accounting Standards Update No. 2016-02 , Leases (Topic 842) (“FAS 842”), to the extent such adoption would require treating any lease (or similar arrangement conveying the right to use) as a Capitalized Lease where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in effect on December 31, 2015, shall not result in such lease being considered a Capitalized Lease, and all calculations and deliverables under this Indenture shall be made or delivered, as applicable, in accordance therewith.

 

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(b)          All terms used in this Indenture which are defined in Article 8 or Article 9 of the Uniform Commercial Code as in effect from time to time in the State of New York (the “Uniform Commercial Code” or the “UCC”) and which are not otherwise defined herein shall have the same meanings herein as set forth therein, provided that terms used herein which are defined in the Uniform Commercial Code as in effect in the State of New York on the date hereof shall continue to have the same meaning notwithstanding any replacement or amendment of such statute except as the Trustee (acting at the written direction of the Holders of a majority in aggregate principal amount of the Notes then outstanding) may otherwise determine.

 

Section 1.07         Time References.  Unless otherwise indicated herein, all references to time of day refer to Eastern Standard Time or Eastern daylight saving time, as in effect in New York City on such day.  For purposes of the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”; provided, however, that with respect to a computation of fees or interest payable to any Holder, such period shall in any event consist of at least one full day.

 

ARTICLE 2

 

ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES

 

Section 2.01         Designation and Amount.  The Notes shall be designated as the “6.000% Convertible Senior Secured Notes due 2031.” The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is initially limited to $223,723,868, subject to Section 2.10 and except for Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of other Notes to the extent expressly permitted hereunder.

 

Section 2.02         Form of Notes.  The Notes and the Trustee’s certificate of authentication to be borne by such Notes shall be substantially in the respective forms set forth in Exhibit A, the terms and provisions of which shall constitute, and are hereby expressly incorporated in and made a part of this Indenture.  To the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.

 

Any Global Note may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Indenture as may be required by the Custodian or the Depositary, or as may be required to comply with any applicable law or any regulation thereunder or with the rules and regulations of any securities exchange or automated quotation system upon which the Notes may be listed or traded or designated for issuance or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Notes are subject.

 

Any of the Notes may have such letters, numbers or other marks of identification and such notations, legends or endorsements as the Officer executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, or to conform to usage or to indicate any special limitations or restrictions to which any particular Notes are subject.

 

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Each Global Note shall represent such principal amount of the outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be increased or reduced to reflect redemptions, repurchases, cancellations, conversions, transfers, exchanges or issuances of additional Notes (to the extent that such issuances are fungible with the Notes represented by such Global Note for U.S. federal income tax and securities law purposes) permitted hereby.  Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in such manner and upon instructions given by the Holder of such Notes in accordance with this Indenture.  Payment of principal (including the Redemption Price and the Repurchase Event Repurchase Price, if applicable) of, and accrued and unpaid interest on, a Global Note shall be made to the Holder of such Note on the date of payment, unless a record date or other means of determining Holders eligible to receive payment is provided for herein.

 

Section 2.03         Date and Denomination of Notes; Payments of Interest and Defaulted Amounts.

 

(a)          The Notes shall be issuable in registered form without coupons in denominations of $1 principal amount and integral multiples thereof.  Each Note shall be dated the date of its authentication and shall bear interest from the date specified on the face of such Note.  Accrued interest on the Notes shall be computed on the basis of a 360-day year composed of twelve 30-day months and, for partial months, on the basis of the number of days actually elapsed in a 30-day month.

 

(b)          The Person in whose name any Note (or its Predecessor Note) is registered on the Note Register at the close of business on any Regular Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date.  The principal amount of any Note (x) in the case of any Physical Note, shall be payable at the office or agency of the Company maintained by the Company for such purposes in the Borough of Manhattan, The City of New York, which shall initially be the Corporate Trust Office and (y) in the case of any Global Note, shall be payable by wire transfer of immediately available funds to the account of the Depositary or its nominee.  The Company shall pay, or cause the Paying Agent to pay, interest (i) on any Physical Notes (A) to Holders holding Physical Notes having an aggregate principal amount of $5,000,000 or less, by check mailed to the Holders of these Notes at their address as it appears in the Note Register and (B) to Holders holding Physical Notes having an aggregate principal amount of more than $5,000,000, either by check mailed to each Holder or, upon application by such a Holder to the Note Registrar not later than the relevant Regular Record Date, by wire transfer in immediately available funds to that Holder’s account within the United States, which application shall remain in effect until the Holder notifies, in writing, the Note Registrar to the contrary or (ii) on any Global Note by wire transfer of immediately available funds to the account of the Depositary or its nominee.

 

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(c)          Any Defaulted Amounts shall forthwith cease to be payable to the Holder on the relevant payment date but shall accrue interest per annum at the rate borne by the Notes, subject to the enforceability thereof under applicable law, from, and including, such relevant payment date, and such Defaulted Amounts together with such interest thereon shall be paid by the Company, at its election in each case, as provided in clause (i) or (ii) below:

 

(i)          The Company may elect to make payment of or cause the Paying Agent to make payment of any Defaulted Amounts to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a special record date for the payment of such Defaulted Amounts, which shall be fixed in the following manner.  The Company shall notify the Trustee in writing of the amount of the Defaulted Amounts proposed to be paid on each Note and the date of the proposed payment (which shall be not less than 25 days after the receipt by the Trustee of such notice, unless the Trustee shall consent to an earlier date), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount to be paid in respect of such Defaulted Amounts or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Amounts as in this clause provided.  Thereupon the Company shall fix a special record date for the payment of such Defaulted Amounts which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment, and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment (unless the Trustee shall consent to an earlier date).  The Company shall promptly notify the Trustee of such special record date and the Trustee, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Amounts and the special record date therefor to be given, to each Holder at its address as it appears in the Note Register, or by electronic means to the Depositary in the case of Global Notes, not less than 10 days prior to such special record date.  Notice of the proposed payment of such Defaulted Amounts and the special record date therefor having been so mailed, such Defaulted Amounts shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on such special record date and shall no longer be payable pursuant to the following clause (ii) of this Section 2.03(c).

 

(ii)         The Company may make payment of or cause the Paying Agent to make payment any Defaulted Amounts in any other lawful manner not inconsistent with the requirements of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, and upon such notice as may be required by such exchange or automated quotation system, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

 

Section 2.04         Execution, Authentication and Delivery of Notes.  The Notes shall be signed in the name and on behalf of the Company by the manual or facsimile signature of its Chief Executive Officer, President, Chief Financial Officer, Treasurer, Secretary or any of its Executive or Senior Vice Presidents.

 

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At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Notes, and the Trustee in accordance with such Company Order shall authenticate and deliver such Notes, without any further action by the Company hereunder.

 

Only such Notes as shall bear thereon a certificate of authentication substantially in the form set forth on the form of Note attached as Exhibit A hereto, executed manually by an authorized signatory of the Trustee (or an authenticating agent appointed by the Trustee as provided by Section 19.10), shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose.  Such certificate by the Trustee (or such an authenticating agent) upon any Note executed by the Company shall be conclusive evidence that the Note so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.

 

In case any Officer of the Company who shall have signed any of the Notes shall cease to be such Officer before the Notes so signed shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such Notes nevertheless may be authenticated and delivered or disposed of as though the person who signed such Notes had not ceased to be such Officer of the Company; and any Note may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Note, shall be the Officers of the Company, although at the date of the execution of this Indenture any such person was not such an Officer.

 

Section 2.05         Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary.

 

(a)          The Company shall cause to be kept at the Corporate Trust Office a register (the register maintained in such office or in any other office or agency of the Company designated pursuant to Section 4.02, the “Note Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and of transfers of Notes.  Such register shall be in written form or in any form capable of being converted into written form within a reasonable period of time.  The Trustee is hereby initially appointed the “Note Registrar” for the purpose of registering Notes and transfers of Notes as herein provided.  The Company may appoint one or more co-Note Registrars in accordance with Section 4.02.

 

Upon surrender for registration of transfer of any Note to the Note Registrar or any co-Note Registrar, and satisfaction of the requirements for such transfer set forth in this Section 2.05, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture.

 

Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate principal amount, upon surrender of the Notes to be exchanged at any such office or agency maintained by the Company pursuant to Section 4.02.  Whenever any Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes that the Holder making the exchange is entitled to receive, bearing registration numbers not contemporaneously outstanding.

 

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All Notes presented or surrendered for registration of transfer or for exchange, repurchase or conversion shall (if so required by the Company, the Trustee, the Note Registrar or any co-Note Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and duly executed, by the Holder thereof or its attorney-in-fact duly authorized in writing.

 

No service charge shall be imposed by the Company, the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent for any exchange or registration of transfer of Notes, but the Company may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax required in connection therewith as a result of the name of the Holder of new Notes issued upon such exchange or registration of transfer being different from the name of the Holder of the old Notes surrendered for exchange or registration of transfer.

 

None of the Company, the Subsidiary Guarantors, the Trustee, the Note Registrar and any co-Note Registrar shall be required to exchange or register a transfer of (i) any Notes surrendered for conversion or, if a portion of any Note is surrendered for conversion, such portion thereof surrendered for conversion, (ii) any Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with Article 14 or (iii) any Notes selected for redemption in accordance with Article 15, except the unredeemed portion of any Note being redeemed in part.

 

All Notes issued upon any registration of transfer or exchange of Notes in accordance with this Indenture shall be the valid obligations of the Company and the Subsidiary Guarantors, evidencing the same debt, and entitled to the same benefits under this Indenture as the Notes surrendered upon such registration of transfer or exchange.

 

(b)          So long as the Notes are eligible for book-entry settlement with the Depositary, unless otherwise required by law, subject to the fourth paragraph from the end of Section 2.05(c) all Notes shall be represented by one or more Notes in global form (each, a “Global Note”) registered in the name of the Depositary or the nominee of the Depositary.  Each Global Note shall bear the legend required on a Global Note set forth in Exhibit A hereto.  The transfer and exchange of beneficial interests in a Global Note that does not involve the issuance of a Physical Note shall be effected through the Depositary (but not the Trustee or the Custodian) in accordance with this Indenture (including the restrictions on transfer set forth herein) and the procedures of the Depositary therefor.

 

(c)          Every Note that bears or is required under this Section 2.05(c) to bear the legend set forth in this Section 2.05(c) (together with any Common Stock issued upon conversion of the Notes that is required to bear the legend set forth in Section 2.05(d), collectively, the “Restricted Securities”) shall be subject to the restrictions on transfer set forth in this Section 2.05(c) (including those contained in the legend set forth below), unless such restrictions on transfer shall be eliminated or otherwise waived by written consent of the Company, and the Holder of each such Restricted Security, by such Holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer.  As used in this Section 2.05(c) and Section 2.05(d), the term “transfer” encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security.

 

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Until the date (the “Resale Restriction Termination Date”) that is the later of (1) the date that is one year after the Issue Date, or such shorter period of time as permitted by Rule 144 or any successor provision thereto, and (2) such later date, if any, as may be required by applicable law, any certificate evidencing such Note (and all securities issued in exchange therefor or substitution thereof, other than Common Stock, if any, issued upon conversion thereof, which shall bear the legend set forth in Section 2.05(d), if applicable) shall bear a legend in substantially the following form (unless such Notes have been transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or unless otherwise agreed by the Company in writing, with notice thereof to the Trustee):

 

THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE.  THIS SECURITY WAS INITIALLY OFFERED AND SOLD BY THE COMPANY PURSUANT TO AN EXCHANGE AGREEMENT IN A PRIVATE PLACEMENT PURSUANT TO SECTION 4(A)(2) OF THE SECURITIES ACT TO CERTAIN INVESTORS (THE “INITIAL HOLDERS”). BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER AGREES FOR THE BENEFIT OF GANNETT CO., INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:

 

(A)         TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR

 

(B)          PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR

 

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(C)          TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3), (7), (9) OR (12) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER SUCH INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR

 

(D)         PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.  NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

No transfer of any Note prior to the Resale Restriction Termination Date will be registered by the Note Registrar unless the applicable box on the Form of Assignment and Transfer has been checked.

 

Any Note (or security issued in exchange or substitution therefor) (i) as to which such restrictions on transfer shall have expired in accordance with their terms, (ii) that has been transferred pursuant to a registration statement that has become effective or been declared effective under the Securities Act and that continues to be effective at the time of such transfer or (iii) that has been sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, may, upon surrender of such Note for exchange to the Note Registrar in accordance with the provisions of this Section 2.05, be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not bear the restrictive legend required by this Section 2.05(c) and shall not be assigned a restricted CUSIP number.  The Company shall be entitled to instruct the Custodian in writing to so surrender any Global Note as to which any of the conditions set forth in clause (i) through (iii) of the immediately preceding sentence have been satisfied, and, upon such instruction, the Custodian shall so surrender such Global Note for exchange; and any new Global Note so exchanged therefor shall not bear the restrictive legend specified in this Section 2.05(c) and shall not be assigned a restricted CUSIP number.  In addition, the Company shall be entitled to issue and instruct the Trustee to authenticate an unrestricted Global Note for the purpose of permitting the transfer of beneficial interests in a Global Note bearing the restrictive legend, as to which the conditions set forth in clauses (i) through (iii) of the immediately preceding sentence have been satisfied with respect to such unrestricted Global Note.  The Company shall promptly notify the Trustee upon the occurrence of the Resale Restriction Termination Date and promptly after a registration statement, if any, with respect to the Notes or any Common Stock issued upon conversion of the Notes has been declared effective under the Securities Act.

 

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Notwithstanding any other provisions of this Indenture (other than the provisions set forth in this Section 2.05(c)), a Global Note may not be transferred as a whole or in part except (i) by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary and (ii) for exchange of a Global Note or a portion thereof for one or more Physical Notes in accordance with the second immediately succeeding paragraph.

 

The Depositary shall be a clearing agency registered under the Exchange Act.  The Company initially appoints The Depository Trust Company to act as Depositary with respect to each Global Note.  Initially, each Global Note shall be issued to the Depositary, registered in the name of Cede & Co., as the nominee of the Depositary, and deposited with the Trustee as custodian for Cede & Co.

 

If (i) the Depositary notifies the Company at any time that the Depositary is unwilling or unable to continue as depositary for the Global Notes and a successor depositary is not appointed within 90 days, (ii) the Depositary ceases to be registered as a clearing agency under the Exchange Act and a successor depositary is not appointed within 90 days or (iii) an Event of Default with respect to the Notes has occurred and is continuing and a beneficial owner of any Note requests that its beneficial interest therein be issued as a Physical Note, the Company shall execute, and the Trustee, upon receipt of an Officer’s Certificate and a Company Order for the authentication and delivery of Notes, shall authenticate and deliver (x) in the case of clause (iii), a Physical Note to such beneficial owner in a principal amount equal to the principal amount of such Note corresponding to such beneficial owner’s beneficial interest and (y) in the case of clause (i) or (ii), Physical Notes to each beneficial owner of the related Global Notes (or a portion thereof) in an aggregate principal amount equal to the aggregate principal amount of such Global Notes in exchange for such Global Notes, and upon delivery of the Global Notes to the Trustee such Global Notes shall be canceled.

 

Physical Notes issued in exchange for all or a part of the Global Note pursuant to this Section 2.05(c) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, or, in the case of clause (iii) of the immediately preceding paragraph, the relevant beneficial owner, shall instruct the Trustee.  Upon execution and authentication, the Trustee shall deliver such Physical Notes to the Persons in whose names such Physical Notes are so registered.

 

At such time as all interests in a Global Note have been converted, canceled, repurchased, redeemed or transferred, such Global Note shall be, upon receipt thereof, canceled by the Trustee in accordance with standing procedures and existing instructions between the Depositary and the Custodian.  At any time prior to such cancellation, if any interest in a Global Note is exchanged for Physical Notes, converted, canceled, repurchased, redeemed or transferred to a transferee who receives Physical Notes therefor or any Physical Note is exchanged or transferred for part of such Global Note, the principal amount of such Global Note shall, in accordance with the standing procedures and instructions existing between the Depositary and the Custodian, be appropriately reduced or increased, as the case may be, and an endorsement shall be made on such Global Note, by the Trustee or the Custodian, at the direction of the Trustee, to reflect such reduction or increase.

 

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None of the Company, the Trustee and any agent of the Company or the Trustee shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

 

(d)          Until the Resale Restriction Termination Date, any stock certificate representing Common Stock issued upon conversion of a Note shall bear a legend in substantially the following form (unless the Note or such Common Stock has been transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or such Common Stock has been issued upon conversion of a Note that has transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or unless otherwise agreed by the Company with written notice thereof to the Trustee and any transfer agent for the Common Stock):

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE.  BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

 

(1)          REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND

 

(2)          AGREES FOR THE BENEFIT OF GANNETT CO., INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE OF THE SERIES OF NOTES UPON THE CONVERSION OF WHICH THIS SECURITY WAS ISSUED OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:

 

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(A)         TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR

 

(B)         PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR

 

(C)         TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3), (7), (9) OR (12) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER SUCH INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR

 

(D)         PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRANSFER AGENT FOR THE COMPANY’S COMMON STOCK RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.  NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

Any such Common Stock (i) as to which such restrictions on transfer shall have expired in accordance with their terms, (ii) that has been transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer or (iii) that has been sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, may, upon surrender of the certificates representing such shares of Common Stock for exchange in accordance with the procedures of the transfer agent for the Common Stock, be exchanged for a new certificate or certificates for a like aggregate number of shares of Common Stock, which shall not bear the restrictive legend required by this Section 2.05(d).

 

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(e)          Any Note or Common Stock issued upon the conversion or exchange of a Note that is repurchased or owned by any Affiliate of the Company (or any Person who was an Affiliate of the Company at any time during the three months preceding) may not be resold by such Affiliate (or such Person, as the case may be) unless registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a transaction that results in such Note or Common Stock, as the case may be, no longer being a “restricted security” (as defined under Rule 144).  The Company shall cause any Note that is repurchased or owned by it to be surrendered to the Trustee for cancellation in accordance with Section 2.08.

 

(f)           Each Holder of Notes, including any transferee, acknowledges that the Notes are subject to the Registration Rights Agreement and each Holder agrees to be bound by the terms and conditions thereof to the extent applicable to such Holder. Without limiting the foregoing, each transferee of the Notes (including through beneficial interest in a Global Note) agrees that by accepting such Notes (or beneficial interest in a Global Note) they will be deemed to be a party to the Registration Rights Agreement as a “Holder” and subject to the terms thereof to the extent applicable to such Holder.

 

Section 2.06         Mutilated, Destroyed, Lost or Stolen Notes.  In case any Note shall become mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon its written request the Trustee or an authenticating agent appointed by the Trustee shall authenticate and deliver, a new Note, bearing a registration number not contemporaneously outstanding, in exchange and substitution for the mutilated Note, or in lieu of and in substitution for the Note so destroyed, lost or stolen.  In every case the applicant for a substituted Note shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them to save each of them harmless from any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company, to the Trustee and, if applicable, to such authenticating agent evidence to their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.

 

The Trustee or such authenticating agent may authenticate any such substituted Note and deliver the same upon the receipt of such security or indemnity as the Trustee, the Company and, if applicable, such authenticating agent may require.  No service charge shall be imposed by the Company, the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent upon the issuance of any substitute Note, but the Company may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax required in connection therewith as a result of the name of the Holder of the new substitute Note being different from the name of the Holder of the old Note that became mutilated or was destroyed, lost or stolen.  In case any Note that has matured or is about to mature or has been surrendered for required repurchase or is about to be converted in accordance with Article 13 shall become mutilated or be destroyed, lost or stolen, the Company may, in its sole discretion, instead of issuing a substitute Note, pay or authorize the payment of or convert or authorize the conversion of the same (without surrender thereof except in the case of a mutilated Note), as the case may be, if the applicant for such payment or conversion shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them to save each of them harmless for any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction, loss or theft, evidence satisfactory to the Company, the Trustee and, if applicable, any Paying Agent or Conversion Agent evidence of their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.

 

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Every substitute Note issued pursuant to the provisions of this Section 2.06 by virtue of the fact that any Note is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at any time, and shall be entitled to all the benefits of (but shall be subject to all the limitations set forth in) this Indenture equally and proportionately with any and all other Notes duly issued hereunder.  To the extent permitted by law, all Notes shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement, payment, redemption, conversion or repurchase of mutilated, destroyed, lost or stolen Notes and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement, payment, redemption, conversion or repurchase of negotiable instruments or other securities without their surrender.

 

Section 2.07         Temporary Notes.  Pending the preparation of Physical Notes, the Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon written request of the Company, authenticate and deliver temporary Notes (printed or lithographed).  Temporary Notes shall be issuable in any authorized denomination, and substantially in the form of the Physical Notes but with such omissions, insertions and variations as may be appropriate for temporary Notes, all as may be determined by the Company.  Every such temporary Note shall be executed by the Company and authenticated by the Trustee or such authenticating agent upon the same conditions and in substantially the same manner, and with the same effect, as the Physical Notes.  Without unreasonable delay, the Company shall execute and deliver to the Trustee or such authenticating agent Physical Notes (other than any Global Note) and thereupon any or all temporary Notes (other than any Global Note) may be surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to Section 4.02 and the Trustee or such authenticating agent shall authenticate and deliver in exchange for such temporary Notes an equal aggregate principal amount of Physical Notes.  Such exchange shall be made by the Company at its own expense and without any charge therefor.  Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as Physical Notes authenticated and delivered hereunder.

 

Section 2.08         Cancellation of Notes Paid, Converted, Etc.  The Company shall cause all Notes surrendered for the purpose of payment, repurchase, redemption, registration of transfer or exchange or conversion, if surrendered to any Person other than the Trustee (including any of the Company’s agents, Subsidiaries or Affiliates), to be surrendered to the Trustee for cancellation.  All Notes delivered to the Trustee shall be canceled by it, and no Notes shall be authenticated in exchange thereof except as expressly permitted by any of the provisions of this Indenture.  The Trustee shall dispose of canceled Notes in accordance with its customary procedures and, after such disposition, shall deliver a certificate of such disposition to the Company, at the Company’s written request in a Company Order.  If the Company shall acquire any of the Notes, such acquisition shall not operate as a redemption, repurchase or satisfaction of the indebtedness represented by such Notes unless and until the same are delivered to the Trustee for cancellation.

 

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Section 2.09         CUSIP Numbers.  The Company in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in all notices issued to Holders as a convenience to such Holders; provided, however, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or on such notice and that reliance may be placed only on the other identification numbers printed on the Notes.  The Company shall promptly notify the Trustee in writing of any change in the “CUSIP” numbers.

 

Section 2.10         Additional Notes; Repurchases.  The Company may, without the consent of the Holders and notwithstanding Section 2.01, reopen this Indenture and issue additional Notes hereunder with the same terms as the Notes initially issued hereunder (other than differences in the issue price and interest accrued prior to the issue date of such additional Notes) in an unlimited aggregate principal amount; provided, however, that if any such additional Notes are not fungible with the Notes initially issued hereunder for U.S. federal income tax purposes or securities law purposes, such additional Notes shall have one or more separate CUSIP numbers.  Prior to the issuance of any such additional Notes, the Company shall deliver to the Trustee a Company Order, an Officer’s Certificate and an Opinion of Counsel, such Officer’s Certificate and Opinion of Counsel to cover such matters, in addition to those required by Section 19.05, as the Trustee shall reasonably request.  In addition, the Company may, to the extent permitted by law, and directly or indirectly (regardless of whether such Notes are surrendered to the Company), repurchase Notes in the open market or otherwise, whether by the Company or its Subsidiaries or through a private or public tender or exchange offer or through counterparties to private agreements, including by cash-settled swaps or other derivatives.  The Company shall cause any Notes so repurchased (other than Notes repurchased pursuant to cash-settled swaps or other derivatives) to be surrendered to the Trustee for cancellation in accordance with Section 2.08 and such Notes shall no longer be considered outstanding under this Indenture upon their repurchase.

 

ARTICLE 3

 

SATISFACTION AND DISCHARGE

 

Section 3.01         Satisfaction and Discharge.  This Indenture shall cease to be of further effect, and the Trustee, upon request of the Company contained in an Officer’s Certificate and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when (a) (i) all Notes theretofore authenticated and delivered (other than Notes which have been destroyed, lost or stolen and which have been replaced, paid or converted as provided in Section 2.06) have been delivered to the Trustee for cancellation; or (ii) the Company has deposited with the Trustee or delivered to Holders, as applicable, after the Notes have become due and payable, whether on the Maturity Date, any Redemption Date, any Repurchase Event Repurchase Date, upon conversion or otherwise, cash, shares of Common Stock or a combination thereof, as applicable, solely to satisfy the Company’s Conversion Obligation, sufficient to pay all of the outstanding Notes (Notes which have been destroyed, lost or stolen and which have been replaced, paid or converted as provided in Section 2.06) and all other sums due and payable under this Indenture by the Company; and (b) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.  Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.06 shall survive.

 

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ARTICLE 4

 

PARTICULAR COVENANTS OF THE COMPANY

 

Section 4.01         Payment of Principal and Interest.  The Company covenants and agrees that it will pay or cause to be paid the principal (including the Redemption Price and the Repurchase Event Repurchase Price, if applicable) of, and accrued and unpaid interest on, each of the Notes at the places, at the respective times and in the manner provided herein and in the Notes.

 

Section 4.02         Maintenance of Office or Agency.  The Company will maintain an office or agency where the Notes may be surrendered for registration of transfer or exchange or for presentation for payment or repurchase (“Paying Agent”) or for conversion (“Conversion Agent”) and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served.  The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency.  If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office.

 

The Company may also from time to time designate as co-Note Registrars one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency for such purposes.  The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.  The terms “Paying Agent” and “Conversion Agent” include any such additional or other offices or agencies, as applicable.

 

The Company hereby initially designates the Trustee as the Paying Agent, Note Registrar, Custodian and Conversion Agent and the Corporate Trust Office as the office or agency where Notes may be surrendered for registration of transfer or exchange or for presentation for payment or repurchase or for conversion.

 

Section 4.03         Appointments to Fill Vacancies in Trustee’s Office.  The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.09, a Trustee, so that there shall at all times be a Trustee hereunder.

 

Section 4.04         Provisions as to Paying Agent.

 

(a)          If the Company shall appoint a Paying Agent other than the Trustee, the Company will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 4.04:

 

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(i)          that it will hold all sums held by it as such agent for the payment of the principal (including the Redemption Price and the Repurchase Event Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes in trust for the benefit of the Holders of the Notes;

 

(ii)         that it will give the Trustee prompt notice of any failure by the Company to make any payment of the principal (including the Redemption Price and the Repurchase Event Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes when the same shall be due and payable; and

 

(iii)        that at any time during the continuance of an Event of Default, upon request of the Trustee, it will forthwith pay to the Trustee all sums so held in trust.

 

The Company shall, on or before each due date of the principal (including the Redemption Price and the Repurchase Event Repurchase Price, if applicable) of, or accrued and unpaid interest on, the Notes, deposit with the Paying Agent a sum sufficient to pay such principal (including the Redemption Price and the Repurchase Event Repurchase Price, if applicable) or accrued and unpaid interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of any failure to take such action; provided that if such deposit is made on the due date, such deposit must be received by the Paying Agent by 11:00 a.m., New York City time, on such date.

 

(b)          If the Company shall act as its own Paying Agent, it will, on or before each due date of the principal (including the Redemption Price and the Repurchase Event Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes, set aside, segregate and hold in trust for the benefit of the Holders of the Notes a sum sufficient to pay such principal (including the Redemption Price and the Repurchase Event Repurchase Price, if applicable) and accrued and unpaid interest so becoming due and will promptly notify the Trustee in writing of any failure to take such action and of any failure by the Company to make any payment of the principal (including the Redemption Price and the Repurchase Event Repurchase Price, if applicable) of, or accrued and unpaid interest on, the Notes when the same shall become due and payable.

 

(c)          Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other reason, pay, cause to be paid or deliver to the Trustee all sums or amounts held in trust by the Company or any Paying Agent hereunder as required by this Section 4.04, such sums or amounts to be held by the Trustee upon the trusts herein contained and upon such payment or delivery by the Company or any Paying Agent to the Trustee, the Company or such Paying Agent shall be released from all further liability but only with respect to such sums or amounts.

 

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(d)          Subject to applicable abandoned property laws, any money and shares of Common Stock deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal (including the Redemption Price and the Repurchase Event Repurchase Price, if applicable) of, accrued and unpaid interest on and the consideration due upon conversion of any Note and remaining unclaimed for two years after such principal (including the Redemption Price and the Repurchase Event Repurchase Price, if applicable), interest or consideration due upon conversion has become due and payable shall be paid to the Company on request of the Company contained in an Officer’s Certificate, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money and shares of Common Stock, and all liability of the Company as trustee thereof, shall thereupon cease.

 

Section 4.05         [Reserved].

 

Section 4.06         [Reserved] .

Section 4.07         Stay, Extension and Usury Laws.  The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law that would prohibit or forgive the Company from paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of this Indenture; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

 

Section 4.08        Compliance Certificate; Statements as to Defaults .  The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company (beginning with the 2025 Fiscal Year) an Officer’s Certificate stating whether the signers thereof have knowledge of any Default or Event of Default under this Indenture that occurred during the previous fiscal year and, if so, specifying each such Default or Event of Default and the nature thereof.

 

In addition, the Company shall deliver to the Trustee, as soon as possible, and in any event within 30 days after obtaining knowledge of the occurrence of any Event of Default or Default, an Officer’s Certificate setting forth the details of such Event of Default or Default, its status and the action that the Company is taking or proposing to take in respect thereof; provided that the Company is not required to deliver such Officer’s Certificate if such Event of Default or Default has been cured.

 

Section 4.09         Further Instruments and Acts.  Upon request of the Trustee, the Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture.

 

Section 4.10         Additional Interest.

 

(a)          [reserved]

 

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Section 4.11         Affirmative Covenants.  So long as any Notes are outstanding, each Notes Party will:

 

(a)          Reporting Requirements.

 

(i)          At any time when there is any Unrestricted Subsidiary, simultaneously with the delivery of the financial statements of the Company and its Subsidiaries required by clauses (ii) and (iii) of this Section 4.11(a), deliver to the Trustee an Unrestricted Subsidiary Reconciliation Statement;

 

(ii)         Deliver to the Trustee as soon as available, and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year, commencing with the first such Fiscal Quarter ending after the Issue Date, unaudited consolidated balance sheets, statements of operations and retained earnings and statements of cash flows of the Company and its Subsidiaries as at the end of such quarter, and for the period commencing at the end of the immediately preceding Fiscal Year and ending with the end of such quarter, setting forth in each case in comparative form the figures for the corresponding date or period set forth in the financial statements for the immediately preceding Fiscal Year, all in reasonable detail and certified by an Officer of the Company as fairly presenting, in all material respects, the financial position of the Company and its Subsidiaries as of the end of such quarter and the results of operations of the Company and its Subsidiaries for such quarter and for such year-to-date period and the cash flows of the Company and its Subsidiaries for such year-to-date period, in accordance with GAAP applied in a manner consistent with that of the most recent audited financial statements of the Company and its Subsidiaries furnished to the Trustee, subject to the absence of footnotes and normal year-end adjustments

 

(iii)        Deliver to the Trustee as soon as available, and in any event within 75 days after the end of each Fiscal Year, statements of operations and retained earnings and statements of cash flows of the Company and its Subsidiaries as at the end of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding date or period set forth in the financial statements for the immediately preceding Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, and accompanied by a report and an opinion, prepared in accordance with generally accepted auditing standards, of independent certified public accountants of recognized standing selected by the Company in good faith (which opinion shall be without (1) a “going concern” or like qualification or exception, or (2) any qualification or exception as to the scope of such audit (other than solely as a result of the impending maturity of any Indebtedness or as a result of a prospective or actual default under any financial maintenance covenant in any agreement governing the 2024 Term Loan (or any Refinancing Facilities in respect thereof) or the Notes)), together with a written statement of such accountants (x) to the effect that, in making the examination necessary for their certification of such financial statements, they have not obtained any knowledge of the existence of an Event of Default or a Default under Section 4.13 and (y) if such accountants shall have obtained any knowledge of the existence of an Event of Default or such Default, describing the nature thereof.

 

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(iv)        The Company will also hold quarterly conference calls, beginning with the first Fiscal Quarter ending after the Issue Date, for all Holders of the Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts to discuss such financial information no later than ten Business Days after the distribution of such information required by clauses (ii) or (iii) of this Section 4.11(a) and, prior to the date of each such conference call, will announce the time and date of such conference call and either include all information necessary to access the call or inform Holders of the Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts how they can obtain such information, including, without limitation, the applicable password or login information (if applicable), it being agreed that the Company’s publicly accessible earnings webcast shall be deemed to satisfy this Section 4.11(a)(iv).

 

(v)         At any time the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company shall, so long as any of the Notes or any shares of Common Stock issuable upon conversion thereof shall, at such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, promptly provide to the Trustee and, upon written request, any Holder, beneficial owner or prospective purchaser of such Notes or any shares of Common Stock issuable upon conversion of such Notes, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such Notes or shares of Common Stock pursuant to Rule 144A.

 

For the avoidance of doubt, delivery of any reports, information and documents to the Trustee hereunder is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder.

 

Information required to be furnished pursuant to clause (ii) or (iii) of this Section 4.11(a) shall be deemed to have been furnished if such information, or one or more annual or quarterly reports containing such information, shall be available on the website of the SEC at http://www.sec.gov.  Information required to be furnished pursuant to this Section 4.11(a) may also be furnished by electronic communications pursuant to procedures approved by the Trustee.

 

(b)          Additional Guarantors and Collateral Security.

 

(i)          The Company shall cause each Subsidiary of any Notes Party not in existence on the Issue Date (other than any Excluded Subsidiary) to execute and deliver to the Trustee as promptly as practicable and in any event within 30 days (or such later date as agreed by the Notes Collateral Agent) a supplemental indenture in the form of Exhibit B hereto pursuant to which such Subsidiary shall become a Subsidiary Guarantor.

 

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(ii)         Upon the acquisition by the Company or any Subsidiary Guarantor of any After-Acquired Property, or upon any additional Subsidiary becoming a Subsidiary Guarantor, the Company or such Subsidiary Guarantor shall execute and deliver such mortgages, deeds of trust, security instruments, financing statements and other Security Documents as shall be reasonably necessary to vest in the Notes Collateral Agent a perfected security interest, subject only to Permitted Liens and Liens permitted under Section 4.12(a), in such After-Acquired Property and to have such After-Acquired Property (but subject to the limitations as described in Article 17, the Security Documents and the Intercreditor Agreements) added to the Collateral (or in the case of a Subsidiary Guarantor, all of its assets that constitute After-Acquired Property), and thereupon all provisions of this Indenture relating to the Collateral shall be deemed to relate to such After-Acquired Property to the same extent and with the same force and effect.

 

(c)          Compliance with Laws; Payment of Taxes.

 

(i)          Comply, and cause each of its Restricted Subsidiaries to comply with all Requirements of Law (including all Environmental Laws), judgments and awards (including any settlement of any claim that, if breached, could give rise to any of the foregoing), except to the extent the failure to so comply would not reasonably be expected to have a Material Adverse Effect.

 

(ii)         Pay, and cause each of its Restricted Subsidiaries to pay, in full before delinquency or before the expiration of any extension period, all taxes, assessments and other governmental charges imposed upon any Notes Party or any of its Restricted Subsidiaries or any property of any Notes Party or any of its Restricted Subsidiaries, except to the extent (x) contested in good faith by proper proceedings which stay the imposition of any penalty, fine or Lien resulting from the non-payment thereof and with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP or (y) unpaid taxes, assessments and other governmental charges in an aggregate amount not exceed $25,000,000.

 

(d)          Preservation of Existence, Etc.  Except as otherwise expressly permitted by this Indenture, maintain and preserve, and cause each of its Restricted Subsidiaries to maintain and preserve, its existence, rights and privileges (except as otherwise permitted by Article 11), and become or remain, and cause each of its Restricted Subsidiaries to become or remain, duly qualified and in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary, except to the extent that the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect.

 

(e)          Keeping of Records and Books of Account.  Keep, and cause each of its Restricted Subsidiaries to keep, adequate records and books of account, with complete entries made to permit the preparation of financial statements in accordance with GAAP.

 

(f)          [Reserved].

 

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(g)          Maintenance of Properties, Etc.  Maintain and preserve, and cause each of its Restricted Subsidiaries to maintain and preserve, all of its properties which are necessary or useful in the proper conduct of its business in good working order and condition, ordinary wear and tear and casualty excepted, and comply, and cause each of its Restricted Subsidiaries to comply, at all times with the provisions of all leases to which it is a party as lessee or under which it occupies property, so as to prevent any loss or forfeiture thereof or thereunder, except to the extent the failure to so maintain and preserve or so comply would not reasonably be expected to have a Material Adverse Effect.

 

(h)          Maintenance of Insurance.  Maintain, and cause each of its Restricted Subsidiaries to maintain, insurance with responsible and reputable insurance companies or associations (including comprehensive general liability, hazard, rent, worker’s compensation and business interruption insurance) with respect to its properties (including all real properties leased or owned by it) and business, in such amounts and covering such risks as is required by any Governmental Authority having jurisdiction with respect thereto or as is carried generally in accordance with sound business practice by companies in similar businesses similarly situated.  All policies covering the Collateral are to be made payable to the Notes Collateral Agent for the benefit of the Trustee, as its interests may appear, in case of loss, under a standard non‑contributory “lender” or “secured party” clause and are to contain such other provisions as the Notes Collateral Agent may reasonably require to fully protect the Trustee’s interest in the Collateral and to any payments to be made under such policies.  All certificates of insurance are to be delivered to the Notes Collateral Agent, with the loss payable and additional insured endorsement in favor of the Notes Collateral Agent and such other Persons as the Notes Collateral Agent may designate from time to time, and shall provide for not less than 30 days’ (10 days’ in the case of non-payment) prior written notice to the Notes Collateral Agent of the exercise of any right of cancellation.  If any Notes Party or any of its Restricted Subsidiaries fails to maintain such insurance, the Notes Collateral Agent may arrange for such insurance, but at the Company’s expense and without any responsibility on the Notes Collateral Agent’s part or the Trustee’s part for obtaining the insurance, the solvency of the insurance companies, the adequacy of the coverage, or the collection of claims.  Upon the occurrence and during the continuance of an Event of Default, upon the written direction of the Holders of a majority in aggregate principal amount of the Notes then outstanding, the Notes Collateral Agent shall have the sole right, in the name of the Trustee, any Notes Party and its Restricted Subsidiaries, to file claims under any insurance policies, to receive, receipt and give acquittance for any payments that may be payable thereunder, and to execute any and all endorsements, receipts, releases, assignments, reassignments or other documents that may be necessary to effect the collection, compromise or settlement of any claims under any such insurance policies.

 

(i)           Obtaining of Permits, Etc.  Obtain, maintain and preserve, and cause each of its Restricted Subsidiaries to obtain, maintain and preserve, and take all necessary action to timely renew, all permits, licenses, authorizations, approvals, entitlements and accreditations that are necessary or useful in the proper conduct of its business, in each case, except to the extent the failure to obtain, maintain, preserve or take such action would not reasonably be expected to have a Material Adverse Effect.

 

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(j)           Environmental.  (i)  Keep any property either owned or operated by it or any of its Restricted Subsidiaries free of any Environmental Liens; (ii) comply, and cause each of its Restricted Subsidiaries to comply, with all Environmental Laws and provide to the Notes Collateral Agent any documentation of such compliance which the Notes Collateral Agent may reasonably request; (iii) provide the Notes Collateral Agent written notice within 20 days of becoming aware of any Release of a Hazardous Material in excess of any reportable quantity from or onto property at any time owned or operated by it or any of its Restricted Subsidiaries and take any Remedial Actions required to abate said Release; and (iv) notify the Holders and the Notes Collateral Agent notice within 20 days of the receipt of any of the following:  (A) notice that an Environmental Lien has been filed against any property of any Notes Party or any of its Restricted Subsidiaries; (B) commencement of any Environmental Action or notice that an Environmental Action will be filed against any Notes Party or any of its Restricted Subsidiaries; and (C) notice of a violation, citation or other administrative order which, in the case of item (i), (ii) or (iii) of this paragraph, would reasonably be expected to have a Material Adverse Effect.

 

(k)          [Reserved].

 

(l)           [Reserved].

 

(m)         [Reserved].

 

(n)          [Reserved].

 

(o)          Anti-Bribery and Anti-Corruption Laws; Anti-Money Laundering and Anti-Terrorism Laws.  Maintain, and cause each of its Restricted Subsidiaries to maintain, policies and procedures that are reasonably designed to ensure compliance by the Notes Parties, their respective Restricted Subsidiaries and their respective directors, officers, employees and agents with the Anti-Corruption Laws and the Anti-Money Laundering and Anti-Terrorism Laws.

 

(p)          [Reserved].

 

(q)          [Reserved].

 

(r)           [Reserved].

 

(s)           [Reserved].

 

(t)           Control Agreements.  Deliver to the Notes Collateral Agent no later than 90 days after the Issue Date (unless a later date is otherwise agreed to by the Applicable Possessory Collateral Agent (as defined in the Security Agreement)) each Control Agreement that, in the reasonable judgment of the Notes Collateral Agent, are required for the Notes Parties to comply with the Indenture and the Security Documents, each duly executed by, in addition to the applicable Notes Party, the applicable financial institution.

 

(u)          [Reserved].

 

(v)          [Reserved].

 

(w)         Casualty and Condemnation.  Furnish to the Notes Collateral Agent and the Holders prompt written notice of any casualty or other insured damage to any material portion of any Collateral or the commencement of any action or proceeding for the taking of any Collateral or any part thereof or interest therein under power of eminent domain or by condemnation or similar proceeding.

 

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Section 4.12         Negative Covenants.  So long as any Notes are outstanding, each Notes Party shall not:

 

(a)           Liens, Etc.  Create, incur, assume or suffer to exist, or permit any of its Restricted Subsidiaries to create, incur, assume or suffer to exist, any Lien upon or with respect to any of its properties, whether now owned or hereafter acquired, or on any income or revenues or rights in respect of any thereof; file or suffer to exist under the Uniform Commercial Code or any Requirement of Law of any jurisdiction, a financing statement (or the equivalent thereof) that names it or any of its Restricted Subsidiaries as debtor; or sign or suffer to exist any security agreement authorizing any secured party thereunder to file such financing statement (or the equivalent thereof) other than, as to all of the above, Permitted Liens.

 

(b)          Indebtedness.  Create, incur, assume, guarantee or suffer to exist, or otherwise become or remain liable with respect to, or permit any of its Restricted Subsidiaries to create, incur, assume, guarantee or suffer to exist or otherwise become or remain liable with respect to, any Indebtedness other than Permitted Indebtedness.

 

(c)           Dispositions.  Make any Disposition, whether in one transaction or a series of related transactions, of all or any part of its business, property or assets, whether now owned or hereafter acquired (or agree to do any of the foregoing), or permit any of its Restricted Subsidiaries to do any of the foregoing; provided, however, that any Notes Party and its Restricted Subsidiaries may make Permitted Dispositions.

 

(d)          Change in Nature of Business.  Make, or permit any of its Restricted Subsidiaries to make, any change in the nature of the business or activities of the Company and its Subsidiaries as of the Issue Date or business activities incidental or related thereto.

 

(e)           Loans, Advances, Investments, Etc.  Make or commit or agree to make, or permit any of its Restricted Subsidiaries make or commit or agree to make, any Investment in any other Person except for Permitted Investments.

 

(f)           Sale and Leaseback Transactions.  Enter into, or permit any of its Restricted Subsidiaries to enter into, any Sale and Leaseback Transaction except to the extent the Net Cash Proceeds thereof are used to repurchase Notes in accordance with Section 14.01 pursuant to an Asset Sale Repurchase Event.

 

(g)          [Reserved].

 

(h)          Restricted Payments.  Make or permit any of its Restricted Subsidiaries to make any Restricted Payment other than (a) Permitted Restricted Payments and (b) Permitted Tax Distributions.

 

(i)           [Reserved].

 

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(j)          Transactions with Affiliates.  Enter into, renew, extend or be a party to, or permit any of its Restricted Subsidiaries to enter into, renew, extend or be a party to, any transaction or series of related transactions (including the purchase, sale, lease, transfer or exchange of property or assets of any kind or the rendering of services of any kind) with any Affiliate, except (i) transactions consummated in the ordinary course of business in a manner and to an extent consistent with past practice and necessary or desirable for the prudent operation of its business, for fair consideration and on terms no less favorable to it or its Restricted Subsidiaries than would be obtainable in a comparable arm’s length transaction with a Person that is not an Affiliate thereof if they involve one or more payments by the Company or any of its Restricted Subsidiaries in excess of $1,000,000 for any single transaction or series of related transactions, (ii) transactions by a Notes Party with another Notes Party not involving any other Affiliate and transactions by a Restricted Subsidiary that is not a Notes Party with another Restricted Subsidiary that is not a Notes Party not involving any other Affiliate, (iii) transactions permitted by Section 4.12(e) and Section 4.12(h), (iv) sales of Qualified Equity Interests of the Company to Affiliates of the Company not otherwise prohibited by this Indenture and the Security Documents and the granting of registration and other customary rights in connection therewith under agreements to which such Notes Party or such Restricted Subsidiary is a party as of the date hereof and any similar agreements which it may enter into thereafter; provided, however, that the existence of or the performance by any Notes Party or its Restricted Subsidiaries of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the date hereof shall only be permitted by this clause (iv) to the extent that the terms of any such amendment or new agreement are not otherwise materially disadvantageous to the Holders when taken as a whole, (v) reasonable and customary director and officer compensation (including bonuses and stock option programs), benefits and indemnification arrangements, in each case approved by the Board of Directors (or a committee thereof) of such Notes Party or such Restricted Subsidiary, (vi) transactions, when viewed together with any related transactions, on terms that the Board of Directors of the Company determines pursuant to a Board Resolution are no less favorable to such Notes Party or its Restricted Subsidiaries than would be obtainable in a comparable arm’s length transaction with a Person that is not an Affiliate thereof and (vii) transactions under the Registration Rights Agreement.

 

(k)          Limitations on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries.  Create or otherwise cause, incur, assume, suffer or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary of any Notes Party (i) to pay dividends or to make any other distribution on any shares of Equity Interests of such Restricted Subsidiary owned by any Notes Party or any of its Restricted Subsidiaries, (ii) to pay or prepay or to subordinate any Indebtedness owed to any Notes Party or any of its Restricted Subsidiaries, (iii) to make loans or advances to any Notes Party or any of its Restricted Subsidiaries or (iv) to transfer any of its property or assets to any Notes Party or any of its Restricted Subsidiaries, or permit any of its Restricted Subsidiaries to do any of the foregoing; provided, however, that nothing in any of clauses (i) through (iv) of this Section 4.12(k) shall prohibit or restrict compliance with:

 

(A)           (i) this Indenture and the Security Documents or (ii) the definitive documentation for the 2024 Term Loan or the Refinancing Facilities;

 

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(B)           any agreement in effect on the date of this Indenture and described on Schedule 4.12(k), or any extension, replacement or continuation of any such agreement; provided, that, any such encumbrance or restriction contained in such extended, replaced or continued agreement is no less favorable in any material respect to the Holders than the encumbrance or restriction under or pursuant to the agreement so extended, replaced or continued;

 

(C)           any applicable law, rule or regulation (including applicable currency control laws and applicable state corporate statutes restricting the payment of dividends in certain circumstances);

 

(D)           in the case of clause (iv), (1) customary restrictions on the subletting, assignment or transfer of any specified property or asset set forth in a lease, license, asset sale agreement or similar contract for the conveyance of such property or asset and (2) instrument or other document evidencing a Permitted Lien (or the Indebtedness secured thereby) from restricting on customary terms the transfer of any property or assets subject thereto;

 

(E)           customary restrictions on dispositions of real property interests in reciprocal easement agreements;

 

(F)           customary restrictions in agreements for the sale of assets on the transfer or encumbrance of such assets during an interim period prior to the closing of the sale of such assets;

 

(G)          customary restrictions in contracts that prohibit the assignment of such contract;

 

(H)          customary restrictions set forth in the Governing Documents of any Restricted Subsidiary that is not a wholly-owned Restricted Subsidiary; or

 

(I)            the Existing 1L Notes Indenture or the Existing 2L Notes Indenture.

 

(l)           Limitations on Negative Pledges.  Enter into, incur or permit to exist, or permit any Restricted Subsidiary to enter into, incur or permit to exist, directly or indirectly, any agreement, instrument, deed, lease or other arrangement that prohibits, restricts or imposes any condition upon the ability of any Notes Party or any Restricted Subsidiary of any Notes Party to create, incur or permit to exist any Lien (other than Permitted Liens) upon any of its property or revenues in favor of the Holders to secure the Notes Obligations under this Indenture and the Security Documents, whether now owned or hereafter acquired, or that requires the grant of any security for an obligation if security is granted for another obligation, except the following:  (i) this Indenture and the Security Documents, (ii) restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by Section 4.12(b) of this Indenture if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (iii) any customary restrictions and conditions contained in agreements relating to the sale or other disposition of assets or of a Restricted Subsidiary pending such sale or other disposition; provided that such restrictions and conditions apply only to the assets or Restricted Subsidiary to be sold or disposed of and such sale or disposition is permitted hereunder, (iv) customary provisions in leases restricting the assignment or sublet thereof, (v) customary restrictions in contracts that prohibit the assignment of such contracts, (vi) customary restrictions set forth in the Governing Documents of any Restricted Subsidiary that is not a wholly-owned Restricted Subsidiary and (vii) restrictions set forth in the definitive documentation for the 2024 Term Loan and the Refinancing Facilities in respect thereof.

 

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(m)         Modifications of Indebtedness, Organizational Documents and Certain Other Agreements; Etc.

 

(i)          (x) Except with respect to the 2024 Term Loan or the Refinancing Facilities, amend, modify or otherwise change (or permit the amendment, modification or other change in any manner of) any of the provisions of any of its or its Restricted Subsidiaries’ Indebtedness outstanding as of the Issue Date or of any instrument or agreement (including any purchase agreement, indenture, loan agreement or security agreement) relating to any such Indebtedness if such amendment, modification or change would (A) shorten the final maturity of such Indebtedness, or shorten the average life to maturity of such Indebtedness, to a date earlier than 91 days after the Maturity Date, (B) require any payment to be made on such Indebtedness earlier than the date originally scheduled on such Indebtedness, unless such payment is to be made after the date that is 91 days after the Maturity Date, (C) increase the interest rate applicable to such Indebtedness, or (D) change the subordination provision, if any, of such Indebtedness, or (y) amend, modify or otherwise change (or permit the amendment, modification or other change in any manner of) any of the provisions of the 2024 Term Loan, the Refinancing Facilities or any Indebtedness incurred under clause (q) of “Permitted Indebtedness” in a manner that would cause such Indebtedness to fail to satisfy the Debt Parameters;

 

(ii)         except for any Indebtedness owing by a Restricted Subsidiary of a Notes Party to a Notes Party,

 

(A)           make any mandatory, voluntary or optional payment (including any payment of interest in cash that, at the option of the issuer, may be paid in cash or in kind), prepayment, redemption, defeasance, sinking fund payment or other acquisition for value of any of its or its Restricted Subsidiaries’ Junior Indebtedness (including by way of depositing money or securities with the trustee therefor before the date required for the purpose of paying any portion of such Junior Indebtedness when due), except the repurchase of Existing 2L Notes pursuant to and in accordance with any Convertible Notes Exchange conducted on or prior to the Delayed Draw Term Loan Commitment Termination Date (as defined in the 2024 Term Loan), the cash portion of which is funded with the proceeds of Delayed Draw Term Loans (as defined in the 2024 Term Loan); provided that at the time any such payment is made pursuant to this clause (A), no Default or Event of Default shall have occurred and be continuing or would result therefrom;

 

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(B)          refund, refinance, replace or exchange any other Junior Indebtedness for any such Indebtedness (other than with respect to Permitted Refinancing Indebtedness);

 

(iii)        amend, modify or otherwise change any of its Governing Documents (including by the filing or modification of any certificate of designation, or any agreement or arrangement entered into by it) with respect to any of its Equity Interests (including any shareholders’ agreement), or enter into any new agreement with respect to any of its Equity Interests, except any such amendments, modifications or changes or any such new agreements or arrangements pursuant to this clause (iii)  that either individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect; provided that no such amendment, modification or change or new agreement or arrangement shall provide for any plan of division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any similar statute or provision under applicable law); or

 

(iv)        agree to any amendment, modification or other change to or waiver of any of its rights under any Material Contract if such amendment, modification, change or waiver would be adverse in any material respect to any Notes Party or any of its Restricted Subsidiaries or the Holders.

 

(n)          Investment Company Act of 1940.  Engage in any business, enter into any transaction, use any securities or take any other action or permit any of its Restricted Subsidiaries to do any of the foregoing, that would cause it or any of its Restricted Subsidiaries to be required to register under the registration requirements of the Investment Company Act of 1940, as amended, by virtue of being an “investment company” or a company “controlled” by an “investment company” not entitled to an exemption within the meaning of such Act.

 

(o)          ERISA.  (i) Engage, or permit any ERISA Affiliate to engage, in any transaction described in Section 4069 of ERISA; (ii) engage, or permit any ERISA Affiliate to engage, in any prohibited transaction described in Section 406 of ERISA or 4975 of the Internal Revenue Code for which a statutory or class exemption is not available or a private exemption has not previously been obtained from the U.S. Department of Labor; (iii) adopt or permit any ERISA Affiliate to adopt any employee welfare benefit plan within the meaning of Section 3(1) of ERISA which provides benefits to employees after termination of employment other than as required by Section 601 of ERISA or applicable law; (iv) fail to make any contribution or payment to any Multiemployer Plan which it or any ERISA Affiliate may be required to make under any agreement relating to such Multiemployer Plan, or any law pertaining thereto; or (v) fail, or permit any ERISA Affiliate to fail, to pay any required installment or any other payment required under Section 412 of the Internal Revenue Code on or before the due date for such installment or other payment.

 

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(p)          Environmental.  Permit the use, handling, generation, storage, treatment, Release or disposal of Hazardous Materials at any property owned or leased by it or any of its Restricted Subsidiaries, except in compliance with Environmental Laws (other than any noncompliance that would not reasonably be expected to have a Material Adverse Effect).

 

(q)          [Reserved].

 

(r)           Anti-Money Laundering and Anti-Terrorism Laws.

 

(i)           None of the Notes Parties, nor any of their Restricted Subsidiaries shall:

 

(A)          conduct any business or engage in any transaction or dealing with or for the benefit of any Blocked Person, including the making or receiving of any contribution of funds, goods or services to, from or for the benefit of any Blocked Person;

 

(B)          deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked or subject to blocking pursuant to the Sanctions Programs;

 

(C)          use any of the proceeds of the Notes or the transactions contemplated by this Indenture to finance, promote or otherwise support in any manner any illegal activity, including any violation of the Anti-Money Laundering and Anti-Terrorism Laws or any specified unlawful activity as that term is defined in the Money Laundering Control Act of 1986, 18 U.S.C. §§ 1956 and 1957; or

 

(D)          violate, attempt to violate, or engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, any of the Anti-Money Laundering and Anti-Terrorism Laws in any material respects.

 

(ii)         None of the Notes Parties, nor any Restricted Subsidiary of any of the Notes Parties, nor any officer, director or principal shareholder or owner of any of the Notes Parties, nor, to the knowledge of any Notes Party, any of the Notes Parties’ respective agents acting or benefiting in any capacity in connection with the Notes or other transactions hereunder, shall be or shall become a Blocked Person.

 

(s)          Anti-Bribery and Anti-Corruption Laws.  None of the Notes Parties shall:

 

(i)          offer, promise, pay, give, or authorize the payment or giving of any money, gift or other thing of value, directly or indirectly, to or for the benefit of any Foreign Official for the purpose of: (A) influencing any act or decision of such Foreign Official in his, her, or its official capacity; (B) inducing such Foreign Official to do, or omit to do, an act in violation of the lawful duty of such Foreign Official, or (C) securing any improper advantage, in order to obtain or retain business for, or with, or to direct business to, any Person; or

 

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(ii)         act or attempt to act in any manner which would subject any of the Notes Parties to liability under any Anti-Corruption Law.

 

(t)           Divisions.  Notwithstanding anything herein, no Notes Party that is a limited liability company may divide itself into two or more limited liability companies (pursuant to a “plan of division” as contemplated under the Delaware Limited Liability Company Act or otherwise), and in the event that any Notes Party that is a limited liability company divides itself into two or more limited liability companies, any limited liability companies formed as a result of such division shall be required to comply with the obligations set forth in this Indenture and become a Subsidiary Guarantor under this Indenture and the Security Documents.

 

Section 4.13         Minimum Liquidity.  So long as any Notes are outstanding, the Company shall not permit, as of the last day of any Fiscal Quarter, the aggregate amount of Qualified Cash of the Company and its Restricted Subsidiaries to be less than $30,000,000.

 

Section 4.14         Dividend Event.  The Company shall not pay any dividend or make any distribution on account of any of the Company’s Equity Interests unless either (a) the Total Gross Leverage Ratio of the Company for the most recent four Fiscal Quarter period for which financial statements are available is less than 1.50 to 1.00 on a pro forma basis after giving effect to such dividend or distribution or (b) the Company shall have complied with the requirements of Article 14 with respect to the applicable Dividend Repurchase Event and, in such case, may only pay the dividend or make the distribution following the Repurchase Event Repurchase Date for such Dividend Repurchase Event in an amount up to the amount of the proposed dividend or distribution for such Dividend Repurchase Event.

 

Section 4.15         2024 Term Loan.  The Company shall not incur any Indebtedness to refinance all or any portion of the 2024 Term Loan (or any Refinancing Facilities in respect thereof) except pursuant to a Permitted Refinancing.

 

Section 4.16         Designation of Subsidiaries.  The Company may at any time designate any of its Restricted Subsidiaries as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) immediately before and after such designation, (x) no Default or Event of Default shall have occurred and be continuing or would immediately result from such designation and (y) the Company shall be in pro forma compliance with the covenant set forth in Section 4.13 after giving effect to such designation and (ii) no Restricted Subsidiary may be designated as an Unrestricted Subsidiary if it is designated as a Restricted Subsidiary under the 2024 Term Loan (or any Refinancing Facilities in respect thereof), the Existing 1L Notes Indenture or the Existing 2L Notes Indenture. The Company may not designate a Restricted Subsidiary as an Unrestricted Subsidiary if, at the time of such designation (and, thereafter, any Unrestricted Subsidiary shall cease to be an Unrestricted Subsidiary automatically if) such Restricted Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or holds any Lien on any property of, the Company or any other Subsidiary (other than (x) any Subsidiary of such Restricted Subsidiary and (y) any Unrestricted Subsidiary).  The designation of any Restricted Subsidiary as an Unrestricted Subsidiary shall constitute an investment by the parent company of such Subsidiary therein under Section 4.12(e) at the date of designation in an amount equal to the net book  value of such parent company’s investment therein.  The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Subsidiary, and the making of an investment by such Subsidiary in any investments of such Subsidiary, in each case existing at such time.  Notwithstanding anything in this Indenture to the contrary (including Section 4.12(e)), none of the Company or any of its Restricted Subsidiaries may invest, exclusively license or otherwise transfer Intellectual Property to, and Intellectual Property may not be owned by, any Unrestricted Subsidiary.

 

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ARTICLE 5

 

LISTS OF HOLDERS AND REPORTS BY THE COMPANY AND THE TRUSTEE

 

Section 5.01         Lists of Holders.  The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee, semi-annually, not more than 15 days after each May 15 and November 15 in each year beginning with May 15, 2025, and at such other times as the Trustee may request in writing, within 30 days after receipt by the Company of any such request (or such lesser time as the Trustee may reasonably request in order to enable it to timely provide any notice to be provided by it hereunder), a list in such form as the Trustee may reasonably require of the names and addresses of the Holders as of a date not more than 15 days (or such other date as the Trustee may reasonably request in order to so provide any such notices) prior to the time such information is furnished, except that no such list need be furnished so long as the Trustee is acting as Note Registrar.

 

Section 5.02         Preservation and Disclosure of Lists.  The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders contained in the most recent list furnished to it as provided in Section 5.01 or maintained by the Trustee in its capacity as Note Registrar, if so acting.  The Trustee may dispose of any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.

 

ARTICLE 6

 

DEFAULTS AND REMEDIES

 

Section 6.01          Events of Default.  Each of the following events shall be an “Event of Default” with respect to the Notes:

 

(a)          default in any payment of interest on any Note when due and payable, and the default continues for a period of 30 days;

 

(b)          default in the payment of principal or premium, if any, of any Note when due and payable on the Maturity Date, upon Optional Redemption, upon any required repurchase, upon declaration of acceleration or otherwise;

 

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(c)          failure by the Company to comply with its obligation to convert the Notes in accordance with this Indenture upon exercise of a Holder’s conversion right and such failure continues for five calendar days;

 

(d)          failure by the Company to comply with its obligations under Article 11;

 

(e)          failure by the Company to issue a Repurchase Event Company Notice in accordance with Section 14.01(c) when due;

 

(f)          failure by the Company for 60 days after written notice from the Trustee or the Holders of at least 25% in principal amount of the Notes then outstanding has been received by the Company to comply with any of its other agreements contained in the Notes or this Indenture;

 

(g)          default by the Company or any Restricted Subsidiary of the Company with respect to any mortgage, agreement or other instrument under which there may be outstanding, or by which there may be secured or evidenced, any debt for money borrowed in excess of $50.0 million (or its foreign currency equivalent) in the aggregate of the Company and/or any such Restricted Subsidiary, whether such debt now exists or shall hereafter be created, which default results (i) in such debt becoming or being declared due and payable, and such debt has not been discharged in full or such declaration rescinded or annulled within 30 days or (ii) from a failure to pay the principal of any such debt when due and payable at its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise, and such defaulted payment shall not have been made, waived or extended within 30 days;

 

(h)          a final judgment or judgments for the payment of $50.0 million (or its foreign currency equivalent) or more (excluding any amounts covered by insurance) in the aggregate rendered against the Company or any Restricted Subsidiary of the Company, which judgment is not discharged, bonded, paid, waived or stayed within 60 days after (i) the date on which the right to appeal thereof has expired if no such appeal has commenced, or (ii) the date on which all rights to appeal have been extinguished;

 

(i)           the Company or any Significant Subsidiary shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or any such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company or any such Significant Subsidiary or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due;

 

(j)           an involuntary case or other proceeding shall be commenced against the Company or any Significant Subsidiary seeking liquidation, reorganization or other relief with respect to the Company or such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company or such Significant Subsidiary or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 90 consecutive days;

 

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(k)          the Subsidiary Guarantee of a Significant Subsidiary (or any group of Subsidiaries that together would constitute a Significant Subsidiary) with respect to the Notes ceases to be in full force and effect (except as contemplated by the terms thereof) or the Company or any Subsidiary Guarantor that qualifies as a Significant Subsidiary (or any group of Subsidiaries that together would constitute a Significant Subsidiary) denies or disaffirms in writing its obligations under this Indenture or any Subsidiary Guarantee with respect to the Notes (except as contemplated by the terms thereof) and such Default continues for 10 days;

 

(l)           unless such Liens have been released in accordance with the provisions of this Indenture, the Security Documents or the applicable Intercreditor Agreement, the Liens in favor of the Holders of the Notes with respect to all or substantially all of the Collateral cease to be valid or enforceable and such Default continues for 30 days, or the Company shall assert or any Subsidiary Guarantor shall assert, in any pleading in any court of competent jurisdiction, that any security interest in the Collateral is invalid or unenforceable; or

 

(m)         the failure by the Company or any Subsidiary Guarantor to comply for 60 days after notice to the Company or such Subsidiary Guarantor with its other agreements contained in the Security Documents except for a failure that would not be material to the Holders of the Notes and would not materially affect the value of the Collateral taken as a whole.

 

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Section 6.02         Acceleration; Rescission and Annulment.  If one or more Events of Default shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), then, and in each and every such case (other than an Event of Default specified in Section 6.01(i) or Section 6.01(j) with respect to the Company or any of its Significant Subsidiaries), unless the principal of all of the Notes shall have already become due and payable, either the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding determined in accordance with Section 8.04, by notice in writing to the Company (and to the Trustee if given by Holders), may declare 100% of the principal of, premium, if any, and accrued and unpaid interest on, all the Notes to be due and payable immediately, and upon any such declaration the same shall become and shall automatically be immediately due and payable, anything contained in this Indenture or in the Notes to the contrary notwithstanding.  If an Event of Default specified in Section 6.01(i) or Section 6.01(j) with respect to the Company or any of its Significant Subsidiaries occurs and is continuing, 100% of the principal of, premium, if any, and accrued and unpaid interest, if any, on, all Notes shall become and shall automatically be immediately due and payable.  Upon the acceleration of the Notes in connection with an Event of Default (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), an amount equal to the optional redemption premium that would have been payable in connection with an optional redemption of the Notes at the time of the occurrence of such acceleration will become and be immediately due and payable with respect to all Notes without any declaration or other act on the part of the Trustee or any Holders of the Notes and shall constitute part of the Notes Obligations in view of the impracticability and difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Holder’s lost profits as a result thereof.  If the premium becomes due and payable pursuant to the preceding sentence, the premium shall be deemed to be principal of the Notes and interest shall accrue on the full principal amount of the Notes (including such premium) from and after the applicable triggering event.  Any premium payable pursuant to this paragraph shall be presumed to be liquidated damages sustained by each Holder as the result of the acceleration of the Notes and the Company agrees that it is reasonable under the circumstances currently existing.  The premium set forth in this paragraph shall also be payable in the event the Notes or the Indenture are satisfied, released or discharged through foreclosure, whether by judicial proceeding, deed in lieu of foreclosure or by any other means.  THE COMPANY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE PREMIUM PROVIDED FOR IN THIS PARAGRAPH IN CONNECTION WITH ANY SUCH ACCELERATION.  The Company expressly agrees (to the fullest extent it may lawfully do so) that: (A) the premium set forth in the first sentence of this paragraph is reasonable and is the product of an arm’s length transaction between sophisticated business entities ably represented by counsel; (B) the premium shall be payable notwithstanding the then prevailing market rates at the time acceleration occurs; (C) there has been a course of conduct between Holders and the Company giving specific consideration in this transaction for such agreement to pay the premium; and (D) the Company shall be estopped hereafter from claiming differently than as agreed to in this paragraph.  The Company expressly acknowledges that their agreement to pay the premium to Holders pursuant to the first sentence of this paragraph is a material inducement to Holders to acquire the Notes.

 

The immediately preceding paragraph, however, is subject to the conditions that if, at any time after the principal of the Notes shall have been so declared due and payable, and before any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter provided, and if (1) rescission would not conflict with any judgment or decree of a court of competent jurisdiction and (2) any and all existing Events of Default under this Indenture, other than the nonpayment of the principal of and accrued and unpaid interest, if any, on Notes that shall have become due solely by such acceleration, shall have been cured or waived pursuant to Section 6.09, then and in every such case (except as provided in the immediately succeeding sentence) the Holders of a majority in aggregate principal amount of the Notes then outstanding, by written notice to the Company and to the Trustee, may waive all Defaults or Events of Default with respect to the Notes and rescind and annul such declaration and its consequences and such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent Default or Event of Default, or shall impair any right consequent thereon.  Notwithstanding anything to the contrary herein, no such waiver or rescission and annulment shall extend to or shall affect any Default or Event of Default resulting from (i) the nonpayment of the principal (including the Redemption Price and the Repurchase Event Repurchase Price, if applicable) of, or accrued and unpaid interest on, any Notes, (ii) a failure to repurchase any Notes when required or (iii) a failure to pay or deliver, as the case may be, the consideration due upon conversion of the Notes.

 

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Section 6.03         [Reserved].

 

Section 6.04         Payments of Notes on Default; Suit Therefor.  If an Event of Default described in clause (a) or (b) of Section 6.01 shall have occurred, the Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of the Notes, the whole amount then due and payable on the Notes for principal and interest, if any, with interest on any overdue principal and interest, if any, at the rate borne by the Notes at such time, and, in addition thereto, such further amount as shall be sufficient to cover any amounts due to the Trustee under Section 7.06.  If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon the Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Notes, wherever situated.

 

In the event there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Notes under Title 11 of the United States Code, or any other applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Company or such other obligor, the property of the Company or such other obligor, or in the event of any other judicial proceedings relative to the Company or such other obligor upon the Notes, or to the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 6.04, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and accrued and unpaid interest, if any, in respect of the Notes, and, in case of any judicial proceedings, to file such proofs of claim and other papers or documents and to take such other actions as it may deem necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceedings relative to the Company or any other obligor on the Notes, its or their creditors, or its or their property, and to collect and receive any monies or other property payable or deliverable on any such claims, and to distribute the same after the deduction of any amounts due to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization, liquidator, custodian or similar official is hereby authorized by each of the Holders to make such payments to the Trustee, as administrative expenses, and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for reasonable compensation, expenses, advances and disbursements, including agents and counsel fees, and including any other amounts due to the Trustee under Section 7.06, incurred by it up to the date of such distribution.  To the extent that such payment of reasonable compensation, expenses, advances and disbursements out of the estate in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, monies, securities and other property that the Holders of the Notes may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization or arrangement or otherwise.

 

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Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting such Holder or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

 

All rights of action and of asserting claims under this Indenture, or under any of the Notes, may be enforced by the Trustee without the possession of any of the Notes, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Notes.

 

In any proceedings brought by the Trustee (and in any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the Holders of the Notes, and it shall not be necessary to make any Holders of the Notes parties to any such proceedings.

 

In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of any waiver pursuant to Section 6.09 or any rescission and annulment pursuant to Section 6.02 or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Holders and the Trustee shall, subject to any determination in such proceeding, be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company, the Holders and the Trustee shall continue as though no such proceeding had been instituted.

 

Section 6.05         Application of Monies Collected by Trustee.  Subject to the applicable Intercreditor Agreement, any monies collected by the Trustee pursuant to this Article 6 with respect to the Notes shall be applied in the following order, at the date or dates fixed by the Trustee for the distribution of such monies, upon presentation of the several Notes, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:

 

First, to the payment of all amounts due the Trustee and its agents and counsel under Section 7.06;

 

Second, in case the principal of the outstanding Notes shall not have become due and be unpaid, to the payment of interest on, and any cash due upon conversion of, the Notes in default in the order of the date due of the payments of such interest and cash due upon conversion, as the case may be, with interest (to the extent that such interest has been collected by the Trustee) upon such overdue payments at the rate borne by the Notes at such time, such payments to be made ratably to the Persons entitled thereto;

 

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Third, in case the principal of the outstanding Notes shall have become due, by declaration or otherwise, and be unpaid to the payment of the whole amount (including, if applicable, the payment of the Redemption Price and the Repurchase Event Repurchase Price and any cash due upon conversion) then owing and unpaid upon the Notes for principal and interest, if any, with interest on the overdue principal and, to the extent that such interest has been collected by the Trustee, upon overdue installments of interest at the rate borne by the Notes at such time, and in case such monies shall be insufficient to pay in full the whole amounts so due and unpaid upon the Notes, then to the payment of such principal (including, if applicable, the Redemption Price and the Repurchase Event Repurchase Price and the cash due upon conversion) and interest without preference or priority of principal over interest, or of interest over principal or of any installment of interest over any other installment of interest, or of any Note over any other Note, ratably to the aggregate of such principal (including, if applicable, the Redemption Price and the Repurchase Event Repurchase Price and any cash due upon conversion) and accrued and unpaid interest; and

 

Fourth, to the payment of the remainder, if any, to the Company or, to the extent the Trustee collects any amount for any Subsidiary Guarantor, to such Subsidiary Guarantor.

 

Section 6.06         Proceedings by Holders.  Except to enforce the right to receive payment of principal (including, if applicable, the Redemption Price and the Repurchase Event Repurchase Price) or interest when due, or the right to receive payment or delivery of the consideration due upon conversion, no Holder of any Note shall have any right by virtue of or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture, or for the appointment of a receiver, trustee, liquidator, custodian or other similar official, or for any other remedy hereunder, unless:

 

(a)          such Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof, as herein provided;

 

(b)          Holders of at least 25% in aggregate principal amount of the Notes then outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder;

 

(c)          such Holders shall have offered to the Trustee such security or indemnity reasonably satisfactory to it against any loss, liability or expense to be incurred therein or thereby;

 

(d)          the Trustee for 60 days after its receipt of such notice, request and offer of such security or indemnity, shall have neglected or refused to institute any such action, suit or proceeding; and

 

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(e)          no direction that, in the opinion of the Trustee, is inconsistent with such written request shall have been given to the Trustee by the Holders of a majority of the aggregate principal amount of the Notes then outstanding within such 60-day period pursuant to Section 6.09, it being understood and intended, and being expressly covenanted by the taker and Holder of every Note with every other taker and Holder and the Trustee that no one or more Holders shall have any right in any manner whatever by virtue of or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders (except as otherwise provided herein) (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any such actions or forbearances on the part of any Holder or Holders are unduly prejudicial to such other Holder or Holders).  For the protection and enforcement of this Section 6.06, each and every Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity.

 

Notwithstanding any other provision of this Indenture and any provision of any Note, the right of any Holder to receive payment or delivery, as the case may be, of (x) the principal (including the Redemption Price and the Repurchase Event Repurchase Price, if applicable) of, (y) accrued and unpaid interest, if any, on, and (z) the consideration due upon conversion of, such Note, on or after the respective due dates expressed or provided for in such Note or in this Indenture, or to institute suit for the enforcement of any such payment or delivery, as the case may be, on or after such respective dates against the Company shall not be impaired or affected without the consent of such Holder.

 

Section 6.07         Proceedings by Trustee.  In case of an Event of Default, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.

 

Section 6.08         Remedies Cumulative and Continuing.  Except as provided in the last paragraph of Section 2.06, all powers and remedies given by this Article 6 to the Trustee or to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the Holders of the Notes, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the Notes to exercise any right or power accruing upon any Default or Event of Default shall impair any such right or power, or shall be construed to be a waiver of any such Default or Event of Default or any acquiescence therein; and, subject to the provisions of Section 6.06, every power and remedy given by this Article 6 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.

 

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Section 6.09         Direction of Proceedings and Waiver of Defaults by Majority of Holders.  The Holders of a majority of the aggregate principal amount of the Notes at the time outstanding determined in accordance with Section 8.04 shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Notes; provided, however, that (a) such direction shall not be in conflict with any rule of law or with this Indenture, and (b) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction.  The Trustee may refuse to follow any direction that it determines is unduly prejudicial to the rights of any other Holder or that would involve the Trustee in personal liability.  The Holders of a majority in aggregate principal amount of the Notes at the time outstanding determined in accordance with Section 8.04 may on behalf of the Holders of all of the Notes waive any Default or Event of Default hereunder and its consequences except (i) a default in the payment of accrued and unpaid interest, if any, on, or the principal (including any Redemption Price and any Repurchase Event Repurchase Price) of, the Notes when due that has not been cured pursuant to the provisions of Section 6.01, (ii) a failure by the Company to pay or deliver, as the case may be, the consideration due upon conversion of the Notes or (iii) a default in respect of a covenant or provision hereof which under Article 10 cannot be modified or amended without the consent of each Holder of an outstanding Note affected.  Upon any such waiver the Company, the Trustee and the Holders of the Notes shall be restored to their former positions and rights hereunder; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.  Whenever any Default or Event of Default hereunder shall have been waived as permitted by this Section 6.09, said Default or Event of Default shall for all purposes of the Notes and this Indenture be deemed to have been cured and to be not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.

 

Section 6.10         Notice of Defaults.  The Trustee shall, within 90 days after the occurrence and continuance of a Default of which a Responsible Officer has actual knowledge, give to all Holders as the names and addresses of such Holders appear upon the Note Register (or, in the case of Global Notes, pursuant to the customary procedures of the Depositary), notice of such Defaults known to a Responsible Officer, unless such Defaults shall have been cured or waived before the giving of such notice; provided, however, that, except in the case of a Default in the payment of the principal of (including the Redemption Price and the Repurchase Event Repurchase Price, if applicable), or accrued and unpaid interest on, any of the Notes or a Default in the payment or delivery of the consideration due upon conversion, the Trustee shall be protected in withholding such notice if and so long as the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders.

 

Section 6.11         Undertaking to Pay Costs.  All parties to this Indenture agree, and each Holder of any Note by its acceptance thereof shall be deemed to have agreed, that any court may, in its discretion, require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided, however, that the provisions of this Section 6.11 (to the extent permitted by law) shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Notes at the time outstanding determined in accordance with Section 8.04, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or accrued and unpaid interest, if any, on any Note (including, but not limited to, the Redemption Price and the Repurchase Event Repurchase Price, if applicable) on or after the due date expressed or provided for in such Note or to any suit for the enforcement of the right to convert any Note, or receive the consideration due upon conversion, in accordance with the provisions of Article 13.

 

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ARTICLE 7

 

CONCERNING THE TRUSTEE

 

Section 7.01         Duties and Responsibilities of Trustee.  The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default that may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture.  In the event an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs; provided, however, that if an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity or security reasonably satisfactory to it against any loss, liability or expense that might be incurred by it in compliance with such request or direction.

 

No provision of this Indenture shall be construed to relieve the Trustee from liability for its own grossly negligent action, its own grossly negligent failure to act or its own willful misconduct, except that:

 

(a)          prior to the occurrence of an Event of Default and after the curing or waiving of all Events of Default that may have occurred:

 

(i)          the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(ii)         in the absence of gross negligence and willful misconduct on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions that by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of any mathematical calculations or other facts stated therein);

 

(b)          the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts;

 

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(c)          the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a majority of the aggregate principal amount of the Notes at the time outstanding determined as provided in Section 8.04 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;

 

(d)          whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section;

 

(e)          the Trustee shall not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent or any records maintained by any co-Note Registrar with respect to the Notes;

 

(f)          if any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such event occurred, unless a Responsible Officer of the Trustee had actual knowledge of such event;

 

(g)          in the absence of written investment direction from the Company, all cash received by the Trustee shall be placed in a non-interest bearing trust account, and in no event shall the Trustee be liable for the selection of investments or for investment losses incurred thereon or for losses incurred as a result of the liquidation of any such investment prior to its maturity date or the failure of the party directing such investments prior to its maturity date or the failure of the party directing such investment to provide timely written investment direction, and the Trustee shall have no obligation to invest or reinvest any amounts held hereunder in the absence of such written investment direction from the Company;

 

(h)          the rights, privileges, protections, immunities and benefits given to the Trustee, including without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder; and

 

(i)          the Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.

 

None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers.

 

Section 7.02         Reliance on Documents, Opinions, Etc.  Except as otherwise provided in Section 7.01:

 

(a)          the Trustee may conclusively rely and shall be fully protected in acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, note, coupon or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties;

 

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(b)          any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officer’s Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;

 

(c)          the Trustee may consult with counsel and require an Opinion of Counsel and any advice of such counsel or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;

 

(d)          the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the expense of the Company for any reasonable expenses incurred and shall incur no liability of any kind by reason of such inquiry or investigation;

 

(e)          the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent, custodian, nominee or attorney appointed by it with due care hereunder; and

 

(f)          the permissive rights of the Trustee enumerated herein shall not be construed as duties.

 

In no event shall the Trustee be liable for any indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action other than any such loss or damage caused by the Trustee’s willful misconduct or gross negligence.  The Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Notes, unless either (1) a Responsible Officer shall have actual knowledge of such Default or Event of Default or (2) written notice of such Default or Event of Default shall have been given to the Trustee by the Company, any Subsidiary Guarantor or by any Holder of the Notes and such notice references this Indenture and the Notes.

 

Section 7.03          No Responsibility for Recitals, Etc.  The recitals contained herein and in the Notes (except in the Trustee’s certificate of authentication) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same.  The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes.  The Trustee shall not be accountable for the use or application by the Company of any Notes or the proceeds of any Notes authenticated and delivered by the Trustee in conformity with the provisions of this Indenture.

 

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Section 7.04         Trustee, Paying Agents, Conversion Agents or Note Registrar May Own Notes.  The Trustee, any Paying Agent, any Conversion Agent or Note Registrar, in its individual or any other capacity, may become the owner or pledgee of Notes with the same rights it would have if it were not the Trustee, Paying Agent, Conversion Agent or Note Registrar.

 

Section 7.05         Monies and Shares of Common Stock to Be Held in Trust.  All monies and shares of Common Stock received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received.  Money and shares of Common Stock held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law.  The Trustee shall be under no liability for interest on any money or shares of Common Stock received by it hereunder except as may be agreed from time to time by the Company and the Trustee.

 

Section 7.06         Compensation and Expenses of Trustee.  The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, such compensation for all services rendered by it hereunder in any capacity (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as mutually agreed to in writing between the Trustee and the Company, and the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances reasonably incurred or made by the Trustee in accordance with any of the provisions of this Indenture in any capacity thereunder (including the reasonable compensation and the expenses and disbursements of its agents and counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as shall have been caused by its gross negligence or willful misconduct.  The Company and the Subsidiary Guarantors also covenant to, jointly and severally, indemnify the Trustee in any capacity under this Indenture and any other document or transaction entered into in connection herewith and its agents and any authenticating agent for, and to hold them harmless against, any loss, claim, damage, liability or expense incurred without gross negligence or willful misconduct on the part of the Trustee, its officers, directors, agents or employees, or such agent or authenticating agent, as the case may be, and arising out of or in connection with the acceptance or administration of this Indenture or in any other capacity hereunder, including the costs and expenses of defending themselves against any claim of liability in the premises.  The obligations of the Company and the Subsidiary Guarantors under this Section 7.06 to compensate or indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall be secured by a senior claim to which the Notes are hereby made subordinate on all money or property held or collected by the Trustee, except, subject to the effect of Section 6.05, funds held in trust herewith for the benefit of the Holders of particular Notes, and for the avoidance of doubt, such lien shall not be extended in a manner that would conflict with the Company’s obligations to its other creditors.  The Trustee’s right to receive payment of any amounts due under this Section 7.06 shall not be subordinate to any other liability or indebtedness of the Company.  The obligation of the Company under this Section 7.06 shall survive the satisfaction and discharge of this Indenture and the earlier resignation or removal or the Trustee.  The Company and any Subsidiary Guarantor need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.  The indemnification provided in this Section 7.06 shall extend to the officers, directors, agents and employees of the Trustee.

 

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Without prejudice to any other rights available to the Trustee under applicable law, when the Trustee and its agents and any authenticating agent incur expenses or render services after an Event of Default specified in Section 6.01(i) or Section 6.01(j) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any bankruptcy, insolvency or similar laws.

 

Section 7.07         Officer’s Certificate as Evidence.  Except as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of gross negligence and willful misconduct on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee, and such Officer’s Certificate, in the absence of gross negligence and willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken or omitted by it under the provisions of this Indenture upon the faith thereof.

 

Section 7.08         Eligibility of Trustee.  There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act (as if the Trust Indenture Act were applicable hereto) to act as such and has a combined capital and surplus of at least $50,000,000.  If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of any supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.  If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

 

Section 7.09         Resignation or Removal of Trustee.

 

(a)          The Trustee may at any time resign by giving written notice of such resignation to the Company and by giving notice thereof to the Holders at their addresses as they shall appear on the Note Register.  Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors of the Company, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee.  If no successor trustee shall have been so appointed and have accepted appointment within 30 days after the giving of such notice of resignation to the Holders, the resigning Trustee may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor trustee, or any Holder who has been a bona fide holder of a Note or Notes for at least six months (or since the date of this Indenture) may, subject to the provisions of Section 6.11, on behalf of himself or herself and all others similarly situated, petition any such court for the appointment of a successor trustee.  Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.

 

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(b)          In case at any time any of the following shall occur:

 

(i)          the Trustee shall cease to be eligible in accordance with the provisions of Section 7.08 and shall fail to resign after written request therefor by the Company or by any such Holder, or

 

(ii)         the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

 

then, in either case, the Company may by a Board Resolution remove the Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors of the Company, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 6.11, any Holder who has been a bona fide holder of a Note or Notes for at least six months (or since the date of this Indenture) may, on behalf of himself or herself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee.  Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.

 

(c)          The Holders of a majority in aggregate principal amount of the Notes at the time outstanding, as determined in accordance with Section 8.04, may at any time remove the Trustee by so notifying the Trustee and the Company in writing not less than 30 days prior to the effective date of such removal, and may nominate a successor trustee that shall be deemed appointed as successor trustee unless within ten days after notice to the Company of such nomination the Company objects thereto, in which case the Trustee so removed or any Holder, upon the terms and conditions and otherwise as in (a) provided, may petition any court of competent jurisdiction for an appointment of a successor trustee at the expense of the Company.

 

(d)          Any resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section 7.09 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.10.

 

(e)          The resigning or removed Trustee shall have no responsibility or liability for any action or inaction of a successor Trustee.

 

Section 7.10         Acceptance by Successor Trustee.  Any successor trustee appointed as provided in Section 7.09 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as Trustee herein; but, nevertheless, on the written request of the Company or of the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act.  Upon request of any such successor trustee, the Company shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers.  Any trustee ceasing to act shall, nevertheless, retain a senior claim to which the Notes are hereby made subordinate on all money or property held or collected by such trustee as such, except for funds held in trust for the benefit of Holders of particular Notes, to secure any amounts then due it pursuant to the provisions of Section 7.06.

 

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No successor trustee shall accept appointment as provided in this Section 7.10 unless at the time of such acceptance such successor trustee shall be eligible under the provisions of Section 7.08.

 

Upon acceptance of appointment by a successor trustee as provided in this Section 7.10, each of the Company and the successor trustee, at the written direction and at the expense of the Company shall give or cause to be given notice of the succession of such trustee hereunder to the Holders at their addresses as they shall appear on the Note Register.  If the Company fails to give such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be given at the expense of the Company.

 

Section 7.11          Succession by Merger, Etc.  Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or other entity succeeding to all or substantially all of the corporate trust business of the Trustee (including the administration of this Indenture), shall be the successor to the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that in the case of any corporation or other entity succeeding to all or substantially all of the corporate trust business of the Trustee such corporation or other entity shall be eligible under the provisions of Section 7.08.

 

In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee or authenticating agent appointed by such predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee or an authenticating agent appointed by such successor trustee may authenticate such Notes either in the name of any predecessor trustee hereunder or in the name of the successor trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor trustee or to authenticate Notes in the name of any predecessor trustee shall apply only to its successor or successors by merger, conversion or consolidation.

 

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Section 7.12         Trustee’s Application for Instructions from the Company.  Any application by the Trustee for written instructions from the Company (other than with regard to any action proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders of the Notes under this Indenture) may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective.  The Trustee shall not be liable to the Company for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer that the Company has indicated to the Trustee should receive such application actually receives such application, unless any such officer shall have consented in writing to any earlier date), unless, prior to taking any such action (or the effective date in the case of any omission), the Trustee shall have received written instructions in accordance with this Indenture in response to such application specifying the action to be taken or omitted.

 

Section 7.13         Limitation on Duty of Trustee; Indemnification.  Subject to Section 7.01 of this Indenture, the Trustee shall have no duty to ascertain or inquire as to the performance or observance of any of the terms of this Indenture, the Intercreditor Agreements or any other Security Document by the Company, the Subsidiary Guarantors or the Notes Collateral Agent.  The Trustee may act and rely and shall be protected in acting and relying in good faith on the opinion or advice of or information obtained from any counsel, accountant, appraiser or other expert or adviser, whether retained or employed by the Company or by the Trustee, in relation to any matter arising in the administration of this Indenture.

 

ARTICLE 8

 

CONCERNING THE HOLDERS

 

Section 8.01         Action by Holders.  Whenever in this Indenture it is provided that the Holders of a specified percentage of the aggregate principal amount of the Notes may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action, the Holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in writing, or (b) by the record of the Holders voting in favor thereof at any meeting of Holders duly called and held in accordance with the provisions of Article 9, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Holders.  Whenever the Company or the Trustee solicits the taking of any action by the Holders of the Notes, the Company or the Trustee may, but shall not be required to, fix in advance of such solicitation, a date as the record date for determining Holders entitled to take such action.  The record date if one is selected shall be not more than fifteen days prior to the date of commencement of solicitation of such action.

 

Section 8.02          Proof of Execution by Holders.  Subject to the provisions of Section 7.01, Section 7.02 and Section 9.05, proof of the execution of any instrument by a Holder or its agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee.  The holding of Notes shall be proved by the Note Register or by a certificate of the Note Registrar.  The record of any Holders’ meeting shall be proved in the manner provided in Section 9.06.

 

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Section 8.03         Who Are Deemed Absolute Owners.  The Company, the Trustee, any authenticating agent, any Paying Agent, any Conversion Agent and any Note Registrar may deem the Person in whose name a Note shall be registered upon the Note Register to be, and may treat it as, the absolute owner of such Note (whether or not such Note shall be overdue and notwithstanding any notation of ownership or other writing thereon made by any Person other than the Company or any Note Registrar) for the purpose of receiving payment of or on account of the principal of and (subject to Section 2.03) accrued and unpaid interest on such Note, for conversion of such Note and for all other purposes under this Indenture; and none of the Company, the Trustee, any Paying Agent, any Conversion Agent and any Note Registrar shall be affected by any notice to the contrary.  The sole registered holder of a Global Note shall be the Depositary or its nominee.  All such payments or deliveries so made to any Holder for the time being, or upon its order, shall be valid, and, to the extent of the sums or shares of Common Stock so paid or delivered, effectual to satisfy and discharge the liability for monies payable or shares deliverable upon any such Note.  Notwithstanding anything to the contrary in this Indenture or the Notes following an Event of Default, any holder of a beneficial interest in a Global Note may directly enforce against the Company, without the consent, solicitation, proxy, authorization or any other action of the Depositary or any other Person, such holder’s right to exchange such beneficial interest for a Note in certificated form in accordance with the provisions of this Indenture.

 

Section 8.04         Company-Owned Notes Disregarded.  In determining whether the Holders of the requisite aggregate principal amount of Notes have concurred in any direction, consent, waiver or other action under this Indenture, Notes that are owned by the Company or by any Subsidiary thereof shall be disregarded and deemed not to be outstanding for the purpose of any such determination; provided that for the purposes of determining whether the Trustee shall be protected in conclusively relying on any such direction, consent, waiver or other action only Notes that a Responsible Officer actually knows are so owned shall be so disregarded.  Notes so owned that have been pledged in good faith may be regarded as outstanding for the purposes of this Section 8.04 if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right to so act with respect to such Notes and that the pledgee is not the Company or a Subsidiary thereof.  In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.  Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officer’s Certificate listing and identifying all Notes, if any, known by the Company to be owned or held by or for the account of any of the above described Persons; and, subject to Section 7.01, the Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact that all Notes not listed therein are outstanding for the purpose of any such determination.

 

Section 8.05        Revocation of Consents; Future Holders Bound.  At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the Holders of the percentage of the aggregate principal amount of the Notes specified in this Indenture in connection with such action, any Holder of a Note that is shown by the evidence to be included in the Notes the Holders of which have consented to such action may, by filing written notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such Note.  Except as aforesaid, any such action taken by the Holder of any Note shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Note and of any Notes issued in exchange or substitution therefor or upon registration of transfer thereof, irrespective of whether any notation in regard thereto is made upon such Note or any Note issued in exchange or substitution therefor or upon registration of transfer thereof.

 

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ARTICLE 9

 

HOLDERS’ MEETINGS

 

Section 9.01         Purpose of Meetings.  A meeting of Holders may be called at any time and from time to time pursuant to the provisions of this Article 9 for any of the following purposes:

 

(a)          to give any notice to the Company or to the Trustee or to give any directions to the Trustee permitted under this Indenture, or to consent to the waiving of any Default or Event of Default hereunder (in each case, as permitted under this Indenture) and its consequences, or to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article 6;

 

(b)          to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article 7;

 

(c)          to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or

 

(d)          to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Notes under any other provision of this Indenture or under applicable law.

 

Section 9.02         Call of Meetings by Trustee.  The Trustee may at any time call a meeting of Holders to take any action specified in Section 9.01, to be held at such time and at such place as the Trustee shall determine.  Notice of every meeting of the Holders, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting and the establishment of any record date pursuant to Section 8.01, shall be given to Holders of such Notes at their addresses as they shall appear on the Note Register.  Such notice shall also be given to the Company.  Such notices shall be given not less than 20 nor more than 90 days prior to the date fixed for the meeting.

 

Any meeting of Holders shall be valid without notice if the Holders of all Notes then outstanding are present in person or by proxy or if notice is waived before or after the meeting by the Holders of all Notes then outstanding, and if the Company and the Trustee are either present by duly authorized representatives or have, before or after the meeting, waived notice.

 

Section 9.03         Call of Meetings by Company or Holders.  In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% of the aggregate principal amount of the Notes then outstanding, shall have requested the Trustee to call a meeting of Holders, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have given the notice of such meeting within 20 days after receipt of such request, then the Company or such Holders may determine the time and the place for such meeting and may call such meeting to take any action authorized in Section 9.01, by mailing notice thereof as provided in Section 9.02.

 

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Section 9.04         Qualifications for Voting.  To be entitled to vote at any meeting of Holders a Person shall (a) be a Holder of one or more Notes on the record date pertaining to such meeting or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more Notes on the record date pertaining to such meeting.  The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.

 

Section 9.05         Regulations.  Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders, in regard to proof of the holding of Notes and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit.

 

The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders as provided in Section 9.03, in which case the Company or the Holders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman.  A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Holders of a majority in aggregate principal amount of the Notes represented at the meeting and entitled to vote at the meeting.

 

Subject to the provisions of Section 8.04, at any meeting of Holders each Holder or proxyholder shall be entitled to one vote for each $1 principal amount of Notes held or represented by him or her; provided, however, that no vote shall be cast or counted at any meeting in respect of any Note challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding.  The chairman of the meeting shall have no right to vote other than by virtue of Notes held by it or instruments in writing as aforesaid duly designating it as the proxy to vote on behalf of other Holders.  Any meeting of Holders duly called pursuant to the provisions of Section 9.02 or Section 9.03 may be adjourned from time to time by the Holders of a majority of the aggregate principal amount of Notes represented at the meeting, whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice.

 

Section 9.06         Voting.  The vote upon any resolution submitted to any meeting of Holders shall be by written ballot on which shall be subscribed the signatures of the Holders or of their representatives by proxy and the outstanding aggregate principal amount of the Notes held or represented by them.  The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting.  A record in duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 9.02.  The record shall show the aggregate principal amount of the Notes voting in favor of or against any resolution.  The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.

 

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Any record so signed and verified shall be conclusive evidence of the matters therein stated.

 

Section 9.07         No Delay of Rights by Meeting.  Nothing contained in this Article 9 shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders under any of the provisions of this Indenture or of the Notes.

 

ARTICLE 10

 

SUPPLEMENTAL INDENTURES

 

Section 10.01       Supplemental Indentures Without Consent of Holders.  The Company and Subsidiary Guarantors, when authorized by the resolutions of the Board of Directors of the Company, and the Trustee, at the Company’s expense, may from time to time and at any time enter into an indenture or indentures supplemental hereto for one or more of the following purposes:

 

(a)          to cure any ambiguity, omission, defect or inconsistency;

 

(b)          to provide for the assumption by a Successor Company of the obligations of the Company under this Indenture pursuant to Article 11, or to provide for the assumption by a Successor Subsidiary Guarantor of the obligations of a Subsidiary Guarantor under this Indenture pursuant to Article 11;

 

(c)          to add guarantees or collateral with respect to the Notes;

 

(d)          to secure the Notes;

 

(e)          to add to the covenants or Events of Default of the Company for the benefit of the Holders or surrender any right or power conferred upon the Company;

 

(f)          to provide for the conversion of Notes in accordance with the terms of this Indenture;

 

(g)          to make any change that does not adversely affect the rights of any Holder;

 

(h)          to comply with any requirement of the Securities and Exchange Commission with any qualification of this Indenture under the Trust Indenture Act (if the Company elects to qualify this Indenture under the Trust Indenture Act);

 

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(i)           to comply with the applicable procedures of the Depositary;

 

(j)           to increase the Conversion Rate as provided in this Indenture;

 

(k)          to provide for the appointment of a successor trustee or facilitate the administration of the trusts under this Indenture by more than one trustee, in each case, in accordance with this Indenture;

 

(l)           to irrevocably elect or eliminate the right to elect a Settlement Method or irrevocably elect a Specified Dollar Amount; provided, however, that no such election or elimination will affect the Settlement Method applicable to any conversion whose Conversion Date occurs before such election or elimination;

 

(m)         in connection with any Merger Event, to provide that the Notes are convertible into Reference Property, subject to Section 13.02, and to make certain related changes to the terms of the Notes;

 

(n)          to release Collateral as explicitly permitted by this Indenture or the Security Documents;

 

(o)          to subordinate the Liens on the Collateral in connection with a Permitted Refinancing in a manner reasonably acceptable to Holders of at least a majority of the of the aggregate principal amount of the Notes then outstanding; provided that no Holder shall be adversely affected in a manner different from any other Holder; and

 

(p)          to add to the covenants of the Company for the benefit of the Holders or to surrender any right or power herein conferred upon the Company or any Subsidiary.

 

Upon the written request of the Company, the Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to, but may in its discretion, enter into any supplemental indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

 

Any supplemental indenture authorized by the provisions of this Section 10.01 may be executed by the Company and the Trustee without the consent of the Holders of any of the Notes at the time outstanding, notwithstanding any of the provisions of Section 10.02.

 

Section 10.02       Supplemental Indentures with Consent of Holders.  With the consent (evidenced as provided in Article 8) of the Holders of at least a majority of the aggregate principal amount of the Notes then outstanding (determined in accordance with Article 8 and including, without limitation, consents obtained in connection with a repurchase of, or tender or exchange offer for, Notes), the Company and Subsidiary Guarantors, when authorized by the resolutions of the Board of Directors of the Company, and the Trustee, at the Company’s expense, may from time to time and at any time enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or any supplemental indenture or of modifying in any manner the rights of the Holders; provided, however, that, without the consent of each Holder of an outstanding Note affected, no such supplemental indenture shall:

 

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(a)          reduce the percentage of the principal amount of then outstanding Notes whose Holders must consent to an amendment;

 

(b)          reduce the rate, or extend the stated time for payment, of interest on any Note;

 

(c)          reduce the principal, or extend the Maturity Date, of any Note;

 

(d)          except as required by this Indenture, make any change that adversely affects the conversion rights of any Notes;

 

(e)          reduce the Redemption Price or the Repurchase Event Repurchase Price of any Note or amend or modify in any manner adverse to the Holders the Company’s obligation to make such payments, whether through an amendment or waiver of provisions in the covenants, definitions or otherwise (it being understood that amendments to the definitions of Asset Sale Repurchase Event, Asset Sale Repurchase Event Amount, Unrestricted Cash Repurchase Event, Unrestricted Cash Repurchase Event Amount and component definitions thereof in order to conform such terms to the corresponding terms of the Refinancing Facilities (or remove any such term if there is no corresponding term in the Refinancing Facilities) may be effected with the consent of Holders of a majority in a principal amount of the Notes);

 

(f)          change the place or currency of payment of principal or interest in respect of any Note;

 

(g)          impair the right of any Holder to receive payment of principal and interest on such Holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes;

 

(h)          except as required by this Indenture, adversely affect the ranking (including as to payment priority and lien priority) of the Notes or any Subsidiary Guarantee to any other Indebtedness of the Company or any Subsidiary Guarantor;

 

(i)          make any change in this Article 10 that requires each Holder’s consent or in the waiver provisions in Section 6.02 or Section 6.09; or

 

(j)          make any change to the provisions of this Indenture, the Security Documents or the Intercreditor Agreements with respect to the pro rata application of proceeds of Collateral in respect of the Notes required thereby in a manner that by its terms modifies the application of such proceeds in respect of the Notes required thereby to be on a less than pro rata basis to the Holder of such Note.

 

Except as expressly provided by this Indenture, the Security Documents or the Intercreditor Agreements, without the consent of the Holders of at least 90% in an aggregate principal amount of the Notes then outstanding, no amendment or waiver may release all or substantially all of the Collateral from the Lien of this Indenture and the Security Documents with respect to the Notes.

 

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Upon the written request of the Company, and upon the filing with the Trustee of evidence of the consent of Holders as aforesaid and subject to Section 10.05, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.

 

Holders do not need under this Section 10.02 to approve the particular form of any proposed supplemental indenture.  It shall be sufficient if such Holders approve the substance thereof.  After any such supplemental indenture becomes effective, the Company shall give to the Holders a notice briefly describing such supplemental indenture.  However, the failure to give such notice to all the Holders, or any defect in the notice, will not impair or affect the validity of the supplemental indenture.

 

Section 10.03       Effect of Supplemental Indentures.  Upon the execution of any supplemental indenture pursuant to the provisions of this Article 10, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the Holders shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.

 

Section 10.04       Notation on Notes.  Notes authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article 10 may, at the Company’s expense, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture.  If the Company or the Trustee shall so determine, new Notes so modified as to conform, in the opinion of the Trustee and the Board of Directors of the Company, to any modification of this Indenture contained in any such supplemental indenture may, at the Company’s expense, be prepared and executed by the Company, authenticated by the Trustee (or an authenticating agent duly appointed by the Trustee pursuant to Section 19.10) and delivered in exchange for the Notes then outstanding, upon surrender of such Notes then outstanding.

 

Section 10.05       Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee.  In addition to the documents required by Section 19.05, the Trustee shall receive an Officer’s Certificate and an Opinion of Counsel stating that, and as conclusive evidence that, any supplemental indenture executed pursuant hereto complies with the requirements of this Article 10, is permitted or authorized by this Indenture, and that such supplemental indenture is the valid and binding obligation of the Company and any guarantor party thereto, enforceable against the Company and any guarantor party thereto in accordance with its terms.

 

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ARTICLE 11

 

CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE

 

Section 11.01       Company May Consolidate, Etc. on Certain Terms.  Subject to the provisions of Section 11.02, the Company shall not consolidate with or merge with or into, or sell, convey, transfer or lease all or substantially all of the consolidated properties and assets of the Company and its Subsidiaries, taken as a whole, to another Person, unless:

 

(a)          the resulting, surviving or transferee Person (the “Successor Company”), if not the Company, shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (collectively, the “Permitted Jurisdictions”), and the Successor Company (if not the Company) shall expressly assume, by supplemental indenture or other applicable documents or instruments all of the obligations of the Company under the Notes, this Indenture and the Security Documents;

 

(b)          immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing under this Indenture; and

 

(c)          the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures (if any) comply with this Indenture.

 

For purposes of this Section 11.01, the sale, conveyance, transfer or lease of all or substantially all of the properties and assets of one or more Subsidiaries of the Company to another Person, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the consolidated properties and assets of the Company and its Subsidiaries, taken as a whole, shall be deemed to be the sale, conveyance, transfer or lease of all or substantially all of the consolidated properties and assets of the Company and its Subsidiaries, taken as a whole, to another Person.

 

Section 11.02       Successor Corporation to Be Substituted.  In case of any such consolidation, merger, sale, conveyance, transfer or lease and upon the assumption by the Successor Company, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the principal of and accrued and unpaid interest on all of the Notes, the due and punctual delivery or payment, as the case may be, of any consideration due upon conversion of the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Company, such Successor Company (if not the Company) shall succeed to and, except in the case of a lease of all or substantially all of the consolidated properties and assets of the Company and its Subsidiaries, taken as a whole, shall be substituted for the Company, with the same effect as if it had been named herein as the party of the first part.  Such Successor Company thereupon may cause to be signed, and may issue either in its own name or in the name of the Company any or all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such Successor Company instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver, or cause to be authenticated and delivered, any Notes that previously shall have been signed and delivered by the Officers of the Company to the Trustee for authentication, and any Notes that such Successor Company thereafter shall cause to be signed and delivered to the Trustee for that purpose.  All the Notes so issued shall in all respects have the same legal rank and benefit under this Indenture as the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Notes had been issued at the date of the execution hereof.  In the event of any such consolidation, merger, sale, conveyance or transfer where there is a Successor Company (but not in the case of a lease), upon compliance with this Article 11 the Person named as the “Company” in the first paragraph of this Indenture (or any successor that shall thereafter have become such in the manner prescribed in this Article 11) may be dissolved, wound up and liquidated at any time thereafter and, except in the case of a lease, such Person shall be released from its liabilities as obligor and maker of the Notes and from its obligations under this Indenture and the Notes.

 

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In case of any such consolidation, merger, sale, conveyance, transfer or lease, such changes in phraseology and form (but not in substance) may be made in the Notes thereafter to be issued as may be appropriate.

 

Section 11.03       Subsidiary Guarantors May Consolidate, Etc. on Certain Terms.

 

(a)          Subject to Section 18.02(b), no Subsidiary Guarantor shall, and the Company shall not permit any Subsidiary Guarantor to, consolidate with or merge with or into, or sell, convey, transfer or lease all or substantially all of its consolidated properties and assets to another Person, unless:

 

(i)          either (a) the resulting, surviving or transferee Person (the “Successor Subsidiary Guarantor”), if not the Subsidiary Guarantor, shall be a company, corporation, partnership or limited liability company or similar entity organized and existing under the laws of a Permitted Jurisdiction or the same jurisdiction as such Subsidiary Guarantor, and the Successor Subsidiary Guarantor (if not the Subsidiary Guarantor) shall expressly assume, by supplemental indenture or other applicable documents or instruments all of the obligations of the Subsidiary Guarantor under the Notes, this Indenture and the Security Documents and the Subsidiary Guarantee, as applicable, or (b) such sale, conveyance, transfer, lease or disposition or consolidation, amalgamation or merger is not in violation of Section 4.12(c); and

 

(ii)         if pursuant to clause (i)(a) above, the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) shall have delivered or caused to be delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or transfer and such supplemental indenture (if any) comply with this Indenture.

 

(b)          Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating or reorganizing such Subsidiary Guarantor in a Permitted Jurisdiction or may convert into a limited liability company, corporation, partnership or similar entity organized or existing under the laws of any Permitted Jurisdiction so long as the amount of Indebtedness of such Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may merge, amalgamate or consolidate with the Company or any Subsidiary Guarantor.

 

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(c)          In addition, notwithstanding the foregoing, a Subsidiary Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets to the Company or any Subsidiary Guarantor.

 

(d)          Except as otherwise provided in this Indenture, the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) will succeed to, and be substituted for, such Subsidiary Guarantor under this Indenture, the Notes and the Security Documents and the Subsidiary Guarantee, as applicable, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture, the Notes and the Security Documents and its Subsidiary Guarantee.

 

ARTICLE 12

 

IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

 

Section 12.0         Indenture and Notes Solely Corporate Obligations.  No recourse for the payment of the principal of or accrued and unpaid interest on any Note, nor the delivery of Common Stock upon conversion of any Note, nor for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental indenture or in any Note, nor because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, employee, agent, Officer or director or Subsidiary, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of the Notes.

 

ARTICLE 13

 

CONVERSION OF NOTES

 

Section 13.01       Conversion Privilege.

 

(a)          Subject to and upon compliance with the provisions of this Article 13, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion of such Note at any time until the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 200.0000 shares of Common Stock (subject to adjustment as provided in this Article 13, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 13.02, the “Conversion Obligation”); provided, however, that a Holder of a Note converting less than all Notes held by such Holder must convert such Notes in principal amounts of $1,000 or integral multiples thereof.

 

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Section 13.02       Conversion Procedure; Settlement Upon Conversion.

 

(a)          Subject to this Section 13.02, Section 13.03(b) and Section 13.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 13.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 13.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02.

 

(i)          All conversions for which the relevant Conversion Date occurs on or after September 1, 2031, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and on or prior to the second Scheduled Trading Day prior to the related Redemption Date, shall be settled using the same Settlement Method.

 

(ii)         Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but on or prior to the second Scheduled Trading Day prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after September 1, 2031, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.

 

(iii)        Subject to clauses (i) and (ii) above, if, in respect of any Conversion Date, the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and on or prior to the second Scheduled Trading Day prior to the related Redemption Date, in such Redemption Notice or (y) on or after September 1, 2031 no later than September 1, 2031).  If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000.  Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes.  If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.  The Company may, prior to September 1, 2031, at its option, irrevocably fix the Settlement Method or the Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or elect Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above any specific amount set forth in such election notice, for all conversions for which the relevant Conversion Date occurs subsequent to such notice, by notice of such election to all Holders.  For the avoidance of doubt, such change or election (as the case may be), if made, will be effective without the need to amend this Indenture or the Notes. However, the Company may nonetheless choose to execute such an amendment at its option.

 

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(iv)        The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows:

 

(A)           if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;

 

(B)           if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and

 

(C)           if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period.

 

(v)           The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period.  Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock.  The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.

 

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(b)          Subject to Section 13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h).  The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 13 on the Conversion Date for such conversion.  No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Repurchase Event Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Event Repurchase Notice in accordance with Section 14.02.  A Holder’s exercise of its conversion rights shall be irrevocable.

 

If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.

 

(c)          A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above.  Except as set forth in Section 13.03(b), Section 13.04(f) or Section 13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method.  If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Stock to which such Holder shall be entitled, in certificate form or in book-entry format, in satisfaction of the Company’s Conversion Obligation.

 

(d)          In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.

 

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(e)          If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax.  The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.

 

(f)          Except as provided in Section 13.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 13.

 

(g)          Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby.  The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.

 

(h)          Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below.  The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date.  As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited.  Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.  Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion.  Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Repurchase Event Repurchase Date for a Fundamental Change that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note.  Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Redemption Date described in clause (2) above, and any Repurchase Event Repurchase Date described in clause (3) above shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date.

 

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(i)           The Person in whose name the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects (or is deemed to elect) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be.  Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.

 

(j)           The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement).  For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.

 

Section 13.03       Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes.

 

(a)          If the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date and a Holder elects to convert its Notes in connection with such Make-Whole Fundamental Change, then the Company shall, under the circumstances described below, increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional shares of Common Stock (the “Additional Shares”), as described below.  A conversion of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant Notice of Conversion is received by the Conversion Agent from, and including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the close of business on the second Business Day immediately prior to the Repurchase Event Repurchase Date related to such Fundamental Change (or, in the case of a Make-Whole Fundamental Change that would have been a Fundamental Change but for the proviso in clause (b) of the definition thereof, the 35th Trading Day immediately following the Effective Date of such Make-Whole Fundamental Change) (such period, the “Make-Whole Fundamental Change Period”).

 

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(b)          Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change, the Company shall, at its option, satisfy the related Conversion Obligation by Physical Settlement, Cash Settlement or Combination Settlement in accordance with Section 13.02; provided, however, that if, at the effective time of a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Reference Property following such Make-Whole Fundamental Change is composed entirely of cash, for any conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the Conversion Obligation shall be calculated based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash per $1,000 principal amount of converted Notes equal to the Conversion Rate (including any adjustment for Additional Shares as described in this Section 13.03), multiplied by such Stock Price.  In such event, the Conversion Obligation shall be paid to Holders in cash on the second Business Day following the Conversion Date.  The Company shall notify the Holders of Notes of the Effective Date of any Make-Whole Fundamental Change no later than five Business Days after such Effective Date.

 

(c)          The number of Additional Shares, if any, by which the Conversion Rate shall be increased shall be determined by reference to the table below, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective (the “Effective Date”) and the relevant Stock Price.  If the holders of the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the “Stock Price” shall be the cash amount paid per share.  Otherwise, the “Stock Price” shall be the average of the Last Reported Sale Prices of the Common Stock over the five Trading Day period ending on, and including, the Trading Day immediately preceding the Effective Date of the Make-Whole Fundamental Change.  The Board of Directors of the Company shall make appropriate adjustments to the Stock Price, in its good faith determination, to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date, Effective Date (as such term is used in Section 13.04) or expiration date of the event occurs during such five consecutive Trading Day period.

 

(d)          The Stock Prices set forth in the column headings of the table below shall be adjusted as of any date on which the Conversion Rate of the Notes is otherwise adjusted.  The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to such adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted.  The number of Additional Shares set forth in the table below shall be adjusted in the same manner and at the same time as the Conversion Rate as set forth in Section 13.04.

 

(e)          The following table sets forth the number of Additional Shares, if any, of Common Stock by which the Conversion Rate shall be increased per $1,000 principal amount of Notes pursuant to this Section 13.03 for each Stock Price and Effective Date set forth below:

 

	Stock Price
Effective Date	$1.69	$2.00	$3.00	$4.00	$5.00	$6.00	$7.00	$8.00	$9.00	$10.00	$12.50	$15.00	$17.50	$20.00	$25.00	$30.00
October 15, 2024	443.1124	365.7850	228.3400	161.9225	123.2440	98.1350	80.6257	67.7788	57.9867	50.2990	36.8488	28.2153	22.2503	17.9060	12.0696	8.3493
December 1, 2025	440.8107	362.6200	224.1733	157.7050	119.2320	94.3983	77.1743	64.5988	55.0578	47.5990	34.6320	26.3800	20.7194	16.6225	11.1632	7.7077
December 1, 2026	433.1775	354.6900	216.3800	150.5325	112.7320	88.5217	71.8500	59.7625	50.6500	43.5680	31.3672	23.6960	18.4874	14.7510	9.8316	6.7530
December 1, 2027	424.1538	345.1500	206.7300	141.5525	104.5540	81.1167	65.1471	53.6813	45.1167	38.5190	27.3016	20.3727	15.7377	12.4550	8.2084	5.5940
December 1, 2028	413.8343	333.8450	194.6600	130.0950	94.0460	71.5900	56.5400	45.9013	38.0733	32.1260	22.2240	16.2753	12.3886	9.6895	6.2884	4.2430
December 1, 2029	402.6450	320.7850	179.3400	115.0525	80.1100	58.9717	45.2171	35.7713	29.0056	23.9940	15.9576	11.3573	8.4646	6.5160	4.1544	2.7750
December 1, 2030	392.5385	307.1650	159.7500	94.3525	60.5360	41.3650	29.7300	22.2638	17.2456	13.7370	8.5400	5.8367	4.2469	3.2225	2.0384	1.3610
December 1, 2031	389.6686	298.8900	136.4367	61.1325	25.3140	11.7650	6.4643	4.0350	2.7767	2.0590	1.2040	0.8360	0.6314	0.4980	0.3344	0.2317

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The exact Stock Prices and Effective Dates may not be set forth in the table above, in which case:

 

(i)          if the Stock Price is between two Stock Prices in the table above or the Effective Date is between two Effective Dates in the table, the number of Additional Shares shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Prices and the earlier and later Effective Dates based on a 365-day year;

 

(ii)         if the Stock Price is greater than $30.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate; and

 

(iii)        if the Stock Price is less than $1.69 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate.

 

Notwithstanding the foregoing, in no event shall the Conversion Rate per $1,000 principal amount of Notes exceed 643.1124 shares of Common Stock, subject to adjustment in the same manner as the Conversion Rate pursuant to Section 13.04.

 

(f)           Nothing in this Section 13.03 shall prevent an adjustment to the Conversion Rate pursuant to Section 13.04 in respect of a Make-Whole Fundamental Change.

 

Section 13.04       Adjustment of Conversion Rate.  The Conversion Rate shall be adjusted from time to time by the Company if any of the following events occurs, except that the Company shall not make any adjustments to the Conversion Rate if Holders of the Notes participate (other than in the case of (i) a share split or share combination or (ii) a tender or exchange offer), at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described in this Section 13.04, without having to convert their Notes, as if they held a number of shares of Common Stock equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder.

 

(a)          If the Company exclusively issues shares of Common Stock as a dividend or distribution on all or substantially all of the shares of the Common Stock, or if the Company effects a share split or share combination, the Conversion Rate shall be adjusted based on the following formula:

 

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where,
CR0	=	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as applicable;
CR1	=	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or Effective Date;
OS0	=	the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date; and
OS1	=	the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination.

Any adjustment made under this Section 13.04(a) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after the open of business on the Effective Date for such share split or share combination, as applicable.  If any dividend or distribution of the type described in this Section 13.04(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors of the Company determines not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

 

(b)          If the Company issues to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan) entitling them, for a period of not more than 60 calendar days after the declaration date for such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the declaration date for such issuance, the Conversion Rate shall be increased based on the following formula:

 

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where,
CR0	=	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance;
CR1	=	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;
OS0	=	the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date;
X	=	the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and
Y	=	the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the declaration date for the issuance of such rights, options or warrants.

Any increase made under this Section 13.04(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the open of business on the Ex-Dividend Date for such issuance.  To the extent that shares of the Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered.  If such rights, options or warrants are not so issued, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance had not occurred.

 

For purposes of this Section 13.04(b), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of the Common Stock at less than such average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the declaration date for such issuance, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company, which determination shall be conclusive.

 

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(c)          If the Company distributes Equity Interests, evidences of its indebtedness, other assets or property of the Company or rights, options or warrants to acquire its Equity Interests or other securities, to all or substantially all holders of the Common Stock, excluding (i) dividends, distributions or issuances as to which an adjustment was effected pursuant to Section 13.04(a) or Section 13.04(b), (ii) dividends or distributions paid exclusively in cash as to which the provisions set forth in Section 13.04(d) shall apply, (iii) distributions of Reference Property in exchange for, or upon conversion of, the Common Stock in a Merger Event, (iv) except as otherwise described in Section 13.11, rights issued pursuant to a stockholder rights plan adopted by the Company, and (v) Spin-Offs as to which the provisions set forth below in this Section 13.04(c) shall apply (any of such Equity Interests, evidences of indebtedness, other assets or property or rights, options or warrants to acquire Equity Interests or other securities, the “Distributed Property”), then the Conversion Rate shall be increased based on the following formula:

 

where,
CR0	=	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;
CR1	=	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;
SP0	=	the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and
FMV	=	the fair market value (as determined by the Board of Directors of the Company, which determination shall be conclusive) of the Distributed Property with respect to each outstanding share of the Common Stock on the Ex-Dividend Date for such distribution.

Any increase made under the portion of this Section 13.04(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution.  If such distribution is not so paid or made, the Conversion Rate shall be decreased, effective as of the date the Board of Directors of the Company determines not to pay or make such distribution, to the Conversion Rate that would then be in effect if such distribution had not been declared.  In the case of any distribution of rights, options or warrants, to the extent such rights, options or warrants expire unexercised, the applicable Conversion Rate shall be immediately readjusted to the applicable Conversion Rate that would then be in effect had the increase made for the distribution of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered upon exercise of such rights, options or warrants.  Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms as holders of the Common Stock receive the Distributed Property, the amount and kind of Distributed Property such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate in effect on the Ex-Dividend Date for the distribution.  If the Board of Directors of the Company determines the “FMV” (as defined above) of any distribution for purposes of this Section 13.04(c) by reference to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution.

 

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With respect to an adjustment pursuant to this Section 13.04(c) where there has been a payment of a dividend or other distribution on the Common Stock of Equity Interests of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”), the Conversion Rate shall be increased based on the following formula:

 

where,
CR0	=	the Conversion Rate in effect immediately prior to the end of the Valuation Period;
CR1	=	the Conversion Rate in effect immediately after the end of the Valuation Period;
FMV0	=	the average of the Last Reported Sale Prices of the Equity Interest distributed to holders of the Common Stock applicable to one share of the Common Stock (determined by reference to the definition of Last Reported Sale Price as set forth in Section 1.01 as if references therein to Common Stock were to such Equity Interest) over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and
MP0	=	the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period.

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The increase to the Conversion Rate under the preceding paragraph shall occur on the last Trading Day of the Valuation Period; provided that (x) in respect of any conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the Valuation Period, references in the portion of this Section 13.04(c) related to Spin-Offs to 10 Trading Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and the Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Notes for which Cash Settlement or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion and within the Valuation Period, references in the portion of this Section 13.04(c) related to Spin-Offs to 10 Trading Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and such Trading Day in determining the Conversion Rate as of such Trading Day.  If the Ex-Dividend Date of the Spin-Off is after the 10th Trading Day immediately preceding, and including, the end of any Observation Period in respect of a conversion of Notes, references in the preceding paragraph to 10 Trading Days will be deemed to be replaced, solely in respect of that conversion of Notes, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for the Spin-Off to, and including, the last Trading Day of such Observation Period.

 

For purposes of this Section 13.04(c) (and subject in all respect to Section 13.11), rights, options or warrants distributed by the Company to all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s Equity Interests, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”) pursuant to a stockholder rights plan or otherwise: (i) are deemed to be transferred with such shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this Section 13.04(c) (and no adjustment to the Conversion Rate under this Section 13.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.04(c).  If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof).  In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.04(c) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued.

 

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(d)          If any cash dividend or distribution is made to all or substantially all holders of the Common Stock (other than (x) any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up; and (y) a regular quarterly cash dividend that does not exceed the Dividend Threshold per share of Common Stock), the Conversion Rate shall be adjusted based on the following formula:

 

where,
CR0	=	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution;
CR1	=	the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution;
SP0	=	the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution;
T	=	an amount (subject to the proviso below, the “Dividend Threshold”) initially equal to $0.16 per share of Common Stock; provided, however, that (x) if such dividend or distribution is not a regular quarterly cash dividend on the Common Stock, then the Dividend Threshold will be deemed to be zero per share of Common Stock with respect to such dividend or distribution; and (y) the Dividend Threshold will be adjusted in the same manner as, and at the same time and for the same events for which, the Conversion Price is adjusted as a result of the operation of paragraphs (a), (b), (c) above and paragraph (e) below; and
D	=	the amount in cash per share the Company distributes to all or substantially all holders of the Common Stock.

Any increase pursuant to this Section 13.04(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution.  If such dividend or distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of Directors of the Company determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.  Notwithstanding the foregoing, if “D” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, for each $1,000 principal amount of Notes, at the same time and upon the same terms as holders of shares of the Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the Ex-Dividend Date for such cash dividend or distribution.

 

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(e)          If the Company or any of its Subsidiaries make a payment in respect of a tender or exchange offer for the Common Stock (other than odd lot tender offers), to the extent that the cash and value of any other consideration included in the payment per share of the Common Stock exceeds the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based on the following formula:

 

where,
CR0	=	the Conversion Rate in effect immediately prior to the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires;
CR1	=	the Conversion Rate in effect immediately after the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires;
AC	=	the aggregate value of all cash and any other consideration (as determined by the Board of Directors of the Company, which determination shall be conclusive) paid or payable for shares of Common Stock purchased in such tender or exchange offer;
OS0	=	the number of shares of Common Stock outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer);
OS1	=	the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and
SP1	=	the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the date such tender or exchange offer expires.

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The increase to the Conversion Rate under this Section 13.04(e) shall occur at the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that (x) in respect of any conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the 10 Trading Days immediately following, and including, the Trading Day next succeeding the expiration date of any tender or exchange offer, references in this Section 13.04(e) with respect to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the date that such tender or exchange offer expires and such Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Notes for which Cash Settlement or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion and within the 10 Trading Days immediately following, and including, the Trading Day next succeeding the expiration date of any tender or exchange offer, references in this Section 13.04(e) with respect to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the date that such tender or exchange offer expires and such Trading Day in determining the Conversion Rate as of such Trading Day.  In addition, if the Trading Day next succeeding the date such tender or exchange offer expires is after the 10th Trading Day immediately preceding, and including, the end of any Observation Period in respect of a conversion of Notes, references in the preceding paragraph to 10 Trading Days shall be deemed to be replaced, solely in respect of that conversion of Notes, with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the date such tender or exchange offer expires to, and including, the last Trading Day of such Observation Period.

 

If the Company is obligated to purchase its Common Stock pursuant to any such tender or exchange offer described in this clause (e) but is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the applicable Conversion Rate will be decreased to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made or had been made only in respect of the purchases of Common Stock that have been effected.

 

(f)           Notwithstanding anything to the contrary in this Indenture or the Notes, if a Conversion Rate adjustment becomes effective on any Ex-Dividend Date, as described in clauses (a), (b), (c), (d) and (e) of this Section 13.04, and a Holder that has converted its Notes on or after such Ex-Dividend Date and on or prior to the related Record Date would be treated as the record holder of the shares of Common Stock as of the related Conversion Date as described under Section 13.02(i) based on an adjusted Conversion Rate for such Ex-Dividend Date, then, notwithstanding the Conversion Rate adjustment provisions in this Section 13.04, the Conversion Rate adjustment relating to such Ex-Dividend Date shall not be made for such converting Holder.  Instead, such Holder shall be treated as if such Holder were the record owner of the shares of Common Stock on an unadjusted basis and participate in the related dividend, distribution or other event giving rise to such adjustment.  Notwithstanding anything to the contrary in this Indenture or the Notes, if (i) a Note is to be converted pursuant to Physical Settlement or Combination Settlement; (ii) the Record Date, effective date or expiration time for any event that requires an adjustment to the Conversion Rate pursuant to the provisions described in clauses (a) through (d) above, inclusive, has occurred on or before the Conversion Date for such conversion (in the case of Physical Settlement) or on or before any Trading Day in the Observation Period for such conversion (in the case of Combination Settlement), but an adjustment to the Conversion Rate for such event has not yet become effective as of such Conversion Date or Trading Day, as applicable; (iii) the consideration due upon such conversion (in the case of Physical Settlement) or due in respect of such Trading Day (in the case of Combination Settlement) includes any whole shares of Common Stock; and (iv) such shares are not entitled to participate in such event (because they were not held on the related Record Date or otherwise), then, solely for purposes of such conversion, the Company will, without duplication, give effect to such adjustment on such Conversion Date (in the case of Physical Settlement) or such Trading Day (in the case of Combination Settlement).  In such case, if the date the Company is otherwise required to deliver the consideration due upon such conversion is before the first date on which the amount of such adjustment can be determined, then the Company will delay the settlement of such conversion until the second Business Day after such first date.

 

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(g)          If the Company or any of its Subsidiaries issue shares of the Common Stock or any securities convertible into or exchangeable for shares of the Common Stock (other than Excluded Securities) at a price per share (or conversion price per share in the case of a convertible or exchangeable security) of the Common Stock equal to or less than the Conversion Price as of the Issue Date (a “Triggering Dilutive Issuance”), the Conversion Rate shall be increased based on the following formula:

 

where,
CR1	=	the Conversion Rate in effect immediately after the Triggering Dilutive Issuance;
O	=	the aggregate principal amount of Notes outstanding immediately prior to the Triggering Dilutive Issuance;
P	=	the greater of (i) 0.2326281 (provided that if the aggregate principal amount of Notes outstanding is less than $223,723,868 because any Notes have been repurchased, redeemed or converted, then such fraction shall be reduced to reflect the percentage of shares of Common Stock underlying the Notes as if such lesser principal amount of Notes had been issued on the Issue Date (e.g., if $67,117,160 (equivalent to a 30% redemption) of Notes are redeemed, the fraction shall be 0.175057)) and (ii) the amount equal to (A) the number of shares of the Common Stock issuable upon conversion of the Notes immediately prior to the Triggering Dilutive Issuance divided by (B) the number of shares of Common Stock outstanding on a fully diluted basis (including shares of the Common Stock issuable upon conversion of the Notes, but excluding shares of Common Stock actually issued upon conversion of the Notes) immediately prior to the Triggering Dilutive Issuance; and
CS	=	the number of shares of Common Stock outstanding on a fully diluted basis (excluding shares of the Common Stock issuable or issued upon conversion of the Notes) immediately after giving effect to the Triggering Dilutive Issuance.

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¹ Based on $223,723,868 of Notes issued on the Issue Date and 147,599,699 shares of common stock outstanding.  If additional Notes are issued after the Issue Date in accordance with this Indenture in connection with a Convertible Notes Exchange, the Company shall recalculate the amounts set forth in “P” based on the same methodology used to set the amounts set forth herein, and shall provide an Officer’s Certificate to the Trustee and the holders setting forth such amounts and calculations, which shall thereafter be binding absent manifest error.

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(h)          Except as stated herein, the Company shall not adjust the Conversion Rate for the issuance of shares of the Common Stock or any securities convertible into or exchangeable for shares of the Common Stock or the right to purchase shares of the Common Stock or such convertible or exchangeable securities.

 

(i)           In addition to those adjustments required by clauses (a), (b), (c), (d), (e) and (g) of this Section 13.04, and to the extent permitted by applicable law and subject to the applicable rules of any exchange on which any of the Company’s securities are then listed, the Company from time to time may increase the Conversion Rate by any amount for a period of at least 20 Business Days if the Board of Directors of the Company determines that such increase would be in the Company’s best interest.  In addition, to the extent permitted by applicable law and subject to the applicable rules of any exchange on which any of the Company’s securities are then listed, the Company may (but is not required to) increase the Conversion Rate to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock in connection with a dividend or distribution of shares of Common Stock (or rights to acquire shares of Common Stock) or similar event.  Whenever the Conversion Rate is increased pursuant to either of the preceding two sentences, the Company shall give to the Holder of each Note at its last address appearing on the Note Register a notice of the increase at least 15 days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.

(j)           Notwithstanding anything to the contrary in this Article 13, the Conversion Rate shall not be adjusted:

 

(i)          upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Company’s securities and the investment of additional optional amounts in shares of Common Stock under any plan;

 

(ii)         upon the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Company or any of the Company’s Subsidiaries;

 

(iii)        upon the issuance of any shares of the Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security not described in clause (ii) of this subsection and outstanding as of the date the Notes were first issued;

 

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(iv)        upon the repurchase of any shares of Common Stock pursuant to an open-market share repurchase program or other buyback transaction that is not a tender offer or exchange offer of the nature described in clause (e) of this Section 13.04;

 

(v)         solely for a change in the par value of the Common Stock; or

 

(vi)         for accrued and unpaid interest, if any.

 

(k)          All calculations and other determinations under this Article 13 shall be made by the Company and shall be made to the nearest one-ten thousandth (1/10,000th) of a share.  The Company shall not be required to make an adjustment to the Conversion Rate unless the adjustment would require a change of at least 1% in the then effective Conversion Rate.  However, the Company shall carry forward any adjustments to the Conversion Rate that are less than 1% of the then effective Conversion Rate and make such carried forward adjustments, regardless of whether the aggregate adjustment is less than 1%, (i) in connection with any subsequent adjustment to the Conversion Rate and (ii) upon conversion of any Note (and on each Trading Day of the related Observation Period, if any).

 

(l)           Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee (and the Conversion Agent if not the Trustee) an Officer’s Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment.  Unless and until a Responsible Officer of the Trustee shall have received such Officer’s Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume without inquiry that the last Conversion Rate of which it has knowledge is still in effect.  Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall give such notice of such adjustment of the Conversion Rate to each Holder at its last address appearing on the Note Register of this Indenture.  Failure to deliver such notice shall not affect the legality or validity of any such adjustment.

 

(m)         For purposes of this Section 13.04, the number of shares of Common Stock at any time outstanding shall not include shares of Common Stock held in the treasury of the Company so long as the Company does not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company, but shall include shares of Common Stock issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.

 

Section 13.05       Adjustments of Prices.  Whenever any provision of this Indenture requires the Company to calculate the Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion Values or the Daily Settlement Amounts over a span of multiple days (including an Observation Period and the period for determining the Stock Price for purposes of a Make-Whole Fundamental Change), the Board of Directors of the Company shall make appropriate adjustments to each to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date, Effective Date or expiration date, as the case may be, of the event occurs, at any time during the period when the Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion Values or the Daily Settlement Amounts are to be calculated.

 

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Section 13.06       Shares to Be Fully Paid.  The Company shall provide, free from preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock to provide for conversion of the Notes from time to time as such Notes are presented for conversion (assuming delivery of the maximum number of Additional Shares pursuant to Section 13.03 and that at the time of computation of such number of shares, all such Notes would be converted by a single Holder and that Physical Settlement were applicable).

 

Section 13.07       Effect of Recapitalizations, Reclassifications and Changes of the Common Stock.

 

(a)          In the case of:

 

(i)          any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination or a change in par value),

 

(ii)         any consolidation, merger or combination involving the Company,

 

(iii)        any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety or

 

(iv)        any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 13.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 13.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 13.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have been entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property.

 

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If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, the types and amounts of consideration actually received by the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clause (i) attributable to one share of Common Stock.  If such Merger Event occurs prior to the 41st Scheduled Trading Day immediately prior to the Maturity Date or a Redemption Date with respect to all outstanding Notes and the holders of the Common Stock receive only cash in such Merger Event, then for all conversions for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 13.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date.  The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made.

 

If the Reference Property in respect of any Merger Event includes shares of common equity, such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 13.  If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (other than cash and/or cash equivalents) of a Person other than the Company or the successor or purchasing corporation, as the case may be, in such Merger Event, then, if such other Person is an Affiliate of the Company or the successor or purchasing corporation, such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors of the Company shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 14.

 

(b)          When the Company executes a supplemental indenture pursuant to subsection (a) of this Section 13.07, the Company shall promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly give notice thereof to all Holders.  The Company shall cause notice of the execution of such supplemental indenture to be given to each Holder, at its address appearing on the Note Register provided for in this Indenture, within 20 days after execution thereof.  Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.

 

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(c)          The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 13.07.  None of the foregoing provisions shall affect the right of a Holder to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 13.01 and Section 13.02 prior to the effective date of such Merger Event.

 

(d)          The above provisions of this Section shall similarly apply to successive Merger Events.

 

Section 13.08       Certain Covenants.

(a)          The Company covenants that all shares of Common Stock issued upon conversion of Notes will be fully paid and non-assessable by the Company and free from all taxes, liens and charges with respect to the issue thereof.

 

(b)          The Company covenants that, if any shares of Common Stock to be provided for the purpose of conversion of Notes hereunder require registration with or approval of any governmental authority under any federal or state law before such shares of Common Stock may be validly issued upon conversion, the Company will, to the extent then permitted by the rules and interpretations of the Commission, secure such registration or approval, as the case may be.

 

(c)          The Company further covenants that if at any time the Common Stock shall be listed on any national securities exchange or automated quotation system the Company will list and keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation system, any Common Stock issuable upon conversion of the Notes.

 

Section 13.09          Responsibility of Trustee.  The Trustee and any other Conversion Agent shall not at any time be under any duty or responsibility to any Holder to determine the Conversion Rate (or any adjustment thereto) or whether any facts exist that may require any adjustment (including any increase) of the Conversion Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same.  The Trustee and any other Conversion Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities, property or cash that may at any time be issued or delivered upon the conversion of any Note; and the Trustee and any other Conversion Agent make no representations with respect thereto.  Neither the Trustee nor any Conversion Agent shall be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other securities or property or cash upon the surrender of any Note for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article.  Without limiting the generality of the foregoing, neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture entered into pursuant to Section 13.07 relating either to the kind or amount of shares of stock or securities or property (including cash) receivable by Holders upon the conversion of their Notes after any event referred to in such Section 13.07 or to any adjustment to be made with respect thereto, but, subject to the provisions of Section 7.01, may accept (without any independent investigation) as conclusive evidence of the correctness of any such provisions, and shall be protected in conclusively relying upon, the Officer’s Certificate (which the Company shall be obligated to file with the Trustee prior to the execution of any such supplemental indenture) with respect thereto.

 

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Section 13.10       Notice to Holders Prior to Certain Actions.  In case of any:

 

(a)          action by the Company or one of its Subsidiaries that would require an adjustment in the Conversion Rate pursuant to Section 13.04 or Section 13.11;

 

(b)          Merger Event; or

 

(c)          voluntary or involuntary dissolution, liquidation or winding-up of the Company;

 

then, in each case (unless notice of such event is otherwise required pursuant to another provision of this Indenture), the Company shall cause to be filed with the Trustee and the Conversion Agent (if other than the Trustee) and to be given to each Holder at its address appearing on the Note Register, as promptly as possible but in any event at least 10 days prior to the applicable date hereinafter specified, a notice stating (i) the date on which a record is to be taken for the purpose of such action by the Company or one of its Subsidiaries or, if a record is not to be taken, the date as of which the holders of Common Stock of record are to be determined for the purposes of such action by the Company or one of its Subsidiaries, or (ii) the date on which such Merger Event, dissolution, liquidation or winding-up is expected to become effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their Common Stock for securities or other property deliverable upon such Merger Event, dissolution, liquidation or winding-up.  Failure to give such notice, or any defect therein, shall not affect the legality or validity of such action by the Company or one of its Subsidiaries, Merger Event, dissolution, liquidation or winding-up.

 

Section 13.1         Stockholder Rights Plans.  If the Company has a stockholder rights plan in effect upon conversion of the Notes, each share of Common Stock, if any, issued upon such conversion shall be entitled to receive the appropriate number of rights, if any, and the certificates representing the Common Stock issued upon such conversion shall bear such legends, if any, in each case as may be provided by the terms of any such stockholder rights plan, as the same may be amended from time to time.  However, if, prior to any conversion of Notes, the rights have separated from the shares of Common Stock in accordance with the provisions of the applicable stockholder rights plan, the Conversion Rate shall be adjusted at the time of separation as if the Company distributed to all or substantially all holders of the Common Stock Distributed Property as provided in Section 13.04(c), subject to readjustment in the event of the expiration, termination or redemption of such rights.

 

Section 13.12          Exchange in Lieu of Conversion.

 

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(a)          When a Holder surrenders its Notes for conversion, the Company may, at its election (an “Exchange Election”), direct the Conversion Agent to surrender, on or prior to the Trading Day immediately following the Conversion Date, such Notes to one or more financial institutions designated by the Company for exchange in lieu of conversion.  In order to accept any Notes surrendered for conversion, the designated financial institution(s) must agree to timely pay or deliver, as the case may be, in exchange for such Notes, the cash, shares of the Common Stock or a combination of cash and shares of the Common Stock, at the Company’s election, that would otherwise be due upon conversion as described under Section 13.02.  If the Company makes an Exchange Election, it shall, by the close of business on the Trading Day immediately following the relevant Conversion Date, notify the Holder surrendering its Notes for conversion that it has made such Exchange Election and notify the designated financial institution(s) of the relevant deadline for payment or delivery, as the case may be, of the conversion consideration and the type of conversion consideration to be paid or delivered, as the case may be.

 

(b)          Any Notes exchanged by the designated financial institution(s) shall remain outstanding.  If the designated financial institution(s) agree(s) to accept any Notes for exchange but does not timely pay or deliver, as the case may be, the consideration due upon conversion, or if the designated financial institution(s) does not accept the Notes for exchange, the Company shall pay or deliver, as the case may be, the consideration due upon conversion to the converting Holder at the time and in the manner required under this Indenture as if the Company had not made an Exchange Election.

 

(c)          The Company’s designation of any financial institution(s) to which the Notes may be submitted for exchange does not require such financial institution(s) to accept any Notes.  The Company may, but will not be obligated to, pay any consideration to, or otherwise enter into any agreement with, the designated financial institution(s) for or with respect to such designation.

 

ARTICLE 14

 

REPURCHASE OF NOTES AT OPTION OF HOLDERS

 

Section 14.01       Repurchase at Option of Holders Upon a Repurchase Event

 

(a)          If a Repurchase Event occurs at any time, the Company shall be required to offer to repurchase from the Holders up to the applicable Repurchase Event Amount of the Notes on the date (the “Repurchase Event Repurchase Date”) specified by the Company that is not less than 20 Business Days nor more than 35 Business Days following the date of the Repurchase Event Company Notice delivered in accordance with Section 14.01(c) at the applicable Repurchase Event Repurchase Price, plus accrued and unpaid interest thereon to, but excluding, the Repurchase Event Repurchase Date, unless the Repurchase Event Repurchase Date falls after the close of business on a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest to Holders of record as of the close of business on such Regular Record Date, and the applicable repurchase price shall be equal to Repurchase Event Repurchase Price for the Notes to be repurchased pursuant to this Article 14.

 

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(b)          Repurchases of Notes under this Section 14.01 shall be made, at the option of the Holder thereof, upon:

 

(i)          delivery to the Paying Agent by a Holder of a duly completed notice (the “Repurchase Event Repurchase Notice”) in the form set forth in Attachment 2, to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Repurchase Event Repurchase Date; and

 

(ii)         delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after delivery of the Repurchase Event Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Repurchase Event Repurchase Price therefor.

 

The Repurchase Event Repurchase Notice in respect of any Notes to be repurchased shall state:

 

(A)          in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;

 

(B)          the portion of the principal amount of Notes to be repurchased, which must be $1 or an integral multiple thereof; and

 

(C)          that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture;

 

provided, however, that if the Notes are Global Notes, the Holders must surrender their Notes for repurchase in accordance with appropriate Depositary procedures.

 

Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Repurchase Event Repurchase Notice contemplated by this Section 14.01 shall have the right to withdraw, in whole or in part, such Repurchase Event Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Repurchase Event Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 14.02.

 

The Paying Agent shall promptly notify the Company of the receipt by it of any Repurchase Event Repurchase Notice or written notice of withdrawal thereof.

 

(c)          On or before the 20th calendar day after the occurrence of the effective date of a Fundamental Change or, in the case of an Asset Sale Repurchase Event, Unrestricted Cash Repurchase Event or Dividend Repurchase Event, on or before the tenth calendar day after the date of such Repurchase Event, the Company shall provide to all Holders of Notes and the Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (a “Repurchase Event Company Notice”) of the occurrence of the effective date of the applicable Repurchase Event and of the repurchase right at the option of the Holders arising as a result thereof.  In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary.  Each Repurchase Event Company Notice shall specify:

 

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(i)          the events causing such Repurchase Event;

 

(ii)         the date of such Repurchase Event;

 

(iii)         the last date on which a Holder may exercise the repurchase right pursuant to this Article 14;

 

(iv)         the Repurchase Event Repurchase Price;

 

(v)          the Repurchase Event Repurchase Date;

 

(vi)         if the Repurchase Event is a Dividend Repurchase Event, the Dividend Repurchase Event Amount or, if the Repurchase Event is an Asset Sale Repurchase Event, the Asset Sale Repurchase Event Amount;

 

(vii)        the name and address of the Paying Agent and the Conversion Agent (if other than the Trustee), if applicable;

 

(viii)       if applicable, the Conversion Rate and any adjustments to the Conversion Rate;

 

(ix)         that the Notes with respect to which a Repurchase Event Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Repurchase Event Repurchase Notice in accordance with the terms of this Indenture; and

 

(x)          the procedures that Holders must follow to require the Company to repurchase their Notes.

 

No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.01.

 

At the Company’s request, the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Repurchase Event Company Notice shall be prepared by the Company.

 

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(d)          Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Repurchase Event if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Repurchase Event Repurchase Price with respect to such Notes).  The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Repurchase Event Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Repurchase Event Repurchase Notice with respect thereto shall be deemed to have been withdrawn.

 

(e)          If fewer than all of the outstanding Notes are to be repurchased, the Notes to be repurchased shall be selected according to the Depositary’s applicable procedures, in the case of Notes represented by a Global Note, or, in the case of Notes in certificated form, the Trustee shall select the Notes or portions thereof to be repurchased (in principal amounts of $1 or multiples thereof) by lot, on a pro rata basis or by another method the Trustee considers to be fair and appropriate (it being understood that as long as Notes are held by DTC, notice will be given by the rules of the Depositary).

 

(f)           Notwithstanding anything in this Section 14.01 to the contrary, at any time that the Notes are subject to the Senior Lien Intercreditor Agreement, there will be no Repurchase Event in connection with an Asset Sale Repurchase Event or Unrestricted Cash Repurchase Event until the Discharge of First-Priority Obligations shall have occurred.

 

Section 14.02       Withdrawal of Repurchase Event Repurchase Notice.

 

(a)          A Repurchase Event Repurchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the Corporate Trust Office of the Paying Agent in accordance with this Section 14.02 at any time prior to the close of business on the Business Day immediately preceding the Repurchase Event Repurchase Date, specifying:

 

(i)          the principal amount of the Notes with respect to which such notice of withdrawal is being submitted,

 

(ii)         if Physical Notes have been issued, the certificate number of the Note in respect of which such notice of withdrawal is being submitted, and

 

(iii)        the principal amount, if any, of such Note that remains subject to the original Repurchase Event Repurchase Notice, which portion must be in principal amounts of $1 or an integral multiple of $1;

 

provided, however, that if the Notes are Global Notes, Holders must withdraw their Notes in accordance with appropriate Depositary procedures.

 

Section 14.03       Deposit of Repurchase Event Repurchase Price.

 

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(a)          The Company will deposit with the Trustee (or other Paying Agent appointed by the Company, or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in this Section 14.03) on or prior to 11:00 a.m., New York City time, on the Repurchase Event Repurchase Date an amount of money sufficient to repurchase all of the Notes to be repurchased at the appropriate Repurchase Event Repurchase Price.  Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn prior to the close of business on the Business Day immediately preceding the Repurchase Event Repurchase Date) will be made on the later of (i) the Repurchase Event Repurchase Date (provided, however, the Holder has satisfied the conditions in Section 14.01) and (ii) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Note Register; provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee.  The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Repurchase Event Repurchase Price.

 

(b)          If by 11:00 a.m.  New York City time, on the Repurchase Event Repurchase Date, the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to make payment on all the Notes or portions thereof that are to be repurchased on such Repurchase Event Repurchase Date, then, with respect to the Notes that have been properly surrendered for repurchase and have not been validly withdrawn, (i) such Notes will cease to be outstanding, (ii) interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent) and (iii) all other rights of the Holders of such Notes will terminate (other than the right to receive the Repurchase Event Repurchase Price and, if applicable, accrued and unpaid interest).

 

(c)          Upon surrender of a Note that is to be repurchased in part pursuant to Section 14.01, the Company shall execute and the Trustee shall authenticate and deliver to the Holder a new Note in an authorized denomination equal in principal amount to the unrepurchased portion of the Note surrendered.

 

Section 14.04       Covenant to Comply with Applicable Laws Upon Repurchase of Notes.  In connection with any repurchase offer upon a Repurchase Event pursuant to this Article 14, the Company will, if required:

 

(a)          comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act that may then be applicable;

 

(b)          file a Schedule TO or any other required schedule under the Exchange Act; and

 

(c)          otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes;

 

in each case, so as to permit the rights and obligations under this Article 14 to be exercised in the time and in the manner specified in this Article 14.

 

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ARTICLE 15

 

OPTIONAL REDEMPTION

 

Section 15.01       Optional Redemption.  The Company may redeem (an “Optional Redemption”) for cash from time to time prior to December 1, 2030 (or December 1, 2028, if the 2024 Term Loan is refinanced or amended so as to permit the redemption of the Notes in an amount equal to or greater than the Redemption Amount), up to the Redemption Amount of the Notes at the Redemption Price.  No sinking fund is provided for the Notes.

 

Section 15.02       Notice of Optional Redemption; Selection of Notes.

 

(a)          In case the Company exercises its Optional Redemption right to redeem all or, as the case may be, any portion of the Notes pursuant to Section 15.01, it shall fix a date for redemption (each, a “Redemption Date”) and it or, at its written request received by the Trustee not less than 45 Scheduled Trading Days prior to the Redemption Date (or such shorter period of time as may be acceptable to the Trustee), the Trustee, in the name of and at the expense of the Company, shall give or cause to be given a notice of such Optional Redemption (a “Redemption Notice”) not less than 45 Scheduled Trading Days nor more than 70 Scheduled Trading Days prior to the Redemption Date to each Holder of Notes so to be redeemed as a whole or in part at its last address as the same appears on the Note Register; provided, however, that, if the Company shall give such notice, it shall also give written notice of the Redemption Date to the Trustee, the Conversion Agent (if other than the Trustee) and the Paying Agent (if other than the Trustee).  The Redemption Date must be a Business Day.

 

(b)          The Redemption Notice, if given in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice.  In any case, failure to give such Redemption Notice or any defect in the Redemption Notice to the Holder of any Note designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Note.

 

(c)          Each Redemption Notice shall specify:

 

(i)          the Redemption Date;

 

(ii)          the Redemption Price;

 

(iii)        that on the Redemption Date, the Redemption Price will become due and payable upon each Note to be redeemed, and that interest thereon, if any, shall cease to accrue on and after the Redemption Date;

 

(iv)        the place or places where such Notes are to be surrendered for payment of the Redemption Price;

 

(v)         that Holders may surrender their Notes for conversion at any time prior to the close of business on the second Scheduled Trading Day immediately preceding the Redemption Date;

 

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(vi)        the Settlement Method and Specified Dollar Amount, if applicable;

 

(vii)       the Conversion Rate and the number of Additional Shares added to the Conversion Rate in accordance with Section 13.03, if applicable;

 

(viii)      the CUSIP, ISIN or other similar numbers, if any, assigned to such Notes; and

 

(ix)        in case any Note is to be redeemed in part only, the portion of the principal amount thereof to be redeemed and on and after the Redemption Date, upon surrender of such Note, a new Note in principal amount equal to the unredeemed portion thereof shall be issued.

 

A Redemption Notice shall be irrevocable.

 

(d)          If fewer than all of the outstanding Notes are to be redeemed, the Notes to be redeemed shall be selected according to the Depositary’s applicable procedures, in the case of Notes represented by a Global Note, or, in the case of Notes in certificated form, the Trustee shall select the Notes or portions thereof to be redeemed (in principal amounts of $1 or multiples thereof) by lot, on a pro rata basis or by another method the Trustee considers to be fair and appropriate (it being understood that as long as Notes are held by DTC, notice will be given by the rules of the Depositary).  If any Note selected for partial redemption is submitted for conversion in part after such selection, the portion of the Note submitted for conversion shall be deemed (so far as may be possible) to be the portion selected for redemption.

 

Section 15.03       Payment of Notes Called for Redemption.

 

(a)          If any Redemption Notice has been given in respect of the Notes in accordance with Section 13.02, the Notes shall become due and payable on the Redemption Date at the place or places stated in the Redemption Notice and at the applicable Redemption Price.  On presentation and surrender of the Notes at the place or places stated in the Redemption Notice, the Notes shall be paid and redeemed by the Company at the applicable Redemption Price.

 

(b)          Prior to 11:00 a.m.  New York City time on the Redemption Date, the Company shall deposit with the Paying Agent or, if the Company or a Subsidiary of the Company is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 7.05 an amount of cash (in immediately available funds if deposited on the Redemption Date), sufficient to pay the Redemption Price of all of the Notes to be redeemed on such Redemption Date.  Subject to receipt of funds by the Paying Agent, payment for the Notes to be redeemed shall be made on the Redemption Date for such Notes.  The Paying Agent shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Redemption Price.

 

Section 15.04       Restrictions on Redemption.  The Company may not redeem any Notes on any date if the principal amount of the Notes has been accelerated in accordance with the terms of this Indenture, and such acceleration has not been rescinded, on or prior to the Redemption Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Redemption Price with respect to such Notes).

 

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ARTICLE 16

 

RANKING OF NOTES LIENS

 

Section 16.01       Relative Rights.  The First Lien Intercreditor Agreement governs the relative rights and remedies, as lienholders, among the Holders on the one hand, and the lenders or holders of First-Priority Obligations.  Nothing in this Indenture or the Intercreditor Agreements will:

 

(a)          impair, as between the Company and Holders, the obligation of the Company which is absolute and unconditional, to pay principal of, premium and interest on Notes in accordance with their terms or to perform any other obligation of the Company or any other obligor under this Indenture, the Notes, the Subsidiary Guarantees and the Security Documents;

 

(b)          restrict the right of any Holder to sue for payments that are then due and owing, in a manner not inconsistent with the provisions of the Intercreditor Agreements;

 

(c)          prevent the Trustee, the Notes Collateral Agent or any Holder from exercising against the Company or any other obligor any of its other available remedies upon a Default or Event of Default (other than its rights as a secured party, which are subject to the Intercreditor Agreements); or

 

(d)          restrict the right of the Trustee, the Notes Collateral Agent or any Holder:

 

(i)          to file and prosecute a petition seeking an order for relief in an involuntary bankruptcy case as to any obligor or otherwise to commence, or seek relief commencing, any insolvency or liquidation proceeding involuntarily against any obligor;

 

(ii)         to make, support or oppose any request for an order for dismissal, abstention or conversion in any insolvency or liquidation proceeding;

 

(iii)        to make, support or oppose, in any insolvency or liquidation proceeding, any request for an order extending or terminating any period during which the debtor (or any other Person) has the exclusive right to propose a plan of reorganization or other dispositive restructuring or liquidation plan therein;

 

(iv)         to seek the creation of, or appointment to, any official committee representing creditors (or certain of the creditors) in any insolvency or liquidation proceedings and, if appointed, to serve and act as a member of such committee without being in any respect restricted or bound by, or liable for, any of the obligations under this Article 16;

 

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(v)          to seek or object to the appointment of any professional person to serve in any capacity in any insolvency or liquidation proceeding or to support or object to any request for compensation made by any professional person or others therein;

 

(vi)        to make, support or oppose any request for order appointing a trustee or examiner in any insolvency or liquidation proceedings; or

 

(vii)       otherwise to make, support or oppose any request for relief in any insolvency or liquidation proceeding that it is permitted by law to make, support or oppose if it were a holder of unsecured claims, or as to any matter relating to (x) any plan of reorganization or other restructuring or liquidation plan or (y) the administration of the estate or the disposition of the case or proceeding (in each case except as set forth in the Intercreditor Agreements).

 

ARTICLE 17

 

COLLATERAL

 

Section 17.01       Security Documents.  (a) The payment of the principal of and interest and premium, if any, on the Notes when due, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise and whether by the Company pursuant to the Notes, or by the Subsidiary Guarantors pursuant to the Subsidiary Guarantees, the payment of all other Notes Obligations and the performance of all other obligations of the Company and the Subsidiary Guarantors under this Indenture, the Notes, the Subsidiary Guarantees and the Security Documents shall be secured as provided in the Security Documents, which the Company and the applicable Subsidiary Guarantors entered into on the Issue Date and will be secured by the Collateral as set forth in Security Documents hereafter entered into or delivered as required or permitted by this Indenture.  The Company shall, and shall cause each Notes Party to, and each Notes Party shall, make all filings (including filings of continuation statements and amendments to UCC financing statements that may be necessary to continue the effectiveness of such UCC financing statements) and all other actions as are required by the Security Documents to maintain (at the sole cost and expense of the Company) the security interest created by the Security Documents in the Collateral (other than with respect to any Collateral the security interest in which is not required to be perfected under the Security Documents) as a perfected security interest subject only to Permitted Liens.

 

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Notwithstanding the foregoing, the Company shall use commercially reasonable efforts to perfect all security interests in the Collateral (other than Material Real Property) on or prior to the Issue Date and, with respect to any Collateral (other than Material Real Property), for which security interests have not been granted or perfected on or prior to the Issue Date, cause the taking of additional actions required to grant or perfect the security interest in the Collateral (other than Material Real Property) required to be pledged under this Indenture and the Security Documents within 90 days following the Issue Date (or such later date as agreed by the Applicable Possessory Collateral Agent (as defined in the Security Agreement)). With respect to Material Real Property, the Company shall deliver within 90 days following the Issue Date (or such later date as agreed by the Applicable Possessory Collateral Agent (as defined in the Security Agreement)), but only to the extent such deliverables are provided to the holders of the other First-Priority Obligations in connection with their mortgage on such property: (i) a policy or policies or marked-up unconditional binder of lender’s title insurance, paid for by the Company and the Subsidiary Guarantors, issued by a nationally recognized title insurance company, insuring the Lien of each mortgage as a valid Lien on the mortgaged property described therein, free of any title exceptions and other Liens except Permitted Liens, (ii) an as-is survey of the property subject to any such mortgage certified to the Company, Notes Collateral Agent and the title company (including all improvements, easements and other customary matters thereon), meeting minimum standard detail requirements for ALTA/ACSM Land Title Surveys as such requirements are in effect on the date of preparation of such survey, (iii) customary opinions of counsel addressing such matters as are addressed in the comparable opinions provided to the holders of other First-Priority Obligations, (iv) evidence of insurance required to be maintained pursuant to the mortgages and this Indenture, and (v) if required by applicable law, if any portion of any of the Material Real Property is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or successor act thereto), maintain, or cause to be maintained, with a financially sound and reputable insurer, flood insurance in an amount and otherwise sufficient to comply with all applicable rules and regulations together with evidence of such acceptable flood insurance coverage.

 

Section 17.02       Notes Collateral Agent.

 

(a)          The Notes Collateral Agent is authorized and empowered to appoint one or more co-Notes Collateral Agents as it deems necessary or appropriate.

 

(b)          Subject to Section 7.01, neither the Trustee nor the Notes Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing Notes Obligations, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing Notes Obligations or the Security Documents or any delay in doing so.

 

(c)          The Notes Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time (as required or permitted by this Indenture); provided that in the event of conflict between directions received pursuant to the Security Documents and the Intercreditor Agreements and directions received hereunder, the Notes Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor Agreements.  Except as directed by the Trustee as required or permitted by this Indenture and any other representatives or pursuant to the Security Documents or the Intercreditor Agreements, the Notes Collateral Agent will not be obligated:

 

(i)          to act upon directions purported to be delivered to it by any other Person;

 

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(ii)         to foreclose upon or otherwise enforce any Lien securing Notes Obligations; or

 

(iii)        to take any other action whatsoever with regard to any or all of the Liens securing Notes Obligations, Security Documents or Collateral.

 

(d)          The Notes Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens securing Notes Obligations or the Security Documents.

 

(e)          In acting as Notes Collateral Agent or co-Notes Collateral Agent, the Notes Collateral Agent and each co-Notes Collateral Agent may rely upon and enforce each and all of the rights, powers, immunities, indemnities and benefits of the Trustee under Article 7 hereof.

 

(f)          The holders of Notes agree that the Notes Collateral Agent shall be entitled to the rights, privileges, protections, immunities, indemnities and benefits provided to the Notes Collateral Agent by this Indenture and the Security Documents.  Furthermore, each holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Notes Collateral Agent to enter into and perform each of the Intercreditor Agreements and Security Documents in each of its capacities thereunder.

 

(g)          If the Company (i) incurs Refinancing Facilities in connection with a Permitted Refinancing in respect of the 2024 Term Loan, and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent to enter into the Senior Lien Intercreditor Agreement in favor of a designated agent or representative for the holders of the Refinancing Facilities so incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such Senior Lien Intercreditor Agreement, bind the holders on the terms set forth therein and perform and observe its obligations thereunder.

 

(h)          At all times when the Trustee is not itself the Notes Collateral Agent, upon request of the Trustee, the Company will deliver to the Trustee copies of all Security Documents delivered to the Notes Collateral Agent and copies of all documents delivered to the Notes Collateral Agent pursuant to this Indenture and the Security Documents.

 

Section 17.03       Authorization of Actions to Be Taken.  (a) Each holder of Notes, by its acceptance thereof, appoints the Notes Collateral Agent as its collateral agent under the Security Documents, consents and agrees to the terms of each Security Document and the Intercreditor Agreements, as originally in effect and as amended, supplemented or replaced from time to time in accordance with its terms or the terms of this Indenture, authorizes and directs the Trustee and/or the Notes Collateral Agent to enter into the Intercreditor Agreements and the Security Documents to which it is a party, authorizes and empowers the Trustee to direct the Notes Collateral Agent to enter into, and the Notes Collateral Agent to execute and deliver, the Security Documents and the Intercreditor Agreements and authorizes and empowers the Trustee and the Notes Collateral Agent to bind the holders of Notes and other holders of Notes Obligations secured by the Collateral as set forth in the Security Documents to which it is a party and the Intercreditor Agreements and to perform its obligations and exercise its rights and powers thereunder.

 

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(b)          Subject to the provisions of the Intercreditor Agreements and the Security Documents, the Trustee and the Notes Collateral Agent are authorized and empowered to receive for the benefit of the holders of Notes any funds collected or distributed under the Security Documents to which the Notes Collateral Agent or Trustee is a party and to make further distributions of such funds to the holders of Notes according to the provisions of this Indenture.

 

(c)          Subject to the provisions of Article 6, Section 7.01 and Section 7.02 hereof, the Intercreditor Agreements and the Security Documents, upon the occurrence and continuance of an Event of Default, the Trustee may, in its sole discretion and without the consent of the holders, direct, on behalf of the holders, the Notes Collateral Agent to take all actions it deems necessary or appropriate in order to:

 

(1)          foreclose upon or otherwise enforce any or all of the Liens securing the First-Priority Obligations;

 

(2)          enforce any of the terms of the Security Documents to which the Notes Collateral Agent or Trustee is a party; or

 

(3)          collect and receive payment of any and all Notes Obligations.

 

Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Notes Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Notes Obligations or the Security Documents to which the Notes Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Security Documents to which the Notes Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Notes Collateral Agent may deem expedient to preserve or protect its interests and the interests of the holders of Notes in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of holders, the Trustee or the Notes Collateral Agent.

 

Section 17.04       Release of Liens.  (a) Notwithstanding anything to the contrary in the Security Documents or the Intercreditor Agreements, Collateral may be released from the Lien and security interest created by the Security Documents to secure the Notes and obligations under this Indenture at any time or from time to time in accordance with the provisions of the Intercreditor Agreements or the Security Documents or as provided hereby.  The applicable assets included in the Collateral shall be automatically released from the Liens securing the Notes, and the applicable Subsidiary Guarantor shall be automatically released from its obligations under this Indenture and the Security Documents, under any one or more of the following circumstances or any applicable circumstance as provided in the Intercreditor Agreements or the Security Documents:

 

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(i)          to enable the Company or any Subsidiary Guarantor to consummate the disposition (other than any disposition to the Company or a Subsidiary Guarantor) of such property or assets to the extent not prohibited under Section 4.12(c) or Section 4.12(f);

 

(ii)         [reserved];

 

(iii)        in respect of the property and assets of a Subsidiary Guarantor, upon the release or discharge of the Subsidiary Guarantee of such Subsidiary Guarantor in accordance with this Indenture;

 

(iv)        in respect of any property and assets of the Company or a Subsidiary Guarantor that would constitute Collateral but is at such time not subject to a Lien securing First-Priority Obligations (to the extent incurred and outstanding after the Issue Date and other than the Notes Obligations), other than any property or assets that cease to be subject to a Lien securing First-Priority Obligations in connection with a Discharge of First-Priority Obligations; provided that if such property and assets are subsequently subject to a Lien securing First-Priority Obligations (other than Excluded Property), such property and assets shall subsequently constitute Collateral under this Indenture;

 

(v)         in respect of any Collateral transferred to a third party or otherwise disposed of in connection with any enforcement by the Notes Collateral Agent in accordance with the Intercreditor Agreements;

 

(vi)        pursuant to an amendment or waiver in accordance with Article 10; and

 

(vii)       in accordance with the applicable provisions of the Intercreditor Agreements or the Security Documents.

 

In addition, (i) the security interests granted pursuant to the Security Documents securing the Notes Obligations shall automatically terminate and/or be released all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to the applicable Grantors (as defined in the applicable Security Documents), as of the date when all the Notes Obligations under this Indenture and the Security Documents (other than contingent or unliquidated obligations or liabilities not then due) have been paid in full in cash or immediately available funds; and (ii) the security interests granted pursuant to the Security Documents securing the Notes Obligations shall automatically terminate as of the date when the holders of at least two thirds in aggregate principal amount of all Notes issued under this Indenture consent to the termination of the Security Documents.

 

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In connection with any termination or release pursuant to this Section 17.04(a), subject to the Intercreditor Agreements, the Notes Collateral Agent shall execute and deliver to any Grantor (as defined in the applicable Security Documents), at such Grantor’s expense, all documents that such Grantor shall reasonably request to evidence such termination or release (including, without limitation, the authorization to file UCC termination statements), and will duly assign and transfer to such Grantor, such of the Collateral that may be in the possession of the Notes Collateral Agent and has not theretofore been sold or otherwise applied or released pursuant to this Indenture or the Security Documents.  Any execution and delivery of documents pursuant to this Section 17.04(a) shall be without recourse to or warranty by the Notes Collateral Agent.  In connection with any release pursuant to this Section 17.04(a), the Grantors shall be permitted to take any action in connection therewith consistent with such release including, without limitation, the filing of UCC termination statements.

 

Upon the receipt of an Officer’s Certificate from the Company, if requested as described in Section 17.04(b) below, if applicable, and any necessary or proper instruments of termination, satisfaction or release prepared by the Company, the Notes Collateral Agent shall execute, deliver or acknowledge such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture, the Security Documents or the Intercreditor Agreements.

 

(b)          Notwithstanding anything herein to the contrary, in connection with (x) any release of Collateral pursuant to Section 17.04(a), the Notes Collateral Agent may, but shall not be required to, request an Officer’s Certificate and Opinion of Counsel certifying that all conditions precedent, including, without limitation, this Section 17.04, have been met and stating under which of the circumstances set forth in Section 17.04(a) above the Collateral is being released have been delivered to the Notes Collateral Agent on or prior to the date of such release or, in the case of clause (y) above, the date on which the Notes Collateral Agent executes any such instrument.

 

(c)          Notwithstanding anything herein to the contrary, at any time when a Default or Event of Default has occurred and is continuing and the maturity of the Notes has been accelerated (whether by declaration or otherwise) and the Trustee has delivered a notice of acceleration to the Notes Collateral Agent, no release of Collateral from or after the time of such acceleration pursuant to the provisions of this Indenture or the Security Documents will be effective as against the holders, except as otherwise provided in the Intercreditor Agreements.

 

Section 17.05       Powers Exercisable by Receiver or Trustee.  In case the Collateral shall be in the possession of a receiver or trustee, lawfully appointed, the powers conferred in this Article 17 upon the Company or the Subsidiary Guarantors with respect to the release, sale or other disposition of such property may be exercised by such receiver or trustee, and an instrument signed by such receiver or trustee shall be deemed the equivalent of any similar instrument of the Company or the Subsidiary Guarantors or of any officer or officers thereof required by the provisions of this Article 17; and if the Trustee, Notes Collateral Agent or a nominee of the Trustee or Notes Collateral Agent shall be in the possession of the Collateral under any provision of this Indenture, then such powers may be exercised by the Trustee, Notes Collateral Agent or a nominee of the Trustee or Notes Collateral Agent.

 

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Section 17.06       Release Upon Termination of the Company’s Obligations.  In the event that the Company delivers to the Trustee an Officer’s Certificate and Opinion of Counsel certifying that all the Obligations under this Indenture, the Notes and the Security Documents have been satisfied and discharged by the payment in full of the Company’s Obligations under the Notes, this Indenture and the Security Documents, and all such Obligations have been so satisfied, the Trustee shall deliver to the Company and the Notes Collateral Agent a notice stating that the Trustee, on behalf of the holders, without recourse or warranty, disclaims and gives up any and all rights it has in or to the Collateral, and any rights it has under the Security Documents, and upon receipt by the Notes Collateral Agent of such notice, the Notes Collateral Agent shall be deemed not to hold a Lien in the Collateral on behalf of the Trustee and shall do or cause to be done all acts reasonably necessary at the request and expense of the Company to release such Lien as soon as is reasonably practicable.

 

Section 17.07       Designations.  Except as provided in the next sentence, for purposes of the provisions hereof and the Intercreditor Agreements requiring the Company to designate Indebtedness, any such designation shall be sufficient if the relevant designation provides in writing that such other Obligations are permitted under this Indenture and is signed on behalf of the Company by an Officer and delivered to the Trustee and the Notes Collateral Agent.  For all purposes hereof and the Intercreditor Agreements, the Company hereby designates the Obligations pursuant to the 2024 Term Loan as in effect on the Issue Date as First-Priority Obligations.

 

Section 17.08       Limitation on Duty of Notes Collateral Agent in Respect of Collateral; Indemnification.

(a)          Beyond the exercise of reasonable care in the custody thereof, the Notes Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Notes Collateral Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Notes Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Trustee in good faith.

 

(b)          The Notes Collateral Agent shall not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Company to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. Subject to Section 17.02 of this Indenture, the Notes Collateral Agent shall have no duty to ascertain or inquire as to the performance or observance of any of the terms of this Indenture, the Intercreditor Agreements or any other Security Document by the Company, the Subsidiary Guarantors or the Trustee. The Notes Collateral Agent may act and rely and shall be protected in acting and relying in good faith on the opinion or advice of or information obtained from any counsel, accountant, appraiser or other expert or adviser, whether retained or employed by the Company or by the Notes Collateral Agent, in relation to any matter arising in the administration of the Security Documents.

 

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ARTICLE 18

 

GUARANTEE

 

Section 18.01       Subsidiary Guarantee.

 

(a)          Each Subsidiary Guarantor hereby jointly and severally, irrevocably and unconditionally guarantees, on a senior unsecured basis, as a primary obligor and not merely as a surety, to each Holder and to the Trustee and its successors and assigns (i) the performance and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, of all obligations of the Company under this Indenture and the Notes, whether for payment of principal of, premium, if any, or interest on the Notes and all other monetary obligations of the Company under this Indenture and the Notes and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”).  Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from any Subsidiary Guarantor, and that each Subsidiary Guarantor shall remain bound under this Article 18 notwithstanding any extension or renewal of any Guaranteed Obligation.

 

(b)          Each Subsidiary Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment.  Each Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations.  The obligations of each Subsidiary Guarantor hereunder shall not be affected by (i) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (ii) any extension or renewal of this Indenture, the Notes or any other agreement; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (iv) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or each Subsidiary Guarantor; (v) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of each Subsidiary Guarantor, except as provided in Section 18.02(b).  Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Subsidiary Guarantors, such that such Subsidiary Guarantor’s obligations would be less than the full amount claimed.

 

(c)          Each Subsidiary Guarantor hereby waives any right to which it may be entitled to have the assets of the Company first be used and depleted as payment of the Company’s or such Subsidiary Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Subsidiary Guarantor hereunder.  Each Subsidiary Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Subsidiary Guarantor.

 

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(d)          Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.

 

(e)          The Subsidiary Guarantee of each Subsidiary Guarantor is, to the extent and in the manner set forth in this Article 18, equal in right of payment to all existing and future Pari Passu Indebtedness, senior in right of payment to all existing and future Subordinated Indebtedness of such Subsidiary Guarantor.

 

(f)          Except as expressly set forth in Article 3, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise.  Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor or would otherwise operate as a discharge of any Subsidiary Guarantor as a matter of law or equity.

 

(g)          Each Subsidiary Guarantor agrees that its Subsidiary Guarantee shall remain in full force and effect until payment in full of all the Guaranteed Obligations.  Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.

 

(h)          In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by applicable law) and (iii) all other monetary obligations of the Company to the Holders and the Trustee.

 

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(i)           Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed Obligations.  Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of the Subsidiary Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purposes of this Section 18.01.

 

(j)           Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable out-of-pocket attorneys’ fees and expenses) incurred by the Trustee, the Notes Collateral Agent or any Holder in enforcing any rights under this Section 18.01.

 

(k)          Upon request of the Trustee, each Subsidiary Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.

 

Section 18.02       Limitation on Liability.

 

(a)          Any term or provision of this Indenture to the contrary notwithstanding, the maximum aggregate amount of the Guaranteed Obligations guaranteed hereunder by each Subsidiary Guarantor shall not exceed the maximum amount that can be hereby guaranteed by the applicable Subsidiary Guarantor without rendering the Subsidiary Guarantee or this Indenture, as it relates to such Subsidiary Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally or capital maintenance or corporate benefit rules applicable to guarantees for obligations of affiliates.

 

(b)          A Subsidiary Guarantee as to any Subsidiary that is (or becomes) a party hereto on the date hereof or that executes a supplemental indenture in accordance with Section 4.11(b) hereof and provides a guarantee shall terminate and be of no further force or effect and such Subsidiary Guarantee shall be deemed to be automatically released from all obligations under this Article 18 upon any of the following:

 

(i)          the sale, disposition, exchange or other transfer (including through merger, consolidation, amalgamation, dividend, distribution or otherwise) of the Equity Interests (including any sale, disposition, exchange or other transfer following which the applicable Subsidiary Guarantor is no longer a Subsidiary), of the applicable Subsidiary Guarantor if such sale, disposition, exchange or other transfer is made in a manner not in violation of this Indenture;

 

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(ii)         the occurrence of any other event following which such Subsidiary Guarantor is no longer a Subsidiary in a manner not in violation of this Indenture;

 

(iii)        the release or discharge of the guarantee by such Subsidiary Guarantor of the Credit Agreement or any other Indebtedness which resulted in the obligation to guarantee the Notes;

 

(iv)         if the Company’s obligations under this Indenture are discharged in accordance with the terms of this Indenture;

 

(v)          such Subsidiary ceasing to be a Subsidiary as a result of any foreclosure of any pledge or security interest in favor of the Notes Obligations or other exercise of remedies in respect thereof, subject to, in each case, the application of the proceeds of such foreclosure or exercise of remedies in the manner described in the Security Documents;

 

(vi)         the consummation of any transaction permitted by this Indenture as a result of which such Subsidiary Guarantor becomes an Excluded Subsidiary; provided that the Holders of a majority in aggregate principal amount of the Notes then outstanding shall have consented to such transaction (to the extent required by this Indenture) and the terms of such consent did not provide otherwise;

 

(vii)       upon the merger, amalgamation or consolidation of such Subsidiary Guarantor with and into the Company or another Subsidiary Guarantor or upon the liquidation or dissolution of such Subsidiary Guarantor, in each case, in a manner not in violation of this Indenture; and

 

(viii)      as set forth in Article 10 of this Indenture.

 

Section 18.03       [Intentionally Omitted].

 

Section 18.04       Successors and Assigns.  This Article 18 shall be binding upon each Subsidiary Guarantor and its successors and assigns and shall inure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges conferred upon that party in this Indenture and in the Notes shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions of this Indenture.

 

Section 18.05       No Waiver.  Neither a failure nor a delay on the part of either the Trustee or the Holders in exercising any right, power or privilege under this Article 18 shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege.  The rights, remedies and benefits of the Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other rights, remedies or benefits which either may have under this Article 18 at law, in equity, by statute or otherwise.

 

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Section 18.06       Modification.  No modification, amendment or waiver of any provision of this Article 18, nor the consent to any departure by any Subsidiary Guarantor therefrom, shall in any event be effective unless the same shall be in writing and signed by the Trustee, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.  No notice to or demand on any Subsidiary Guarantor in any case shall entitle any Subsidiary Guarantor to any other or further notice or demand in the same, similar or other circumstances.

 

Section 18.07       Execution of Supplemental Indenture for Future Subsidiary Guarantors.  Each Subsidiary which is required to become a Subsidiary Guarantor of the Notes pursuant to Section 4.11(b) shall promptly execute and deliver to the Trustee a supplemental indenture in the form of Exhibit B hereto pursuant to which such Subsidiary shall become a Subsidiary Guarantor under this Article 18 and shall guarantee the Notes.  Concurrently with the execution and delivery of such supplemental indenture, the Company shall deliver to the Trustee an Opinion of Counsel that, subject to the application of bankruptcy, insolvency, moratorium, fraudulent conveyance or transfer and other similar laws relating to creditors’ rights generally and to the principles of equity, whether considered in a proceeding at law or in equity, the Subsidiary Guarantee of such Subsidiary Guarantor is a valid and binding obligation of such Subsidiary Guarantor, enforceable against such Subsidiary Guarantor in accordance with its terms and/or to such other matters as the Trustee may reasonably request.

 

Section 18.08       Non-Impairment.  The failure to endorse a Subsidiary Guarantee on any Note shall not affect or impair the validity thereof.

 

ARTICLE 19

MISCELLANEOUS PROVISIONS

 

Section 19.01       Provisions Binding on Company’s Successors.  All the covenants, stipulations, promises and agreements of the Company contained in this Indenture shall bind its successors and assigns whether so expressed or not.

 

Section 19.02       Official Acts by Successor Corporation.  Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or Officer of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any corporation or other entity that shall at the time be the lawful sole successor of the Company.

 

Section 19.03       Addresses for Notices, Etc.  Any notice or demand that by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders on the Company shall be deemed to have been sufficiently given or made, for all purposes if given or served by being deposited postage prepaid by registered or certified mail in a post office letter box addressed (until another address is filed by the Company with the Trustee) to Gannett Co., Inc., 175 Sully’s Trail, Suite 203, Pittsford, NY 14534, Attention: Chief Legal Officer.  Any notice, direction, request or demand hereunder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or served by being deposited postage prepaid by registered or certified mail in a post office letter box addressed to the Corporate Trust Office (and to the attention of a Responsible Officer of the Trustee) or sent electronically in PDF format to a Responsible Officer of the Trustee.

 

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The Trustee, by notice to the Company, may designate additional or different addresses for subsequent notices or communications.

 

Any notice or communication mailed to a Holder shall be mailed to it by first class mail, postage prepaid, at its address as it appears on the Note Register and shall be sufficiently given to it if so mailed within the time prescribed; provided, however, that notices given to Holders of Global Notes may be given through the facilities of the Depositary.

 

Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.  If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.

 

In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.

 

Section 19.04       Governing Law; Jurisdiction.  THIS INDENTURE, EACH NOTE, EACH SUBSIDIARY GUARANTEE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE AND EACH NOTE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF).

 

The Company irrevocably consents and agrees, for the benefit of the Holders from time to time of the Notes and the Trustee, that any legal action, suit or proceeding against it with respect to obligations, liabilities or any other matter arising out of or in connection with this Indenture or the Notes may be brought in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City, New York and, until amounts due and to become due in respect of the Notes have been paid, hereby irrevocably consents and submits to the non-exclusive jurisdiction of each such court in personam, generally and unconditionally with respect to any action, suit or proceeding for itself in respect of its properties, assets and revenues.

 

The Company and each Subsidiary Guarantor irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in connection with this Indenture brought in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City, New York and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

 

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Section 19.05       Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee.  Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall, if requested by the Trustee, furnish to the Trustee an Officer’s Certificate and an Opinion of Counsel stating that such action is permitted by the terms of this Indenture and that all conditions precedent provided for in this Indenture relating to such action have been satisfied.

 

Each Officer’s Certificate and Opinion of Counsel provided for, by or on behalf of the Company in this Indenture and delivered to the Trustee with respect to compliance with this Indenture (other than the Officer’s Certificates provided for in Section 13.09) shall include (a) a statement that the person signing such certificate or opinion is familiar with the requested action and this Indenture; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statement contained in such certificate is based; (c) a statement that, in the judgment of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed judgment as to whether or not such action is permitted by this Indenture and whether any conditions precedent provided for in this Indenture relating to the requested action have been satisfied; and (d) a statement as to whether or not, in the judgment of such person, such action is permitted by this Indenture and such conditions precedent have been satisfied; provided, however, that no Opinion of Counsel shall be required to be delivered in connection with (x) the original issuance of Notes on the date hereof under this Indenture and (y) the mandatory exchange of the restricted Notes to an unrestricted CUSIP pursuant to the applicable procedures of the Depositary upon becoming freely tradable by non-Affiliates of the Company under Rule 144.

 

Section 19.06       Legal Holidays.  In any case where any Interest Payment Date, Repurchase Event Repurchase Date or Maturity Date is not a Business Day, then any action to be taken on such date need not be taken on such date, but may be taken on the next succeeding Business Day with the same force and effect as if taken on such date, and no interest shall accrue in respect of the delay.

 

Section 19.07       No Security Interest Created.  Except as expressly provided in the Security Documents, nothing in this Indenture or in the Notes, expressed or implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction.

 

Section 19.08       Benefits of Indenture.  Nothing in this Indenture or in the Notes, expressed or implied, shall give to any Person, other than the Holders, the parties hereto, any Paying Agent, any Conversion Agent, any authenticating agent, any Note Registrar and their successors hereunder, any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

Section 19.09       Table of Contents, Headings, Etc.  The table of contents and the titles and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.

 

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Section 19.10       Authenticating Agent.  The Trustee may appoint an authenticating agent that shall be authorized to act on its behalf and subject to its direction in the authentication and delivery of Notes in connection with the original issuance thereof and transfers and exchanges of Notes hereunder, including under Section 2.04, Section 2.05, Section 2.06, Section 2.07, Section 10.04 and Section 14.03 as fully to all intents and purposes as though the authenticating agent had been expressly authorized by this Indenture and those Sections to authenticate and deliver Notes.  For all purposes of this Indenture, the authentication and delivery of Notes by the authenticating agent shall be deemed to be authentication and delivery of such Notes “by the Trustee” and a certificate of authentication executed on behalf of the Trustee by an authenticating agent shall be deemed to satisfy any requirement hereunder or in the Notes for the Trustee’s certificate of authentication.  Such authenticating agent shall at all times be a Person eligible to serve as trustee hereunder pursuant to Section 7.08.

 

Any corporation or other entity into which any authenticating agent may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, consolidation or conversion to which any authenticating agent shall be a party, or any corporation or other entity succeeding to the corporate trust business of any authenticating agent, shall be the successor of the authenticating agent hereunder, if such successor corporation or other entity is otherwise eligible under this Section 19.10, without the execution or filing of any paper or any further act on the part of the parties hereto or the authenticating agent or such successor corporation or other entity.

 

Any authenticating agent may at any time resign by giving written notice of resignation to the Trustee and to the Company.  The Trustee may at any time terminate the agency of any authenticating agent by giving written notice of termination to such authenticating agent and to the Company.  Upon receiving such a notice of resignation or upon such a termination, or in case at any time any authenticating agent shall cease to be eligible under this Section, the Trustee may appoint a successor authenticating agent (which may be the Trustee), shall give written notice of such appointment to the Company and shall give notice of such appointment to all Holders as the names and addresses of such Holders appear on the Note Register (or, in the case of Global Notes, pursuant to the customary procedures of the Depositary).

 

The Company agrees to pay to the authenticating agent from time to time reasonable compensation for its services although the Company may terminate the authenticating agent, if it determines such agent’s fees to be unreasonable.

 

The provisions of Section 7.02, Section 7.03, Section 7.04, Section 8.03 and this Section 19.10 shall be applicable to any authenticating agent.

 

If an authenticating agent is appointed pursuant to this Section 19.10, the Notes may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:

 

_____________________,

as Authenticating Agent, certifies that this is one of the Notes described in the within-named Indenture.

 

	By:
		Authorized Signatory

 

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Section 19.11       Execution in Counterparts.  This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.  The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes.  Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

 

Section 19.12       Severability.  In the event any provision of this Indenture or in the Notes shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired.

 

Section 19.13       Waiver of Jury Trial.  EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

Section 19.14       Force Majeure.  In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

 

Section 19.15       Calculations.  Except as otherwise provided herein, the Company shall be responsible for making all calculations called for under the Notes.  These calculations include, but are not limited to, determinations of the Last Reported Sale Prices of the Common Stock, the Daily VWAPs, the Daily Conversion Values, the Daily Settlement Amounts, accrued interest payable on the Notes and the Conversion Rate of the Notes.  The Company shall make all these calculations in good faith and, absent manifest error, the Company’s calculations shall be final and binding on Holders of Notes.  The Company shall provide a schedule of its calculations to each of the Trustee and the Conversion Agent, and each of the Trustee and Conversion Agent is entitled to rely conclusively upon the accuracy of the Company’s calculations without independent verification.  The Trustee will forward the Company’s calculations to any Holder of Notes upon the request of that Holder at the sole cost and expense of the Company.

 

Section 19.16       Tax Matters.  Notwithstanding any other provision of this Indenture, if the Company or other applicable withholding agent pays withholding taxes or backup withholding on behalf of a Holder or beneficial owner as a result of an adjustment to the Conversion Rate, the Company or other applicable withholding agent may, at its option, set off such payments against payments of cash and shares of Common Stock on a Note (or any payments on the Common Stock) of or sales proceeds received by or other funds or assets of the Holder or beneficial owner.

 

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Section 19.17       USA PATRIOT Act.  The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee.  The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.

 

[Remainder of page intentionally left blank]

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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first written above.

 

	GANNETT CO., INC.
	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

	GANNETT HOLDINGS LLC
	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to Indenture]

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	BRIDGETOWER MEDIA HOLDING COMPANY CA ALABAMA HOLDINGS, INC. CA LOUISIANA HOLDINGS, INC. CA MASSACHUSETTS HOLDINGS, INC. CA NORTH CAROLINA HOLDINGS, INC. CA SOUTH CAROLINA HOLDINGS, INC. COPLEY OHIO NEWSPAPERS, INC. DAILY JOURNAL OF COMMERCE, INC. DAILY REPORTER PUBLISHING COMPANY DB ACQUISITION, INC. DB ARKANSAS HOLDINGS, INC. DB IOWA HOLDINGS, INC. DB NORTH CAROLINA HOLDINGS, INC. DB OKLAHOMA HOLDINGS, INC. DB TENNESSEE HOLDINGS, INC. DB TEXAS HOLDINGS, INC. DB WASHINGTON HOLDINGS, INC. FINANCE AND COMMERCE, INC. GATEHOUSE MEDIA ALASKA HOLDINGS, INC. GATEHOUSE MEDIA ARKANSAS HOLDINGS, INC. GATEHOUSE MEDIA CALIFORNIA HOLDINGS, INC. GATEHOUSE MEDIA COLORADO HOLDINGS, INC. GATEHOUSE MEDIA CONNECTICUT HOLDINGS, INC. GATEHOUSE MEDIA CORNING HOLDINGS, INC. GATEHOUSE MEDIA DELAWARE HOLDINGS, INC. GATEHOUSE MEDIA DIRECTORIES HOLDINGS, INC. GATEHOUSE MEDIA FREEPORT HOLDINGS, INC. GATEHOUSE MEDIA GEORGIA HOLDINGS, INC. GATEHOUSE MEDIA ILLINOIS HOLDINGS II, INC. GATEHOUSE MEDIA ILLINOIS HOLDINGS, INC. GATEHOUSE MEDIA INDIANA HOLDINGS, INC. GATEHOUSE MEDIA IOWA HOLDINGS, INC. GATEHOUSE MEDIA KANSAS HOLDINGS II, INC. GATEHOUSE MEDIA KANSAS HOLDINGS, INC. GATEHOUSE MEDIA LANSING PRINTING, INC. GATEHOUSE MEDIA LOUISIANA HOLDINGS, INC. GATEHOUSE MEDIA MACOMB HOLDINGS, INC. GATEHOUSE MEDIA MANAGEMENT SERVICES, INC. GATEHOUSE MEDIA MARYLAND HOLDINGS, INC. GATEHOUSE MEDIA MASSACHUSETTS I, INC. GATEHOUSE MEDIA MASSACHUSETTS II, INC. GATEHOUSE MEDIA MICHIGAN HOLDINGS II, INC. GATEHOUSE MEDIA MICHIGAN HOLDINGS, INC. GATEHOUSE MEDIA MINNESOTA HOLDINGS, INC.
	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	Director

[Signature Page to Indenture]

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	GATEHOUSE MEDIA MISSOURI HOLDINGS II, INC. GATEHOUSE MEDIA MISSOURI HOLDINGS, INC. GATEHOUSE MEDIA NEBRASKA HOLDINGS, INC. GATEHOUSE MEDIA NEW YORK HOLDINGS, INC. GATEHOUSE MEDIA NORTH DAKOTA HOLDINGS, INC. GATEHOUSE MEDIA OHIO HOLDINGS II, INC. GATEHOUSE MEDIA OHIO HOLDINGS, INC. GATEHOUSE MEDIA OKLAHOMA HOLDINGS, INC. GATEHOUSE MEDIA OREGON HOLDINGS, INC. GATEHOUSE MEDIA PENNSYLVANIA HOLDINGS, INC. GATEHOUSE MEDIA SOUTH DAKOTA HOLDINGS, INC. GATEHOUSE MEDIA SUBURBAN NEWSPAPERS, INC. GATEHOUSE MEDIA TENNESSEE HOLDINGS, INC. GATEHOUSE MEDIA TEXAS HOLDINGS II, INC. GATEHOUSE MEDIA TEXAS HOLDINGS, INC. GATEHOUSE MEDIA VIRGINIA HOLDINGS, INC. LMG MAINE HOLDINGS, INC. LMG MASSACHUSETTS, INC. LMG NATIONAL PUBLISHING, INC. LMG RHODE ISLAND HOLDINGS, INC. LMG STOCKTON, INC. LOCAL MEDIA GROUP HOLDINGS LLC LOCAL MEDIA GROUP, INC. MINERAL DAILY NEWS TRIBUNE, INC. NEWS LEADER, INC. SEACOAST NEWSPAPERS, INC. SUREWEST DIRECTORIES TERRY NEWSPAPERS, INC. LMG NANTUCKET, INC. THE MAIL TRIBUNE, INC. THE NICKEL OF MEDFORD, INC. THE PEORIA JOURNAL STAR, INC. THRIVEHIVE, INC. UPCURVE, INC. W-SYSTEMS CORP.
	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	Director

[Signature Page to Indenture]

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	ARIZONA NEWS SERVICE, LLC
		By: Dolco Acquisition, LLC, as its Manager By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	Chief Executive Officer

	BRIDGETOWER MEDIA DLN, LLC
		By: Dolco Acquisition, LLC, as its Manager By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	BRIDGETOWER MEDIA, LLC
		By: Dolco Acquisition, LLC, as its Sole Member By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	CA FLORIDA HOLDINGS, LLC
		By: Cummings Acquisition, LLC, as its Sole Member By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Membe

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to Indenture]

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	CUMMINGS ACQUISITION, LLC
		By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	CYBERINK, LLC
		By: GateHouse Media Pennsylvania Holdings, Inc., as its Sole Member
	DOLCO ACQUISITION, LLC
		By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	ENHE ACQUISITION, LLC
		By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	ENTERPRISE NEWSMEDIA HOLDING, LLC
		By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	ENTERPRISE NEWSMEDIA, LLC
		By: Enterprise NewsMedia Holding, LLC, as its Sole Member By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	ENTERPRISE PUBLISHING COMPANY, LLC
		By: Enterprise NewsMedia, LLC, as its Sole Member By: Enterprise NewsMedia Holding, LLC, as its Sole Member By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	GANNETT VENTURES LLC
		By: New Media Ventures Group LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to Indenture]

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	GATEHOUSE MEDIA HOLDCO, LLC
		By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	GATEHOUSE MEDIA INTERMEDIATE HOLDCO, LLC
		By: GateHouse Media, LLC, as its Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	GATEHOUSE MEDIA OPERATING, LLC
		By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	GATEHOUSE MEDIA, LLC
		By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	GEORGE W. PRESCOTT PUBLISHING COMPANY, LLC
		By: Enterprise NewsMedia, LLC, as its Sole Member By: Enterprise NewsMedia Holding, LLC, as its Sole Member By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	IDAHO BUSINESS REVIEW, LLC
		By: Dolco Acquisition, LLC, as its Manager By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	LAWYER’S WEEKLY, LLC
		By: Dolco Acquisition, LLC, as its Manager By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to Indenture]

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	LIBERTY SMC, L.L.C.
		By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	LONG ISLAND BUSINESS NEWS, LLC
		By: Dolco Acquisition, LLC, as its Manager By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	LOW REALTY, LLC
		By: Enterprise NewsMedia, LLC, as its Sole Member By: Enterprise NewsMedia Holding, LLC, as its Sole Member By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	LRT FOUR HUNDRED, LLC
		By: Enterprise NewsMedia, LLC, as its Sole Member By: Enterprise NewsMedia Holding, LLC, as its Sole Member By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	MISSOURI LAWYERS MEDIA, LLC
		By: Dolco Acquisition, LLC, as its Manager By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	NEW MEDIA HOLDINGS I LLC
		By: Gannett Media Corp., as its Sole Member
	NEW MEDIA HOLDINGS II LLC
		By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to Indenture]

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	NEW MEDIA VENTURES GROUP LLC
		By: Gannett Media Corp., as its Sole Member
	NEW ORLEANS PUBLISHING GROUP, L.L.C.
		By: Dolco Acquisition, LLC, as its Manager By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	NOPG, L.L.C.
		By: New Orleans Publishing Group, L.L.C., as its Sole Member By: Dolco Acquisition, LLC, as its Manager By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	THE DAILY RECORD COMPANY, LLC
		By: Dolco Acquisition, LLC, as its Manager By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	THE JOURNAL RECORD PUBLISHING CO., LLC
		By: Dolco Acquisition, LLC, as its Manager By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to Indenture]

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	THE NWS COMPANY, LLC
		By: Dolco Acquisition, LLC, as its Manager By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	UPCURVE CLOUD LLC
		By: UpCurve, Inc., as its Sole Member
	VENTURES ENDURANCE, LLC
		By: Gannett Ventures LLC, as its Sole Member By: New Media Ventures Group LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	VENTURES ENDURANCE EVENTS, LLC
		By: Ventures Endurance, LLC, as its Sole Member By: Gannett Ventures LLC, as its Sole Member By: New Media Ventures Group LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to Indenture]

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ACTION ADVERTISING, INC. ALEXANDRIA NEWSPAPERS, INC. BAXTER COUNTY NEWSPAPERS, INC. BIZZY, INC. BOAT SPINCO, INC. CITIZEN PUBLISHING COMPANY DES MOINES REGISTER AND TRIBUNE COMPANY DESK SPINCO, INC. DETROIT FREE PRESS, INC. DIGICOL, INC. EVANSVILLE COURIER COMPANY, INC. FEDERATED PUBLICATIONS, INC. GANNETT GP MEDIA, INC. GANNETT INTERNATIONAL COMMUNICATIONS, INC. GANNETT MEDIA CORP. GANNETT MHC MEDIA, INC. GANNETT MISSOURI PUBLISHING, INC. GANNETT RETAIL ADVERTISING GROUP, INC. GANNETT RIVER STATES PUBLISHING CORPORATION GANNETT SB, INC. GANNETT SUPPLY CORPORATION GANNETT VERMONT PUBLISHING, INC. JOURNAL COMMUNITY PUBLISHING GROUP, INC. JOURNAL MEDIA GROUP, INC. JOURNAL SENTINEL INC. KICKSERV, LLC MEMPHIS PUBLISHING COMPANY MULTIMEDIA, INC. PHOENIX NEWSPAPERS, INC. PRESS-CITIZEN COMPANY, INC. REACHLOCAL CANADA, INC. REACHLOCAL DP, INC. REACHLOCAL INTERNATIONAL, INC. REACHLOCAL, INC. RENO NEWSPAPERS, INC. SEDONA PUBLISHING COMPANY, INC. THE ADVERTISER COMPANY THE COURIER-JOURNAL, INC. THE DESERT SUN PUBLISHING CO. THE TIMES HERALD COMPANY WORDSTREAM, INC. X.COM, INC.

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	Director

[Signature Page to Indenture]

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	GANNETT INTERNATIONAL FINANCE LLC
		By:	/s/ Michael E. Reed
		Name:  Michael E. Reed
		Title:  Manager
		By:	/s/ Douglas E. Horne
		Name:  Douglas E. Horne
		Title:  Manager
		By:	/s/ Polly Grunfeld Sack
		Name:  Polly Grunfeld Sack
		Title:  Manager

[Signature Page to Indenture]

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	AMERICAN INFLUENCER AWARDS, LLC
		By: Gannett Ventures LLC, as its Sole Member
	ENMOTIVE COMPANY LLC
		By: Gannett Ventures LLC, as its Sole Member
	GIDDYUP EVENTS, LLC
		By: Ventures Endurance, LLC, as its Sole Member
	LOCO SPORTS, LLC
		By: Ventures Endurance, LLC, as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	Chief Executive Officer

[Signature Page to Indenture]

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	DEALON, LLC
		By: ReachLocal, Inc., as its Sole Member
	DES MOINES PRESS CITIZEN LLC
		By: Des Moines Register and Tribune Company, as its Sole Member
	FOODBLOGS, LLC
		By: Grateful Media, LLC, as its Sole Member By: Gannett Satellite Information Network, LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	GANNETT PUBLISHING SERVICES, LLC
		By: Gannett Satellite Information Network, LLC, as its Managing Member By: Gannett Media Corp., as its Sole Member
	GANNETT SATELLITE INFORMATION NETWORK, LLC
		By: Gannett Media Corp., as its Sole Member
	GANNETT UK MEDIA, LLC
		By: Gannett Media Corp., as its Sole Member
	GCCC, LLC
		By: Gannett Missouri Publishing, Inc., as its Sole Member
	GCOE, LLC
		By: Gannett Satellite Information Network, LLC, as its Managing Member By: Gannett Media Corp., as its Sole Member
	GFHC, LLC
		By: Gannett Media Corp., as its Sole Member
	GNSS LLC
		By: Gannett Media Corp., as its Sole Member
	GRATEFUL MEDIA, LLC
		By: Gannett Satellite Information Network, LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	IMAGN CONTENT SERVICES, LLC
		By: USA Today Sports Media Group, LLC, as its Sole Member By: Gannett Satellite Information Network, LLC, as its Managing Member By: Gannett Media Corp., as its Sole Member
	LOCALIQ LLC
		By: Gannett Media Corp., as its Sole Member
	MILWAUKEE MARATHON LLC
		By: Ventures Endurance Events, LLC, as Member and Majority In Interest

	/s/ Michael E. Reed
	Name:	Michael E. Reed
	Title:	President and Chief Executive Officer

[Signature Page to Indenture]

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	REACHLOCAL INTERNATIONAL GP LLC
		By: ReachLocal International, Inc., as its Sole Member
	SCRIPPS NP OPERATING, LLC
		By: Desk Spinco, Inc., as its Sole Member
	THANKSGIVING VENTURES, LLC
		By: Grateful Media, LLC, as its Sole Member By: Gannett Satellite Information Network, LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	USA TODAY SPORTS MEDIA GROUP, LLC
		By: Gannett Satellite Information Network, LLC, as its Managing Member By: Gannett Media Corp., as its Sole Member
	YORK DAILY RECORD-YORK SUNDAY NEWS LLC
		By: York Newspaper Company, as its Manager
			By: York Newspaper Holdings, L.P., as its General Partner By: York Partnership Holdings, LLC, as its General Partner By: Texas-New Mexico Newspapers, LLC, as its Managing Member By: The Sun Company of San Bernardino, California LLC, as its Managing Member By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member
		By: York Partnership Holdings, LLC, as its General Partner
			By: Texas-New Mexico Newspapers, LLC, as its Managing Member By: The Sun Company of San Bernardino, California LLC, as its Managing Member By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to Indenture]

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	YORK DISPATCH LLC
		By: York Newspaper Company, as its Manager
			By: York Newspaper Holdings, L.P., as its General Partner By: York Partnership Holdings, LLC, as its General Partner By: Texas-New Mexico Newspapers, LLC, as its Managing Member By: The Sun Company of San Bernardino, California LLC, as its Managing Member By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member
		By: York Partnership Holdings, LLC, as its General Partner
			By: Texas-New Mexico Newspapers, LLC, as its Managing Member By: The Sun Company of San Bernardino, California LLC, as its Managing Member By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to Indenture]

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	YORK NEWSPAPER COMPANY
		By: York Newspaper Holdings, L.P., as its General Partner
			By: York Partnership Holdings, LLC, as its General Partner By: York Newspaper Holdings, L.P., as its General Partner By: Texas-New Mexico Newspapers, LLC, as its Managing Member By: The Sun Company of San Bernardino, California LLC, as its Managing Member By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member
		By: York Partnership Holdings, LLC, as its General Partner
			By: Texas-New Mexico Newspapers, LLC, as its Managing Member By: The Sun Company of San Bernardino, California LLC, as its Managing Member By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to Indenture]

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	YORK NEWSPAPERS HOLDINGS, L.P.
		By: York Partnership Holdings, LLC, as its General Partner By: Texas-New Mexico Newspapers, LLC, as its Managing Member By: The Sun Company of San Bernardino, California LLC, as its Managing Member By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc., as its Member
	YORK NEWSPAPERS HOLDINGS, LLC
		By: York Newspaper Holdings, L.P., as its Sole Member By: York Partnership Holdings, LLC, as its General Partner By: Texas-New Mexico Newspapers, LLC, as its Managing Member By: The Sun Company of San Bernardino, California LLC, as its Managing Member By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member
	YORK PARTNERSHIP HOLDINGS, LLC
		By: Texas-New Mexico Newspapers, LLC, as its Managing Member By: The Sun Company of San Bernardino, California LLC, as its Managing Member By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to Indenture]

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	DESERT SUN PUBLISHING, LLC
		By: Gannett Media Services, LLC, as its Sole Member By: Gannett Co., Inc., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member
	GANNETT MEDIA SERVICES, LLC
		By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member
	SALINAS NEWSPAPERS LLC
		By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member
	TEXAS-NEW MEXICO NEWSPAPERS, LLC
		By: The Sun Company of San Bernardino, California LLC, as its Member By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member
	THE SUN COMPANY OF SAN BERNARDINO, CALIFORNIA LLC
		By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc., as its Member
	VISALIA NEWSPAPERS LLC
		By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc., as its Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Signature Page to Indenture]

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	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
	By:	/s/ William Sicking
		Name:	William Sicking
		Title:	Vice President

[Signature Page to Indenture]

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EXHIBIT A

 

[FORM OF FACE OF NOTE]

 

[INCLUDE FOLLOWING LEGEND IF A GLOBAL NOTE]

 

[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREUNDER IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]

 

[INCLUDE FOLLOWING LEGEND IF A RESTRICTED SECURITY]

 

[THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. THIS SECURITY WAS INITIALLY OFFERED AND SOLD BY THE COMPANY PURSUANT TO AN EXCHANGE AGREEMENT IN A PRIVATE PLACEMENT PURSUANT TO SECTION 4(A)(2) OF THE SECURITIES ACT TO CERTAIN INVESTORS (THE “INITIAL HOLDERS”). BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER AGREES FOR THE BENEFIT OF GANNETT CO., INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:

 

(A)          TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR

 

(B)          PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR

 

(C)          TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3), (7), (9) OR (12) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER SUCH INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR

 

A-1

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(D)          PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.  NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

EXCEPT AS OTHERWISE EXPRESSLY CONTEMPLATED IN THE INDENTURE, THE TERMS OF THIS SECURITY ARE SUBJECT TO THE TERMS OF (A) THE FIRST LIEN/SECOND LIEN INTERCREDITOR AGREEMENT, DATED AS OF OCTOBER 15, 2024, BY AND APOLLO ADMINISTRATIVE AGENCY, LLC, AS CREDIT AGREEMENT ADMINISTRATIVE AGENT AND COLLATERAL AGENT, ALTER DOMUS PRODUCTS CORP., AS SECOND-LIEN NOTES COLLATERAL AGENT AND U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, AS FIRST-LIEN NOTES TRUSTEE, FIRST-LIEN NOTES COLLATERAL AGENT AND SECOND-LIEN NOTES TRUSTEE AND (B) THE FIRST LIEN/SECOND LIEN INTERCREDITOR AGREEMENT, DATED AS OF OCTOBER 15, 2021, AMONG APOLLO ADMINISTRATIVE AGENCY, LLC, AS CREDIT AGREEMENT ADMINISTRATIVE AGENT AND COLLATERAL AGENT, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, AS FIRST-LIEN NOTES TRUSTEE AND COLLATERAL AGENT AND SECOND-LIEN NOTES TRUSTEE AND ALTER DOMUS PRODUCTS CORP., AS SECOND-LIEN NOTES COLLATERAL AGENT.

A-2

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Gannett Co., Inc.

 

6.000% Convertible Senior Secured Note due 2031

 

No. [________]

[Initially]2 $[_______]

CUSIP No. [_____________]

 

Gannett Co., Inc., a corporation duly organized and validly existing under the laws of the State of Delaware (the “Company,” which term includes any successor corporation or other entity under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to [CEDE & CO.]³ [________________]⁴, or registered assigns, the principal sum [as set forth in the “Schedule of Exchanges of Notes” attached hereto]⁵ [of $[_______________]]⁶, which amount, taken together with the principal amounts of all other outstanding Notes, shall not, unless permitted by the Indenture, exceed $223,723,868 in aggregate at any time, in accordance with the rules and procedures of the Depositary, on December 1, 2031, and interest thereon as set forth below.

 

This Note shall bear interest at the rate of 6.000% per year from October 15, 2024, or from the most recent date to which interest had been paid or provided for to, but excluding, the next scheduled Interest Payment Date until, and including, December 1, 2031.  Interest is payable semi-annually in arrears on each June 1 and December 1, commencing on December 1, 2024, to Holders of record at the close of business on the preceding May 15 and November 15 (whether or not such day is a Business Day), respectively.

 

Any Defaulted Amounts shall accrue interest per annum at the rate borne by the Notes, subject to the enforceability thereof under applicable law, from, and including, the relevant payment date to, but excluding, the date on which such Defaulted Amounts shall have been paid by the Company, at its election, in accordance with Section 2.03(c) of the Indenture.

 

The Company shall pay the principal of and interest on this Note, if and so long as such Note is a Global Note, in immediately available funds to the Depositary or its nominee, as the case may be, as the registered Holder of such Note.  As provided in and subject to the provisions of the Indenture, the Company shall pay the principal of any Notes (other than Notes that are Global Notes) at the office or agency designated by the Company for that purpose.  The Company has initially designated the Trustee as its Paying Agent and Note Registrar in respect of the Notes and its agency in the Borough of Manhattan, The City of New York, as a place where Notes may be presented for payment or for registration of transfer and exchange.

 

Reference is made to the further provisions of this Note set forth on the reverse hereof, including, without limitation, provisions giving the Holder of this Note the right to convert this Note into cash, shares of Common Stock or a combination of cash and shares of Common Stock, at the Company’s election, on the terms and subject to the limitations set forth in the Indenture.  Such further provisions shall for all purposes have the same effect as though fully set forth at this place.

 

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2	Include if a global note.

3	Include if a global note.

4	Include if a physical note.

5	Include if a global note.

6	Include if a physical note.

A-3

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This Note, and any claim, controversy or dispute arising under or related to this Note, shall be construed in accordance with and governed by the laws of the State of New York (without regard to the conflicts of laws provisions thereof).

 

In the case of any conflict between this Note and the Indenture, the provisions of the Indenture shall control and govern.

 

This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed manually or by facsimile by the Trustee or a duly authorized authenticating agent under the Indenture.

 

[Remainder of page intentionally left blank]

 

A-4

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IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.

 

	GANNETT CO., INC.
	By:
		Name:
		Title:

Dated:  [______________]

 

A-5

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TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION as Trustee, certifies that this is one of the Notes described in the within named Indenture.

 

By:

Authorized Signatory

 

Dated:  [______________]

 

A-6

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[FORM OF REVERSE OF NOTE]

 

Gannett Co., Inc.

 

6.000% Convertible Senior Secured Note due 2031

 

This Note is one of a duly authorized issue of Notes of the Company, designated as its 6.000% Convertible Senior Secured Notes due 2031 (the “Notes”), initially limited to the aggregate principal amount of $223,723,868 all issued or to be issued under and pursuant to an Indenture dated as of October 15, 2024 (the “Indenture”), among the Company, the Subsidiary Guarantors party thereto and U.S. Bank Trust Company, National Association (the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Notes.  Additional Notes may be issued in an unlimited aggregate principal amount, subject to certain conditions specified in the Indenture.  Capitalized terms used in this Note and not defined in this Note shall have the respective meanings set forth in the Indenture.

 

In case certain Events of Default shall have occurred and be continuing, the principal of, and interest on, all Notes may be declared, by either the Trustee or Holders of at least 25% in aggregate principal amount of Notes then outstanding, and upon said declaration shall become, due and payable, in the manner, with the effect and subject to the conditions and certain exceptions set forth in the Indenture.

 

Subject to the terms and conditions of the Indenture, the Company will make all payments and deliveries in respect of the Repurchase Event Repurchase Price on the Repurchase Event Repurchase Date and the principal amount on the Maturity Date, as the case may be, to the Holder who surrenders a Note to a Paying Agent to collect such payments in respect of the Note.  The Company will pay cash amounts in money of the United States that at the time of payment is legal tender for payment of public and private debts.

 

To guarantee the due and punctual payment of the principal and interest on the Notes and all other amounts payable by the Company under the Indenture and the Notes when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Subsidiary Guarantors have unconditionally guaranteed the Guaranteed Obligations pursuant to the terms of the Indenture and any Subsidiary Guarantor that executes a Subsidiary Guarantee will unconditionally guarantee the Guaranteed Obligations on a senior secured basis, pursuant to the terms of the Indenture.

 

The Indenture contains provisions permitting the Company and the Trustee in certain circumstances, without the consent of the Holders of the Notes, and in certain other circumstances, with the consent of the Holders of not less than either a majority in aggregate principal amount or 66.67%, as applicable, of the Notes at the time outstanding, evidenced as in the Indenture provided, to execute supplemental indentures modifying the terms of the Indenture and the Notes as described therein.  It is also provided in the Indenture that, subject to certain exceptions, the Holders of either a majority or 66.67%, as applicable, in aggregate principal amount of the Notes at the time outstanding may on behalf of the Holders of all of the Notes waive any Default or Event of Default under the Indenture and its consequences Except as expressly provided by in the Indenture, the Security Documents or the Intercreditor Agreements, without the consent of the Holders of at least 90% in an aggregate principal amount of the Notes then outstanding, no amendment or waiver may release all or substantially all of the Collateral from the Lien of the Indenture and the Security Documents with respect to the Notes.

 

A-7

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No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay or deliver, as the case may be, the principal (including the Redemption Price and the Repurchase Event Repurchase Price, if applicable) of, accrued and unpaid interest on, and the consideration due upon conversion of, this Note at the place, at the respective times, at the rate and in the lawful money or shares of Common Stock, as the case may be, herein prescribed.

 

The Notes are issuable in registered form without coupons in denominations of $1 principal amount and integral multiples thereof.  At the office or agency of the Company referred to on the face hereof, and in the manner and subject to the limitations provided in the Indenture, Notes may be exchanged for a like aggregate principal amount of Notes of other authorized denominations, without payment of any service charge but, if required by the Company or Trustee, with payment of a sum sufficient to cover any transfer or similar tax that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such exchange of Notes being different from the name of the Holder of the old Notes surrendered for such exchange.

 

An aggregate principal amount of the Notes up to the Redemption Amount shall be redeemable at the Company’s option prior to December 1, 2030 (or December 1, 2028, if the 2024 Term Loan is refinanced or amended so as to permit the redemption of the Notes in an amount equal to or greater than the Redemption Amount) in accordance with the terms and subject to the conditions specified in the Indenture.

 

Upon the occurrence of a Repurchase Event, the Holder has the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes or any portion thereof (in principal amounts of $1 or integral multiples thereof) on the Repurchase Event Repurchase Date at a price equal to the applicable Repurchase Event Repurchase Price.

 

Subject to the provisions of the Indenture, the Holder hereof has the right, at its option, prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, to convert any Notes or portion thereof that is $1 or an integral multiple thereof, into cash, shares of Common Stock or a combination of cash and shares of Common Stock, at the Company’s election, at the Conversion Rate specified in the Indenture, as adjusted from time to time as provided in the Indenture.

 

A-8

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ABBREVIATIONS

 

The following abbreviations, when used in the inscription of the face of this Note, shall be construed as though they were written out in full according to applicable laws or regulations:

 

TEN COM  =  as tenants in common

 

UNIF GIFT MIN ACT  =  Uniform Gifts to Minors Act

 

CUST  =  Custodian

 

TEN ENT  =  as tenants by the entireties

 

JT TEN  =  joint tenants with right of survivorship and not as tenants in common

 

Additional abbreviations may also be used though not in the above list.

 

A-9

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SCHEDULE A⁷

 

SCHEDULE OF EXCHANGES OF NOTES

 

Gannett Co., Inc.

 

6.000% Convertible Senior Secured Notes due 2031

 

The initial principal amount of this Global Note is $[_________].  The following increases or decreases in this Global Note have been made:

 

	Date of exchange		Amount of decrease in principal amount of this Global Note		Amount of increase in principal amount of this Global Note		Principal amount of this Global Note following such decrease or increase		Signature of authorized signatory of Trustee or Custodian

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7	Include if a global note.

A-10

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ATTACHMENT 1

 

[FORM OF NOTICE OF CONVERSION]

 

To: U.S. Bank Trust Company, National Association

425 Walnut Street, 6th Floor

Mail Drop CN-OH-W6CT

Cincinnati, Ohio 45202

Attention: Corporate Trust Services—Administrator for Gannett Co., Inc.

The undersigned registered owner of this Note hereby exercises the option to convert this Note, or the portion hereof (that is $1 principal amount or an integral multiple thereof) below designated, into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, in accordance with the terms of the Indenture referred to in this Note, and directs that any cash payable and any shares of Common Stock issuable and deliverable upon such conversion, together with any cash for any fractional share, and any Notes representing any unconverted principal amount hereof, be issued and delivered to the registered Holder hereof unless a different name has been indicated below.  If any shares of Common Stock or any portion of this Note not converted are to be issued in the name of a Person other than the undersigned, the undersigned will pay all documentary, stamp or similar issue or transfer taxes, if any in accordance with Section 13.02(d) and Section 13.02(e) of the Indenture.  Any amount required to be paid to the undersigned on account of interest accompanies this Note.  Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.

 

Dated:  [____________]
	Signature(s)

Signature Guarantee

Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if shares of Common Stock are to be issued, or Notes are to be delivered, other than to and in the name of the registered holder.

 

A-11

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Fill in for registration of shares if to be issued, and Notes if to be delivered, other than to and in the name of the registered holder:

 

	(Name)
	(Street Address)
	(City, State and Zip Code)
	Please print name and address
			Principal amount to be converted (if less than all): $_____,000
			NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.
			Social Security or Other Taxpayer Identification Number

A-12

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ATTACHMENT 2

 

[FORM OF REPURCHASE EVENT REPURCHASE NOTICE]

 

To: U.S. Bank Trust Company, National Association

425 Walnut Street, 6th Floor

Mail Drop CN-OH-W6CT

Cincinnati, Ohio 45202

Attention: Corporate Trust Services—Administrator for Gannett Co., Inc.

The undersigned registered owner of this Note hereby acknowledges receipt of a notice from Gannett Co., Inc. (the “Company”) as to the occurrence of a Repurchase Event with respect to the Company and specifying the Repurchase Event Repurchase Date and requests and instructs the Company to pay to the registered holder hereof in accordance with Section 14.01 of the Indenture referred to in this Note (1) the product of the Repurchase Event Repurchase Price multiplied by the entire principal amount of this Note, or the portion thereof (that is $1 principal amount or an integral multiple thereof) below designated, and (2) if such Repurchase Event Repurchase Date does not fall during the period after a Regular Record Date and on or prior to the corresponding Interest Payment Date, accrued and unpaid interest, if any, thereon to, but excluding, such Repurchase Event Repurchase Date.  Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.

 

In the case of Physical Notes, the certificate numbers of the Notes to be repurchased are as set forth below:

 

	Dated:  [____________]
			Signature(s)
			Social Security or Other Taxpayer Identification Number
			Principal amount to be repaid (if less than all): $_____,000
			NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.

A-13

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ATTACHMENT 3

 

[FORM OF ASSIGNMENT AND TRANSFER]

 

For value received ________________ hereby sell(s), assign(s) and transfer(s) unto ________________ (Please insert social security or Taxpayer Identification Number of assignee) the within Note, and hereby irrevocably constitutes and appoints _____________ attorney to transfer the said Note on the books of the Company, with full power of substitution in the premises.

 

In connection with any transfer of the within Note occurring prior to the Resale Restriction Termination Date, as defined in the Indenture governing such Note, the undersigned confirms that such Note is being transferred:

 

☐     To Gannett Co., Inc. or a subsidiary thereof; or

 

☐     Pursuant to a registration statement that has become or been declared effective under the Securities Act of 1933, as amended; or

 

☐     To an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3), (7), (9) or (12) under the Securities Act that is acquiring the Note for its own account or for the account of another such institutional accredited investor, in each case, for investment purposes and not with a view to or for offer or sale in connection with any distribution in violation of the Securities Act of 1933, as amended; or

 

☐     Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended, or any other available exemption from the registration requirements of the Securities Act of 1933, as amended.

 

Dated:  [______________]
Signature(s)
Signature Guarantee

Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if Notes are to be delivered, other than to and in the name of the registered holder.

 

NOTICE: The signature on the assignment must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.

A-14

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EXHIBIT B

 

[FORM OF SUPPLEMENTAL INDENTURE]

 

SUPPLEMENTAL INDENTURE

 

SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of [   ], among GANNETT CO., INC., a Delaware corporation (the “Company”), [SUBSIDIARY GUARANTOR] (the “New Subsidiary Guarantor”), a subsidiary of the Company, and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as trustee under the indenture referred to below (the “Trustee”).

 

W I T N E S S E T H :

 

WHEREAS, the Company, certain Subsidiary Guarantors and the Trustee have heretofore executed an indenture, dated as of October 15, 2024 (as amended, supplemented or otherwise modified, the “Indenture”), providing for the issuance of the Company’s 6.000% Senior Secured Notes due 2031 (the “Notes”), initially in the aggregate principal amount of $223,723,868;

 

WHEREAS, Sections 4.11(b) and 18.07 of the Indenture provide that under certain circumstances the Company is required to cause the New Subsidiary Guarantor to execute and deliver to the Trustee a supplemental indenture pursuant to which the New Subsidiary Guarantor shall unconditionally guarantee all the Company’s Obligations under the Notes and the Indenture pursuant to a Subsidiary Guarantee on the terms and conditions set forth herein; and

 

WHEREAS, pursuant to Section 10.01 of the Indenture, the Trustee and the Company is authorized to execute and deliver this Supplemental Indenture.

 

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Subsidiary Guarantor, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the holders of the Notes as follows:

 

1.          Defined Terms.  As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as therein defined, except that the term “holders” in this Supplemental Indenture shall refer to the term “holders” as defined in the Indenture and the Trustee acting on behalf of and for the benefit of such holders.  The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular Section hereof.

 

2.          Agreement to Guarantee.  The New Subsidiary Guarantor hereby agrees, jointly and severally with all existing Subsidiary Guarantors (if any), to unconditionally guarantee the Company’s Obligations under the Notes and the Indenture on the terms and subject to the conditions set forth in Article 18 of the Indenture and to be bound by all other applicable provisions of the Indenture and the Notes and to perform all of the obligations and agreements of a Subsidiary Guarantor under the Indenture.

 

B-1

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3.          Notices.  All notices or other communications to the New Subsidiary Guarantor shall be given as provided in Section 19.03 of the Indenture.

 

4.          Ratification of Indenture; Supplemental Indentures Part of Indenture.  Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.  This Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

 

5.          Governing Law.  THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

 

6.          Trustee Makes No Representation.  The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.

 

7.          Counterparts.  The parties may sign any number of copies of this Supplemental Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.

 

8.          Effect of Headings.  The Section headings herein are for convenience only and shall not affect the construction thereof.

 

[Remainder of page intentionally left blank.]

 

B-2

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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.

 

	GANNETT CO., INC.
	By:
		Name:
		Title:
	[NEW SUBSIDIARY GUARANTOR], as a Subsidiary Guarantor
	By:
		Name:
		Title:
	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
	as Trustee
	By:
		Name:
		Title:

B-3

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Schedule 1.01(C)

 

Issue Date Immaterial Subsidiaries

Guam Publications, Incorporated

Pacific Media, Inc.

BridgeTower Media, LLC

The NWS Company, LLC

BridgeTower Media DLN, LLC

Daily Journal of Commerce, Inc.

Daily Reporter Publishing Company

BridgeTower Media Holdings Company

Finance and Commerce, Inc.

Arizona News Service, LLC

Missouri Lawyers Media, LLC

Long Island Business News, LLC

New Orleans Publishing Group, L.L.C.

Lawyer’s Weekly, LLC

The Daily Record Company, LLC

The Journal Record Publishing Co., LLC

NOPG, L.L.C.

Idaho Business Review, LLC

ReachLocal New Zealand Ltd

ReachLocal Mexico S. De R.L de C.V.

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Schedule 4.12(b)

 

Existing Indebtedness

 

Legacy New Media

 

None.

Legacy Gannett

Permitted Indebtedness	Beneficiary	Issuer	Amount	Expiration Date
Lease Agreement	Customer: Gannett Co., Inc.	IBM Credit LLC	$1,998,930.65 total for (36-month term	Dated: June 14, 2023

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Schedule 4.12(e)

 

Existing Investments

 

PART I

 

Investor Entity	Investment	Investment Amount
Gannett Co., Inc.	Manage Mindfully, Inc.	$	750,000.00
New Media Ventures Group LLC	Tap On It, LLC	$	1,331,830.00
New Media Ventures Group LLC	GoCo.IO.Inc	$	2,000,000.00
New Media Ventures Group LLC	TouchCare Holdings LLC	$	558.539.00
Gannett Co., Inc.	Natural Commerce	$	3,358,873.00
Gannett Co., Inc.	Move This World	$	1,250.000.00
Gannett Co., Inc.	DraftKings Inc.	$	413,713.00

Issuer	Owner	Securities owned(1)
TNI Partners***	Citizen Publishing Company	50% Partnership Interest
Ultra Parcel Logistics, LLC	Gannett Publishing Services, LLC	50% Percentage Interest
Spirited Media, Inc.(3)	Gannett Satellite Information Network, LLC	(3)
Albuquerque Publishing Company***	Scripps NP Operating, LLC	General partnership interest

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Starline Printing Company, LLLP***	Scripps NP Operating, LLC	24% Partnership Interest
timeRAZOR, Inc. (d/b/a Gravy)	Gannett Media Corp.	1,447,072  shares of Series A Preferred Stock and 916,358 shares of Series A-1 Preferred Stock
Good Worldwide, Inc. (formerly Upworthy)	Gannett Satellite Information Network, LLC	2,291,5308 shares of common stock
Scroll Labs Inc. (f/k/a Salamanca Inc.)	Gannett Satellite Information Network, LLC	518,785 shares of Series A-2 Preferred Stock
Placester, Inc.	Gannett Satellite Information Network, LLC	[125,997]9 shares of common stock
AfterCollege, Inc.	Gannett Media Corp..	250,000 shares of Series A-2 Preferred Stock
Circle Centre Partners Limited Partnership	Gannett Satellite Information Network, LLC	*
Blue Dot Seats, LLC	Gannett Satellite Information Network, LLC	5,276.923 Class A Common Units (35% Percentage Interest)
Moonlighting, Inc.	Gannett Media Corp.	463,469 shares of common stock
Media Consortium, LLC	Gannett Supply Corporation	**
PA Group Ltd.	Newsquest Media Group Ltd	**
Reach plc	Newsquest Media Group Ltd	**
Weymouth Football Club	Newsquest Media Group Ltd	**
Digital Collection/DCV	**	**
E-Ink (PVI)	**	**
CMGI (Moduslink)	Gannett International Communications, Inc.	**
Serviz, Inc.	ReachLocal, Inc.	6,231,733 shares of Series A Preferred Stock

(1) For partnerships, limited liability companies and similar entities, the definition of and rights associated with any “partnership interest,” “percentage interest,” “ownership interest” or similar interest are set forth in the applicable partnership, limited liability company or similar agreement.  Note that for all of these entities, the economic interest of the applicable Loan Party(ies) is 50% or less.

 

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⁸ Certificate CS-30-A represents 1,947,800 shares and Certificate CS-30-B represents 343,730 shares.

⁹ Certificate CS-55 represents 41,999 shares. Company is confirming the total number of shares owned with the Issuer.

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Due to the nature of these investments, the Loan Parties can often be diluted without notice or consent, and thus an exact percentage ownership is often unknown.

 

(3) GANSAT owned 7,267,442 shares of Series Seed Preferred Stock and 2,552,199 shares of Series A Preferred Stock in Spirited Media, Inc. at the time it was dissolved on December 31, 2019. The winding up of the dissolved corporation is in process.

 

* The Loan Parties’ exact interest in these entities is unknown. In the separation of Gannett Media Corp. from TEGNA Inc., the Separation and Distribution Agreement allocated to Gannett Media Corp. a purported 3.87% interest in “Circle Centre Partners Limited”. Recent third party tax filings indicate a 4.27% interest.

 

** The exact name of these entities and the Loan Parties’ exact interest in these entities is unknown, but certain records of Gannett Media Corp. received in connection with the separation of Gannett Media Corp. from TEGNA Inc. indicate that a small interest is likely owned. All of these interests are immaterial.

*** The Loan Party owning an interest is these entities is required to make certain additional capital contributions under such entity’s the organizational documents. In addition, Detroit Free Press, Inc. is required to make certain additional capital contributions under the Detroit Partnership Agreement and the Detroit JOA.

 

PART II

 

Investments by the Loan Parties in the Restricted Subsidiaries listed on Schedule 1.01(C) existing on the Closing Date and additional Investments therein not to exceed $2,000,000 in any Fiscal Year.

 

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Schedule 4.12(k)

 

Limitations on Dividends and Other Payment Restrictions

 

None.

 

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Exhibit 4.4

 

REGISTRATION RIGHTS AGREEMENT

 

by and among

 

GANNETT CO., INC.

 

and

 

THE HOLDERS PARTY HERETO

 

Dated as of October 15, 2024

 

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TABLE OF CONTENTS

 

		PAGE
ARTICLE I DEFINITIONS		1
Section 1.1.	Definitions	1
Section 1.2.	Other Interpretive Provisions	7
ARTICLE II REGISTRATION RIGHTS		7
Section 2.1.	Demand Registration	7
Section 2.2.	Shelf Registration	9
Section 2.3.	Piggyback Registration	13
Section 2.4.	Lock-Up Agreements	15
Section 2.5.	Registration Procedures	15
Section 2.6.	Underwritten Offerings	21
Section 2.7.	No Inconsistent Agreements	22
Section 2.8.	Registration Expenses	22
Section 2.9.	Indemnification	23
Section 2.10.	Rules 144 and 144A and Regulation S	25
Section 2.11.	Existing Registration Statements	26
ARTICLE III ADDITIONAL AGREEMENTS		26
Section 3.1.	Confidentiality	26
Section 3.2.	NYSE Listing of Shares	26
Section 3.3.	Authorized Shares	26
ARTICLE IV MISCELLANEOUS		27
Section 4.1.	Authority; Effect	27
Section 4.2.	Notices	27
Section 4.3.	Termination and Effect of Termination	28
Section 4.4.	Successors and Assigns; Third Party Beneficiaries	28
Section 4.5.	Remedies	29
Section 4.6.	Amendments	29
Section 4.7.	Governing Law	29
Section 4.8.	Consent to Jurisdiction	30
Section 4.9.	WAIVER OF JURY TRIAL	30
Section 4.10.	Merger, Binding Effect, Etc	30
Section 4.11.	Counterparts	30
Section 4.12.	Severability	31
Section 4.13.	No Recourse	31

i

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REGISTRATION RIGHTS AGREEMENT, dated as of October 15, 2024 (this “Agreement”), by and among Gannett Co., Inc., a Delaware corporation (the “Company”) and the other Persons signatory hereto (each, an “Initial Holder”).

 

WHEREAS, the Company and the Holders desire to establish in this Agreement certain terms and conditions concerning the 6.000% Senior Secured Convertible Notes due 2031 (the “Notes”) and the Common Stock of the Company into which such Notes are convertible, and it is a condition of the closing of the transactions contemplated by the Exchange Agreement (as defined below) and the Purchase Agreement (as defined below) that the Company execute and deliver this Agreement for the benefit of the Holders.

 

NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained in this Agreement, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows:

 

ARTICLE I

 

DEFINITIONS

 

Section 1.1.       Definitions. As used in this Agreement, the following terms shall have the following meanings:

 

“2019 Registration Rights Agreement” means the Registration Rights Agreement by and among the Company and certain stockholders, dated as of November 19, 2019, as amended from time to time.

 

“2019 Registration Rights Holder” means a holder of registration rights pursuant to the 2019 Registration Rights Agreement.

 

“Adverse Disclosure” means public disclosure of material non-public information that, in the good faith judgment of the Board, after consultation with outside counsel to the Company: (i) would be required to be made in any Registration Statement filed with the SEC by the Company so that such Registration Statement, from and after its effective date, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) would not be required to be made at such time but for the filing, effectiveness or continued use of such Registration Statement; and (iii) the Company has a bona fide business purpose for not disclosing publicly.

 

“Affiliate” means, with respect to any specified Person, (a) any Person that directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person or (b) in the event that the specified Person is a natural Person, a Member of the Immediate Family of such Person; provided, that (i) the Company and each of its subsidiaries shall be deemed not to be Affiliates of any Holder and (ii) “portfolio companies” (as such term is customarily used among institutional investors) in which any Holder or any of its Affiliates has an investment (whether as debt or equity) shall not be deemed an Affiliate of such Holder. As used in this definition, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.

 

1

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“Agreement” has the meaning set forth in the preamble.

 

Any Person shall be deemed to “beneficially own”, to have “beneficial ownership” of, or to be “beneficially owning” any securities (which securities shall also be deemed “beneficially owned” by such Person) that such Person is deemed to “beneficially own” within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act; provided that any Person shall be deemed to beneficially own any securities that such Person has the right to acquire, whether or not such right is exercisable immediately.

 

“Board” means the Board of Directors of the Company.

 

“Business Day” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by law to be closed in the City of New York, and on which the SEC is open for business.

 

“Code” means the United States Internal Revenue Code of 1986, as amended.

 

“Common Stock” means the common stock, par value $0.01 per share, of the Company.

 

“Company” has the meaning set forth in the preamble.

 

“Contract” means any loan or credit agreement, indenture, debenture, note, bond, mortgage, deed of trust, lease, sublease, license, contract or other agreement.

 

“Demand Notice” has the meaning set forth in Section 2.1.3.

 

“Demand Registration” has the meaning set forth in Section 2.1.1(a).

 

“Demand Registration Request” has the meaning set forth in Section 2.1.1(a).

 

“Demand Registration Statement” has the meaning set forth in Section 2.1.1(c).

 

“Demand Suspension” has the meaning set forth in Section 2.1.6.

 

“Demanding Holder” means a Holder that exercises its right to include its Registrable Securities in a Demand Registration pursuant to Section 2.1.1 or Section 2.1.3.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

“Exchange Agreement” means the Exchange Agreement, dated as of October 3, 2024, by and among the Company and certain of the Initial Holders, as amended by the First Amendment to the Exchange Agreement, dated as of October 15, 2024.

 

“Existing Holder” means (i) a holder of registration rights pursuant to the Existing Investor Agreement or (ii) a 2019 Registration Rights Holder.

 

2

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“Existing Investor Agreement” means the Investor Agreement by and among the Company and the investors party thereto, dated as of November 17, 2020, as amended from time to time.

 

“Governmental Authority” means any government, court, regulatory or administrative agency, commission, arbitrator or authority or other legislative, executive or judicial governmental official or entity (in each case including any self-regulatory organization), whether federal, state or local, domestic, foreign or multinational.

 

“Hedge” means to make any short sale of, grant any option for the purchase of, or enter into any hedging or similar transaction with the same economic effect as a short sale of or the purpose of which is to offset the loss which results from a decline in the market price of, the Notes or shares of Common Stock, or otherwise establish or increase, directly or indirectly, a put equivalent position, as defined in Rule 16a-1(h) under the Exchange Act, with respect to the Notes or the Common Stock or any other capital stock of the Company.

 

“Holder” means a holder of Notes.

 

“Indenture” means the Indenture governing the 6.000% Senior Secured Convertible Notes due 2031, dated as October 15, 2024, among the Company, as issuer, the subsidiary guarantors named therein and U.S. Bank Trust Company, National Association, as trustee.

 

“Initial Holder” has the meaning set forth in the preamble.

 

“IRS” has the meaning set forth in Section 3.4(a).

 

“Issuer Free Writing Prospectus” means an issuer free writing prospectus, as defined in Rule 433 under the Securities Act, relating to an offer of the Registrable Securities.

 

“Issuer Shares” means the shares of Common Stock or other equity securities of the Company, and any securities into which such shares of Common Stock or other equity securities shall have been changed or any securities resulting from any reclassification or recapitalization of such shares of Common Stock or other equity securities.

 

“Loss” has the meaning set forth in Section 2.9.1.

 

“Member of the Immediate Family” means, with respect to any Person who is a natural person, (a) each parent, spouse (but not including a former spouse or a spouse from whom such Person is legally separated) or child (including those adopted) of such individual and (b) each trustee, solely in his or her capacity as trustee, for a trust naming only one or more of the Persons listed in sub-clause (a) as beneficiaries.

 

“Note Register” has the meaning assigned to such term in the Indenture.

 

“Notes” has the meaning set forth in the recitals.

 

“NYSE” means the New York Stock Exchange.

 

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“Other Demanding Holder” has the meaning set forth in Section 2.3.2(c).

 

“Participation Conditions” has the meaning set forth in Section 2.2.5(b).

 

“Person” means any individual, partnership, corporation, company, association, trust, joint venture, limited liability company, unincorporated organization, entity or division, or any government, governmental department or agency or political subdivision thereof.

 

“Piggyback Notice” has the meaning set forth in Section 2.3.1.

 

“Piggyback Pro Rata Portion” means, with respect to each Holder and Existing Holder requesting that its shares be registered pursuant to a Demand Registration or sold in a Public Offering, a number of such shares equal to the aggregate number of Registrable Securities and other securities of the same class of the Company to be registered in such Demand Registration or sold in such Public Offering (excluding any shares to be registered or sold for the account of the Company, a Demanding Holder or an Other Demanding Holder, to the extent they have priority over other Holders and Existing Holders in a Piggyback Registration) multiplied by a fraction, the numerator of which is the aggregate number of Registrable Securities held by such Holder or other securities of the same class of the Company held by such Existing Holder, as applicable, and the denominator of which is the aggregate number of Registrable Securities held by all Holders and other securities of the same class of the Company held by all Existing Holders requesting that their Registrable Securities and other securities of the same class of the Company, as applicable, be registered in such Demand Registration or sold in such Public Offering.

 

“Piggyback Registration” has the meaning set forth in Section 2.3.1.

 

“Potential Takedown Participant” has the meaning set forth in Section 2.2.5(b).

 

“Pro Rata Portion” means, with respect to each Holder requesting that its shares be registered pursuant to a Demand Registration or sold in a Public Offering, a number of such shares equal to the aggregate number of Registrable Securities to be registered in such Demand Registration or sold in such Public Offering (excluding any shares to be registered or sold for the account of the Company) multiplied by a fraction, the numerator of which is the aggregate number of Registrable Securities held by such Holder, and the denominator of which is the aggregate number of Registrable Securities held by all Holders requesting that their Registrable Securities be registered in such Demand Registration or sold in such Public Offering.

 

“Prospectus” means (i) the prospectus included in any Registration Statement, all amendments and supplements to such prospectus, including post-effective amendments, and all other material incorporated by reference in such prospectus, and (ii) any Issuer Free Writing Prospectus.

 

“Public Offering” means the offer and sale of Registrable Securities for cash pursuant to an effective Registration Statement under the Securities Act (other than a Registration Statement on Form S-4 or Form S-8 or any successor form).

 

“Purchase Agreement” means the Purchase Agreement, dated as of October 15, 2024, by and among the Company and certain of the Initial Holders.

 

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“Registrable Securities” means (i) all shares of Common Stock issued to the Holder upon conversion of the Notes and (ii) all shares of Common Stock directly or indirectly issued with respect to the securities referred to in clause (i) above by way of stock dividend or stock split, or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when (w) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been disposed of in accordance with such Registration Statement, (x) such securities shall have been Transferred to the public pursuant to Rule 144, (y) the aggregate number of such securities held by the applicable Holder and its Affiliates is less than the number that would subject the distribution of such securities to any volume limitation or other restrictions on transfer under Rule 144 (to the extent applicable to the Holder or its Affiliates) and such Holder is (or would be upon conversion of the Notes) able to immediately distribute such securities publicly without any restrictions on transfer, or (z) such securities shall have ceased to be outstanding.

 

“Registration” means registration under the Securities Act of the offer and sale to the public of any Issuer Shares under a Registration Statement. The terms “register”, “registered” and “registering” shall have correlative meanings.

 

“Registration Expenses” has the meaning set forth in Section 2.8.

 

“Registration Statement” means any registration statement of the Company filed with, or to be filed with, the SEC under the Securities Act, including the related Prospectus, amendments and supplements to such registration statement, including pre- and post-effective amendments, and all exhibits and all material incorporated by reference in such registration statement other than a registration statement (and related Prospectus) filed on Form S-4 or Form S-8 or any successor form thereto.

 

“Representatives” means, with respect to any Person, any of such Person’s Affiliates and such Person’s and its Affiliates’ respective officers, directors, employees, agents, attorneys, accountants, actuaries, consultants, equity financing partners or financial advisors or other Person associated with, or acting on behalf of, such Person.

 

“Rule 144” means Rule 144 under the Securities Act (or any successor rule).

 

“SEC” means the Securities and Exchange Commission.

 

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

“Shelf Period” has the meaning set forth in Section 2.2.3.

 

“Shelf Registration” has the meaning set forth in Section 2.2.1(a).

 

“Shelf Registration Notice” has the meaning set forth in Section 2.2.2.

 

“Shelf Registration Request” has the meaning set forth in Section 2.2.1(a).

 

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“Shelf Registration Statement” has the meaning set forth in Section 2.2.1(a).

 

“Shelf Suspension” has the meaning set forth in Section 2.2.4.

 

“Shelf Takedown Notice” has the meaning set forth in Section 2.2.5(b).

 

“Shelf Takedown Notice Delivery Time” has the meaning set forth in Section 2.2.5(b).

 

“Shelf Takedown Request” has the meaning set forth in Section 2.2.5(a).

 

“Subsidiary” means with respect to any entity, (i) any corporation of which a majority of the securities entitled to vote generally in the election of directors thereof, at the time as of which any determination is being made, are owned by such entity, either directly or indirectly, and (ii) any joint venture, general or limited partnership, limited liability company or other legal entity in which such entity is the record or beneficial owner, directly or indirectly, of a majority of the voting interests or the general partner.

 

“Suspension Notice” has the meaning set forth in Section 2.2.4.

 

“Tax” or “Taxes” mean all taxes, imposts, levies, duties, deductions, withholdings (including backup withholding), assessments, fees or other like assessments or charges, in each case in the nature of a tax, imposed by a Governmental Authority, together with all interest, penalties and additions imposed with respect to such amounts.

 

“Transfer” means, directly or indirectly, to sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, or to enter into any Contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of, any securities beneficially owned by a Person or any interest in any securities beneficially owned by a Person, and “Transferee” shall have correlative meanings; provided, however, that, notwithstanding anything to the contrary in this Agreement, a Transfer shall not include (i) the conversion of Notes into shares of Common Stock pursuant to the Indenture, (ii) the redemption or other acquisition of Notes or Common Stock by the Company, (iii) the direct or indirect transfer of any limited partnership interests or other equity interests in a Holder (or any direct or indirect parent entity of such Holder) or (iv) any Hedge. In the event that any Person that is a corporation, partnership, limited liability company or other legal entity (other than an individual, trust or estate) ceases to be controlled (directly or indirectly) by the Person (directly or indirectly) controlling such Person or a Transferee thereof, such event shall be deemed to constitute a “Transfer” subject to the restrictions on Transfer contained or referenced herein.

 

“Underwritten Shelf Takedown” means an underwritten Public Offering pursuant to an effective Shelf Registration Statement.

 

“WKSI” means any Securities Act registrant that is a well-known seasoned issuer as defined in Rule 405 under the Securities Act at the most recent eligibility determination date specified in paragraph (2) of that definition.

 

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Section 1.2.       Other Interpretive Provisions.

 

(a)       The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

 

(b)     The words “hereof”, “herein”, “hereunder” and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement; and any subsection and section references are to this Agreement unless otherwise specified.

 

(c)       The term “including” is not limiting and means “including without limitation”.

 

(d)       The captions and headings of this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.

 

(e)       Whenever the context requires, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms.

 

ARTICLE II

 

REGISTRATION RIGHTS

 

The Company will perform and comply, and cause each of its subsidiaries to perform and comply, with such of the following provisions as are applicable to it. Each Holder will perform and comply with such of the following provisions as are applicable to such Holder.

 

Section 2.1.       Demand Registration.

 

Section 2.1.1.      Request for Demand Registration.

 

(a)      Following the effective date of this Agreement, any one or more Holders shall have the right to make a written request from time to time (a “Demand Registration Request”) to the Company for Registration of all or part of the Registrable Securities held by such Holders. Any such Registration pursuant to a Demand Registration Request shall hereinafter be referred to as a “Demand Registration”.

 

(b)       Each Demand Registration Request shall specify (x) the kind and aggregate amount (or maximum amount or desired range) of Registrable Securities to be registered, and (y) the intended method or methods of disposition thereof.

 

(c)       Upon receipt of the Demand Registration Request, the Company shall as promptly as practicable file a Registration Statement (a “Demand Registration Statement”) relating to such Demand Registration, and use its reasonable best efforts to cause such Demand Registration Statement to be promptly declared effective under the Securities Act.

 

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Section 2.1.2.    Limitation on Demand Registrations. The Company shall not be obligated to take any action to effect any Demand Registration (i) less than thirty days following the date of this Agreement or (ii) if a Demand Registration was declared effective or an Underwritten Shelf Takedown was consummated within the preceding ninety days (unless otherwise consented to by the Board). The Registrable Securities requested to be registered pursuant to Section 2.1.1 must represent (i) an aggregate offering price of Registrable Securities that is reasonably expected to equal at least $40 million or (ii) all of the remaining Registrable Securities owned by the Holders. The Holders shall be limited to no more than five Demand Registration Requests in the aggregate by all Holders.

 

Section 2.1.3.     Demand Notice. Promptly upon receipt of a Demand Registration Request pursuant to Section 2.1.1 (but in no event more than two Business Days thereafter), the Company shall deliver a written notice (a “Demand Notice”) of any such Demand Registration Request to all other Holders, if any, and the Demand Notice shall offer each such Holder the opportunity to include in the Demand Registration that number of Registrable Securities as each such Holder may request in writing. The Company shall include in the Demand Registration all such Registrable Securities with respect to which the Company has received written requests for inclusion therein within two Business Days after the date that the Demand Notice was delivered.

 

Section 2.1.4.    Demand Withdrawal. A Demanding Holder that has requested its Registrable Securities be included in a Demand Registration pursuant to Section 2.1.3 may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Demand Registration Statement. Upon receipt of a notice to such effect from a Demanding Holder (or if there is more than one Demanding Holder, from all such Demanding Holders) with respect to all of the Registrable Securities included by such Demanding Holder(s) in such Demand Registration, the Company shall cease all efforts to secure effectiveness of the applicable Demand Registration Statement.

 

Section 2.1.5.     Effective Registration. The Company shall use reasonable best efforts to cause the Demand Registration Statement to become effective and remain effective for not less than one hundred eighty days (or such shorter period as will terminate when all Registrable Securities covered by such Demand Registration Statement have been sold or withdrawn), or, if such Demand Registration Statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriter or underwriters a Prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer.

 

Section 2.1.6.   Delay in Filing; Suspension of Registration. If the filing, initial effectiveness or continued use of a Demand Registration Statement at any time would require the Company to make an Adverse Disclosure, the Company may, upon giving prompt written notice of such action to the Holders, delay the filing or initial effectiveness of, or suspend use of, the Demand Registration Statement (a “Demand Suspension”); provided, however, that the Company shall not be permitted to exercise a Demand Suspension for a period exceeding thirty days on any one occasion or for more than ninety days in the aggregate during any twelve-month period. In the case of a Demand Suspension, the Holders agree to suspend use of the applicable Prospectus in connection with any sale or purchase, or offer to sell or purchase, Registrable Securities, upon receipt of the notice referred to above. The Company shall immediately notify the Holders in writing upon the termination of any Demand Suspension, amend or supplement the Prospectus, if necessary, so it does not contain any untrue statement or omission and furnish to the Holders such numbers of copies of the Prospectus as so amended or supplemented as the Holders may reasonably request. The Company shall, if necessary, supplement or make amendments to the Demand Registration Statement, if required by the registration form used by the Company for the Demand Registration or by the instructions applicable to such registration form or by the Securities Act or the rules or regulations promulgated thereunder or as may reasonably be requested by the Holders of a majority of Registrable Securities that are included in such Demand Registration Statement.

 

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Section 2.1.7.     Priority of Securities Registered Pursuant to Demand Registrations. If the managing underwriter or underwriters of a proposed underwritten Public Offering of the Registrable Securities included in a Demand Registration advise the Company in writing that, in its or their opinion, the number of securities requested to be included in such Demand Registration exceeds the number that can be sold in such offering without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, then the securities to be included in such Registration shall be in the case of any Demand Registration (x) first, allocated to each Demanding Holder that has requested to participate in such Demand Registration an amount equal to the lesser of (i) the number of such Registrable Securities requested to be registered or sold by such Demanding Holder, and (ii) a number of such shares equal to such Demanding Holder’s Pro Rata Portion, (y) second, and only if all the securities referred to in clause (x) have been included, the number of other securities that, in the opinion of such managing underwriter or underwriters, can be sold without having such adverse effect other than securities to be sold by the Company and (z) third, the securities to be sold by the Company (not to exceed the number of other securities that, in the opinion of such managing underwriter or underwriters, can be sold without having such adverse effect). In the event that any Holders have requested pursuant to Section 2.3.1 to have Registrable Securities included in such Public Offering, the priority with respect to such Holders shall be determined in accordance with Section 2.3.2.

 

Section 2.1.8.   Resale Rights. In the event that a Holder requests to participate in a Registration pursuant to this Section 2.1 in connection with a distribution of Registrable Securities to its partners or members, the Registration shall provide for resale by such partners or members, if requested by such Holder.

 

Section 2.2.       Shelf Registration.

 

Section 2.2.1.      Request for Shelf Registration.

 

(a)       Upon the written request of one or more Holders from time to time following the date that is thirty days after the effectiveness of this Agreement (a “Shelf Registration Request”), the Company shall promptly file with the SEC a shelf Registration Statement pursuant to Rule 415(a)(1)(x) under the Securities Act (“Shelf Registration Statement”) relating to the offer and sale of Registrable Securities by any Holders thereof from time to time in accordance with the methods of distribution elected by such Holders and set forth in the Shelf Registration Statement and the Company shall use its reasonable best efforts to cause such Shelf Registration Statement to promptly become effective under the Securities Act. Any such Registration pursuant to a Shelf Registration Request shall hereinafter be referred to as a “Shelf Registration”.

 

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(b)      If on the date of the Shelf Registration Request: (i) the Company is a WKSI, then the Shelf Registration Request may request Registration of an unspecified amount of Registrable Securities; and (ii) the Company is not a WKSI, then the Shelf Registration Request shall specify the aggregate amount of Registrable Securities to be registered. The Company shall provide to any Holder, at such Holder’s request, the information necessary to determine the Company’s status as a WKSI upon request.

 

Section 2.2.2.    Shelf Registration Notice.  Promptly upon receipt of a Shelf Registration Request (but in no event more than two Business Days thereafter), the Company shall deliver a written notice (a “Shelf Registration Notice”) of any such request to all other Holders, if any, which notice shall specify, if applicable, the amount of Registrable Securities to be registered, and the Shelf Registration Notice shall offer each such Holder the opportunity to include in the Shelf Registration that number of Registrable Securities as each such Holder may request in writing. The Company shall include in such Shelf Registration all such Registrable Securities with respect to which the Company has received written requests for inclusion therein within two Business Days after the date that the Shelf Registration Notice has been delivered.

 

Section 2.2.3.     Continued Effectiveness. The Company shall use its reasonable best efforts to keep such Shelf Registration Statement continuously effective under the Securities Act in order to permit the Prospectus forming part of the Shelf Registration Statement to be usable by Holders until the earlier of: (i) the date as of which all Registrable Securities have been sold pursuant to the Shelf Registration Statement or another Registration Statement filed under the Securities Act (but in no event prior to the applicable period referred to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder); and (ii) the date as of which all included securities have otherwise ceased to be Registrable Securities (such period of effectiveness, the “Shelf Period”). Subject to Section 2.2.4, the Company shall be deemed not to have used its reasonable best efforts to keep the Shelf Registration Statement effective during the Shelf Period if the Company voluntarily takes any action or omits to take any action that would result in Holders of the Registrable Securities covered thereby not being able to offer and sell any Registrable Securities pursuant to such Shelf Registration Statement during the Shelf Period, unless such action or omission is required by applicable law.

 

Section 2.2.4.    Suspension of Registration. If the continued use of such Shelf Registration Statement at any time would require the Company to make an Adverse Disclosure, the Company may, upon giving prompt written notice (a “Suspension Notice”) of such action to the Holders, suspend use of the Shelf Registration Statement (a “Shelf Suspension”); provided, however, that the Company shall not be permitted to exercise a Shelf Suspension for a period exceeding thirty days on any one occasion or for more than ninety days in the aggregate during any twelve-month period. In the case of a Shelf Suspension, the Holders agree to suspend use of the applicable Prospectus and in connection with any sale or purchase of, or offer to sell or purchase, Registrable Securities, upon receipt of the notice referred to above. The Company shall immediately notify the Holders in writing upon the termination of any Shelf Suspension, amend or supplement the Prospectus, if necessary, so it does not contain any untrue statement or omission and furnish to the Holders such numbers of copies of the Prospectus as so amended or supplemented as the Holders may reasonably request. The Company shall, if necessary, supplement or make amendments to the Shelf Registration Statement, if required by the registration form used by the Company for the Shelf Registration Statement or by the instructions applicable to such registration form or by the Securities Act or the rules or regulations promulgated thereunder or as may reasonably be requested by the Holders.

 

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Section 2.2.5.     Shelf Takedown.

 

(a)       At any time during which the Company has an effective Shelf Registration Statement, but subject to Section 2.2.4, by notice to the Company specifying the intended method or methods of disposition thereof, a Holder may make a written request (a “Shelf Takedown Request”) to the Company to effect a Public Offering, including an Underwritten Shelf Takedown, of all or a portion of the Holder’s Registrable Securities that are covered by such Shelf Registration Statement (stating the approximate number or range of the Registrable Securities to be included in the Public Offering), and as soon as practicable the Company shall amend or supplement the Shelf Registration Statement for such purpose. The Registrable Securities requested to be included in an Underwritten Shelf Takedown must represent an aggregate offering price of Registrable Securities that is reasonably expected to equal at least $40 million. The Holders shall be limited to no more than five Underwritten Shelf Takedowns in the aggregate by all Holders.

 

(b)     Promptly upon receipt of a Shelf Takedown Request (but in no event more than two Business Days thereafter) for any Underwritten Shelf Takedown, the Company shall deliver a notice (a “Shelf Takedown Notice”) to each other Holder with Registrable Securities covered by the applicable Shelf Registration Statement, or to all other Holders if such Registration Statement is undesignated (each a “Potential Takedown Participant”).  The Shelf Takedown Notice shall offer each such Potential Takedown Participant the opportunity to include in any Underwritten Shelf Takedown that number of Registrable Securities as each such Potential Takedown Participant may request in writing.  The Company shall include in the Underwritten Shelf Takedown all such Registrable Securities with respect to which the Company has received written requests for inclusion therein no later than 9:00 a.m., New York City time, on the second business day immediately following the Shelf Takedown Notice Delivery Time; it being understood that for the purposes of this Section 2.2.5, the “Shelf Takedown Notice Delivery Time” shall be deemed to be the date of delivery of such notice if it is delivered to Holders at or prior to 12:00 p.m. New York City time and shall be deemed to be the business day immediately following delivery of such notice if it is delivered to Holders after 12:00 p.m. New York City time.  Subject to Section 2.2.6, any Potential Takedown Participant’s participation in an Underwritten Shelf Takedown shall be on the same terms as the Holders who made the Shelf Takedown Request.  Any Potential Takedown Participant’s request to participate in an Underwritten Shelf Takedown shall be binding on the Potential Takedown Participant, except that such participation may be conditioned on the Underwritten Shelf Takedown being completed within ten Business Days of its acceptance at a price per share (after giving effect to any underwriters’ discounts or commissions) to such Potential Takedown Participant of not less than ninety percent (90%) of the closing price for the shares on their principal trading market on the Business Day immediately prior to such Potential Takedown Participant’s election to participate (the “Participation Conditions”).  Notwithstanding the delivery of any Shelf Takedown Notice, but subject to the Participation Conditions (to the extent applicable), all determinations as to whether to complete any Underwritten Shelf Takedown and as to the timing, manner, price and other terms of any Underwritten Shelf Takedown contemplated by this Section 2.2.5 shall be determined by the Holders of a majority of the Registrable Securities offered by the Holders who made the applicable Shelf Takedown Request.

 

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(c)       The Company shall not be obligated to take any action to effect any Underwritten Shelf Takedown if a Demand Registration or an Underwritten Shelf Takedown was consummated within the preceding ninety days (unless otherwise consented to by the Board).

 

Section 2.2.6.    Priority of Securities Sold Pursuant to Shelf Takedowns.  If the managing underwriter or underwriters of a proposed Underwritten Shelf Takedown pursuant to Section 2.2.5 advise the Company in writing that, in its or their opinion, the number of securities requested to be included in the proposed Underwritten Shelf Takedown exceeds the number that can be sold in such Underwritten Shelf Takedown without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, the number of Registrable Securities to be included in such offering shall be (x) first, allocated to each Holder that has requested to participate in such Underwritten Shelf Takedown an amount equal to the lesser of (i) the number of such Registrable Securities requested to be registered or sold by such Holder, and (ii) a number of such shares equal to such Holder’s Pro Rata Portion, (y) second, and only if all the securities referred to in clause (x) have been included, the number of other securities that, in the opinion of such managing underwriter or underwriters can be sold without having such adverse effect other than securities to be sold by the Company and (z) third, the securities to be sold by the Company (not to exceed the number of other securities that, in the opinion of such managing underwriter or underwriters can be sold without having such adverse effect).

 

Section 2.2.7.    Resale Rights.  In the event that a Holder elects to request a Registration pursuant to this Section 2.2 in connection with a distribution of Registrable Securities to its partners or members, the Registration shall provide for resale by such partners or members, if requested by the Holder.

 

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Section 2.3.       Piggyback Registration.

 

Section 2.3.1.    Participation.  If the Company at any time proposes to file a Registration Statement under the Securities Act or to conduct an underwritten Public Offering with respect to any offering of its equity securities for its own account or for the account of any other Persons (other than (i) a Registration under Section 2.2 of which the Holder has received a Shelf Registration Notice pursuant to Section 2.2.2, (ii) a Registration on Form S-4 or Form S-8 or any successor form to such Forms, (iii) a Registration of securities solely relating to an offering and sale to employees or directors of the Company or its subsidiaries pursuant to any employee stock plan or other employee benefit plan arrangement or (iv) pursuant to a rights offering), then, as soon as practicable (but in no event less than two Business Days prior to the proposed date of filing of such Registration Statement (other than an automatically effective Registration Statement on Form S-3 that contemplates an underwritten Public Offering and the inclusion of selling stockholders by means of a prospectus supplement) or, in the case of any such Public Offering, the anticipated pricing or trade date), the Company shall give written notice (a “Piggyback Notice”) of such proposed filing or Public Offering to all Holders, and such Piggyback Notice shall offer the Holders the opportunity to register under such Registration Statement, or to sell in such Public Offering, such number of Registrable Securities as each such Holder may request in writing (a “Piggyback Registration”).  Subject to Section 2.3.2, the Company shall include in such Registration Statement or in such Public Offering, as applicable, all such Registrable Securities that are requested to be included therein within three Business Days after the receipt by such Holder of any such notice; provided, however, that if at any time after giving written notice of its intention to register or sell any securities and prior to the effective date of the Registration Statement filed in connection with such Registration, or the pricing or trade date of such Public Offering, the Company shall determine for any reason not to register or sell or to delay Registration or the sale of such securities, the Company shall give written notice of such determination to each Holder and, thereupon, (i) in the case of a determination not to register or sell, shall be relieved of its obligation to register or sell any Registrable Securities in connection with such Registration or Public Offering (but not from its obligation to pay the Registration Expenses in connection therewith), without prejudice, however, to the rights of any Holders entitled to request that such Registration or sale be effected as a Demand Registration under Section 2.1 or an Underwritten Shelf Takedown under Section 2.2, as the case may be, and (ii) in the case of a determination to delay Registration or sale, in the absence of a request for a Demand Registration or an Underwritten Shelf Takedown, as the case may be, shall be permitted to delay registering or selling any Registrable Securities, for the same period as the delay in registering or selling such other securities.  If the offering pursuant to such Registration Statement or Public Offering is to be underwritten, then each Holder making a request for a Piggyback Registration pursuant to this Section 2.3.1 shall, and the Company shall make such arrangements with the managing underwriter or underwriters so that each such Holder may, participate in such underwritten offering.  If the offering pursuant to such Registration Statement or Public Offering is to be on any other basis, then each Holder making a request for a Piggyback Registration pursuant to this Section 2.3.1 shall, and the Company shall make such arrangements so that each such Holder may, participate in such offering on such basis.  Any Holder shall have the right to withdraw all or part of its request for inclusion of its Registrable Securities in a Piggyback Registration by giving written notice to the Company of its request to withdraw; provided, that such request must be made in writing prior to the effectiveness of such Registration Statement or, in the case of a Public Offering, at least two Business Days prior to the earlier of the anticipated filing of the “red herring” Prospectus, if applicable, and the anticipated pricing or trade date.

 

Section 2.3.2.      Priority of Piggyback Registration.

 

(a)       If the registration or Public Offering referred to in the first sentence of Section 2.3.1 is to be a registration or Public Offering on behalf of the Company, and the managing underwriter or underwriters of any proposed offering of Registrable Securities included in a Piggyback Registration informs the Company and the participating Holders in writing that, in its or their opinion, the number of securities that such Holders and any other Persons intend to include in such offering exceeds the number that can be sold in such offering without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, then the securities to be included in such Registration shall be (i) first, one hundred percent (100%) of the securities that the Company proposes to sell, (ii) second, and only if all the securities referred to in clause (i) have been included, the number of Registrable Securities requested to be included by the other Holders and securities of the same class of the Company requested to be included by Existing Holders that, in the opinion of such managing underwriter or underwriters, can be sold without having such adverse effect, with such number to be allocated among the Holders and Existing Holders that have requested to participate in such Registration based on an amount equal to the lesser of (x) the number of such Registrable Securities requested to be sold by such Holder or securities requested to be sold by such Existing Holder, as applicable, and (y) a number of such shares equal to such Holder’s or Existing Holder’s, as applicable, Piggyback Pro Rata Portion and (iii) third, and only if all of the Registrable Securities referred to in clause (ii) have been included in such Registration, any other securities eligible for inclusion in such Registration.

 

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(b)       If the registration or Public Offering referred to in the first sentence of Section 2.3.1 is to be a registration or Public Offering on behalf of a Demanding Holder, and the managing underwriter or underwriters of any proposed offering of Registrable Securities included in a Piggyback Registration informs the Demanding Holder and the participating Holders in writing that, in its or their opinion, the number of securities that such Holders and any other Persons intend to include in such offering exceeds the number that can be sold in such offering without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, then the securities to be included in such Registration shall be (i) first, one hundred percent (100%) of the Registrable Securities that the Demanding Holders propose to sell, (ii) second, and only if all the securities referred to in clause (i) have been included, the number of Registrable Securities requested to be included by the other Holders and securities of the same class of the Company requested to be included by Existing Holders that, in the opinion of such managing underwriter or underwriters, can be sold without having such adverse effect, with such number to be allocated among the other Holders and the Existing Holders that have requested to participate in such Registration based on an amount equal to the lesser of (x) the number of such Registrable Securities requested to be sold by such Holder or securities requested to be sold by such Existing Holder, as applicable, and (y) a number of such shares equal to such Holder’s or Existing Holder’s, as applicable, Piggyback Pro Rata Portion, (iii) third, and only if all of the Registrable Securities referred to in clause (ii) have been included in such Registration, the number of securities that the Company proposes to sell that, in the opinion of such managing underwriter or underwriters, can be sold without having such adverse effect and (iv) fourth, and only if all of the securities referred to in clauses (ii) and (iii) have been included in such Registration, any other securities eligible for inclusion in such Registration.

 

(c)       If the registration or Public Offering referred to in the first sentence of Section 2.3.1 is to be a registration or Public Offering on behalf of a holder of Common Stock other than a Holder party to this Agreement (an “Other Demanding Holder”), and the managing underwriter or underwriters of any proposed offering of Registrable Securities included in a Piggyback Registration informs the Other Demanding Holder and the participating holders of Common Stock in writing that, in its or their opinion, the number of securities that such holders and any other Persons intend to include in such offering exceeds the number that can be sold in such offering without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, then the securities to be included in such Registration shall be (i) first, one hundred percent (100%) of the Registrable Securities that the Other Demanding Holder proposes to sell, (ii) second, and only if all the securities referred to in clause (i) have been included, the number of Registrable Securities requested to be included by Holders and securities of the same class of the Company requested to be included by Existing Holders (if the Existing Holder is not the Other Demanding Holder) that, in the opinion of such managing underwriter or underwriters, can be sold without having such adverse effect, with such number to be allocated among the Holders and the Existing Holders that have requested to participate in such Registration based on an amount equal to the lesser of (x) the number of such Registrable Securities requested to be sold by such Holder or securities requested to be sold by such Existing Holder, as applicable, and (y) a number of such shares equal to such Holder’s or Existing Holder’s, as applicable, Piggyback Pro Rata Portion, (iii) third, and only if all of the Registrable Securities referred to in clause (ii) have been included in such Registration, any other securities eligible for inclusion in such Registration that, in the opinion of such managing underwriter or underwriters, can be sold without having such adverse effect and (iv) fourth, and only if all of the securities referred to in clauses (ii) and (iii) have been included in such Registration, the number of securities that the Company proposes to sell.

 

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(d)       Notwithstanding the foregoing, to the extent (and only to the extent) that the 2019 Registration Rights Agreement requires the registration of shares of Common Stock in a Piggyback Registration for the benefit of 2019 Registration Rights Holders in a manner that provides greater priority to such 2019 Registration Rights Holders than as contemplated by Section 2.3.2(a), (b) or (c) hereof, the Company shall be permitted to give effect to such greater priority and thereafter shall follow the priorities set forth in Section 2.3.2(a), (b) or (c) hereof, as applicable

 

Section 2.3.3.     No Effect on Other Registrations.  No Registration of Registrable Securities effected pursuant to a request under this Section 2.3 shall be deemed to have been effected pursuant to Sections 2.1 and 2.2 or shall relieve the Company of its obligations under Sections 2.1 and 2.2.

 

Section 2.4.       Lock-Up Agreements.  In connection with each Registration or sale of Registrable Securities pursuant to Sections 2.1, 2.2 or 2.3 conducted as an underwritten Public Offering, each Holder agrees, if requested and without regard to whether or not such Holder has elected to participate in such Public Offering, to become bound by and to execute and deliver a “lock up” agreement with the underwriter(s) of such Public Offering in the same form as is entered into by the Holders participating in such Public Offering.

 

Section 2.5.       Registration Procedures.

 

Section 2.5.1.     Requirements.  In connection with the Company’s obligations under Sections 2.1, 2.2 and 2.3, the Company shall use its reasonable best efforts to effect such Registration and to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof as expeditiously as reasonably practicable, and in connection therewith the Company shall:

 

(a)       prepare the required Registration Statement, including all exhibits and financial statements required under the Securities Act to be filed therewith, and, before filing a Registration Statement or Prospectus or any amendments or supplements thereto, (x) furnish to the underwriters, if any, and to the Holders of the Registrable Securities covered by such Registration Statement, copies of all documents prepared to be filed, which documents shall be subject to the review of such underwriters and such Holders and their respective counsel, (y) make such changes in such documents concerning the Holders prior to the filing thereof as such Holders, or their counsel, may reasonably request and (z) except in the case of a Registration under Section 2.3, not file any Registration Statement or Prospectus or amendments or supplements thereto to which the participating Holders, or the underwriters, if any, shall reasonably object;

 

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(b)      prepare and file with the SEC such amendments and post-effective amendments to such Registration Statement and supplements to the Prospectus as may be (x) reasonably requested by any participating Holder (to the extent such request relates to information relating to such Holder), or (y) necessary to keep such Registration Statement effective for the period of time required by this Agreement, and comply with provisions of the applicable securities laws with respect to the sale or other disposition of all securities covered by such Registration Statement during such period in accordance with the intended method or methods of disposition by the sellers thereof set forth in such Registration Statement;

 

(c)       notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such notice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (i) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, and when the applicable Prospectus or any amendment or supplement thereto has been filed, (ii) of any written comments by the SEC, or any request by the SEC or other federal or state governmental authority for amendments or supplements to such Registration Statement or such Prospectus, or for additional information (whether before or after the effective date of the Registration Statement) or any other correspondence with the SEC relating to, or which may affect, the Registration, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order by the SEC or any other regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (iv) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;

 

(d)      promptly notify each selling Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the happening of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus or any preliminary Prospectus, in light of the circumstances under which they were made) not misleading, when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the Registration Statement, or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holders and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus, which shall correct such misstatement or omission or effect such compliance;

 

(e)       to the extent the Company is eligible under the relevant provisions of Rule 430B under the Securities Act, if the Company files any Shelf Registration Statement, and to the extent requested by the Holders whose Registrable Securities are included in such Shelf Registration Statement, the Company shall include in such Shelf Registration Statement such disclosures as may be required by Rule 430B under the Securities Act (referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities by the Holders) in order to ensure that the Holders may be added to such Shelf Registration Statement at a later time through the filing of a Prospectus supplement rather than a post-effective amendment;

 

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(f)      use its reasonable best efforts to prevent, or obtain the withdrawal of, any stop order or other order or notice preventing or suspending the use of any preliminary or final Prospectus;

 

(g)      promptly incorporate in a Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment such information as the managing underwriter or underwriters and the Holders of a majority of Registrable Securities being sold agree should be included therein relating to the plan of distribution with respect to such Registrable Securities; and make all required filings of such Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment;

 

(h)      furnish to each selling Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment or supplement thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);

 

(i)      deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary prospectus) and any amendment or supplement thereto and such other documents as such Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter (it being understood that the Company shall consent to the use of such Prospectus or any amendment or supplement thereto by each of the selling Holders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto);

 

(j)      on or prior to the date on which the applicable Registration Statement becomes effective, use its reasonable best efforts to register or qualify, and cooperate with the selling Holders, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the Registration or qualification of such Registrable Securities for offer and sale under the securities or “Blue Sky” laws of each state and other jurisdiction as any such selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such Registration or qualification in effect for such period as required by Sections 2.1 or 2.2, as applicable; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to taxation or general service of process in any such jurisdiction where it is not then so subject;

 

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(k)      cooperate with the selling Holders and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates (or dematerialized evidence of ownership) representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the applicable Holder or managing underwriters may request at least two Business Days prior to any delivery of such Registrable Securities;

 

(l)      use its reasonable best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;

 

(m)      not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and make all arrangements necessary for the Registrable Securities to be eligible for deposit with The Depository Trust Company;

 

(n)      make such representations and warranties to the Holders whose Registrable Securities are being registered, and their underwriters or agents, if any, in form, substance and scope as are customarily made by issuers in public offerings similar to the offering then being undertaken;

 

(o)      enter into such customary agreements (including underwriting and indemnification agreements) and take all such other actions as the participating Holders or the managing underwriter or underwriters, if any, reasonably request in order to expedite or facilitate the Registration and disposition of such Registrable Securities;

 

(p)      in the case of an underwritten Public Offering, obtain for delivery to the Holders participating in such Public Offering and to the underwriter or underwriters, if any, an opinion or opinions (including a “negative assurance” or “disclosure letter”) from counsel for the Company dated the date of each closing under the underwriting agreement, in customary form, scope and substance, which opinions shall be reasonably satisfactory to such Holders or underwriters, as the case may be, and their respective counsel;

 

(q)      in the case of an underwritten Public Offering, obtain for delivery to the Company and the managing underwriter or underwriters, with copies to the Holders participating in the Public Offering or sale, a comfort letter from the Company’s independent certified public accountants or independent auditors (and, if necessary, any other independent certified public accountants or independent auditors of any subsidiary of the Company or any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) and a letter from any other expert named in the Registration Statement in customary form and covering such matters of the type customarily covered by such letters as the managing underwriter or underwriters reasonably request, dated the date of execution of the underwriting agreement and brought down to the date of each closing under the underwriting agreement;

 

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(r)     cooperate with each seller of Registrable Securities and each underwriter, if any, participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;

 

(s)      use its reasonable best efforts to comply with all applicable securities laws and, if a Registration Statement was filed, make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act;

 

(t)      provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the applicable Registration Statement from and after a date not later than the effective date of such Registration Statement;

 

(u)      use its best efforts to cause all Registrable Securities covered by the applicable Registration Statement to be listed on each securities exchange on which any of the Company’s equity securities are then listed or quoted and on each inter-dealer quotation system on which any of the Company’s equity securities are then quoted;

 

(v)     make available upon reasonable notice at reasonable times and for reasonable periods for inspection by a representative appointed by the majority of the Holders covered by the applicable Registration Statement, by any underwriter participating in any disposition to be effected pursuant to such Registration Statement and by any attorney, accountant or other agent retained by such Holders or any such underwriter, all pertinent financial and other records and pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such Registration Statement; provided, however, that any such Person gaining access to information regarding the Company pursuant to this Section 2.5.1(v) shall agree to hold in strict confidence and shall not make any disclosure or use any information regarding the Company that the Company determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is requested or required (by deposition, interrogatory, requests for information or documents by a governmental entity, subpoena or similar process), (ii) disclosure of such information, in the opinion of counsel to such Person, is otherwise required by law, (iii) such information is or becomes publicly known other than through a breach of this Agreement or any other agreement of which such Person has knowledge, (iv) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company or (v) such information is independently developed by such Person;

 

(w)     in the case of a marketed Public Offering, cause the senior executive officers of the Company to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter or underwriters in any such offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto;

 

(x)       take no direct or indirect action prohibited by Regulation M under the Exchange Act;

 

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(y)     take all reasonable action to ensure that any Issuer Free Writing Prospectus utilized in connection with any Registration complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related Prospectus, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and

 

(z)      take all such other commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the disposition of such Registrable Securities in accordance with the terms of this Agreement.

 

Section 2.5.2.    Company Information Requests.  The Company may require each seller of Registrable Securities as to which any Registration or sale is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder and its ownership of Registrable Securities as the Company may from time to time reasonably request in writing and the Company may exclude from such Registration or sale the Registrable Securities of any such Holder who unreasonably fails to furnish such information within a reasonable time after receiving such request.  Each Holder agrees to furnish such information to the Company and to cooperate with the Company as reasonably necessary to enable the Company to comply with the provisions of this Agreement.

 

Section 2.5.3.     Discontinuing Registration.  Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 2.5.1(d), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.5.1(d) or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated by reference in the Prospectus, or any amendments or supplements thereto, and if so directed by the Company, such Holder shall deliver to the Company (at the Company’s expense) all copies, other than permanent file copies then in such Holder’s possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice.  In the event the Company shall give any such notice, the period during which the applicable Registration Statement is required to be maintained effective shall be extended by the number of days during the period from and including the date of the giving of such notice to and including the date when each seller of Registrable Securities covered by such Registration Statement either receives the copies of the supplemented or amended Prospectus contemplated by Section 2.5.1(d) or is advised in writing by the Company that the use of the Prospectus may be resumed.

 

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Section 2.6.       Underwritten Offerings.

 

Section 2.6.1.      Shelf and Demand Registration.  If requested by the underwriters for any underwritten Public Offering, pursuant to a Registration or sale under Sections 2.1 or 2.2, the Company shall enter into an underwriting agreement with such underwriters, such agreement to be reasonably satisfactory in substance and form to each of the Company, the participating Holders and the underwriters, and to contain such representations and warranties by the Company and such other terms as are generally prevailing in agreements of that type, including indemnities no less favorable to the recipient thereof than those provided in Section 2.9.  The Holders of the Registrable Securities proposed to be distributed by such underwriters shall cooperate with the Company in the negotiation of the underwriting agreement and shall give consideration to the reasonable suggestions of the Company regarding the form thereof.  Such Holders shall be parties to such underwriting agreement, which underwriting agreement shall: (i) contain such representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such Holders as are customarily made by issuers to selling stockholders in public offerings similar to the applicable offering; and (ii) provide that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement also shall be conditions precedent to the obligations of such Holders.  Any such Holder shall not be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, such Holder’s title to the Registrable Securities, such Holder’s intended method of distribution and any other representations required to be made by the Holder under applicable law, and the aggregate amount of the liability of such Holder shall not exceed such Holder’s net proceeds from such offering.

 

Section 2.6.2.      Piggyback Registrations.  If the Company proposes to register or sell any of its securities under the Securities Act as contemplated by Section 2.3 and such securities are to be distributed through one or more underwriters, the Company shall, if requested by any Holder pursuant to Section 2.3 and, subject to the provisions of Section 2.3.2, use its reasonable best efforts to arrange for such underwriters to include on the same terms and conditions that apply to the other sellers in such Registration or sale all the Registrable Securities to be offered and sold by such Holder among the securities of the Company to be distributed by such underwriters in such Registration or sale.  The Holders of Registrable Securities to be distributed by such underwriters shall be parties to the underwriting agreement between the Company and such underwriters, which underwriting agreement shall (i) contain such representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such Holders as are customarily made by issuers to selling stockholders in public offerings similar to the applicable offering and (ii) provide that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement also shall be conditions precedent to the obligations of such Holders.  Any such Holder shall not be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, such Holder’s title to the Registrable Securities and such Holder’s intended method of distribution or any other representations required to be made by the Holder under applicable law, and the aggregate amount of the liability of such Holder shall not exceed such Holder’s net proceeds from such offering.

 

Section 2.6.3.      Participation in Underwritten Registrations.  Subject to the provisions of Section 2.6.1 and Section 2.6.2 above, no Person may participate in any underwritten Public Offering hereunder unless such Person (i) agrees to sell such Person’s securities on the basis provided in any underwriting arrangements approved by the Persons entitled to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements.

 

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Section 2.6.4.      Selection of Underwriters. In the case of an underwritten Public Offering, under Sections 2.1 or 2.2, the managing underwriter or underwriters to administer the offering shall be determined by the Holders of a majority of the Registrable Securities included in such Public Offering; provided that such underwriter or underwriters shall be reasonably acceptable to the Company.

 

Section 2.7.     No Inconsistent Agreements.  Neither the Company nor any of its subsidiaries shall hereafter enter into, and neither the Company nor any of its subsidiaries is currently a party to, any agreement with respect to its securities that is inconsistent with the rights granted to the Holders by this Agreement.

 

Section 2.8.       Registration Expenses.  All reasonable expenses incident to the Company’s performance of or compliance with this Agreement shall be paid by the Company, including (i) all registration and filing fees, and any other fees and expenses associated with filings required to be made with the SEC or FINRA, (ii) all fees and expenses in connection with compliance with any securities or “Blue Sky” laws (including reasonable fees and disbursements of counsel for the underwriters in connection with blue sky qualifications of the Registrable Securities), (iii) all printing, duplicating, word processing, messenger, telephone, facsimile and delivery expenses (including expenses of printing certificates for the Registrable Securities in a form eligible for deposit with The Depository Trust Company and of printing prospectuses), (iv) all fees and disbursements of counsel for the Company and of all independent certified public accountants or independent auditors of the Company and any subsidiaries of the Company (including the expenses of any special audit and comfort letters required by or incident to such performance), (v) Securities Act liability insurance or similar insurance if the Company so desires or the underwriters so require in accordance with then-customary underwriting practice, (vi) all fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange or quotation of the Registrable Securities on any inter-dealer quotation system, (vii) all applicable rating agency fees with respect to the Registrable Securities, (viii) all reasonable fees and disbursements of legal counsel for the Holders (who shall be selected by the Holders of a majority of the Registrable Securities included in the relevant Registration), (ix) any reasonable fees and disbursements of underwriters customarily paid by issuers or sellers of securities, (x) all fees and expenses incurred in connection with the distribution or Transfer of Registrable Securities to or by a Holder or its Transferees, (xi) all fees and expenses of any special experts or other Persons retained by the Company in connection with any Registration or sale, (xii) all of the Company’s internal expenses (including all salaries and expenses of its officers and employees performing legal or accounting duties) and (xiii) all expenses related to the “roadshow” for any underwritten Public Offering (including the reasonable out-of-pocket expenses of the Holders), including all travel, meals and lodging.  All such expenses are referred to herein as “Registration Expenses”.  The Company shall not be required to pay any fees and disbursements to underwriters not customarily paid by the issuers of securities in an offering similar to the applicable offering, including underwriting discounts and commissions and transfer taxes, if any, attributable to the sale of Registrable Securities.

 

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Section 2.9.       Indemnification.

 

Section 2.9.1.    Indemnification by the Company.  The Company shall indemnify and hold harmless, to the full extent permitted by law, each Holder, each shareholder, member, limited or general partner thereof, each shareholder, member, limited or general partner of each such shareholder, member, limited or general partner, each of their respective Affiliates, officers, directors, shareholders, employees, advisors, and agents and each Person who controls (within the meaning of the Securities Act or the Exchange Act) such Persons and each of their respective Representatives from and against any and all losses, penalties, judgments, suits, costs, claims, damages, liabilities and expenses, joint or several (including reasonable costs of investigation and legal expenses) (each, a “Loss” and collectively, “Losses”) arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement under which such Registrable Securities are registered or sold under the Securities Act (including any final, preliminary or summary Prospectus contained therein or any amendment thereof or supplement thereto or any documents incorporated by reference therein) or any other disclosure document produced by or on behalf of the Company or any of its subsidiaries including any report and other document filed under the Exchange Act, (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or preliminary Prospectus, in light of the circumstances under which they were made) not misleading or (iii) any violation or alleged violation by the Company or any of its subsidiaries of any federal, state, foreign or common law rule or regulation applicable to the Company or any of its subsidiaries and relating to action or inaction in connection with any such registration, disclosure document or other document or report; provided, that no selling Holder shall be entitled to indemnification pursuant to this Section 2.9.1 in respect of any untrue statement or omission contained in or omitted from any information furnished in writing by such selling Holder to the Company specifically for inclusion in a Registration Statement that has not been corrected in a subsequent writing prior to or concurrently with the sale of the Registrable Securities to the Person asserting the claim.  This indemnity shall be in addition to any liability the Company may otherwise have.  Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Holder or any indemnified party and shall survive the Transfer of such securities by such Holder.  The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers and directors and each Person who controls such Persons (within the meaning of the Securities Act and the Exchange Act) to the same extent as provided above with respect to the indemnification of the indemnified parties.

 

Section 2.9.2.     Indemnification by the Selling Holders.  Each selling Holder agrees (severally and not jointly) to indemnify and hold harmless, to the fullest extent permitted by law, the Company, its directors and officers and each Person who controls the Company (within the meaning of the Securities Act or the Exchange Act) from and against any Losses resulting from (i) any untrue statement of a material fact in any Registration Statement under which such Registrable Securities were registered or sold under the Securities Act (including any final, preliminary or summary Prospectus contained therein or any amendment thereof or supplement thereto or any documents incorporated by reference therein) or (ii) any omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or preliminary Prospectus, in light of the circumstances under which they were made) not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission is contained in or omitted from any information furnished in writing by such selling Holder to the Company specifically for inclusion in such Registration Statement that has not been corrected in a subsequent writing prior to or concurrently with the sale of the Registrable Securities to the Person asserting the claim.  In no event shall the liability of any selling Holder hereunder be greater in amount than the dollar amount of the net proceeds received by such Holder from the sale of Registrable Securities giving rise to such indemnification obligation less any amounts paid by such Holder pursuant to Section 2.9.4 and any amounts paid by such Holder as a result of liabilities incurred under the underwriting agreement, if any, related to such sale.  The Company shall be entitled to receive indemnities from underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, to the same extent as provided above (with appropriate modification) with respect to information furnished in writing by such Persons specifically for inclusion in any Prospectus or Registration Statement.

 

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Section 2.9.3.   Conduct of Indemnification Proceedings.  Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that any delay or failure to so notify the indemnifying party shall relieve the indemnifying party of its obligations hereunder only to the extent, if at all, that it is actually and materially prejudiced by reason of such delay or failure) and (ii) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided, however, that any Person entitled to indemnification hereunder shall have the right to select and employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such Person unless (i) the indemnifying party has agreed in writing to pay such fees or expenses, (ii) the indemnifying party shall have failed to assume the defense of such claim within a reasonable time after receipt of notice of such claim from the Person entitled to indemnification hereunder and employ counsel reasonably satisfactory to such Person, (iii) the indemnified party has reasonably concluded (based upon advice of its counsel) that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party, or (iv) in the reasonable judgment of any such Person (based upon advice of its counsel) a conflict of interest may exist between such Person and the indemnifying party with respect to such claims (in which case, if the Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claim on behalf of such Person).  If the indemnifying party assumes the defense, the indemnifying party shall not have the right to settle such action without the consent of the indemnified party.  No indemnifying party shall consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of an unconditional release from all liability in respect to such claim or litigation without the prior written consent of such indemnified party.  If such defense is not assumed by the indemnifying party, the indemnifying party will not be subject to any liability for any settlement made without its prior written consent, but such consent may not be unreasonably withheld.  It is understood that the indemnifying party or parties shall not, except as specifically set forth in this Section 2.9.3, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements or other charges of more than one separate firm admitted to practice in such jurisdiction at any one time unless (x) the employment of more than one counsel has been authorized in writing by the indemnifying party or parties, (y) an indemnified party has reasonably concluded (based on the advice of counsel) that there may be legal defenses available to it that are different from or in addition to those available to the other indemnified parties or (z) a conflict or potential conflict exists or may exist (based upon advice of counsel to an indemnified party) between such indemnified party and the other indemnified parties, in each of which cases the indemnifying party shall be obligated to pay the reasonable fees and expenses of such additional counsel or counsels.

 

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Section 2.9.4.   Contribution.  If for any reason the indemnification provided for in Sections 2.9.1 and 2.9.2 is unavailable to an indemnified party (other than as a result of exceptions contained in Sections 2.9.1 and 2.9.2) or insufficient in respect of any Losses referred to therein, then the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Loss in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party or parties on the other hand in connection with the acts, statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations.  In connection with any Registration Statement filed with the SEC by the Company, the relative fault of the indemnifying party on the one hand and the indemnified party on the other hand shall be determined by reference to, among other things, whether any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.  The parties hereto agree that it would not be just or equitable if contribution pursuant to this Section 2.9.4 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in this Section 2.9.4.  No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.  The amount paid or payable by an indemnified party as a result of the Losses referred to in Sections 2.9.1 and 2.9.2 shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim.  Notwithstanding the provisions of this Section 2.9.4, in connection with any Registration Statement filed by the Company, a selling Holder shall not be required to contribute any amount in excess of the dollar amount of the net proceeds received by such holder under the sale of Registrable Securities giving rise to such contribution obligation less any amounts paid by such Holder pursuant to Section 2.9.2 and any amounts paid by such Holder as a result of liabilities incurred under the underwriting agreement, if any, related to such sale.  If indemnification is available under this Section 2.9, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Sections 2.9.1 and 2.9.2 hereof without regard to the provisions of this Section 2.9.4.  The remedies provided for in this Section 2.9 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.

 

Section 2.10.     Rules 144 and 144A and Regulation S.  The Company shall file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder (or, if the Company is not required to file such reports, it will, upon the request of any Holder, make publicly available such necessary information for so long as necessary to permit sales that would otherwise be permitted by this Agreement pursuant to Rule 144, Rule 144A or Regulation S under the Securities Act, as such Rules may be amended from time to time or any similar rule or regulation hereafter adopted by the SEC), and the Company will take such further action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell Registrable Securities without Registration under the Securities Act in transactions that would otherwise be permitted by this Agreement and within the limitation of the exemptions provided by (i) Rules 144, 144A or Regulation S under the Securities Act, as such rules may be amended from time to time, or (ii) any similar rule or regulation hereafter adopted by the SEC.  Upon the request of any Holder, the Company will deliver to such Holder a written statement as to whether it has complied with such requirements and, if not, the specifics thereof.

 

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Section 2.11.     Existing Registration Statements.  Notwithstanding anything herein to the contrary and subject to applicable law and regulation, the Company may satisfy any obligation hereunder to file a Registration Statement or to have a Registration Statement become effective by a specified date by designating, by notice to the Holders, a Registration Statement that previously has been filed with the SEC or become effective, as the case may be, as the relevant Registration Statement for purposes of satisfying such obligation, and all references to any such obligation shall be construed accordingly; provided, that such previously filed Registration Statement may be amended or, subject to applicable securities laws, supplemented to add the number of Registrable Securities, and, to the extent necessary, to identify as selling stockholders those Holders requesting the filing of a Registration Statement pursuant to the terms of this Agreement.  To the extent this Agreement refers to the filing or effectiveness of other Registration Statements by or at a specified time and the Company has, in lieu of then filing such Registration Statements or having such Registration Statements become effective, designated a previously filed or effective Registration Statement as the relevant Registration Statement for such purposes, in accordance with the preceding sentence, such references shall be construed to refer to such designated Registration Statement, as amended.

 

ARTICLE III

 

ADDITIONAL AGREEMENTS

 

Section 3.1.     Confidentiality.  Each Holder shall treat all Suspension Notices with the strictest confidence and shall not disseminate such information or disclose the existence thereof.

 

Section 3.2.       NYSE Listing of Shares.  To the extent the Company has not done so prior to the date of this Agreement, the Company shall as promptly as practicable following the date of this Agreement cause the aggregate number of shares of Common Stock issuable upon the conversion of the Notes to be approved for listing on the NYSE.

 

Section 3.3.     Authorized Shares.  The Company shall at all times reserve and keep available out of its authorized and unissued Common Stock, solely for issuance upon the conversion of the Notes, such number of shares of Common Stock as shall from time to time be issuable upon the conversion of all the Notes then outstanding. Any shares of Common Stock issued upon conversion of Notes shall be duly authorized, validly issued, fully paid and nonassessable.

 

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Section 3.4.       Tax Matters.

 

(a)      The Company and its paying agent shall be entitled to deduct and withhold Taxes on all payments on the Notes or Common Stock or other securities issued upon conversion of the Notes to the extent required by applicable law.  Promptly following the date of this Agreement or, in the case of a Transferee, the date such Transferee first acquires any Notes or Common Stock or other securities issued upon conversion of the Notes, each Holder shall deliver to the Company or its paying agent a duly executed, accurate and properly completed Internal Revenue Service (“IRS”) Form W-9 or an appropriate IRS Form W-8, as applicable.  If the information on any such form provided by a Holder changes, or upon the Company’s reasonable request, the Holder shall provide the Company with an updated version of such form.

 

(b)       Absent a change in law or a contrary determination (as defined in Section 1313(a) of the Code), the Holders and the Company agree to treat the Notes as debt of the Company for all purposes under the Code and the Treasury Regulations, and shall not take any position inconsistent with such treatment.

 

(c)       The Company shall pay any and all documentary, stamp and similar issue or transfer Tax due on (x) the issue of the Notes and (y) the issue of shares of Common Stock upon conversion of the Notes. However, in the case of conversion of Notes, the Company shall not be required to pay any Tax or duty that may be payable in respect of any transfer involved in the issue and delivery of shares of Common Stock or Notes to a beneficial owner other than the beneficial owner of the Notes immediately prior to such conversion, and no such issue or delivery shall be made unless and until the Person requesting such issue has paid to the Company the amount of any such Tax or duty, or has established to the satisfaction of the Company that such Tax or duty has been paid.

 

ARTICLE IV

 

MISCELLANEOUS

 

Section 4.1.       Authority; Effect.  Each party hereto represents and warrants to and agrees with each other party that the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized on behalf of such party and do not violate any agreement or other instrument applicable to such party or by which its assets are bound.  This Agreement does not, and shall not be construed to, give rise to the creation of a partnership among any of the parties hereto, or to constitute any of such parties members of a joint venture or other association.  The Company and its Subsidiaries shall be jointly and severally liable for all obligations of each such party pursuant to this Agreement.

 

Section 4.2.       Notices.  Any notices, requests, demands and other communications required or permitted in this Agreement shall be effective if in writing and (i) delivered personally, (ii) sent by e-mail (provided that the transmission of the e-mail is promptly confirmed by non-automated reply), or (iii) sent by overnight courier, in each case, addressed as follows:

 

(a)

If to the Company to:

 

	Gannett Co., Inc.
	175 Sully’s Trail, Ste. 203
	Pittsford, NY 14534

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	Attention:	Polly Grunfeld Sack, General Counsel
	Email:	[e-mail]

with a copy (which shall not constitute notice) to:

 

	Cravath, Swaine & Moore LLP
	Two Manhattan West
	375 Ninth Avenue
	New York, NY 10001
	Attention:	Daniel Haaren
	Email:	[e-mail]

(b)

If to a Holder, at such Holder’s address as it appears in the Note Register, with a copy (which shall not constitute notice) to:

 

	Paul, Weiss, Rifkind, Wharton & Garrison LLP
	1285 Avenue of the Americas
	New York, NY 10019
	Attention:	Brian Kim
	Email:	[e-mail]

Unless otherwise specified herein, such notices or other communications shall be deemed effective (i) on the date received, if personally delivered, (ii) on the date received if delivered by facsimile or e-mail on a Business Day, or if not delivered on a Business Day, on the first Business Day thereafter and (iii) two Business Days after being sent by overnight courier.  Each of the parties hereto shall be entitled to specify a different address by giving notice as aforesaid to each of the other parties hereto.

 

Section 4.3.       Termination and Effect of Termination.  This Agreement shall terminate upon the date on which no Holder holds any Notes or Registrable Securities, except for the provisions of Sections 2.9 and 2.10, which shall survive any such termination.  No termination under this Agreement shall relieve any Person of liability for breach prior to termination.  In the event this Agreement is terminated, each Person entitled to indemnification rights pursuant to Section 2.9 hereof shall retain such indemnification rights with respect to any matter that (i) may be an indemnified liability thereunder and (ii) occurred prior to such termination.

 

Section 4.4.       Successors and Assigns; Third Party Beneficiaries.

 

(a)       This Agreement shall inure to the benefit of and be binding upon the successors, assigns and Transferees of each of the parties, including, without limitation and without the need for an express assignment, subsequent Holders; provided that nothing herein shall be deemed to permit any assignment, Transfer or other disposition of Registrable Securities in violation of the terms of the Notes or the Indentures. If any Transferee of any Holder shall acquire Registrable Securities in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject to all the terms of this Agreement, and by taking and holding such Registrable Securities such Person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement and such Person shall be entitled to receive the benefits hereof.

 

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(b)       Each Holder shall be a third-party beneficiary to the agreements made hereunder between the Company, on the one hand, and the Initial Holders, on the other hand, and shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights or the rights of other Holders hereunder.

 

Section 4.5.      Remedies.  The parties to this Agreement shall have all remedies available at law, in equity or otherwise in the event of any breach or violation of this Agreement or any default hereunder.  The parties acknowledge and agree that in the event of any breach of this Agreement, in addition to any other remedies that may be available, each of the parties hereto shall be entitled to specific performance of the obligations of the other parties hereto and, in addition, to such other equitable remedies (including preliminary or temporary relief) as may be appropriate in the circumstances.  No delay of or omission in the exercise of any right, power or remedy accruing to any party as a result of any breach or default by any other party under this Agreement shall impair any such right, power or remedy, nor shall it be construed as a waiver of or acquiescence in any such breach or default, or of any similar breach or default occurring later; nor shall any such delay, omission nor waiver of any single breach or default be deemed a waiver of any other breach or default occurring before or after that waiver.

 

Section 4.6.       Amendments.  This Agreement may not be orally amended, modified, extended or terminated, nor shall any oral waiver of any of its terms be effective.  This Agreement may be amended, modified, extended or terminated, and the provisions hereof may be waived, only by an agreement in writing signed by the Company and Holder(s) owning a majority of the Registrable Securities at any time.  Each such amendment, modification, extension or termination shall be binding upon each party hereto and each other Holder.  In addition, each party hereto may waive any right hereunder by an instrument in writing signed by such party.

 

Section 4.7.      Governing Law.  This Agreement and all claims arising out of or based upon this Agreement or relating to the subject matter hereof shall be governed by and construed in accordance with the domestic substantive laws of the State of New York without giving effect to any choice or conflict of laws provision or rule that would cause the application of the domestic substantive laws of any other jurisdiction.

 

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Section 4.8.      Consent to Jurisdiction.  Each party to this Agreement, by its execution hereof, (i) hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the County of New York in the State of New York for the purpose of any action, claim, cause of action or suit (in contract, tort or otherwise), inquiry, proceeding or investigation arising out of or based upon this Agreement or relating to the subject matter hereof, (ii) hereby waives to the extent not prohibited by applicable law, and agrees not to assert, and agrees not to allow any of its subsidiaries to assert, by way of motion, as a defense or otherwise, in any such action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that any such proceeding brought in one of the above-named courts is improper, or that this Agreement or the subject matter hereof or thereof may not be enforced in or by such court and (iii) hereby agrees not to commence or maintain any action, claim, cause of action or suit (in contract, tort or otherwise), inquiry, proceeding or investigation arising out of or based upon this Agreement or relating to the subject matter hereof or thereof other than before one of the above-named courts nor to make any motion or take any other action seeking or intending to cause the transfer or removal of any such action, claim, cause of action or suit (in contract, tort or otherwise), inquiry, proceeding or investigation to any court other than one of the above-named courts whether on the grounds of inconvenient forum or otherwise.  Notwithstanding the foregoing, to the extent that any party hereto is or becomes a party in any litigation in connection with which it may assert indemnification rights set forth in this Agreement, the court in which such litigation is being heard shall be deemed to be included in clause (i) above.  Notwithstanding the foregoing, any party to this Agreement may commence and maintain an action to enforce a judgment of any of the above-named courts in any court of competent jurisdiction.  Each party hereto hereby consents to service of process in any such proceeding in any manner permitted by New York law, and agrees that service of process by registered or certified mail, return receipt requested, at its address specified pursuant to Section 4.2 hereof is reasonably calculated to give actual notice.

 

Section 4.9.     WAIVER OF JURY TRIAL.  TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY, PROCEEDING OR INVESTIGATION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING.  EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES HERETO THAT THIS SECTION 4.9 CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH THEY ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT.  ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 4.9 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.

 

Section 4.10.     Merger, Binding Effect, Etc.  This Agreement constitutes the entire agreement of the parties with respect to its subject matter, supersedes all prior or contemporaneous oral or written agreements or discussions with respect to such subject matter, and shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, representatives, successors and permitted assigns.  Except as otherwise expressly provided herein, no Holder or other party hereto may assign any of its respective rights or delegate any of its respective obligations under this Agreement without the prior written consent of the other parties hereto, and any attempted assignment or delegation in violation of the foregoing shall be null and void.

 

Section 4.11.     Counterparts.  This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one instrument.

 

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Section 4.12.    Severability.  In the event that any provision hereof would, under applicable law, be invalid or unenforceable in any respect, such provision shall be construed by modifying or limiting it so as to be valid and enforceable to the maximum extent compatible with, and possible under, applicable law.  The provisions hereof are severable, and in the event any provision hereof should be held invalid or unenforceable in any respect, it shall not invalidate, render unenforceable or otherwise affect any other provision hereof.

 

Section 4.13.    No Recourse.  Notwithstanding anything that may be expressed or implied in this Agreement, the Company and each Holder covenant, agree and acknowledge that no recourse under this Agreement or any documents or instruments delivered in connection with this Agreement shall be had against any current or future Affiliate, director, officer, employee, general or limited partner, equityholder or member of any Holder or of any Affiliate or assignee thereof, as such, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any current or future Affiliate of any Holder, any current or future officer, agent or employee of any Holder or any current or future member or stockholder of any Holder or any current or future director, officer, employee, partner or member of any Holder or of any Affiliate or assignee thereof, as such, for any obligation of any Holder under this Agreement or any documents or instruments delivered in connection with this Agreement for any claim based on, in respect of or by reason of such obligations or their creation.

 

[Remainder of page intentionally left blank]

 

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IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement (or caused this Agreement to be executed on its behalf by its officer or representative thereunto duly authorized) as of the date first above written.

 

	GANNETT CO., INC.
	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

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	Holder Name
	By:
		Name:
		Title:
	For Holders that require an additional signature:
	By:
		Name:
		Title:

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Exhibit 4.5

FIRST LIEN/SECOND LIEN INTERCREDITOR AGREEMENT

dated as of

October 15, 2024

among

APOLLO ADMINISTRATIVE AGENCY LLC,

as First Lien Agreement Agent,

APOLLO ADMINISTRATIVE AGENCY LLC,

as First Lien Agreement Collateral Agent,

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION

(F/K/A U.S. BANK NATIONAL ASSOCIATION),

as Initial Other First-Priority Agent,

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,

as Initial Other First-Priority Collateral Agent,

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,

as Initial Second-Priority Agent, and

ALTER DOMUS PRODUCTS CORP.

as Initial Second-Priority Collateral Agent

Relating to GANNETT HOLDINGS LLC

 

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TABLE OF CONTENTS

 

				Page
Section 1.			Definitions	1
	1.1		Defined Terms	1
	1.2		Terms Generally	9
Section 2.			Lien Priorities	10
	2.1		Subordination of Liens	10
	2.2		Prohibition on Contesting Liens	11
	2.3		No New Liens	11
	2.4		Perfection of Liens	11
	2.5		Certain Cash Collateral	11
	2.6		Nature of First-Priority Obligations	12
Section 3.			Enforcement	12
	3.1		Exercise of Remedies	12
	3.2		Cooperation	14
	3.3		Second-Priority Collateral Agent and Second-Priority Secured Parties Waiver	14
Section 4.			Payments	14
	4.1		Application of Proceeds	14
	4.2		Payments Over	15
Section 5.			Other Agreements	15
	5.1		Releases	15
	5.2		Insurance	16
	5.3		Amendments to Second-Priority Collateral Documents	16
	5.4		Rights as Unsecured Creditors	18
	5.5		First-Priority Collateral Agent as Gratuitous Bailee/Agent for Perfection	18
	5.6		Second-Priority Collateral Agent as Gratuitous Bailee/Agent for Perfection	20
	5.7		When Discharge of First-Priority Obligations Deemed to Not Have Occurred	21
	5.8		No Release if Event of Default	22
Section 6.			Insolvency or Liquidation Proceedings	22
	6.1		Financing Issues	22
	6.2		Relief from the Automatic Stay	23
	6.3		Adequate Protection	23
	6.4		Preference Issues	24
	6.5		Application	24
	6.6		506(c) Claims	24
	6.7		Reorganization Securities	24
	6.8		Voting	24

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	6.9		Post-Petition Interest	25
	6.10		Separate Grants of Security and Separate Classifications	25
Section 7.			Reliance; Waivers; etc	26
	7.1		Reliance	26
	7.2		No Warranties or Liability	26
	7.3		Obligations Unconditional	26
Section 8.			Miscellaneous	27
	8.1		Conflicts	27
	8.2		Continuing Nature of this Agreement; Severability	27
	8.3		Amendments; Waivers	28
	8.4		Information Concerning Financial Condition of Holdings and the Subsidiaries	29
	8.5		Subrogation	29
	8.6		Application of Payments	29
	8.7		Consent to Jurisdiction; Waivers	29
	8.8		Notices	30
	8.9		Further Assurances	30
	8.10		Governing Law	30
	8.11		Binding on Successors and Assigns	30
	8.12		Specific Performance	31
	8.13		Section Titles	31
	8.14		Counterparts	31
	8.15		Authorization	31
	8.16		No Third Party Beneficiaries; Successors and Assigns	31
	8.17		Effectiveness	31
	8.18		First-Priority Representatives and Second-Priority Representatives	31
	8.19		Relative Rights	32
	8.20		Second-Priority Collateral Agent	32
	8.21		Joinder Requirements	32
	8.22		Intercreditor Agreements	33

Exhibits and Annexes

 

Annex I	Consent of Grantors
Exhibit A	Form of Joinder Agreement (Other First-Priority Obligations)
Exhibit B	Form of Joinder Agreement (Other Second-Priority Obligations)

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FIRST LIEN/SECOND LIEN INTERCREDITOR AGREEMENT

 

FIRST LIEN/SECOND LIEN INTERCREDITOR AGREEMENT, dated as of October 15, 2024, among Apollo Administrative Agency LLC (“Apollo Admin Agent”), as First Lien Agreement Agent, Apollo Admin Agent, as First Lien Agreement Collateral Agent, U.S. Bank Trust Company, National Association (“U.S. Bank”), as Initial Other First-Priority Agent, U.S. Bank, as Initial Other First-Priority Collateral Agent, U.S. Bank, as Initial Second-Priority Agent, and Alter Domus Products Corp. (“Alter Domus”), as Initial Second-Priority Collateral Agent, as consented to by the Grantors in the Consent of Grantors.

 

A.       Gannett Holdings LLC, a Delaware limited liability company (the “Borrower”), Gannett Co., Inc., a Delaware corporation (“Holdings”), the lenders party thereto from time to time, Apollo Admin Agent (as successor to Citibank, N.A.), as administrative agent and collateral agent, Apollo Global Funding LLC, as lead arranger and lead bookrunner, and others are party to that certain Amended and Restated First Lien Credit Agreement, dated as of October 15, 2024 (as amended, restated, amended and restated, supplemented, replaced, refinanced, extended or otherwise modified from time to time, the “First Lien Agreement”).  The Obligations of the Borrower, Holdings and certain of its Subsidiaries under the First Lien Agreement and the First Lien Agreement Documents executed or delivered pursuant thereto constitute First-Priority Obligations hereunder.

 

B.      Holdings, certain of its Subsidiaries, U.S. Bank, as trustee, and others are party to the Indenture, dated as of October 15, 2021 (as amended, restated, amended and restated, supplemented, replaced, refinanced, extended or otherwise modified from time to time, the “Initial Other First-Priority Agreement”). The Obligations of the Borrower, Holdings and certain of its Subsidiaries under the Initial Other First-Priority Agreement and the other Initial Other First-Priority Documents constitute First-Priority Obligations hereunder.

 

C.      Holdings, certain of its Subsidiaries, U.S. Bank, as trustee, and others are party to the Indenture, dated as of October 15, 2024 (as amended, restated, amended and restated, supplemented, replaced, refinanced, extended or otherwise modified from time to time, the “Initial Second-Priority Agreement”). The Obligations of the Borrower, Holdings and certain of its Subsidiaries under the Initial Second-Priority Agreement and the other Initial Second-Priority Documents constitute Initial Second-Priority Obligations hereunder.

 

Accordingly, in consideration of the foregoing, the mutual covenants and obligations herein set forth and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

 

Section 1.          Definitions.

 

1.1         Defined Terms.  As used in this Agreement, the following terms have the meanings specified below:

 

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“Agreement” means this First Lien/Second Lien Intercreditor Agreement, as amended, renewed, extended, supplemented or otherwise modified from time to time in accordance with the terms hereof.

 

“Alter Domus” shall have the meaning set forth in the preamble.

 

“Apollo Admin Agent” shall have the meaning set forth in the preamble.

 

“Bankruptcy Code” means Title 11 of the United States Code, as now or hereinafter in effect.

 

“Bankruptcy Law” means the Bankruptcy Code and any similar Federal, state or foreign law for the relief of debtors.

 

“Borrower” shall have the meaning set forth in the recitals, together with its successors and permitted assigns.

 

 “Closing Date” means October 15, 2024.

 

“Common Collateral” means all of the assets of any Grantor with respect to which a Lien is granted or purported or required to be granted as security for one or more Series of First-Priority Obligations and one or more Series of Second-Priority Obligations.

 

“Comparable Second-Priority Collateral Document” means, in relation to any Common Collateral subject to any Lien created under any First-Priority Collateral Document, those Second-Priority Collateral Documents that create a Lien on the same Common Collateral, granted by the same Grantor.

 

“Consent of Grantors” means the Consent of Grantors in the form of Annex I attached hereto.

 

“Controlled” means, with respect to any Person at any time, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

 

“Deposit Account” shall have the meaning set forth in the UCC.

 

“Deposit Account Collateral” means that part of the Common Collateral (if any) comprised of or contained in Deposit Accounts or Securities Accounts.

 

“DIP Financing” shall have the meaning set forth in Section 6.1.

 

“Discharge of First-Priority Obligations” means, except to the extent otherwise provided in Section 5.7, payment in full in cash (except for contingent indemnities and cost and reimbursement obligations, in each case, to the extent no claim has been made) of (a) all Obligations in respect of all outstanding First-Priority Obligations and, with respect to letters of credit or letter of credit guaranties outstanding thereunder, delivery of cash collateral or backstop letters of credit in respect thereof in compliance with the First-Priority Credit Documents, in each case after or concurrently with the termination of all commitments to extend credit thereunder and (b) any other First-Priority Obligations that are due and payable or otherwise accrued and owing at or prior to the time such principal and interest are paid.

 

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“First Lien Agreement” shall have the meaning set forth in the recitals.

 

“First Lien Agreement Agent” means Apollo Admin Agent, in its capacity as administrative agent under the First Lien Agreement, and its permitted successors and assigns in such capacity.

 

“First Lien Agreement Collateral Agent” means Apollo Admin Agent, in its capacity as collateral agent under the First Lien Agreement, and its permitted successors and assigns in such capacity.

 

“First Lien Agreement Collateral Documents” means the First Lien Collateral Agreement and any other documents now existing or entered into after the Closing Date that create Liens on any assets or properties of any Grantor to secure any First Lien Agreement Obligations, including the other “Security Documents” (as defined in the First Lien Agreement) in respect of the First Lien Agreement Obligations.

 

“First Lien Agreement Documents” means the First Lien Agreement, the First Lien Agreement Collateral Documents and the other “Loan Documents” as defined in the First Lien Agreement.

 

“First Lien Agreement Obligations” means all “Obligations” (as such term is defined in the First Lien Agreement).

 

“First Lien Agreement Secured Parties” means the “Secured Parties” as defined in the First Lien Agreement.

 

“First Lien Collateral Agreement means that certain Pledge and Security Agreement dated as of October 15, 2021, among the Borrower, each other pledgor from time to time party thereto and the First Lien Agreement Collateral Agent (as successor to Citibank, N.A.), as collateral agent for the First Lien Agreement Secured Parties and certain Other First-Priority Secured Parties, as amended, restated, amended and restated, supplemented, replaced or modified from time to time.

 

“First-Priority Collateral” means all of the assets of any Grantor with respect to which a Lien is granted, or purported to be granted, as security for one or more Series of First-Priority Obligations pursuant to any First-Priority Collateral Document.

 

“First-Priority Collateral Agent” means the First Lien Agreement Collateral Agent for so long as the First Lien Agreement is the only First-Priority Credit Document or, if there is more than one First-Priority Credit Document, such agent or trustee as is designated “First-Priority Collateral Agent” by the First-Priority Secured Parties pursuant to the terms of any other intercreditor agreement among the First-Priority Representatives (and will remain the First Lien Agreement Collateral Agent until so designated).

 

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“First-Priority Collateral Documents” means (a) the First Lien Agreement Collateral Documents, (b) Initial Other First-Priority Collateral Documents and (c) any documents now existing or entered into after the Closing Date that create Liens on any assets or properties of any Grantor to secure any Series of Other First-Priority Obligations, including the other “Security Documents” (as defined in such Other First-Priority Agreement) with respect to such Series of Other First-Priority Obligations.

 

“First-Priority Credit Documents” means (a) the First Lien Agreement, (b) the Initial Other First-Priority Agreement and (c) any Other First-Priority Agreement.

 

“First-Priority Documents” means (a) the First Lien Agreement Documents, (b) the Initial Other First-Priority Documents, (c) the Other First-Priority Documents and (d) any other intercreditor agreements among First-Priority Representatives.

 

“First-Priority Obligations” means (a) the First Lien Agreement Obligations, (b) the Initial Other  First-Priority Obligations and (c) the Other First-Priority Obligations.

 

“First-Priority Representatives” means (a) in the case of the First Lien Agreement Obligations, the First Lien Agreement Agent, (b) in the case of the Initial Other First-Priority Agreement, the Initial Other First-Priority Agent and (c) in the case of any Series of Other First-Priority Obligations or a separate facility within such series, the Other First-Priority Representative with respect thereto.  The term “First-Priority Representatives” shall include the First-Priority Collateral Agent as the context requires.

 

“First-Priority Secured Parties” means (a) the First Lien Agreement Secured Parties, (b) the Initial Other-First Priority Secured Parties and (c) the Other First-Priority Secured Parties, including the First-Priority Representatives.

 

“Grantors” means each of Holdings, the Borrower and such of the direct and indirect Subsidiaries of Holdings and/or the Borrower that, in each case, has granted a lien on its assets to secure one or more Series of First-Priority Obligations and one or more Series of Second-Priority Obligations.

 

“Holdings” shall have the meaning set forth in the recitals.

 

“Initial Other First-Priority Agent” means U.S. Bank, in its capacity as trustee under the Initial First-Priority Agreement, and its permitted successors and assigns in such capacity.

 

“Initial Other First-Priority Agreement” shall have the meaning set forth in the recitals.

 

 “Initial Other First-Priority Collateral Agent” shall mean U.S. Bank, in its capacity as collateral agent under the Initial Other First-Priority Collateral Documents, and its permitted successors and assigns in such capacity.

 

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“Initial Other First-Priority Collateral Agreement” means the Pledge and Security Agreement, dated as of October 15, 2021, among Holdings, each other pledgor from time to time party thereto and U.S. Bank, as collateral agent for the Initial Other First-Priority Secured Parties, as amended, restated, amended and restated, supplemented, replaced or modified from time to time.

 

“Initial Other First-Priority Collateral Documents” means the Initial Other First-Priority Collateral Agreement and any other documents now existing or entered into after the Closing Date that create Liens on any assets or properties of any Grantor to secure any Initial First-Priority Obligations, including the other “Security Documents” (as defined in the Initial First-Priority Agreement) in respect of the Initial Second-Priority Obligations.

 

“Initial Other First-Priority Documents” means the Initial First-Priority Agreement, the Initial Other First-Priority Collateral Documents and any other “Intercreditor Agreements” as defined in the Initial First-Priority Agreement.

 

“Initial Other First-Priority Obligations” means all “Obligations” (as such term is defined in the Initial Other First-Priority Agreement).

 

“Initial Other First-Priority Secured Parties” means the “Secured Parties” as defined in the Initial Other First-Priority Collateral Agreement.

 

“Initial Second-Priority Agent” shall mean U.S. Bank, in its capacity as trustee under the Initial Second-Priority Agreement, and its permitted successors and assigns in such capacity.

 

“Initial Second-Priority Agreement” shall have the meaning set forth in the recitals.

 

 “Initial Second-Priority Collateral Agent” shall mean Alter Domus, in its capacity as collateral agent under the Initial Second-Priority Collateral Documents, and its permitted successors and assigns in such capacity.

 

“Initial Second-Priority Collateral Agreement” means the Pledge and Security Agreement, dated as of October 15, 2024, among the Borrower, each other pledgor from time to time party thereto and Alter Domus, as collateral agent for the Initial Second-Priority Secured Parties and certain Other Second Priority Secured Parties, as amended, restated, amended and restated, supplemented, replaced or modified from time to time.

 

“Initial Second-Priority Collateral Documents” means the Initial Second-Priority Collateral Agreement and any other documents now existing or entered into after the Closing Date that create Liens on any assets or properties of any Grantor to secure any Initial Second-Priority Obligations, including the other “Security Documents” (as defined in the Initial Second-Priority Agreement) in respect of the Initial Second-Priority Obligations.

 

“Initial Second-Priority Documents” means the Initial Second-Priority Agreement, the Initial Second-Priority Collateral Documents and any other “Intercreditor Agreements” as defined in the Initial Second-Priority Agreement.

 

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“Initial Second-Priority Obligations” means all “Obligations” (as such term is defined in the Initial Second-Priority Agreement).

 

“Initial Second-Priority Secured Parties” means the “Secured Parties” as defined in the Initial Second-Priority Collateral Agreement.

 

“Insolvency or Liquidation Proceeding” means (a) any voluntary or involuntary case or proceeding under any Bankruptcy Law with respect to any Grantor, (b) any other voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding with respect to any Grantor or with respect to any of its assets, (c) any liquidation, dissolution, reorganization or winding up of any Grantor whether voluntary or involuntary and whether or not involving insolvency or bankruptcy (except for any voluntary liquidation, dissolution or other winding up to the extent permitted by the applicable First-Priority Documents and Second-Priority Documents) or (d) any assignment for the benefit of creditors or any other marshalling of assets and liabilities of any Grantor.

 

“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, hypothecation, pledge, charge, security interest or similar monetary encumbrance in or on such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset; provided, that in no event shall an operating lease or an agreement to sell be deemed to constitute a Lien.

 

“Obligations” means any principal, interest, fees, expenses and other obligations (including any interest, fees, expenses and other obligations accruing after the commencement of any Insolvency or Liquidation Proceeding, regardless of whether allowed or allowable in such proceeding), penalties, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other liabilities payable under the documentation governing any indebtedness.

 

“Other First-Priority Agreement” means any credit agreement, indenture or other agreement, document or instrument (in each case, other than the First Lien Agreement), pursuant to which any Grantor has or will incur Other First-Priority Obligations.

 

“Other First-Priority Collateral Agent” means, with respect to any Series of Other First-Priority Obligations or any separate facility within such Series, any Other First-Priority Representative that acts in the capacity of a collateral agent with respect thereto.

 

“Other First-Priority Documents” means each of the agreements, documents and instruments providing for, evidencing or securing any Other First-Priority Obligations and any other related document or instrument executed or delivered pursuant to any Other First-Priority Document at any time or otherwise evidencing or securing any indebtedness arising under any Other First-Priority Document.

 

“Other First-Priority Obligations” means any indebtedness or Obligations (other than First Lien Agreement Obligations) of the Grantors that are to be secured with a Lien on the Collateral senior to the Liens securing the Initial Second-Priority Obligations and are designated by the Borrower as Other First-Priority Obligations hereunder; provided, however, that the requirements set forth in Section 8.21 shall have been satisfied.

 

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“Other First-Priority Representative” means, with respect to any Series of Other First-Priority Obligations or any separate facility within such Series, the Person elected, designated or appointed as the administrative agent, trustee or other representative of such Series or facility by or on behalf of the holders of such Series or facility, and its respective successors in substantially the same capacity as may from time to time be appointed.

 

“Other First-Priority Secured Parties” means the “Secured Parties” as defined in the Other First-Priority Agreement and any other Persons holding Other First-Priority Obligations, including the Other First-Priority Representatives.

 

“Other Second-Priority Agreement” means any credit agreement, indenture or other agreement, document or instrument (in each case, other than the Initial Second-Priority Agreement), pursuant to which any Grantor has or will incur Other Second-Priority Obligations.

 

“Other Second-Priority Collateral Agent” means, with respect to any Series of Other Second-Priority Obligations or any separate facility within such Series, any Other Second-Priority Representative that acts in the capacity of a collateral agent with respect thereto.

 

“Other Second-Priority Documents” means each of the agreements, documents and instruments providing for, evidencing or securing any Other Second-Priority Obligations and any other related document or instrument executed or delivered pursuant to any Other Second-Priority Document at any time or otherwise evidencing or securing any indebtedness arising under any Second-Priority Obligations.

 

“Other Second-Priority Obligations” means any indebtedness or Obligations (other than the Initial Second-Priority Obligations) of the Grantors that are to be equally and ratably secured with the Initial Second-Priority Obligations and are designated by the Borrower as Other Second-Priority Obligations hereunder; provided, however, that the requirements set forth in Section 8.21 shall have been satisfied.

 

“Other Second-Priority Representative” means, with respect to any Series of Other Second-Priority Obligations or any separate facility within such Series, the Person elected, designated or appointed as the administrative agent, trustee or other representative of such Series or facility by or on behalf of the holders of such Series or facility, and its respective successors in substantially the same capacity as may from time to time be appointed.

 

“Other Second-Priority Secured Parties” means the “Secured Parties” as defined in the Other Second-Priority Agreement and any other Persons holding Other Second-Priority Obligations, including the Other Second-Priority Representatives.

 

“Person” or “person” means any natural person, corporation, business trust, joint venture, association, company, partnership, limited liability company or government, individual or family trusts, or any agency or political subdivision thereof.

 

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“Pledged Collateral” means the Common Collateral in the possession of the First-Priority Collateral Agent (or its agents or bailees), to the extent that possession thereof is necessary to perfect a Lien thereon under the UCC.

 

“Recovery” shall have the meaning set forth in Section 6.4.

 

“Required Lenders” means, with respect to any First-Priority Credit Document, those First-Priority Secured Parties the approval of which is required to approve an amendment or modification of, termination or waiver of any provision of or consent to any departure from such First-Priority Credit Document (or would be required to effect such consent under this Agreement if such consent were treated as an amendment of such First-Priority Credit Document).

 

“Second-Priority Collateral” means all of the assets of any Grantor with respect to which a Lien is granted, or purported to be granted, as security for one or more Series of Second-Priority Obligations pursuant to any Second-Priority Collateral Document.

 

“Second-Priority Collateral Agent” means Alter Domus Products Corp., in its capacity as collateral agent for the Second-Priority Secured Parties, together with its successors and permitted assigns under the Second-Priority Documents exercising substantially the same rights and powers (or if there is more than one Second-Priority Notes Document, such agent or trustee as is designated “Second-Priority Collateral Agent” by the Second-Priority Secured Parties holding a majority in principal amount of the Second-Priority Obligations then outstanding); it being understood that as of the Closing Date, the Initial Second-Priority Collateral Agent shall be so designated Second-Priority Collateral Agent.

 

“Second-Priority Collateral Documents” means (a) the Initial Second-Priority Collateral Documents and (b) any documents now existing or entered into after the Closing Date that create Liens on any assets or properties of any Grantor to secure any Series of Other Second-Priority Obligations, including the other “Security Documents” (as defined in such Other Second-Priority Agreement) with respect to such Series of Other Second-Priority Obligations.

 

“Second-Priority Documents” means (a) the Initial Second-Priority Documents and (b) the Other Second-Priority Documents.

 

“Second-Priority Lien” means any Lien on any assets of the Borrower or any other Grantor securing any Series of Second-Priority Obligations.

 

“Second-Priority Notes Documents” means (a) the Initial Second-Priority Agreement and (b) any Other Second-Priority Agreements.

 

“Second-Priority Obligations” means (a) the Initial Second-Priority Obligations and (b) the Other Second-Priority Obligations.

 

“Second-Priority Representatives” means (a) in the case of the Initial Second-Priority Obligations, the Initial Second-Priority Agent and (b) in the case of any Series of Other Second-Priority Obligations or a separate facility within such series, the Other Second-Priority Representative with respect thereto.  The term “Second-Priority Representatives” shall include the Second-Priority Collateral Agent as the context requires.

 

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“Second-Priority Secured Parties” means (a) the Initial Second-Priority Secured Parties and (b) the Other Second-Priority Secured Parties, including the Second-Priority Representatives.

 

“Secured Parties” means the First-Priority Secured Parties and the Second-Priority Secured Parties.

 

“Securities Account” shall have the meaning set forth in the UCC.

 

“Series” means (a) the First Lien Agreement Obligations and each series of Other First-Priority Obligations, each of which shall constitute a separate Series of First-Priority Obligations, except that to the extent that the First Lien Agreement Obligations and/or any one or more series of such Other First-Priority Obligations (i) are secured by identical collateral held by a common collateral agent and (ii) have their security interests documented by a single set of security documents, such First Lien Agreement Obligations and/or each such series of Other First-Priority Obligations shall collectively constitute a single Series and (b) the Initial Second-Priority Obligations and each series of Other Second-Priority Obligations, each of which shall constitute a separate Series of Second-Priority Obligations, except that to the extent that the Initial Second-Priority Obligations and/or any one or more series of such Other Second-Priority Obligations (i) are secured by identical collateral held by a common collateral agent and (ii) have their security interests documented by a single set of security documents, such Initial Second-Priority Obligations and/or each such series of Other Second-Priority Obligations shall collectively constitute a single Series.

 

“Subsidiary” means, with respect to any person (herein referred to as the “parent”), any corporation, partnership, association or other business entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, directly or indirectly, owned, Controlled or held, or (b) that is, at the time any determination is made, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

 

“UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York.

 

“U.S. Bank” shall have the meaning set forth in the preamble.

 

1.2         Terms Generally.  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified in accordance with this Agreement, (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Sections shall be construed to refer to Sections of this Agreement, (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights and (f) any reference to a defined term in the First Lien Agreement, the First Lien Collateral Agreement, the Initial-Second Priority Agreement or the Initial Second-Priority Collateral Agreement shall include similar or equivalent defined terms in any document that refinances or replaces the First Lien Agreement, the First Lien Collateral Agreement, the Initial-Second Priority Agreement or the Initial Second-Priority Collateral Agreement, as applicable.

 

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Section 2.          Lien Priorities.

 

2.1       Subordination of Liens.  Notwithstanding the date, time, manner or order of filing or recordation of any document or instrument or grant, attachment or perfection (including any defect or deficiency or alleged defect or deficiency in any of the foregoing) of any Liens granted to the Second-Priority Secured Parties on the Common Collateral or of any Liens granted to the First-Priority Secured Parties on the Common Collateral and notwithstanding any provision of the UCC, or any applicable law or the Second-Priority Documents or the First-Priority Documents, the fact that any Liens granted to secure the Second-Priority Obligations or any Liens granted to secure any First-Priority Obligations may be subordinated, voided, avoided, invalidated or lapsed, or any other circumstance whatsoever, each Second-Priority Representative, on behalf of itself and each applicable Second-Priority Secured Party, hereby agrees that: (a) any Lien on the Common Collateral securing any First-Priority Obligations now or hereafter held by or on behalf of any First-Priority Secured Parties or any agent or trustee therefor regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects and prior to any Lien on the Common Collateral securing any Second-Priority Obligations, (b) any Lien on the Common Collateral securing any Second-Priority Obligations now or hereafter held by or on behalf of any Second-Priority Secured Parties or any agent or trustee therefor regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Common Collateral securing any First-Priority Obligations and (c) with respect to any Second-Priority Obligations (and as among the Second-Priority Secured Parties), the Liens on the Common Collateral securing any Second-Priority Obligations now or hereafter held by or on behalf of any Second-Priority Secured Party or any agent or trustee therefor regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall rank equally and ratably in all respects, subject to the terms of the Second-Priority Documents.  All Liens on the Common Collateral securing any First-Priority Obligations shall be and remain senior in all respects and prior to all Liens on the Common Collateral securing any Second-Priority Obligations for all purposes, whether or not such Liens securing any First-Priority Obligations are subordinated to any Lien securing any other obligation of the Borrower, any other Grantor or any other Person.

 

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2.2       Prohibition on Contesting Liens.  Each Second-Priority Representative, for itself and on behalf of each applicable Second-Priority Secured Party, and each First-Priority Representative, for itself and on behalf of each applicable First-Priority Secured Party, agrees that it shall not (and hereby waives any right to) contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the validity, allowability, perfection, priority or enforceability of (a) a Lien securing, or claim asserted with respect to, any First-Priority Obligations held (or purported to be held) by or on behalf of any of the First-Priority Secured Parties or any agent or trustee therefor in any First-Priority Collateral or Common Collateral or under the First-Priority Collateral Documents or (b) a Lien securing, or claim asserted with respect to, any Second-Priority Obligations held (or purported to be held) by or on behalf of any Second-Priority Secured Party in the Common Collateral or under the Second-Priority Collateral Documents, as the case may be; provided, however, that nothing in this Agreement shall be construed to prevent or impair the rights of any First-Priority Secured Party or any agent or trustee therefor to enforce this Agreement (including the priority of the Liens securing the First-Priority Obligations as provided in Section 2.1) or any of the First-Priority Documents.

 

2.3        No New Liens.  So long as the Discharge of First-Priority Obligations has not occurred, the parties hereto agree that, after the Closing Date, if any Second-Priority Representative shall hold any Lien on any assets of the Borrower or any other Grantor securing any Second-Priority Obligations that are not also subject to the first-priority Lien in respect of the First-Priority Obligations under the First-Priority Documents, such Second-Priority Representative shall notify the First-Priority Collateral Agent promptly upon becoming aware thereof and, upon demand by the First-Priority Collateral Agent or the Borrower, will either (i) release such Lien or (ii) assign such Lien to the First-Priority Collateral Agent (and/or its designee) as security for the applicable First-Priority Obligations (and, in the case of an assignment, each Second-Priority Representative may retain a junior lien on such assets subject to the terms hereof).  To the extent that the foregoing provisions are not complied with for any reason, without limiting any other rights and remedies available to the First-Priority Representatives and/or the First-Priority Secured Parties, each Second-Priority Representative, on behalf of itself and the applicable Second-Priority Secured Parties, agrees that any amounts received by or distributed to any of them pursuant to or as a result of Liens granted in contravention of this Section 2.3 shall be subject to Section 4.2.  Each Second-Priority Representative agrees that, after the Closing Date, if it shall hold any Lien on any assets of the Borrower or any other Grantor securing any Second-Priority Obligations that are not also subject to the Lien in favor of each other Second-Priority Representative, such Second-Priority Representative shall notify any other Second-Priority Representative promptly upon becoming aware thereof.

 

2.4        Perfection of Liens.  None of the First-Priority Secured Parties shall be responsible for perfecting and maintaining the perfection of Liens with respect to the Common Collateral for the benefit of the Second-Priority Secured Parties.  The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the First-Priority Secured Parties and the Second-Priority Secured Parties and shall not impose on the First-Priority Secured Parties or the Second-Priority Secured Parties or, in each case, any agent or trustee therefor any obligations in respect of the disposition of proceeds of any Common Collateral which would conflict with prior perfected claims therein in favor of any other Person or any order or decree of any court or governmental authority or any applicable law.

 

2.5        Certain Cash Collateral.  Notwithstanding anything in this Agreement or any First-Priority Documents or Second-Priority Documents to the contrary, collateral consisting of cash and cash equivalents pledged to secure First-Priority Obligations consisting of reimbursement obligations in respect of letters of credit or otherwise held by the First-Priority Collateral Agent pursuant to the First-Priority Documents shall be applied as specified in the First-Priority Documents and will not constitute Common Collateral.

 

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2.6        Nature of First-Priority Obligations.  The Second-Priority Collateral Agent, on behalf of itself and each other Second-Priority Secured Party, acknowledges that (a) a portion of the First-Priority Obligations is revolving in nature and that the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed, (b) the terms of the First-Priority Documents and the First-Priority Obligations, or a portion thereof, may be refinanced at any time or from time to time and (c) the aggregate amount of the First-Priority Obligations may be increased, in each case, without notice to or consent by the Second-Priority Collateral Agent or the Second-Priority Secured Parties and without affecting the provisions hereof.  The Lien priorities provided for in Section 2.1 shall not be altered or otherwise affected by any amendment, supplement or other modification, or any refinancing of either the First-Priority Obligations or the Second-Priority Obligations, or any portion thereof.  As between the Grantors and the Second-Priority Secured Parties, the foregoing provisions will not limit or otherwise affect the obligations of the Grantors contained in any Second-Priority Document.

 

Section 3.          Enforcement.

 

3.1         Exercise of Remedies.

 

(a)      So long as the Discharge of First-Priority Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Borrower or any other Grantor, (i) no Second-Priority Representative or any Second-Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Common Collateral in respect of any applicable Second-Priority Obligations or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Common Collateral by the First-Priority Collateral Agent or any First-Priority Secured Party in respect of the First-Priority Obligations, the exercise of any right by the First-Priority Collateral Agent or any First-Priority Secured Party (or any agent or sub-agent on their behalf) in respect of the First-Priority Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Second-Priority Representative or any Second-Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral under the First-Priority Documents or otherwise in respect of First-Priority Obligations, or (z) object to the forbearance by the First-Priority Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Common Collateral in respect of First-Priority Obligations and (ii) except as otherwise provided herein, the First-Priority Collateral Agent and the First-Priority Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Common Collateral without any consultation with or the consent of any Second-Priority Representative or any Second-Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Borrower or any other Grantor, each Second-Priority Representative may file a claim or statement of interest with respect to the applicable Second-Priority Obligations, in a manner and to the extent not inconsistent with the provisions hereof, and (B) each Second-Priority Representative may take any action (not adverse to the prior Liens on the Common Collateral securing the First-Priority Obligations, or the rights of the First-Priority Collateral Agent or the First-Priority Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Common Collateral.  In exercising rights and remedies with respect to the First-Priority Collateral, the First-Priority Secured Parties may enforce the provisions of the First-Priority Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion.  Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the UCC or other applicable law of any applicable jurisdiction and of a secured creditor under Bankruptcy Law of any applicable jurisdiction.

 

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(b)       So long as the Discharge of First-Priority Obligations has not occurred, each Second-Priority Representative, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will not take or receive any Common Collateral or any proceeds of Common Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Common Collateral in respect of the applicable Second-Priority Obligations.  Without limiting the generality of the foregoing, unless and until the Discharge of First-Priority Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a), the sole right of the Second-Priority Representatives and the Second-Priority Secured Parties with respect to the Common Collateral is to hold a Lien on the Common Collateral in respect of the applicable Second-Priority Obligations pursuant to the Second-Priority Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of First-Priority Obligations has occurred.

 

(c)       Subject to the proviso in clause (ii) of Section 3.1(a), (i) each Second-Priority Representative, for itself and on behalf of each applicable Second-Priority Secured Party, agrees that no Second-Priority Representative or Second-Priority Secured Party will take any action that would hinder or delay any exercise of remedies undertaken by the First-Priority Collateral Agent or the First-Priority Secured Parties with respect to the Common Collateral under the First-Priority Documents, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) each Second-Priority Representative, for itself and on behalf of each applicable Second-Priority Secured Party, hereby waives any and all rights it or any Second-Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the First-Priority Collateral Agent or the First-Priority Secured Parties seek to enforce or collect the First-Priority Obligations or the Liens granted in any of the First-Priority Collateral, regardless of whether any action or failure to act by or on behalf of the First-Priority Collateral Agent or First-Priority Secured Parties is adverse to the interests of the Second-Priority Secured Parties.

 

(d)      Each Second-Priority Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any applicable Second-Priority Document shall be deemed to restrict in any way the rights and remedies of the First-Priority Collateral Agent or the First-Priority Secured Parties with respect to the First-Priority Collateral as set forth in this Agreement and the First-Priority Documents.

 

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3.2        Cooperation.  Subject to the proviso in clause (ii) of Section 3.1(a), each Second-Priority Representative, on behalf of itself and each applicable Second-Priority Secured Party, agrees that, unless and until the Discharge of First-Priority Obligations has occurred, it will not commence, or join with any Person (other than the First-Priority Secured Parties and the First-Priority Collateral Agent upon the request thereof) in commencing, any enforcement, collection, execution, levy or foreclosure action or proceeding with respect to any Lien held by it in the Common Collateral under any of the applicable Second-Priority Documents or otherwise in respect of the applicable Second-Priority Obligations.

 

3.3        Second-Priority Collateral Agent and Second-Priority Secured Parties Waiver.  The Second-Priority Collateral Agent and the Second-Priority Secured Parties hereby waive any claim they may now or hereafter have against the First-Priority Collateral Agent or any First-Priority Secured Parties arising out of (i) any actions which the First-Priority Collateral Agent (or any of its representatives) takes or omits to take (including actions with respect to the creation, perfection or continuation of Liens on any Common Collateral, actions with respect to the foreclosure upon, disposition, release or depreciation of, or failure to realize upon, any of the Common Collateral and actions with respect to the collection of any claim for all or any part of the First-Priority Obligations from any account debtor, guarantor or any other party) in accordance with any relevant First-Priority Collateral Documents or any other agreement related thereto, or to the collection of the First-Priority Obligations or the valuation, use, protection or release of any security for the First-Priority Obligations, (ii) any election by the First-Priority Collateral Agent (or any of its agents), in any Insolvency or Liquidation Proceeding, of the application of Section 1111(b) of the Bankruptcy Code (or any similar provision of any other applicable Bankruptcy Law), or (iii) subject to Section 6, any borrowing by, or grant of a security interest or administrative expense priority under Section 364 of the Bankruptcy Code (or any similar provision of any other applicable Bankruptcy Law) by, the Borrower or any of its Subsidiaries, as debtor-in-possession.

 

Section 4.          Payments.

 

4.1         Application of Proceeds.  After an Event of Default under (and as defined in) any First-Priority Documents has occurred with respect to which the First-Priority Collateral Agent has provided written notice to each Second-Priority Representative, and until such event of default is cured or waived, so long as the Discharge of First-Priority Obligations has not occurred, the Common Collateral or proceeds thereof received in connection with the sale or other disposition of, or collection on, such Common Collateral upon the exercise of remedies, shall be applied by the First-Priority Collateral Agent to the First-Priority Obligations in such order as specified in the relevant First-Priority Documents until the Discharge of First-Priority Obligations has occurred.  Upon the Discharge of First-Priority Obligations, the First-Priority Collateral Agent shall deliver promptly to the Second-Priority Collateral Agent any Common Collateral or proceeds thereof held by it in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct to be applied by the Second-Priority Collateral Agent ratably to the Second-Priority Obligations and, with respect to each class of Second-Priority Obligations, in such order as specified in the relevant Second-Priority Documents.

 

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4.2        Payments Over.  Any Common Collateral or proceeds thereof received by any Second-Priority Representative or any Second-Priority Secured Party in connection with the exercise of any right or remedy (including setoff) relating to the Common Collateral in contravention of this Agreement shall be segregated and held in trust for the benefit of and forthwith paid over to the First-Priority Collateral Agent (and/or its designees) for the benefit of the applicable First-Priority Secured Parties in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct.  The First-Priority Collateral Agent is hereby authorized to make any such endorsements as agent for any Second-Priority Representative or any such Second-Priority Secured Party.  This authorization is coupled with an interest and is irrevocable.

 

Section 5.          Other Agreements.

 

5.1         Releases.

(a)       If, at any time, any Grantor, the First-Priority Collateral Agent or the holder of any First-Priority Obligation delivers notice to each Second-Priority Representative that any specified Common Collateral (including all or substantially all of the equity interests of a Grantor or any of its Subsidiaries) is sold, transferred or otherwise disposed of (x) by the owner of such Common Collateral in a transaction not prohibited by any First-Priority Credit Document or any Second-Priority Notes Document, (y) by way of enforcement by any First-Priority Secured Party under any applicable law, or (z) during the existence of any Event of Default under (and as defined in) the First Lien Agreement or any other First-Priority Credit Document to the extent the First-Priority Collateral Agent is exercising remedies or has consented to such sale, transfer or disposition, including a sale pursuant to Section 363 of the Bankruptcy Code, the entry of an order of the Bankruptcy Court pursuant to Section 363 of the Bankruptcy Code, or in connection with the confirmation of a plan of reorganization in any Insolvency Proceeding, then (whether or not any Insolvency or Liquidation Proceeding is pending at the time) the Liens in favor of the Second-Priority Secured Parties upon such Common Collateral will automatically be released and discharged as and when, but only to the extent, such Liens on such Common Collateral securing First-Priority Obligations are released and discharged.  Upon delivery to each Second-Priority Representative of a notice from the First-Priority Collateral Agent or the Borrower stating that any release of Liens securing or supporting the First-Priority Obligations has become effective (or shall become effective upon each First-Priority Representative’s release), whether in connection with a sale of such assets by the relevant owner pursuant to the preceding clauses or otherwise, each Second-Priority Representative will promptly execute and deliver such instruments, releases, termination statements or other documents confirming such release on customary terms.  In the case of the sale of all or substantially all of the equity interests of a Grantor or any of its Subsidiaries, the guarantee in favor of the Second-Priority Secured Parties, if any, made by such Grantor or Subsidiary will automatically be released and discharged as and when, but only to the extent, the guarantee by such Grantor or Subsidiary of First-Priority Obligations is released and discharged.

 

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(b)     Each Second-Priority Representative, for itself and on behalf of each applicable Second-Priority Secured Party, hereby irrevocably constitutes and appoints (which appointment is coupled with an interest and is irrevocable) the First-Priority Collateral Agent and any officer or agent of the First-Priority Collateral Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of each Second-Priority Representative or such Second-Priority Secured Party or in the First-Priority Collateral Agent’s own name, from time to time in the First-Priority Collateral Agent’s discretion, for the purpose of carrying out the terms of this Section 5.1, to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of this Section 5.1, including any termination statements, endorsements or other instruments of transfer or release.

 

(c)       Unless and until the Discharge of First-Priority Obligations has occurred, each Second-Priority Representative, for itself and on behalf of each applicable Second-Priority Secured Party, hereby consents to the application, whether prior to or after a default, of Deposit Account Collateral or proceeds of Common Collateral to the repayment of First-Priority Obligations pursuant to the First-Priority Documents; provided that nothing in this Section 5.1(c) shall be construed to prevent or impair the rights of the Second-Priority Representatives or the Second-Priority Secured Parties to receive proceeds in connection with the Second-Priority Obligations not otherwise in contravention of this Agreement.

 

5.2        Insurance.  Unless and until the Discharge of First-Priority Obligations has occurred, the First-Priority Collateral Agent and the First-Priority Secured Parties shall have the sole and exclusive right, subject to the rights of the Grantors under the First-Priority Documents, to adjust settlement for any insurance policy covering the Common Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding affecting the Common Collateral.  All proceeds of any such policy and any such award if in respect of the Common Collateral shall be paid, subject to the rights of the Grantors under the First-Priority Documents and the Second-Priority Documents, (a) first, prior to the occurrence of the Discharge of First-Priority Obligations, to the First-Priority Collateral Agent for the benefit of First-Priority Secured Parties pursuant to the terms of the First-Priority Documents, (b) second, after the occurrence of the Discharge of First-Priority Obligations, to the Second-Priority Collateral Agent for the benefit of the Second-Priority Secured Parties pursuant to the terms of the applicable Second-Priority Documents and (c) third, if no Second-Priority Obligations are outstanding, to the owner of the subject property, such other person as may be entitled thereto or as a court of competent jurisdiction may otherwise direct.  If any Second-Priority Representative or any Second-Priority Secured Party shall, at any time, receive any proceeds of any such insurance policy or any such award in contravention of this Agreement, it shall pay such proceeds over to the First-Priority Collateral Agent in accordance with the terms of Section 4.2.

 

5.3         Amendments to Second-Priority Collateral Documents.

 

(a)       Without the prior written consent of the First-Priority Collateral Agent and the Required Lenders, no Second-Priority Collateral Document may be amended, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification, or the terms of any new Second-Priority Collateral Document, would be prohibited by or inconsistent with any of the terms of this Agreement.  Unless otherwise agreed to by the First-Priority Collateral Agent, each Second-Priority Representative agrees that each applicable Second-Priority Collateral Document shall include language substantially the same as the following paragraph (or language to similar effect approved by the First-Priority Collateral Agent, such approval not to be unreasonably withheld):

 

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“Notwithstanding anything herein to the contrary, (i) the liens and security interests granted to the [insert the relevant Second-Priority Representative] for the benefit of the [Secured Parties] pursuant to this Agreement are expressly subject and subordinate to the liens and security interests granted to (a) Apollo Administrative Agency LLC, as collateral agent (and its permitted successors), pursuant to that certain Amended and Restated First Lien Credit Agreement, dated as of October 15, 2024 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time), by and among Gannett Holdings LLC, a Delaware limited liability company, Gannett Co., Inc., a Delaware corporation, certain of its subsidiaries, Apollo Global Funding LLC, as co-manager, and Apollo Administrative Agency LLC, as administrative agent and collateral agent, or (b) any agent or trustee for any Other First-Priority Secured Parties (as defined in the First Lien/Second Lien Intercreditor Agreement referred to below) and (ii) the exercise of any right or remedy by the [insert the relevant Second-Priority Representative] hereunder or the application of proceeds (including insurance proceeds and condemnation proceeds) of any Common Collateral (as defined in the First Lien/Second Lien Intercreditor Agreement) is subject to the limitations and provisions of the First Lien/Second Lien Intercreditor Agreement dated as of October 15, 2024 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “First Lien/Second Lien Intercreditor Agreement”), by and among Apollo Administrative Agency LLC, in its capacity as the First Lien Agreement Agent, Apollo Administrative Agency LLC, in its capacity as the First Lien Agreement Collateral Agent, U.S. Bank Trust Company, National Association, in its capacity as the Initial Other First-Priority Agent, U.S. Bank Trust Company, National Association, in its capacity as the Initial Other First-Priority Collateral Agent, U.S. Bank Trust Company, National Association, in its capacity as the Initial Second-Priority Agent, and Alter Domus Products Corp., in its capacity as the Initial Second-Priority Collateral Agent.  In the event of any conflict between the terms of the First Lien/Second Lien Intercreditor Agreement and the terms of this Agreement, the terms of the First Lien/Second Lien Intercreditor Agreement shall govern.”

 

(b)      In the event that the First-Priority Collateral Agent or the First-Priority Secured Parties enter into any amendment, waiver or consent in respect of or replace any of the First-Priority Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First-Priority Collateral Document or changing in any manner the rights of the First-Priority Collateral Agent, the First-Priority Secured Parties, the Borrower or any other Grantor thereunder (including the release of any Liens in First-Priority Collateral), then such amendment, waiver or consent shall apply automatically to any comparable provision of each Comparable Second-Priority Collateral Document without the consent of any Second-Priority Representative or any Second-Priority Secured Party and without any action by any Second-Priority Representative, Second-Priority Secured Party, the Borrower or any other Grantor; provided, however, that (A) such amendment, waiver or consent does not materially adversely affect the rights of the Second-Priority Secured Parties or the interests of the Second-Priority Secured Parties in the Second-Priority Collateral and not the First-Priority Collateral Agent or the First-Priority Secured Parties, as the case may be, that have a security interest in the affected collateral in a like or similar manner (other than by virtue of their relative priorities and rights and obligations hereunder), and (B) written notice of such amendment, waiver or consent shall have been given to each Second-Priority Representative.

 

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5.4        Rights as Unsecured Creditors.  The Second-Priority Representatives and the Second-Priority Secured Parties may exercise rights and remedies as an unsecured creditor against the Borrower, or any other Subsidiary of Holdings that has guaranteed the Second-Priority Obligations in accordance with the terms of the applicable Second-Priority Documents and applicable law, in each case to the extent not inconsistent with or prohibited by the provisions of this Agreement.  Nothing in this Agreement shall prohibit the receipt by any Second-Priority Representative or any Second-Priority Secured Party of the required payments of interest and principal in respect of the Second-Priority Obligations so long as such receipt is not the direct or indirect result of the exercise by any Second-Priority Representative or any Second-Priority Secured Party of rights or remedies in respect of Common Collateral or enforcement in contravention of this Agreement of any Lien in respect of Second-Priority Obligations held by any of them.  In the event any Second-Priority Representative or any Second-Priority Secured Party becomes a judgment lien creditor in respect of Common Collateral as a result of its enforcement of its rights as an unsecured creditor in respect of Second-Priority Obligations, such judgment lien shall be subordinated to the Liens securing First-Priority Obligations on the same basis as the other Liens securing the Second-Priority Obligations are so subordinated to such Liens securing First-Priority Obligations under this Agreement.  Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the First-Priority Collateral Agent or the First-Priority Secured Parties may have with respect to the First-Priority Collateral.

 

5.5         First-Priority Collateral Agent as Gratuitous Bailee/Agent for Perfection.

 

(a)       The First-Priority Collateral Agent agrees to hold the Pledged Collateral that is part of the Common Collateral in its possession or control (or in the possession or control of its agents or bailees) as gratuitous bailee and/or gratuitous agent for the benefit of each Second-Priority Representative and any assignee solely for the purpose of perfecting the security interest granted in such Pledged Collateral pursuant to the Second-Priority Collateral Documents, subject to the terms and conditions of this Section 5.5.

 

(b)       The First-Priority Collateral Agent agrees to hold the Deposit Account Collateral (if any) that is part of the Common Collateral and controlled by the First-Priority Collateral Agent as gratuitous bailee and/or gratuitous agent for the benefit of each Second-Priority Representative and any assignee solely for the purpose of perfecting the security interest granted in such Deposit Account Collateral pursuant to the Second-Priority Collateral Documents, subject to the terms and conditions of this Section 5.5.

 

(c)      In the event that the First-Priority Collateral Agent (or its agent or bailees) has Lien filings against Intellectual Property (as defined in the Initial Second-Priority Collateral Agreement) that is part of the Common Collateral that are necessary for the perfection of Liens in such Common Collateral, the First-Priority Collateral Agent agrees to hold such Liens as gratuitous bailee and/or gratuitous agent for the benefit of each Second-Priority Representative and any assignee solely for the purpose of perfecting the security interest granted in such Liens pursuant to the Second-Priority Collateral Documents, subject to the terms and conditions of this Section 5.5.

 

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(d)     Except as otherwise specifically provided herein (including in Sections 3.1 and 4.1), until the Discharge of First-Priority Obligations has occurred, the First-Priority Collateral Agent shall be entitled to deal with the Pledged Collateral in accordance with the terms of the First-Priority Documents as if the Liens under the Second-Priority Collateral Documents did not exist.  The rights of the Second-Priority Representatives and the Second-Priority Secured Parties with respect to such Pledged Collateral shall at all times be subject to the terms of this Agreement.

 

(e)      The First-Priority Collateral Agent shall have no obligation whatsoever to any Second-Priority Representative or any Second-Priority Secured Party to assure that the Pledged Collateral is genuine or owned by the Grantors or to protect or preserve rights or benefits of any Person or any rights pertaining to the Common Collateral except as expressly set forth in this Section 5.5.  The duties or responsibilities of the First-Priority Collateral Agent under this Section 5.5 shall be limited solely to holding the Pledged Collateral as gratuitous bailee and/or gratuitous agent for the benefit of each Second-Priority Representative for purposes of perfecting the Lien held by the Second-Priority Secured Parties.

 

(f)       The First-Priority Collateral Agent shall not have, by reason of the Second-Priority Collateral Documents or this Agreement or any other document, a fiduciary relationship in respect of any Second-Priority Representative or any Second-Priority Secured Party and the Second-Priority Representatives and the Second-Priority Secured Parties hereby waive and release the First-Priority Collateral Agent from all claims and liabilities arising pursuant to the First-Priority Collateral Agent’s role under this Section 5.5, as gratuitous bailee and/or gratuitous agent with respect to the Common Collateral.

 

(g)     Upon the Discharge of First-Priority Obligations, the First-Priority Collateral Agent shall deliver to the Second-Priority Collateral Agent, to the extent that it is legally permitted to do so, the Pledged Collateral (if any) and the Deposit Account Collateral (if any) that is part of the Common Collateral together with any necessary endorsements (or otherwise allow the Second-Priority Collateral Agent to obtain control of such Pledged Collateral and Deposit Account Collateral) or as a court of competent jurisdiction may otherwise direct.  The Borrower shall take such further action as is required to effectuate the transfer contemplated hereby and shall indemnify the First-Priority Collateral Agent for any loss or damage suffered by the First-Priority Collateral Agent as a result of such transfer except for any loss or damage suffered by the First-Priority Collateral Agent as a result of its own willful misconduct, gross negligence or bad faith as determined by a final non-appealable judgment of a court of competent jurisdiction.  The First-Priority Collateral has no obligation to follow instructions from any Second-Priority Representative in contravention of this Agreement.

 

(h)      Neither the First-Priority Collateral Agent nor the First-Priority Secured Parties shall be required to marshal any present or future collateral security for the Borrower’s or any other Grantor’s obligations to the First-Priority Collateral Agent or the First-Priority Secured Parties under the First-Priority Credit Documents or the First-Priority Collateral Documents or any assurance of payment in respect thereof or to resort to such collateral security or other assurances of payment in any particular order, and all of their rights in respect of such collateral security or any assurance of payment in respect thereof shall be cumulative and in addition to all other rights, however existing or arising

 

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(i)       The agreement of the First-Priority Collateral Agent to act as gratuitous bailee and/or gratuitous agent pursuant to this Section 5.5 is intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2), 9-104(a)(2) and 9-313(c) of the UCC.

 

5.6         Second-Priority Collateral Agent as Gratuitous Bailee/Agent for Perfection.

 

(a)       Upon the Discharge of First-Priority Obligations, the Second-Priority Collateral Agent agrees to hold the Pledged Collateral that is part of the Common Collateral in its possession or control (or in the possession or control of its agents or bailees) as gratuitous bailee and/or gratuitous agent for the benefit of the other Second-Priority Representatives and any assignee solely for the purpose of perfecting the security interest granted in such Pledged Collateral pursuant to the applicable Second-Priority Collateral Document, subject to the terms and conditions of this Section 5.6.

 

(b)       Upon the Discharge of First-Priority Obligations, the Second-Priority Collateral Agent agrees to hold the Deposit Account Collateral (if any) that is part of the Common Collateral and controlled by the Second-Priority Collateral Agent as gratuitous bailee and/or gratuitous agent for the benefit of other Second-Priority Representatives and any assignee solely for the purpose of perfecting the security interest granted in such Deposit Account Collateral pursuant to the applicable Second-Priority Collateral Document, subject to the terms and conditions of this Section 5.6.

 

(c)       In the event that the Second-Priority Collateral Agent (or its agent or bailees) has Lien filings against Intellectual Property (as defined in the Initial Second-Priority Collateral Agreement) that is part of the Common Collateral that are necessary for the perfection of Liens in such Common Collateral, upon the Discharge of First-Priority Obligations, the Second-Priority Collateral Agent agrees to hold such Liens as gratuitous bailee and/or gratuitous agent for the benefit of other Second-Priority Representatives and any assignee solely for the purpose of perfecting the security interest granted in such Liens pursuant to the applicable Second-Priority Collateral Document, subject to the terms and conditions of this Section 5.6.

 

(d)       The Second-Priority Collateral Agent, in its capacity as gratuitous bailee and/or gratuitous agent, shall have no obligation whatsoever to the other Second-Priority Representatives to assure that the Pledged Collateral is genuine or owned by the Grantors or to protect or preserve rights or benefits of any Person or any rights pertaining to the Common Collateral except as expressly set forth in this Section 5.6.  The duties or responsibilities of the Second-Priority Collateral Agent under this Section 5.6 upon the Discharge of First-Priority Obligations shall be limited solely to holding the Pledged Collateral as gratuitous bailee and/or gratuitous agent for the benefit of other Second-Priority Representatives for purposes of perfecting the Lien held by the applicable Second-Priority Secured Parties.

 

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(e)        The Second-Priority Collateral Agent shall not have, by reason of the Second-Priority Collateral Documents or this Agreement or any other document, a fiduciary relationship in respect of the other Second-Priority Representatives (or the Second-Priority Secured Parties for which such other Second-Priority Representatives are agent) and the other Second-Priority Representatives hereby waive and release the Second-Priority Collateral Agent from all claims and liabilities arising pursuant to the Second-Priority Collateral Agent’s role under this Section 5.6, as gratuitous bailee and/or gratuitous agent with respect to the Common Collateral.

 

(f)      In the event that the Second-Priority Collateral Agent shall cease to be so designated the Second-Priority Collateral Agent pursuant to the definition of such term, the then Second-Priority Collateral Agent shall deliver to the successor Second-Priority Collateral Agent, to the extent that it is legally permitted to do so, the Pledged Collateral (if any) and the Deposit Account Collateral (if any) together with any necessary endorsements (or otherwise allow the successor Second-Priority Collateral Agent to obtain control of such Pledged Collateral and Deposit Account Collateral) or as a court of competent jurisdiction may otherwise direct, and such successor Second-Priority Collateral Agent shall perform all duties of the Second-Priority Collateral Agent as set forth herein.  The Borrower shall take such further action as is required to effectuate the transfer contemplated hereby and shall indemnify the Second-Priority Collateral Agent for any loss or damage suffered by the Second-Priority Collateral Agent as a result of such transfer except for any loss or damage suffered by the Second-Priority Collateral Agent as a result of its own willful misconduct, gross negligence or bad faith.  The Second-Priority Collateral Agent has no obligation to follow instructions from the successor Second-Priority Collateral Agent in contravention of this Agreement

 

(g)      The agreement of the Second-Priority Collateral Agent to act as gratuitous bailee and/or gratuitous agent pursuant to this Section 5.6 is intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2), 9-104(a)(2) and 9-313(c) of the UCC.

 

5.7         When Discharge of First-Priority Obligations Deemed to Not Have Occurred.  If, at any time concurrently with or after the Discharge of First-Priority Obligations has occurred, the Borrower incurs and designates any First-Priority Obligations, then such Discharge of First-Priority Obligations shall automatically be deemed not to have occurred for all purposes of this Agreement (other than with respect to any actions taken prior to the date of such designation as a result of the occurrence of such first Discharge of First-Priority Obligations), and the applicable agreement governing such First-Priority Obligations shall automatically be treated as a First-Priority Credit Document (and, upon designation by the Borrower thereof, the “First Lien Agreement” hereunder) for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Common Collateral set forth herein and the granting by the First-Priority Collateral Agent of amendments, waivers and consents hereunder.  Upon receipt of notice of such designation (including the identity of the new First-Priority Collateral Agent), each Second-Priority Representative shall promptly (i) enter into such documents and agreements (at the expense of the Borrower), including amendments or supplements to this Agreement, as the Borrower or such new First-Priority Collateral Agent shall reasonably request in writing in order to provide the new First-Priority Representative the rights of the First-Priority Collateral Agent contemplated hereby and (ii) to the extent then held by any Second-Priority Representative, deliver to the First-Priority Collateral Agent the Pledged Collateral that is Common Collateral together with any necessary endorsements (or otherwise allow such First-Priority Collateral Agent to obtain possession or control of such Pledged Collateral).

 

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5.8         No Release if Event of Default.  Notwithstanding any other provisions contained in this Agreement, if an Event of Default (as defined in the Initial Second-Priority Agreement or any other Second-Priority Document, as applicable) exists on the date on which all First-Priority Obligations are repaid in full and terminated (including all commitments and letters of credit thereunder) resulting in a Discharge of First-Priority Obligations, the Second-Priority Liens on the Second-Priority Collateral securing the Second-Priority Obligations relating to such Event of Default will not be released, except to the extent such Second-Priority Collateral or any portion thereof was disposed of in order to repay the First-Priority Obligations secured by such Second-Priority Collateral, and thereafter the Second-Priority Collateral Agent will have the right to foreclose upon such Second-Priority Collateral (but in any such event, the Liens on such Second-Priority Collateral securing the applicable Second-Priority Obligations will be released when such Event of Default and all other Events of Default under the Initial Second-Priority Agreement or any other Second-Priority Document, as applicable, cease to exist).

 

Section 6.          Insolvency or Liquidation Proceedings.

 

6.1       Financing Issues.  If the Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the First-Priority Collateral Agent shall desire to permit the use, sale or lease of cash collateral or to permit the Borrower or any other Grantor to obtain financing under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in any other applicable Bankruptcy Law (“DIP Financing”), then each Second-Priority Representative, on behalf of itself and each applicable Second-Priority Secured Party, agrees that it will raise no objection to (and will not otherwise contest), and will be deemed to have consented to, such use of cash collateral or DIP Financing and will not request adequate protection or any other relief in connection therewith (except to the extent permitted by (I) the proviso in clause (ii) of Section 3.1(a) and (II) Section 6.3) and, to the extent the Liens securing the First-Priority Obligations under the First-Priority Documents are subordinated or pari passu with such DIP Financing, will subordinate its Liens in the Common Collateral to (x) such DIP Financing (and all Obligations relating thereto) on the same basis as the other Liens securing the Second-Priority Obligations are so subordinated to Liens securing First-Priority Obligations under this Agreement, (y) any adequate protection Liens granted to the First-Priority Secured Parties, and (z) any “carve-out” for professional and United States Trustee fees agreed to by the First-Priority Collateral Agent.  Each Second-Priority Representative, on behalf of itself and each applicable Second-Priority Secured Party, further agrees that it will raise no objection to (and will not otherwise contest), and will be deemed to have consented to (a) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First-Priority Obligations made by the First-Priority Collateral Agent or any holder of First-Priority Obligations, (b) any lawful exercise by any holder of First-Priority Obligations of the right to credit bid First-Priority Obligations at any sale in foreclosure of First-Priority Collateral or otherwise under Section 363(k) of the Bankruptcy Code or any similar provision of any other applicable Bankruptcy Law, (c) any other request for judicial relief made in any court by any holder of First-Priority Obligations relating to the lawful enforcement of any Lien on First-Priority Collateral or (d) any order relating to a sale of assets of any Grantor, for which the First-Priority Collateral Agent has consented, that provides, to the extent the sale is to be free and clear of Liens, that the Liens securing the First-Priority Obligations and the Second-Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the Liens securing the First-Priority Collateral rank to the Liens securing the Second-Priority Collateral in accordance with this Agreement.

 

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6.2        Relief from the Automatic Stay.  Until the Discharge of First-Priority Obligations has occurred, each Second-Priority Representative, on behalf of itself and each applicable Second-Priority Secured Party, agrees that none of them shall seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Common Collateral, without the prior written consent of the First-Priority Collateral Agent and the Required Lenders.

 

6.3         Adequate Protection.  Each Second-Priority Representative, on behalf of itself and each applicable Second-Priority Secured Party, agrees that none of them shall contest (or support any other Person contesting) (a) any request by the First-Priority Collateral Agent or the First-Priority Secured Parties for adequate protection or (b) any objection by the First-Priority Collateral Agent or the First-Priority Secured Parties to any motion, relief, action or proceeding based on the First-Priority Collateral Agent or the First-Priority Secured Parties claiming a lack of adequate protection.  Notwithstanding the foregoing, in any Insolvency or Liquidation Proceeding, (i) if the First-Priority Secured Parties (or any subset thereof) are granted adequate protection in the form of a Lien on additional collateral in connection with any DIP Financing or use of cash collateral under Section 363 or Section 364 of the Bankruptcy Code or any similar provision of any other applicable Bankruptcy Law, then each Second-Priority Representative, on behalf of itself and any applicable Second-Priority Secured Party, may seek or request adequate protection in the form of a Lien on such additional collateral, which Lien is subordinated to the Liens securing and providing adequate protection for the First-Priority Obligations and such DIP Financing (and all Obligations relating thereto) on the same basis as the other Liens securing the Second-Priority Obligations are so subordinated to the Liens securing First-Priority Obligations under this Agreement and (ii) in the event any Second-Priority Representative, on behalf of itself or any applicable Second-Priority Secured Party, seeks or requests adequate protection and such adequate protection is granted in the form of a Lien on additional collateral, then such Second-Priority Representative, on behalf of itself or each such Second-Priority Secured Party, agrees that the First-Priority Representatives shall also be granted a senior Lien on such additional collateral as security and adequate protection for the applicable First-Priority Obligations and any such DIP Financing and that any Lien on such additional collateral securing or providing adequate protection for the Second-Priority Obligations shall be subordinated to the Liens on such collateral securing the First-Priority Obligations and any such DIP Financing (and all Obligations relating thereto) and any other Liens granted to the First-Priority Secured Parties as adequate protection on the same basis as the other Liens securing the Second-Priority Obligations are so subordinated to such Liens securing First-Priority Obligations under this Agreement.  Without limiting the generality of the foregoing, to the extent that the First Lien Agreement Secured Parties are granted adequate protection in the form of payments in the amount of current post-petition fees and expenses, and/or other cash payments, then the Applicable Second Lien Agent and the Second-Priority Secured Parties shall not be prohibited from seeking and accepting adequate protection in the form of payments in the amount of current post-petition incurred fees and expenses, and/or other cash payments (as applicable), subject to the right of the First Lien Agreement Secured Parties to object thereto.

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6.4        Preference Issues.  If any First-Priority Secured Party is required, in any Insolvency or Liquidation Proceeding or otherwise, to turn over or otherwise pay an amount to the estate of the Borrower or any other Grantor (or any trustee, receiver or similar person therefor), because the payment of such amount was declared to be fraudulent or preferential in any respect or for any other reason, any amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of setoff or otherwise, then the First-Priority Obligations shall be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred and the First-Priority Secured Parties shall remain entitled to a Discharge of First-Priority Obligations with respect to all such recovered amounts and shall have all rights hereunder until such time.  If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto.

 

6.5         Application.  This Agreement, which the parties hereto expressly acknowledge is a “subordination agreement” under Section 510(a) of the Bankruptcy Code or any similar provision of any other applicable Bankruptcy Law, shall be applicable prior to and after the commencement of any Insolvency or Liquidation Proceeding.  All references herein to any Grantor shall apply to any trustee for such Person and such Person as debtor in possession.  The relative rights as to the Common Collateral and proceeds thereof shall continue after the filing thereof on the same basis as prior to the date of the petition, subject to any court order approving the financing of, or use of cash collateral by, any Grantor.

 

6.6         506(c) Claims.  Until the Discharge of First-Priority Obligations has occurred, each Second-Priority Representative, on behalf of itself and each applicable Second-Priority Secured Party, will not assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First-Priority Obligations for costs or expenses of preserving or disposing of any Common Collateral.

 

6.7         Reorganization Securities.  If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor are distributed, pursuant to a plan of reorganization or similar dispositive restructuring plan on account of both the First-Priority Obligations and the Second-Priority Obligations, then, to the extent that the debt obligations distributed on account of the First-Priority Obligations and on account of the Second-Priority Obligations are secured by Liens upon the same assets or property, the provisions of this Agreement will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the Liens securing such debt obligations.

 

6.8        Voting.  Without the prior written consent of the First-Priority Representatives, neither the Second-Priority Collateral Agent nor any other Second-Priority Secured Party may propose, support or vote in favor of any plan of reorganization or similar dispositive restructuring plan that is inconsistent with the terms of this Agreement unless such plan (a) pays off, in cash in full, all First-Priority Obligations, (b) is accepted by the class of holders of First-Priority Obligations voting thereon in accordance with Section 1126(c) of the Bankruptcy Code (or any similar provision under any other applicable Bankruptcy Law) and (c) otherwise provides the holders of First-Priority Obligations with the value of the Common Collateral in cash or otherwise, prior to any payment or distribution on account of the Second-Priority Obligations, subject to Section 6.7 hereof.

 

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6.9         Post-Petition Interest.

 

(a)       None of the Second-Priority Representatives or any other Second-Priority Secured Party shall oppose or seek to challenge any claim by any First-Priority Representative or any other First-Priority Secured Party for allowance in any Insolvency or Liquidation Proceeding of First-Priority Obligations consisting of post-petition interest, fees or expenses under Section 506(b) of the Bankruptcy Code or otherwise.

 

(b)       None of the First-Priority Representatives or any other First-Priority Secured Party shall oppose or seek to challenge any claim by any Second-Priority Representative or any other Second-Priority Secured Party for allowance in any Insolvency or Liquidation Proceeding of Second-Priority Obligations consisting of post-petition interest, fees or expenses under Section 506(b) of the Bankruptcy Code or otherwise, to the extent of the value of the Lien of the Second-Priority Representative on behalf of the Second-Priority Secured Parties on the Common Collateral (after taking into account the First-Priority Obligations).

 

6.10     Separate Grants of Security and Separate Classifications.  Each Second-Priority Representative, for itself and on behalf of each applicable Second-Priority Secured Party, acknowledges and agrees that (a) the grants of Liens pursuant to the First-Priority Collateral Documents and the Second-Priority Collateral Documents constitute separate and distinct grants of Liens and (b) because of, among other things, their differing rights in the Common Collateral, the Second-Priority Obligations are fundamentally different from the First-Priority Obligations and must be separately classified in any plan of reorganization or similar dispositive restructuring plan proposed, confirmed or adopted in any Insolvency or Liquidation Proceeding.  To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that any claims of the First-Priority Secured Parties and the Second-Priority Secured Parties in respect of the Common Collateral constitute a single class of claims (rather than separate classes of senior and junior secured claims), then each Second-Priority Representative, for itself and on behalf of each applicable Second-Priority Secured Party, hereby acknowledges and agrees that all distributions from the Common Collateral shall be made as if there were separate classes of senior and junior secured claims against the Grantors in respect of the Common Collateral, with the effect being that, to the extent that the aggregate value of the Common Collateral is sufficient (for this purpose ignoring all claims held by the Second-Priority Secured Parties), the First-Priority Secured Parties shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest, fees and expenses, and other claims, all amounts owing in respect of post-petition interest, fees and expenses (whether or not allowed or allowable in such Insolvency or Liquidation Proceeding) before any distribution is made from the Common Collateral in respect of the Second-Priority Obligations, with each Second-Priority Representative, for itself and on behalf of each applicable Second-Priority Secured Party, hereby acknowledging and agreeing to turn over to the First-Priority Collateral Agent amounts otherwise received or receivable by them from the Common Collateral to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the claim or recovery of the Second-Priority Secured Parties.

 

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Section 7.          Reliance; Waivers; etc.

 

7.1        Reliance.  The consent by the First-Priority Secured Parties to the execution and delivery of the First-Priority Documents to which the First-Priority Secured Parties have consented, and all loans and other extensions of credit made or deemed made on and after the Closing Date by the First-Priority Secured Parties to the Borrower, shall be deemed to have been given and made in reliance upon this Agreement.  Each Second-Priority Representative, on behalf of itself and each applicable Second-Priority Secured Party, acknowledges that it and the applicable Second-Priority Secured Parties have, independently and without reliance on the First-Priority Collateral Agent or any First-Priority Secured Party, and based on documents and information deemed appropriate by them, made their own credit analysis and decision to enter into the applicable Second-Priority Documents, this Agreement and the transactions contemplated hereby and thereby and they will continue to make their own credit decision in taking or not taking any action under the applicable Second-Priority Documents or this Agreement.

 

7.2         No Warranties or Liability.  Each Second-Priority Representative, on behalf of itself and each applicable Second-Priority Secured Party, acknowledges and agrees that neither the First-Priority Collateral Agent nor any First-Priority Secured Party has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the First-Priority Documents, the ownership of any Common Collateral or the perfection or priority of any Liens thereon.  The First-Priority Secured Parties will be entitled to manage and supervise their respective loans and extensions of credit under the First-Priority Documents in accordance with law and as they may otherwise, in their sole discretion, deem appropriate, and the First-Priority Secured Parties may manage their loans and extensions of credit without regard to any rights or interests that any Second-Priority Representative or any of the Second-Priority Secured Parties have in the Common Collateral or otherwise, except as otherwise provided in this Agreement.  Neither the First-Priority Collateral Agent nor any First-Priority Secured Party shall have any duty to any Second-Priority Representative or any Second-Priority Secured Party to act or refrain from acting in a manner that allows, or results in, the occurrence or continuance of an event of default or default under any agreements with the Borrower or any other Grantor or any Subsidiary thereof (including the Second-Priority Documents), regardless of any knowledge thereof that they may have or be charged with.  Except as expressly set forth in this Agreement, the First-Priority Collateral Agent, the First-Priority Secured Parties, the Second-Priority Representatives and the Second-Priority Secured Parties have not otherwise made to each other, nor do they hereby make to each other, any warranties, express or implied, nor do they assume any liability to each other with respect to (a) the enforceability, validity, value or collectability of any of the First-Priority Obligations, Second-Priority Obligations or any guarantee or security which may have been granted to any of them in connection therewith, (b) the Borrower’s or any other Grantor’s title to or right to transfer any of the Common Collateral or (c) any other matter except as expressly set forth in this Agreement.

 

7.3         Obligations Unconditional.  All rights, interests, agreements and obligations of the First-Priority Collateral Agent and the First-Priority Secured Parties, and the Second-Priority Representatives and the Second-Priority Secured Parties, respectively, hereunder shall remain in full force and effect irrespective of:

 

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(a)       any lack of validity or enforceability of any First-Priority Documents or any Second-Priority Documents;

 

(b)       any change in the time, manner or place of payment of, or in any other terms of, all or any of the First-Priority Obligations or Second-Priority Obligations, or any amendment or waiver or other modification, including any increase in the amount thereof, whether by course of conduct or otherwise, of the terms of the First Lien Agreement or any other First-Priority Document or of the terms of the Initial Second-Priority Agreement or any other Second-Priority Document;

 

(c)      any exchange of any security interest in any Common Collateral or any other collateral, or any amendment, waiver or other modification, whether in writing or by course of conduct or otherwise, of all or any of the First-Priority Obligations or Second-Priority Obligations or any guarantee thereof;

 

(d)       the commencement of any Insolvency or Liquidation Proceeding in respect of the Borrower or any other Grantor; or

 

(e)       any other circumstances that otherwise might constitute a defense available to, or a discharge of, the Borrower or any other Grantor in respect of the First-Priority Obligations, or of any Second-Priority Representative or any Second-Priority Secured Party in respect of this Agreement.

 

Section 8.          Miscellaneous.

 

8.1         Conflicts.  Subject to Section 8.19, in the event of any conflict between the terms of this Agreement and the terms of any First-Priority Document or any Second-Priority Document, the terms of this Agreement shall govern.

 

8.2       Continuing Nature of this Agreement; Severability.  Subject to Section 5.7 and Section 6.4, this Agreement shall continue to be effective until the Discharge of First-Priority Obligations shall have occurred or such later time as all the Obligations in respect of the Second-Priority Obligations shall have been paid in full.  This is a continuing agreement of lien subordination and the First-Priority Secured Parties may continue, at any time and without notice to each Second-Priority Representative or any Second-Priority Secured Party, to extend credit and other financial accommodations and lend monies to or for the benefit of the Borrower or any other Grantor constituting First-Priority Obligations in reliance hereon.  The terms of this Agreement shall survive, and shall continue in full force and effect, in any Insolvency or Liquidation Proceeding.  Any provision of this Agreement 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.

 

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8.3         Amendments; Waivers.  No amendment, modification or waiver of any of the provisions of this Agreement shall be deemed to be made unless the same shall be in writing signed on behalf of each Second-Priority Representative (or its authorized agent), each First-Priority Representative (or its authorized agent) and, solely to the extent that its rights are adversely affected thereby, the Borrower and each waiver, if any, shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights of the parties making such waiver or the obligations of the other parties to such party in any other respect or at any other time.  Notwithstanding anything to the contrary in this Section 8.3, this Agreement may be amended from time to time at the request of the Borrower, at the Borrower’s expense, and without the consent of any First-Priority Representative, any Second-Priority Representative, any First-Priority Secured Party or any Second-Priority Secured Party to (i) add other parties holding Other First-Priority Obligations (or any agent or trustee therefor) and Other Second-Priority Obligations (or any agent or trustee therefor) in each case to the extent such Obligations are not prohibited by any First-Priority Credit Document or any Second-Priority Notes Document, (ii) in the case of Other Second-Priority Obligations, (a) establish that the Lien on the Common Collateral securing such Other Second-Priority Obligations shall be junior and subordinate in all respects to all Liens on the Common Collateral securing any First-Priority Obligations and shall share in the benefits of the Common Collateral equally and ratably with all Liens on the Common Collateral securing any Second-Priority Obligations (subject to the terms of the Second-Priority Documents), and (b) provide to the holders of such Other Second-Priority Obligations (or any agent or trustee thereof) the comparable rights and benefits (including any improved rights and benefits that have been consented to by the First-Priority Collateral Agent) as are provided to the holders of Second-Priority Obligations under this Agreement (subject to the terms of the Second-Priority Documents), and (iii) in the case of Other First-Priority Obligations, (a) establish that the Lien on the Common Collateral securing such Other First-Priority Obligations shall be superior in all respects to all Liens on the Common Collateral securing any Second-Priority Obligations and shall share in the benefits of the Common Collateral equally and ratably with (or with such other priority not prohibited by the First Priority Documents) all Liens on the Common Collateral securing any First-Priority Obligations (subject to the terms of the First-Priority Documents), and (b) provide to the holders of such Other First-Priority Obligations (or any agent or trustee thereof) the comparable rights and benefits as are provided to the holders of First-Priority Obligations under this Agreement (subject to the terms of the First-Priority Documents), in each case so long as such modifications are not prohibited by any First-Priority Credit Document or any Second-Priority Notes Document. Any such additional party and each Representative shall be entitled to rely on the determination of an officer of the Borrower or Holdings that such modifications are not prohibited by any First-Priority Credit Document or any Second-Priority Notes Document if such determination is set forth in an officer’s certificate delivered to such party, the First-Priority Collateral Agent and each Second-Priority Representative.  At the request (and sole expense) of the Borrower, without the consent of any First-Priority Secured Party or Second-Priority Secured Party, (i) each of the First-Priority Collateral Agent, the Second-Priority Collateral Agent and each other First-Priority Representative and Second-Priority Representative shall execute and deliver an acknowledgment and confirmation of such permitted modifications and/or enter into an amendment, a restatement or a supplement of this Agreement to facilitate such permitted modifications (it being understood that such actions shall not be required for the effectiveness of any such modifications) and (ii) each First-Priority Representative and Second-Priority Representative shall deliver any instruction or direction required by the First-Priority Collateral Agent pursuant to this Agreement.

 

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8.4        Information Concerning Financial Condition of Holdings and the Subsidiaries.  The First-Priority Collateral Agent, the First-Priority Secured Parties, each Second-Priority Representative and the Second-Priority Secured Parties shall each be responsible for keeping themselves informed of (a) the financial condition of Holdings and its Subsidiaries and all endorsers and/or guarantors of the First-Priority Obligations or the Second-Priority Obligations and (b) all other circumstances bearing upon the risk of nonpayment of the First-Priority Obligations or the Second-Priority Obligations.  The First-Priority Collateral Agent, the First-Priority Secured Parties, each Second-Priority Representative and the Second-Priority Secured Parties shall have no duty to advise any other party hereunder of information known to it or them regarding such condition or any such circumstances or otherwise.  In the event that the First-Priority Collateral Agent, any First-Priority Secured Party, any Second-Priority Representative or any Second-Priority Secured Party, in its or their sole discretion, undertakes at any time or from time to time to provide any such information to any other party, it or they shall be under no obligation (w) to make, and the First-Priority Collateral Agent, the First-Priority Secured Parties, the Second-Priority Representatives and the Second-Priority Secured Parties shall not make, any express or implied representation or warranty, including with respect to the accuracy, completeness, truthfulness or validity of any such information so provided, (x) to provide any additional information or to provide any such information on any subsequent occasion, (y) to undertake any investigation or (z) to disclose any information that, pursuant to accepted or reasonable commercial finance practices, such party wishes to keep confidential or is otherwise required to keep confidential.

 

8.5       Subrogation.  Each Second-Priority Representative, on behalf of itself and each applicable Second-Priority Secured Party, hereby waives any rights of subrogation it may acquire as a result of any payment hereunder until the Discharge of First-Priority Obligations has occurred.

 

8.6       Application of Payments.  Except as otherwise provided herein, all payments received by the First-Priority Secured Parties may be applied, reversed and reapplied, in whole or in part, to such part of the First-Priority Obligations as the First-Priority Secured Parties, in their sole discretion, deem appropriate, consistent with the terms of the First-Priority Documents.  Except as otherwise provided herein, each Second-Priority Representative, on behalf of itself and each applicable Second-Priority Secured Party, assents to any extension or postponement of the time of payment of the First-Priority Obligations or any part thereof and to any other indulgence with respect thereto, to any substitution, exchange or release of any security that may at any time secure any part of the First-Priority Obligations and to the addition or release of any other Person primarily or secondarily liable therefor.

 

8.7       Consent to Jurisdiction; Waivers.  The parties hereto irrevocably and unconditionally agree that they will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against the First-Priority Secured Parties or the First Lien Agreement Agent, or any affiliate of the foregoing in any way relating to this Agreement or the transactions relating hereto, in any forum other than the courts of the State of New York sitting in New York County, and of the United States District Court of the Southern District of New York, and any appellate court from any thereof.  The parties hereto consent to the jurisdiction of any state or federal court located in New York County, New York, and consent that all service of process may be made by registered mail directed to such party as provided in Section 8.8 for such party.  Service so made shall be deemed to be completed three days after the same shall be posted as aforesaid.  The parties hereto waive any objection to any action instituted hereunder in any such court based on forum non conveniens, and any objection to the venue of any action instituted hereunder in any such court.  EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT OR ACTION OF ANY PARTY HERETO IN CONNECTION WITH THE SUBJECT MATTER HEREOF.

 

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8.8       Notices.  All notices to the First-Priority Secured Parties and the Second-Priority Secured Parties permitted or required under this Agreement may be sent to the First-Priority Collateral Agent, the Initial Second-Priority Collateral Agent, or any other First-Priority Representative or Second-Priority Representative as provided in the First Lien Agreement, the Initial Second-Priority Agreement, the relevant First-Priority Document or the relevant Second-Priority Document, as applicable.  Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given shall be in writing and may be personally served, telecopied, electronically mailed or sent by courier service or U.S. mail and shall be deemed to have been given when delivered in person or by courier service, upon receipt of a telecopy or electronic mail or upon receipt via U.S. mail (registered or certified, with postage prepaid and properly addressed).  For the purposes hereof, the addresses of the parties hereto shall be as set forth below each party’s name on the signature pages hereto, or, as to each party, at such other address as may be designated by such party in a written notice to all of the other parties.  Each First-Priority Representative hereby agrees to promptly notify each Second-Priority Representative upon payment in full in cash of all indebtedness under the applicable First-Priority Documents (except for contingent indemnities and cost and reimbursement obligations to the extent no claim therefor has been made).

 

8.9        Further Assurances.  Each of the Second-Priority Representatives, on behalf of itself and each applicable Second-Priority Secured Party, and each of the First-Priority Representatives, on behalf of itself and each applicable First-Priority Secured Party, agrees that each of them shall take such further action and shall execute and/or deliver to the First-Priority Collateral Agent and the First-Priority Secured Parties such additional instructions, directions, documents and instruments (in recordable form, if requested) as the First-Priority Collateral Agent or the First-Priority Secured Parties may reasonably request to effectuate the terms of and the lien priorities contemplated by this Agreement.

 

8.10      Governing Law.  THIS AGREEMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY PRINCIPLE OF CONFLICTS OF LAW THAT COULD REQUIRE THE APPLICATION OF ANY OTHER LAW.

 

8.11       Binding on Successors and Assigns.  This Agreement shall be binding upon the First-Priority Collateral Agent, the other First-Priority Representatives, the First-Priority Secured Parties, the Second-Priority Representatives and the Second-Priority Secured Parties and their respective permitted successors and assigns.

 

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8.12       Specific Performance.  The First-Priority Collateral Agent may demand specific performance of this Agreement.  Each Second-Priority Representative, on behalf of itself and each applicable Second-Priority Secured Party, hereby irrevocably waives any defense based on the adequacy of a remedy at law and any other defense that might be asserted to bar the remedy of specific performance in any action that may be brought by the First-Priority Collateral Agent.

 

8.13     Section Titles.  The section titles contained in this Agreement are and shall be without substantive meaning or content of any kind whatsoever and are not a part of this Agreement.

 

8.14       Counterparts.  This Agreement may be executed in one or more counterparts, including by means of facsimile or in portable document format (pdf), each of which shall be an original and all of which shall together constitute one and the same document.

 

8.15       Authorization.  By its signature, each Person executing this Agreement on behalf of a party hereto represents and warrants to the other parties hereto that it is duly authorized to execute this Agreement.  Each First-Priority Representative represents and warrants that this Agreement is binding upon the applicable First-Priority Secured Parties for which such First-Priority Representative is acting.  Each Second-Priority Representative represents and warrants that this Agreement is binding upon the applicable Second-Priority Secured Parties for which such Second-Priority Representative is acting.

 

8.16       No Third Party Beneficiaries; Successors and Assigns.  This Agreement and the rights and benefits hereof shall inure to the benefit of, and be binding upon, each of the parties hereto and their respective successors and assigns and shall inure to the benefit of each of, and be binding upon, the holders of First-Priority Obligations and Second-Priority Obligations.

 

8.17      Effectiveness.  This Agreement shall become effective when executed and delivered by the parties hereto.  This Agreement shall be effective both before and after the commencement of any Insolvency or Liquidation Proceeding.  All references to the Borrower or any other Grantor shall include the Borrower or any such Grantor as debtor and debtor-in-possession and any receiver or trustee for the Borrower or any such other Grantor (as the case may be) in any Insolvency or Liquidation Proceeding.

 

8.18      First-Priority Representatives and Second-Priority Representatives.  It is understood and agreed that (a) Apollo Admin Agent is entering into this Agreement in its capacity as collateral agent under the First Lien Agreement and the provisions of Article X of the First Lien Agreement shall also apply to Apollo Admin Agent as First-Priority Collateral Agent hereunder, (b) U.S. Bank is entering into this Agreement in its capacity as Initial Other First-Priority Collateral Agent under the Initial Other First-Priority Agreement, and the provisions of Article 13 of the Initial Other First-Priority Agreement applicable to the Initial Other First-Priority Collateral Agent thereunder shall also apply to it as Initial Other First-Priority Collateral Agent hereunder  and (c) Alter Domus is entering into this Agreement in its capacity as Initial Second-Priority Collateral Agent under the Initial Second-Priority Agreement, and the provisions of Article 17 of the Initial Second-Priority Agreement applicable to the Initial Second-Priority Collateral Agent thereunder shall also apply to it as Second-Priority Collateral Agent and Initial Second-Priority Collateral Agent hereunder.

 

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8.19      Relative Rights.  Notwithstanding anything in this Agreement to the contrary (except to the extent contemplated by Sections 5.1 and 5.3(b)), nothing in this Agreement is intended to or will (a) amend, waive or otherwise modify the provisions of the First Lien Agreement, the Initial Second-Priority Agreement or any other First-Priority Document or Second-Priority Document entered into in connection with the First Lien Agreement, the Initial Second-Priority Agreement or any other First-Priority Document or Second-Priority Document or permit the Borrower or any Subsidiary of the Borrower to take any action, or fail to take any action, to the extent such action or failure would otherwise constitute a breach of, or default under, the First Lien Agreement, the Initial Second-Priority Agreement or any other First-Priority Document or Second-Priority Document entered into in connection with the First Lien Agreement, the Initial Second-Priority Agreement or any other First-Priority Document or Second-Priority Notes Document, (b) change the relative priorities of the First-Priority Obligations or the Liens granted under the First-Priority Documents on the Common Collateral (or any other assets) as among the First-Priority Secured Parties, (c) otherwise change the relative rights of the First-Priority Secured Parties in respect of the Common Collateral as among such First-Priority Secured Parties or (d) obligate the Borrower or any other Grantor to take any action, or fail to take any action, that would otherwise constitute a breach of, or default under, the First Lien Agreement, the Initial Second-Priority Agreement or any other First-Priority Document or Second-Priority Document entered into in connection with the First Lien Agreement, the Initial Second-Priority Agreement or any other First-Priority Document or Second-Priority Document.

 

8.20     Second-Priority Collateral Agent.  The Second-Priority Collateral Agent is executing and delivering this Agreement solely in its capacity as such and pursuant to directions set forth in the Initial Second-Priority Agreement; and in so doing, the Second-Priority Collateral Agent shall not be responsible for the terms or sufficiency of this Agreement for any purpose.  The Second-Priority Collateral Agent shall not have duties or obligations under or pursuant to this Agreement other than such duties expressly set forth in this Agreement as duties on its part to be performed or observed.  In entering into this Agreement, or in taking (or forbearing from) any action under or pursuant to this Agreement, the Second-Priority Collateral Agent shall have and be protected by all of the rights, immunities, indemnities and other protections granted to it under the Initial Second-Priority Agreement and the Initial Second-Priority Collateral Agreement.

 

8.21       Joinder Requirements.  The Borrower may designate additional obligations as Other First-Priority Obligations or Other Second-Priority Obligations pursuant to this Section 8.21 if (x) the incurrence of such obligations is not prohibited by any First-Priority Document or Second-Priority Document then in effect and (y) the Borrower shall have delivered an officer’s certificate to each Representative certifying the same.  If not so prohibited, the Borrower shall (i) notify each Representative in writing of such designation, (ii) cause the applicable new First-Priority Representative or Second-Priority Representative to execute and deliver to each other First-Priority Representative and Second-Priority Representative a Joinder Agreement substantially in the form of Exhibit A or Exhibit B, as applicable, hereto and (iii) deliver to each Representative a copy of the new First-Priority Documents or Second-Priority Documents, as applicable.

 

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8.22       Intercreditor Agreements.

 

(a)       Each party hereto agrees that the First-Priority Secured Parties (as among themselves) and the Second-Priority Secured Parties (as among themselves) may each enter into intercreditor agreements (or similar arrangements) with the applicable First-Priority Representatives or Second-Priority Representatives, as the case may be, governing the rights, benefits and privileges as among the First-Priority Secured Parties or as among the Second-Priority Secured Parties, as the case may be, in respect of any or all of the Common Collateral, this Agreement and the other First-Priority Collateral Documents or the other Second-Priority Collateral Documents, as the case may be, including as to application of proceeds of any Common Collateral, priority in respect of any Common Collateral, voting rights, control of any Common Collateral and waivers with respect to any Common Collateral, in each case so long as the terms thereof do not violate or conflict with the provisions of this Agreement or the First-Priority Collateral Documents or Second-Priority Collateral Documents, as the case may be. In any event, if a respective intercreditor agreement (or similar arrangement) exists, the provisions thereof shall not be (or be construed to be) an amendment, modification or other change to this Agreement or any First-Priority Collateral Document or Second-Priority Collateral Document, and the provisions of this Agreement and the First-Priority Collateral Documents and Second-Priority Collateral Documents shall remain in full force and effect in accordance with the terms hereof and thereof (as such provisions may be amended, modified or otherwise supplemented from time to time in accordance with the terms thereof, including to give effect to any intercreditor agreement (or similar arrangement)).

 

(b)      In addition, in the event that the Borrower or any other Grantor incurs any Obligations secured by a Lien on any Common Collateral that is junior to Liens thereon securing any First-Priority Obligations or Second-Priority Obligations, as the case may be, and such Obligations are not designated by the Borrower as Second-Priority Obligations hereunder, then the First-Priority Collateral Agent and/or Second-Priority Collateral Agent shall upon the request of the Borrower enter into an intercreditor agreement with the agent or trustee for the creditors with respect to such secured Obligations, to reflect the relative Lien priorities of such parties with respect to the relevant portion of the Common Collateral and governing the relative rights, benefits and privileges as among such parties in respect of such Common Collateral, including as to application of the proceeds of such Common Collateral, priority in respect of any Common Collateral, voting rights, control of such Common Collateral and waivers with respect to such Common Collateral, in each case, so long as such secured Obligations are not prohibited by, and the terms of such intercreditor agreement do not violate or conflict with, the provisions of this Agreement or any of the First-Priority Documents or Second-Priority Documents, as the case may be.  If any such intercreditor agreement (or similar arrangement) is entered into, the provisions thereof shall not be (or be construed to be) an amendment, modification or other change to this Agreement or any First-Priority Documents, and the provisions of this Agreement, the First-Priority Documents and the Second-Priority Documents shall remain in full force and effect in accordance with the terms hereof and thereof (as such provisions may be amended, modified or otherwise supplemented from time to time in accordance with the respective terms thereof, including to give effect to any intercreditor agreement (or similar arrangement)).

 

[Remainder of page intentionally left blank]

 

33

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.

 

	APOLLO ADMINISTRATIVE AGENCY LLC
	as First Lien Agreement Agent
	By:	/s/ Daniel M. Duval
		Name:	Daniel M. Duval
		Title:	Vice President
	APOLLO ADMINISTRATIVE AGENCY LLC,
	as First Lien Agreement Collateral Agent
	By:	/s/ Daniel M. Duval
		Name:	Daniel M. Duval
		Title:	Vice President
	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
	as Initial Other First-Priority Agent
	By:	/s/ William Sicking
		Name:	William Sicking
		Title:	Vice President
	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
	as Initial Other First-Priority Collateral Agent
	By:	/s/ William Sicking
		Name:	William Sicking
		Title:	Vice President
	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
	as Initial Second-Priority Agent
	By:	/s/ William Sicking
		Name:	William Sicking
		Title:	Vice President
	ALTER DOMUS PRODUCTS CORP.,
	as Initial Second-Priority Collateral Agent
	By:	/s/ Matthew Trybula
		Name:	Matthew Trybula
		Title:	Associate Counsel

 

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Annex I

to First Lien/Second Lien Intercreditor Agreement

 

[Annex I on file with the Administrative Agent]

 

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EXHIBIT A

Joinder Agreement

 

[Exhibit A on file with the Administrative Agent]

 

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EXHIBIT B

Joinder Agreement

 

[Exhibit B on file with the Administrative Agent]

 

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Exhibit 10.1

AMENDMENT AND RESTATEMENT AGREEMENT dated as of October 15, 2024 (this “Amendment”), among GANNETT CO., INC., a Delaware corporation (“Holdings”), GANNETT HOLDINGS LLC, a Delaware limited liability company (the “Borrower”), the other GUARANTORS party hereto, the LENDERS party hereto, CITIBANK, N.A. (“Citi”), as the existing administrative agent and collateral agent (in such capacities, the “Existing Agent”), and APOLLO ADMINISTRATIVE AGENCY LLC (“Apollo AA LLC”), as successor administrative agent and collateral agent (in such capacities, the “Successor Agent”), which amends and restates the First Lien Credit Agreement dated as of October 15, 2021 (as amended, supplemented or otherwise modified from time to time prior to the Amendment Closing Date (as defined below), the “Existing Credit Agreement”), among Holdings, the Borrower, the other Guarantors from time to time party thereto, the Lenders from time to time party thereto and the Existing Agent.  Capitalized terms used in this Amendment but not otherwise defined shall have the meanings assigned to such terms in the Amended Credit Agreement (as defined below), except as otherwise expressly set forth herein.

 

WHEREAS pursuant to the Existing Credit Agreement, the Lenders (as defined in the Existing Credit Agreement) have agreed to extend credit to the Borrower on the terms and subject to the conditions set forth therein;

 

WHEREAS the Borrower intends to (a) incur a new Class of Term Loans, denominated in Dollars, in an aggregate principal amount not to exceed $900,000,000, consisting of (i) initial term loans in an aggregate principal amount equal to $850,428,000 (the “Initial Term Loans” and such aggregate principal amount, the “Initial Term Loan Aggregate Principal Amount”) and (ii) delayed draw term loans in an aggregate principal amount not to exceed $49,572,000 (the “Delayed Draw Term Loans”), (b) the proceeds of the Initial Terms will be used by the Borrower on the Amendment Closing Date (i) to consummate the Transactions and (ii) to pay fees and expenses incurred to obtain the Initial Term Loans and to consummate the Transactions and (c) the proceeds of the Delayed Draw Term Loans will be used by the Borrower on or after the Amendment Closing Date (i) to repurchase, redeem, defease or otherwise discharge the Senior Secured Notes that are not held by the Apollo Funds on the Amendment Closing Date, (ii) to repurchase, redeem, defease of otherwise discharge Notes that are not held by the Apollo Funds on the Amendment Closing Date that are exchanged pursuant to the Convertible Notes Exchange and (iii) to pay fees and expenses incurred to obtain the Delayed Draw Term Loans;

 

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WHEREAS the Borrower has requested that (a) the financial institutions set forth on Schedule I hereto (the “Initial Term Loan Lenders”) commit to make Initial Term Loans on the Amendment Closing Date (the commitment of each Initial Term Loan Lender to provide an Initial Term Loan, as set forth opposite such Initial Term Loan Lender’s name on Schedule I hereto, is such Initial Term Loan Lender’s “Initial Term Loan Commitment”) equal to the Initial Term Loan Aggregate Principal Amount less the aggregate principal amount of the Exchanged Initial Term Loans (as defined below) and (b) the financial institutions set forth on Schedule II hereto (the “Delayed Draw Term Loan Lenders”) commit to make one or more Delayed Draw Term Loans after the Amendment Closing Date in accordance with the terms of the Amended Credit Agreement (the commitment of each Delayed Draw Term Loan Lender to provide its applicable portion of each Delayed Draw Term Loan, as set forth opposite such Delayed Draw Term Loan Lender’s name on Schedule II hereto, is such Delayed Draw Term Loan Lender’s “Delayed Draw Term Loan Commitment”);

 

WHEREAS the Initial Term Loan Lenders are willing to make Initial Term Loans to the Borrower on the Amendment Closing Date, and the Delayed Draw Term Loan Lenders are willing to make their respective portions of one or more Delayed Draw Term Loans to the Borrower after the Amendment Closing Date, in each case on the terms and subject to the conditions set forth herein and in the Amended Credit Agreement; and

 

WHEREAS, in connection with the foregoing, the Borrower has requested, and the undersigned Lenders have agreed, upon the terms and subject to the conditions set forth herein and in the Amended Credit Agreement, that the Existing Credit Agreement will be amended and restated as provided herein.

 

NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, and subject to the conditions set forth herein, the parties hereto hereby agree as follows:

 

SECTION 1.  Initial Term Loan, Delayed Draw Term Loan Commitments and Exchange of Senior Secured Notes.

 

(a)  Subject to the satisfaction of the conditions precedent set forth in Section 4 hereof, each Initial Term Loan Lender agrees, severally and not jointly, to make, on the Amendment Closing Date, an Initial Term Loan to the Borrower in an aggregate principal amount not to exceed its Initial Term Loan Commitment.  The Initial Term Loan Commitment of each Initial Term Loan Lender shall automatically terminate upon the making of the Initial Term Loans on the Amendment Closing Date.  Amounts repaid or prepaid in respect of the Initial Term Loans may not be reborrowed.

 

(b)  Subject to the satisfaction of the conditions precedent set forth in Section 4 hereof, each Delayed Draw Term Loan Lender agrees, severally and not jointly, to make its ratable portion of one or more Delayed Draw Term Loans to the Borrower in accordance with the terms of the Amended Credit Agreement in an aggregate principal amount not to exceed its Delayed Draw Term Loan Commitment.  The Delayed Draw Term Loan Commitment of each Delayed Draw Term Loan Lender shall automatically terminate in accordance with Section 2.05(a)(ii) of the Amended Credit Agreement.  Amounts repaid or prepaid in respect of the Delayed Draw Term Loans may not be reborrowed.

 

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(c)  Subject to the satisfaction of the conditions precedent set forth in Section 4 hereof and subject to the terms of Section 2.01 of the Amended Credit Agreement, each holder of Senior Secured Notes on the Amendment Closing Date that validly elects to exchange, on the Amendment Closing Date, all or a portion of its Senior Secured Notes for an Initial Term Loan pursuant to and in accordance with the Senior Secured Notes Exchange Offer (each, an “Exchanging Note Holder”) shall exchange its Senior Secured Notes (through a Borrowing of additional Initial Term Loans deemed made by cashless roll (each, an “Exchanged Initial Term Loan”) as a Lender under the Amended Credit Agreement) for an Initial Term Loan in an aggregate principal amount equal to the aggregate principal amount of the Senior Secured Notes of such Exchanging Note Holder that are so exchanged (the “Closing Date Exchange”).  Each Exchanged Initial Term Loan shall be allocated, on a ratable basis, to each Borrowing in respect of the Initial Term Loans (excluding the Exchanged Initial Term Loans) to be made on the Amendment Closing Date and shall constitute an “Initial Term Loan” for all purposes hereof.  Each Exchanging Note Holder, by providing its Exchanged Initial Term Loans pursuant to and in accordance with the Closing Date Exchange, shall be deemed to have agreed to the terms set forth herein and in the Amended Credit Agreement applicable to the Term Loan Lenders and the Term Loans.

 

(d)  The proceeds of the Initial Term Loans and the Delayed Draw Term Loans shall be used solely for the purposes set forth in Section 6.01(s) of the Amended Credit Agreement.

 

(e)  Immediately upon the consummation of the transactions referenced in paragraphs (a), (b) and (c) of this Section 1, each reference to the terms “Lenders” and “Term Loan Lenders” in the Loan Documents shall be deemed to include the Initial Term Loan Lenders, the Exchanging Note Holders and the Delayed Draw Term Loan Lenders, each reference to the terms “Loans” and “Term Loans” in the Loan Documents shall be deemed to include the Initial Term Loans (including the Exchanged Initial Term Loans) and the Delayed Draw Term Loans, and each reference to the terms “Commitments” and “Term Loan Commitments” in the Loan Documents shall be deemed to include the Initial Term Loan Commitments and the Delayed Draw Term Loan Commitments.

 

SECTION 2.  Amendment and Restatement of the Existing Credit Agreement; Successor Agent.

 

(a)  Effective as of the Amendment Closing Date, the Existing Credit Agreement (including the Schedules and Exhibits thereto) is hereby amended and restated to read in its entirety as set forth in Exhibit A hereto (the Existing Credit Agreement, as so amended and restated, the “Amended Credit Agreement”); provided, however, that the amendments reflected in Section 12.02 of Exhibit A hereto shall not become effective until immediately after the consummation of the transactions contemplated by Section 1 hereof on the Amendment Closing Date (and each of the Initial Term Loan Lenders and the Delayed Draw Term Loan Lenders hereby consent to the addition of such text effective as of the Restatement Effective Date).

 

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(b)  The Existing Agent hereby provides notice of its resignation as administrative agent and collateral agent under the Amended Credit Agreement, effective as of the Amendment Closing Date.  The Borrower and each Lender party hereto, including the Initial Term Loan Lenders, the Exchanging Note Holders and the Delayed Draw Term Loan Lenders, hereby consent to the appointment of Apollo AA LLC as the successor administrative agent and collateral agent under the Amended Credit Agreement and the other Loan Documents and shall be deemed to have appointed Apollo AA LLC as the successor administrative agent and collateral agent under the Amended Credit Agreement and the other Loan Documents immediately upon the effectiveness of the resignation of Citi as administrative agent and collateral agent under the Amended Credit Agreement and the other Loan Documents, in each case effective as of the Amendment Closing Date.  For the avoidance of doubt, (i) the parties hereto hereby agree that the resignation contemplated by this Section 2(b) shall satisfy the advance notice requirements set forth in Section 10.07(a) of the Amended Credit Agreement and (ii) on and after the Amendment Closing Date, Apollo AA LLC shall be (A) the First Lien Agreement Agent and the First Lien Agreement Collateral Agent, in each case under and as defined in the Notes Junior Intercreditor Agreement and (B) the Administrative Agent and the Credit Agreement Collateral Agent, in each case under and as defined in the Pari Passu Intercreditor Agreement.  The parties hereto hereby agree that, as of the Amendment Closing Date, the Borrower’s obligations under that certain Agent Fee Letter dated as of October 15, 2021, between the Borrower and the Existing Agent (the “Existing Agent Fee Letter”) shall terminate and the Existing Agent Fee Letter shall automatically cease to be effective.

 

(c)  The Lenders party hereto, which Lenders constitute the Required Lenders under the Existing Credit Agreement immediately prior to the effectiveness of this Amendment, hereby approve and ratify (i) the resignation of the Existing Agent, (ii) the appointment of the Successor Agent and (iii) the Existing Agent’s entry into the Agency Succession Agreement (as defined below) on such terms and conditions reasonably satisfactory to the Existing Agent.

 

SECTION 3.  Representations and Warranties.  Each Loan Party represents and warrants to the Existing Agent, the Successor Agent and to each of the Lenders (including, without limitation, the Initial Term Loan Lenders, the Exchanging Note Holders and the Delayed Draw Term Loan Lenders) that:

 

(a)  This Amendment has been duly authorized, executed and delivered by each Loan Party and constitutes a legal, valid and binding obligation of each Loan Party, enforceable against each Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

 

(b)  The representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects (or, in the case of representations and warranties qualified as to materiality, in all respects) on and as of the Amendment Closing Date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty is true and correct in all material respects (or in all respects, as applicable) as of such earlier date.

 

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(c)  Immediately after giving effect to the transactions to occur hereunder on the Amendment Closing Date, no Default or Event of Default shall have occurred and be continuing.

 

SECTION 4.  Effectiveness.  This Amendment shall become effective as of the date first above written (the “Amendment Closing Date”) when:

 

(a)  the Successor Agent shall have received counterparts of this Amendment that, when taken together, bear the signatures of (i) each Loan Party, (ii) each Initial Term Loan Lender, (iii) each Delayed Draw Term Loan Lender, (iv) Lenders under the Existing Credit Agreement that, immediately prior to the effectiveness of this Amendment, constitute the Required Lenders, (v) the Existing Agent and (vi) the Successor Agent;

 

(b)  the Successor Agent shall have received (i) with respect to each Loan Party, certificates of the type delivered to the Existing Agent pursuant to Section 5.01(d)(vi) of the Existing Credit Agreement, dated as of the Amendment Closing Date, (ii) a certificate of the chief financial officer of Holdings, certifying as to the solvency of the Borrower and its Subsidiaries taken as a whole (after giving effect to the borrowing of the Initial Term Loans and of any Delayed Draw Term Loans to be made on the Amendment Closing Date as well as to the other transactions to be consummated on the Amendment Closing Date) and (iii) an opinion of (A) Cravath, Swaine & Moore LLP, New York counsel to the Loan Parties, and (B) local counsel in each jurisdiction in which a Loan Party is organized, to the extent such Loan Party is not covered by the opinion referenced in clause (A) above, as may be reasonably requested by the Successor Agent, in each case as to such matters regarding the Loan Parties, this Amendment and the Term Loans as the Successor Agent may reasonably request, and the Loan Parties hereby request such opinions;

 

(c)  (i) the Successor Agent, the Arranger and the Lenders (including, without limitation, the Initial Term Loan Lenders, the Exchanging Note Holders and the Delayed Draw Term Loan Lenders) shall have received payment of all fees and expenses required to be paid or reimbursed by Holdings or any other Loan Party under or in connection with this Amendment and any other Loan Document, including those fees and expenses set forth in Section 9 hereof, and (ii) the Borrower agrees to reimburse each of the Existing Agent and the Successor Agent for its reasonable out-of-pocket expenses in connection with this Amendment to the extent required under Section 12.04 of the Existing Credit Agreement or the Amended Credit Agreement, as applicable;

 

(d)  the representations and warranties set forth in Section 3 hereof shall be true and correct as of the Amendment Closing Date;

 

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(e)  the Successor Agent shall have received from the Borrower, in accordance with Section 2.02 of the Amended Credit Agreement (after giving effect to the amendments to such Section contemplated hereby), a duly executed Notice of Borrowing with respect to (i) the funding of the Initial Term Loans on the Amendment Closing Date and (ii) to the extent applicable, the funding of Delayed Draw Term Loans on the Amendment Closing Date;

 

(f)  the Existing Agent shall have received from the Borrower, in accordance with Section 2.05(b)(ii) of the Existing Credit Agreement, a notice of prepayment with respect to the prepayment of all the outstanding principal amount of the Term Loans outstanding under the Existing Credit Agreement immediately prior to the Amendment Closing Date (the “Existing Term Loans”);

 

(g)  substantially concurrently with the funding of the Initial Term Loans, the Existing Agent shall have been paid such amount as is necessary to repay in full the Existing Term Loans, together with all accrued but unpaid interest thereon and other accrued but unpaid amounts owing in respect thereof, and the other Transactions shall have been consummated;

 

(h)  the Successor Agent shall have received a duly executed Perfection Certificate dated as of the Amendment Closing Date, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Successor Agent that the Liens indicated by such financing statements (or similar documents) are Permitted Liens or have been or will contemporaneously with the occurrence of the Amendment Closing Date be released or terminated;

 

(i)  the Successor Agent and the Lenders shall have received all information required under the applicable “know your customer” requirements of the Anti-Money Laundering and Anti-Terrorism Laws, including the USA PATRIOT Act, and a Beneficial Ownership Certification for the Borrower and any Guarantor, in each case, that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation to any Lender that has requested such certification (in each case, with such documentation and information to be requested not later than 10 Business Days prior to the Amendment Closing Date and to be delivered at least three Business Days prior to the Amendment Closing Date);

 

(j)  the Successor Agent shall have received amendments to each of (i) the UCC-1 financing statements for each of the Loan Parties and (ii) the intellectual property security agreements filed by the Loan Parties with the U.S. Patent and Trademark Office and the U.S. Copyright Office under the Existing Credit Agreement, in each case in form reasonably satisfactory to the Successor Agent, reflecting that the Successor Agent is replacing the Existing Agent as collateral agent under the Amended Credit Agreement;

 

(k)  the Successor Agent shall have received (i) a duly executed version of the New Convertible Notes Junior Intercreditor Agreement and (ii) a duly executed Joinder Agreement to the Notes Junior Intercreditor Agreement pursuant to which the obligations in respect of the New Convertible Notes are designated as Other First-Priority Obligations under the Notes Junior Intercreditor Agreement;

 

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(l)  the Successor Agent shall have received (i) audited consolidated balance sheets of Holdings and its Subsidiaries as of the end of the two most recently completed fiscal years ended at least 90 days before the Amendment Closing Date and related consolidated statements of operations, stockholders’ equity and cash flows of Holdings and its Subsidiaries for the two most recently completed fiscal years ended at least 90 days before the Amendment Closing Date and (ii) unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations and cash flows of Holdings and its Subsidiaries for each subsequent fiscal quarter ended at least 45 days before the Amendment Closing Date (other than any fiscal fourth quarter) after the most recent fiscal period for which audited financial statements have been provided pursuant to clause (a) hereof, in each case prepared in accordance with GAAP; provided that the filing of the foregoing financial statements with the Securities and Exchange Commission within the time periods specified in clauses (i) and (ii) above will satisfy the foregoing requirements;

 

(m)  since December 31, 2023, no Material Adverse Effect shall have occurred;

 

(n)  the aggregate amount of unrestricted cash on the consolidated balance sheet of Holdings and its Subsidiaries as of the Amendment Closing Date shall not be less than $100,000,000 (the “Cash Target”); provided that the Cash Target shall be reduced to reflect payments of ordinary course working capital requirements made consistently with past practice; and

 

(o)  the Successor Agent shall have received a duly executed Resignation, Waiver, Amendment and Appointment Agreement (the “Agency Succession Agreement”) that, when taken together, bear the signatures of (i) each Loan Party, (ii) the Existing Agent and (iii) the Successor Agent.

 

SECTION 5.  Acknowledgment and Reaffirmation.  Each Loan Party hereby acknowledges that it has read this Amendment and consents to the terms hereof and further hereby affirms, confirms and agrees that, except as expressly set forth herein, (a) notwithstanding the effectiveness of this Amendment, the obligations of such Loan Party under each of the Loan Documents to which it is a party shall not be impaired and each of the Loan Documents to which such Loan Party is a party is, and shall continue to be, in full force and effect and is hereby confirmed and ratified in all respects, in each case, as amended hereby and (b) its guarantee of the Obligations (including the Initial Term Loans and the Delayed Draw Term Loans, if any), and the pledge of and/or grant of a security interest in its assets as collateral to secure the Obligations (including the Initial Term Loans and the Delayed Draw Term Loans, if any), all as and to the extent provided in the Loan Documents as originally executed, shall continue in full force and effect in respect of, and to secure, the Obligations (including the Initial Term Loans and the Delayed Draw Term Loans, if any).

 

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SECTION 6.  Effects on the Loan Documents; No Novation.  (a)Except as expressly set forth herein, this Amendment shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement or any other provision of the Existing Credit Agreement or of any other Loan Document, all of which shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.

 

(b)  The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender, the Existing Agent or the Successor Agent under any of the Loan Documents, nor constitute a waiver of any provision of the Loan Documents or in any way limit, impair or otherwise affect the rights and remedies of the Lenders, the Existing Agent or the Successor Agent under the Loan Documents, except as expressly provided herein.  Nothing herein shall be deemed to entitle the Borrower or any other Loan Party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Amended Credit Agreement or any other Loan Document in similar or different circumstances.

 

(c)  On and after the Amendment Closing Date, each reference to the Existing Credit Agreement, “thereunder”, “thereof”, “therein” or words of like import in any Loan Document shall be deemed a reference to the Amended Credit Agreement.

 

(d)  This Amendment shall constitute a “Loan Document” for all purposes of the Amended Credit Agreement and the other Loan Documents.

 

(e)  Except as expressly provided herein, 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 Loan Document or any other security therefor or any guarantee thereof.  Nothing herein contained shall be construed as a substitution or novation of the Obligations outstanding under the Existing Credit Agreement or any other Loan Document, all of which shall remain in full force and effect, except as modified hereby.  Nothing expressed or implied in this Amendment or any other document contemplated hereby shall be construed as a release or other discharge of any Loan Party under any Loan Document from any of its obligations and liabilities thereunder.

 

SECTION 7.  Applicable Law; Waiver of Jury Trial.  The provisions of Sections 12.09, 12.10 and 12.11 of the Amended Credit Agreement are hereby incorporated by reference herein, mutatis mutandis.

 

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SECTION 8.  Counterpart.  This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  Delivery by electronic transmission of an executed counterpart of a signature page to this Amendment shall be effective as delivery of an original executed counterpart of this Amendment. The words “execution”, “signed”, “signature”, “delivery” and words of like import in or relating to this Amendment, any document to be signed in connection with this Amendment and the transactions contemplated hereby shall be deemed to include Electronic Signatures (as defined below), deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act or any other similar State laws based on the Uniform Electronic Transactions Act; provided that nothing herein shall require the Agent to accept electronic signatures in any form or format without its prior written consent.  “Electronic Signature” means an electronic sound, symbol or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.

 

SECTION 9.  Fees and Expenses.

 

(a)  Holdings agrees to pay (or cause to be paid) to the Arranger, the Successor Agent, the Initial Term Loan Lenders, the Exchanging Note Holders and the Delayed Draw Term Loan Lenders the fees previously agreed by Holdings to be paid to such Persons on the Amendment Closing Date.

 

(b)  The Borrower agrees to reimburse each of the Existing Agent and the Successor Agent for its reasonable out-of-pocket expenses in connection with this Amendment to the extent required under Section 12.04 of the Existing Credit Agreement or the Amended Credit Agreement, as applicable.

 

SECTION 10.  Headings.  Section headings used herein are for convenience of reference only, are not part of this Amendment and shall not affect the construction of, or be taken into consideration in interpreting, this Amendment.

[Signature Pages Follow]

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first written above.

 

	HOLDINGS:
	GANNETT CO., INC.
	By
		/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

	BORROWER:
	GANNETT HOLDINGS LLC
	By	Gannett Co., Inc., as its Sole Member
	By
		/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Amendment and Restatement Agreement Signature Page]

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GUARANTORS

BRIDGETOWER MEDIA HOLDING COMPANY CA ALABAMA HOLDINGS, INC. CA LOUISIANA HOLDINGS, INC. CA MASSACHUSETTS HOLDINGS, INC. CA NORTH CAROLINA HOLDINGS, INC. CA SOUTH CAROLINA HOLDINGS, INC. COPLEY OHIO NEWSPAPERS, INC. DAILY JOURNAL OF COMMERCE, INC. DAILY REPORTER PUBLISHING COMPANY DB ACQUISITION, INC. DB ARKANSAS HOLDINGS, INC. DB IOWA HOLDINGS, INC. DB NORTH CAROLINA HOLDINGS, INC. DB OKLAHOMA HOLDINGS, INC. DB TENNESSEE HOLDINGS, INC. DB TEXAS HOLDINGS, INC. DB WASHINGTON HOLDINGS, INC. FINANCE AND COMMERCE, INC. GATEHOUSE MEDIA ALASKA HOLDINGS, INC. GATEHOUSE MEDIA ARKANSAS HOLDINGS, INC. GATEHOUSE MEDIA CALIFORNIA HOLDINGS, INC. GATEHOUSE MEDIA COLORADO HOLDINGS, INC. GATEHOUSE MEDIA CONNECTICUT HOLDINGS, INC. GATEHOUSE MEDIA CORNING HOLDINGS, INC. GATEHOUSE MEDIA DELAWARE HOLDINGS, INC. GATEHOUSE MEDIA DIRECTORIES HOLDINGS, INC. GATEHOUSE MEDIA FREEPORT HOLDINGS, INC. GATEHOUSE MEDIA GEORGIA HOLDINGS, INC. GATEHOUSE MEDIA ILLINOIS HOLDINGS II, INC. GATEHOUSE MEDIA ILLINOIS HOLDINGS, INC. GATEHOUSE MEDIA INDIANA HOLDINGS, INC. GATEHOUSE MEDIA IOWA HOLDINGS, INC. GATEHOUSE MEDIA KANSAS HOLDINGS II, INC. GATEHOUSE MEDIA KANSAS HOLDINGS, INC. GATEHOUSE MEDIA LANSING PRINTING, INC. GATEHOUSE MEDIA LOUISIANA HOLDINGS, INC. GATEHOUSE MEDIA MACOMB HOLDINGS, INC. GATEHOUSE MEDIA MANAGEMENT SERVICES, INC. GATEHOUSE MEDIA MARYLAND HOLDINGS, INC. GATEHOUSE MEDIA MASSACHUSETTS I, INC. GATEHOUSE MEDIA MASSACHUSETTS II, INC. GATEHOUSE MEDIA MICHIGAN HOLDINGS II, INC. GATEHOUSE MEDIA MICHIGAN HOLDINGS, INC. GATEHOUSE MEDIA MINNESOTA HOLDINGS, INC.

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	Director

[Amendment and Restatement Agreement Signature Page]

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GATEHOUSE MEDIA MISSOURI HOLDINGS II, INC. GATEHOUSE MEDIA MISSOURI HOLDINGS, INC. GATEHOUSE MEDIA NEBRASKA HOLDINGS, INC. GATEHOUSE MEDIA NEW YORK HOLDINGS, INC. GATEHOUSE MEDIA NORTH DAKOTA HOLDINGS, INC. GATEHOUSE MEDIA OHIO HOLDINGS II, INC. GATEHOUSE MEDIA OHIO HOLDINGS, INC. GATEHOUSE MEDIA OKLAHOMA HOLDINGS, INC. GATEHOUSE MEDIA OREGON HOLDINGS, INC. GATEHOUSE MEDIA PENNSYLVANIA HOLDINGS, INC. GATEHOUSE MEDIA SOUTH DAKOTA HOLDINGS, INC. GATEHOUSE MEDIA SUBURBAN NEWSPAPERS, INC. GATEHOUSE MEDIA TENNESSEE HOLDINGS, INC. GATEHOUSE MEDIA TEXAS HOLDINGS II, INC. GATEHOUSE MEDIA TEXAS HOLDINGS, INC. GATEHOUSE MEDIA VIRGINIA HOLDINGS, INC. LMG MAINE HOLDINGS, INC. LMG MASSACHUSETTS, INC. LMG NATIONAL PUBLISHING, INC. LMG RHODE ISLAND HOLDINGS, INC. LMG STOCKTON, INC. LOCAL MEDIA GROUP HOLDINGS LLC LOCAL MEDIA GROUP, INC. MINERAL DAILY NEWS TRIBUNE, INC. NEWS LEADER, INC. SEACOAST NEWSPAPERS, INC. SUREWEST DIRECTORIES TERRY NEWSPAPERS, INC. LMG NANTUCKET, INC. THE MAIL TRIBUNE, INC. THE NICKEL OF MEDFORD, INC. THE PEORIA JOURNAL STAR, INC. THRIVEHIVE, INC. UPCURVE, INC. W-SYSTEMS CORP.

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	Director

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	ARIZONA NEWS SERVICE, LLC
		By: Dolco Acquisition, LLC, as its Manager By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	Chief Executive Officer

	BRIDGETOWER MEDIA DLN, LLC
		By: Dolco Acquisition, LLC, as its Manager By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	BRIDGETOWER MEDIA, LLC
		By: Dolco Acquisition, LLC, as its Sole Member By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	CA FLORIDA HOLDINGS, LLC
		By: Cummings Acquisition, LLC, as its Sole Member By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Membe

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

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	CUMMINGS ACQUISITION, LLC
		By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	CYBERINK, LLC
		By: GateHouse Media Pennsylvania Holdings, Inc., as its Sole Member
	DOLCO ACQUISITION, LLC
		By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	ENHE ACQUISITION, LLC
		By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	ENTERPRISE NEWSMEDIA HOLDING, LLC
		By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	ENTERPRISE NEWSMEDIA, LLC
		By: Enterprise NewsMedia Holding, LLC, as its Sole Member By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	ENTERPRISE PUBLISHING COMPANY, LLC
		By: Enterprise NewsMedia, LLC, as its Sole Member By: Enterprise NewsMedia Holding, LLC, as its Sole Member By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	GANNETT VENTURES LLC
		By: New Media Ventures Group LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

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	GATEHOUSE MEDIA HOLDCO, LLC
		By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	GATEHOUSE MEDIA INTERMEDIATE HOLDCO, LLC
		By: GateHouse Media, LLC, as its Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	GATEHOUSE MEDIA OPERATING, LLC
		By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	GATEHOUSE MEDIA, LLC
		By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	GEORGE W. PRESCOTT PUBLISHING COMPANY, LLC
		By: Enterprise NewsMedia, LLC, as its Sole Member By: Enterprise NewsMedia Holding, LLC, as its Sole Member By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	IDAHO BUSINESS REVIEW, LLC
		By: Dolco Acquisition, LLC, as its Manager By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	LAWYER’S WEEKLY, LLC
		By: Dolco Acquisition, LLC, as its Manager By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

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	LIBERTY SMC, L.L.C.
		By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	LONG ISLAND BUSINESS NEWS, LLC
		By: Dolco Acquisition, LLC, as its Manager By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	LOW REALTY, LLC
		By: Enterprise NewsMedia, LLC, as its Sole Member By: Enterprise NewsMedia Holding, LLC, as its Sole Member By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	LRT FOUR HUNDRED, LLC
		By: Enterprise NewsMedia, LLC, as its Sole Member By: Enterprise NewsMedia Holding, LLC, as its Sole Member By: GateHouse Media Massachusetts II, Inc., as its Sole Member
	MISSOURI LAWYERS MEDIA, LLC
		By: Dolco Acquisition, LLC, as its Manager By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	NEW MEDIA HOLDINGS I LLC
		By: Gannett Media Corp., as its Sole Member
	NEW MEDIA HOLDINGS II LLC
		By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

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	NEW MEDIA VENTURES GROUP LLC
		By: Gannett Media Corp., as its Sole Member
	NEW ORLEANS PUBLISHING GROUP, L.L.C.
		By: Dolco Acquisition, LLC, as its Manager By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	NOPG, L.L.C.
		By: New Orleans Publishing Group, L.L.C., as its Sole Member By: Dolco Acquisition, LLC, as its Manager By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	THE DAILY RECORD COMPANY, LLC
		By: Dolco Acquisition, LLC, as its Manager By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	THE JOURNAL RECORD PUBLISHING CO., LLC
		By: Dolco Acquisition, LLC, as its Manager By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

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	THE NWS COMPANY, LLC
		By: Dolco Acquisition, LLC, as its Manager By: GateHouse Media Operating, LLC, as its Sole Member By: GateHouse Media Holdco, LLC, as its Sole Member By: GateHouse Media Intermediate Holdco, LLC, as its Sole Member By: GateHouse Media, LLC, as its Sole Member By: New Media Holdings II LLC, as its Sole Member By: New Media Holdings I LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	UPCURVE CLOUD LLC
		By: UpCurve, Inc., as its Sole Member
	VENTURES ENDURANCE, LLC
		By: Gannett Ventures LLC, as its Sole Member By: New Media Ventures Group LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	VENTURES ENDURANCE EVENTS, LLC
		By: Ventures Endurance, LLC, as its Sole Member By: Gannett Ventures LLC, as its Sole Member By: New Media Ventures Group LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

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ACTION ADVERTISING, INC. ALEXANDRIA NEWSPAPERS, INC. BAXTER COUNTY NEWSPAPERS, INC. BIZZY, INC. BOAT SPINCO, INC. CITIZEN PUBLISHING COMPANY DES MOINES REGISTER AND TRIBUNE COMPANY DESK SPINCO, INC. DETROIT FREE PRESS, INC. DIGICOL, INC. EVANSVILLE COURIER COMPANY, INC. FEDERATED PUBLICATIONS, INC. GANNETT GP MEDIA, INC. GANNETT INTERNATIONAL COMMUNICATIONS, INC. GANNETT MEDIA CORP. GANNETT MHC MEDIA, INC. GANNETT MISSOURI PUBLISHING, INC. GANNETT RETAIL ADVERTISING GROUP, INC. GANNETT RIVER STATES PUBLISHING CORPORATION GANNETT SB, INC. GANNETT SUPPLY CORPORATION GANNETT VERMONT PUBLISHING, INC. JOURNAL COMMUNITY PUBLISHING GROUP, INC. JOURNAL MEDIA GROUP, INC. JOURNAL SENTINEL INC. KICKSERV, LLC MEMPHIS PUBLISHING COMPANY MULTIMEDIA, INC. PHOENIX NEWSPAPERS, INC. PRESS-CITIZEN COMPANY, INC. REACHLOCAL CANADA, INC. REACHLOCAL DP, INC. REACHLOCAL INTERNATIONAL, INC. REACHLOCAL, INC. RENO NEWSPAPERS, INC. SEDONA PUBLISHING COMPANY, INC. THE ADVERTISER COMPANY THE COURIER-JOURNAL, INC. THE DESERT SUN PUBLISHING CO. THE TIMES HERALD COMPANY WORDSTREAM, INC. X.COM, INC.

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	Director

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	GANNETT INTERNATIONAL FINANCE LLC
	By:	/s/ Michael E. Reed
	Name:  Michael E. Reed
	Title:  Manager
	By:	/s/ Douglas E. Horne
	Name:  Douglas E. Horne
	Title:  Manager
	By:	/s/ Polly Grunfeld Sack
	Name:  Polly Grunfeld Sack
	Title:  Manager

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	AMERICAN INFLUENCER AWARDS, LLC
		By: Gannett Ventures LLC, as its Sole Member
	ENMOTIVE COMPANY LLC
		By: Gannett Ventures LLC, as its Sole Member
	GIDDYUP EVENTS, LLC
		By: Ventures Endurance, LLC, as its Sole Member
	LOCO SPORTS, LLC
		By: Ventures Endurance, LLC, as its Sole Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	Chief Executive Officer

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	DEALON, LLC
		By: ReachLocal, Inc., as its Sole Member
	DES MOINES PRESS CITIZEN LLC
		By: Des Moines Register and Tribune Company, as its Sole Member
	FOODBLOGS, LLC
		By: Grateful Media, LLC, as its Sole Member By: Gannett Satellite Information Network, LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	GANNETT PUBLISHING SERVICES, LLC
		By: Gannett Satellite Information Network, LLC, as its Managing Member By: Gannett Media Corp., as its Sole Member
	GANNETT SATELLITE INFORMATION NETWORK, LLC
		By: Gannett Media Corp., as its Sole Member
	GANNETT UK MEDIA, LLC
		By: Gannett Media Corp., as its Sole Member
	GCCC, LLC
		By: Gannett Missouri Publishing, Inc., as its Sole Member
	GCOE, LLC
		By: Gannett Satellite Information Network, LLC, as its Managing Member By: Gannett Media Corp., as its Sole Member
	GFHC, LLC
		By: Gannett Media Corp., as its Sole Member
	GNSS LLC
		By: Gannett Media Corp., as its Sole Member
	GRATEFUL MEDIA, LLC
		By: Gannett Satellite Information Network, LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	IMAGN CONTENT SERVICES, LLC
		By: USA Today Sports Media Group, LLC, as its Sole Member By: Gannett Satellite Information Network, LLC, as its Managing Member By: Gannett Media Corp., as its Sole Member
	LOCALIQ LLC
		By: Gannett Media Corp., as its Sole Member
	MILWAUKEE MARATHON LLC
		By: Ventures Endurance Events, LLC, as Member and Majority In Interest

	/s/ Michael E. Reed
	Name:	Michael E. Reed
	Title:	President and Chief Executive Officer

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	REACHLOCAL INTERNATIONAL GP LLC
		By: ReachLocal International, Inc., as its Sole Member
	SCRIPPS NP OPERATING, LLC
		By: Desk Spinco, Inc., as its Sole Member
	THANKSGIVING VENTURES, LLC
		By: Grateful Media, LLC, as its Sole Member By: Gannett Satellite Information Network, LLC, as its Sole Member By: Gannett Media Corp., as its Sole Member
	USA TODAY SPORTS MEDIA GROUP, LLC
		By: Gannett Satellite Information Network, LLC, as its Managing Member By: Gannett Media Corp., as its Sole Member
	YORK DAILY RECORD-YORK SUNDAY NEWS LLC
		By: York Newspaper Company, as its Manager
			By: York Newspaper Holdings, L.P., as its General Partner By: York Partnership Holdings, LLC, as its General Partner By: Texas-New Mexico Newspapers, LLC, as its Managing Member By: The Sun Company of San Bernardino, California LLC, as its Managing Member By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member
		By: York Partnership Holdings, LLC, as its General Partner
			By: Texas-New Mexico Newspapers, LLC, as its Managing Member By: The Sun Company of San Bernardino, California LLC, as its Managing Member By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

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	YORK DISPATCH LLC
		By: York Newspaper Company, as its Manager
			By: York Newspaper Holdings, L.P., as its General Partner By: York Partnership Holdings, LLC, as its General Partner By: Texas-New Mexico Newspapers, LLC, as its Managing Member By: The Sun Company of San Bernardino, California LLC, as its Managing Member By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member
		By: York Partnership Holdings, LLC, as its General Partner
			By: Texas-New Mexico Newspapers, LLC, as its Managing Member By: The Sun Company of San Bernardino, California LLC, as its Managing Member By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

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	YORK NEWSPAPER COMPANY
		By: York Newspaper Holdings, L.P., as its General Partner
			By: York Partnership Holdings, LLC, as its General Partner By: York Newspaper Holdings, L.P., as its General Partner By: Texas-New Mexico Newspapers, LLC, as its Managing Member By: The Sun Company of San Bernardino, California LLC, as its Managing Member By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member
		By: York Partnership Holdings, LLC, as its General Partner
			By: Texas-New Mexico Newspapers, LLC, as its Managing Member By: The Sun Company of San Bernardino, California LLC, as its Managing Member By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

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	YORK NEWSPAPERS HOLDINGS, L.P.
		By: York Partnership Holdings, LLC, as its General Partner By: Texas-New Mexico Newspapers, LLC, as its Managing Member By: The Sun Company of San Bernardino, California LLC, as its Managing Member By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc., as its Member
	YORK NEWSPAPERS HOLDINGS, LLC
		By: York Newspaper Holdings, L.P., as its Sole Member By: York Partnership Holdings, LLC, as its General Partner By: Texas-New Mexico Newspapers, LLC, as its Managing Member By: The Sun Company of San Bernardino, California LLC, as its Managing Member By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member
	YORK PARTNERSHIP HOLDINGS, LLC
		By: Texas-New Mexico Newspapers, LLC, as its Managing Member By: The Sun Company of San Bernardino, California LLC, as its Managing Member By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

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	DESERT SUN PUBLISHING, LLC
		By: Gannett Media Services, LLC, as its Sole Member By: Gannett Co., Inc., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member
	GANNETT MEDIA SERVICES, LLC
		By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member
	SALINAS NEWSPAPERS LLC
		By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member
	TEXAS-NEW MEXICO NEWSPAPERS, LLC
		By: The Sun Company of San Bernardino, California LLC, as its Member By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc. as its Member
	THE SUN COMPANY OF SAN BERNARDINO, CALIFORNIA LLC
		By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc., as its Member
	VISALIA NEWSPAPERS LLC
		By: Gannett Media Services, LLC, as its Sole Member By: Gannett Media Corp., as its Member By: The Desert Sun Publishing Co., as its Member By: Gannett Satellite Information Network, LLC, as its Member By: Gannett Media Corp., as its Sole Member By: Gannett International Communications, Inc., as its Member

	By:	/s/ Michael E. Reed
		Name:	Michael E. Reed
		Title:	President and Chief Executive Officer

[Amendment and Restatement Agreement Signature Page]

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	CITIBANK, N.A., as Existing Agent,
	By
		/s/ Nathaniel Donohue
		Name:  Nathaniel Donohue
		Title:  Director & Vice President

[Amendment and Restatement Agreement Signature Page]

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	APOLLO ADMINISTRATIVE AGENCY LLC, as Successor Agent,
	By
		/s/ Daniel M. Duyal
		Name:  Daniel M. Duyal
		Title:  Vice President

[Amendment and Restatement Agreement Signature Page]

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[Lender signature pages on file with the Administrative Agent]

[Amendment and Restatement Agreement Signature Page]

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SCHEDULE I

[Schedule I on file with the Administrative Agent.]

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SCHEDULE II

[Schedule II on file with the Administrative Agent.]

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EXHIBIT A

AMENDED AND RESTATED FIRST LIEN CREDIT AGREEMENT

Dated as of October 15, 2024,

by and among

 

GANNETT CO., INC.,
as Holdings

GANNETT HOLDINGS LLC,
as Borrower,

EACH PERSON
LISTED AS A GUARANTOR ON THE SIGNATURE PAGES HERETO,
as Guarantors,

THE LENDERS FROM TIME TO TIME PARTY HERETO,
as Lenders,

and

APOLLO ADMINISTRATIVE AGENCY LLC,
as Administrative Agent and Collateral Agent

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APOLLO GLOBAL FUNDING, LLC,

as Lead Arranger and Lead Bookrunner

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TABLE OF CONTENTS

 

Page
ARTICLE I
	DEFINITIONS; CERTAIN TERMS		1
	Section 1.01	Definitions.	1
	Section 1.02	Terms Generally.	56
	Section 1.03	Certain Matters of Construction.	57
	Section 1.04	Pro Forma Calculations.	57
	Section 1.05	Accounting and Other Terms.	58
	Section 1.06	Time References.	59
	Section 1.07	Limited Conditions Transaction.	59
	Section 1.08	Cashless Rolls.	60
	Section 1.09	Rates.	60
ARTICLE II
	THE LOANS		60
	Section 2.01	Commitments; Loans	60
	Section 2.02	Making the Loans	62
	Section 2.03	Repayment of Term Loans; Evidence of Debt.	63
	Section 2.04	Interest.	64
	Section 2.05	Termination of Commitment; Prepayment of Term Loans.	66
	Section 2.06	Fees.	71
	Section 2.07	Interest Elections.	71
	Section 2.08	Alternate Rate of Interest.	72
	Section 2.09	Taxes.	76
	Section 2.10	Increased Costs and Reduced Return.	79
	Section 2.11	Break Funding Payments.	81
	Section 2.12	Mitigation Obligations; Replacement of Lenders.	81
	Section 2.13	Incremental Extensions of Credit.	83
	Section 2.14	Extension of Maturity Date.	85
ARTICLE III
	[RESERVED]		87
ARTICLE IV
	APPLICATION OF PAYMENTS		87
	Section 4.01	Payments; Computations and Statements.	87
	Section 4.02	Sharing of Payments.	88
	Section 4.03	Apportionment of Payments.	88

 

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ARTICLE V
	CONDITIONS TO LOANS		89
	Section 5.01	Conditions Precedent to Effectiveness.	89
ARTICLE VI
	REPRESENTATIONS AND WARRANTIES		89
	Section 6.01	Representations and Warranties.	89
ARTICLE VII
	COVENANTS OF THE LOAN PARTIES		98
	Section 7.01	Affirmative Covenants.	98
	Section 7.02	Negative Covenants.	107
	Section 7.03	Minimum Liquidity.	114
ARTICLE VIII
	DESIGNATION OF SUBSIDIARIES		114
ARTICLE IX
	EVENTS OF DEFAULT		115
	Section 9.01	Events of Default.	115
ARTICLE X
	AGENTS		119
	Section 10.01	Appointment.	119
	Section 10.02	Nature of Duties; Delegation.	119
	Section 10.03	Rights, Exculpation, Etc.	120
	Section 10.04	Reliance.	121
	Section 10.05	Indemnification.	121
	Section 10.06	Agents Individually.	122
	Section 10.07	Successor Agent.	122
	Section 10.08	Collateral Matters.	123
	Section 10.09	Agency for Perfection.	126
	Section 10.10	No Reliance on any Agent’s Customer Identification Program.	126
	Section 10.11	No Third Party Beneficiaries.	126
	Section 10.12	No Fiduciary Relationship.	126
	Section 10.13	Arrangers.	126
	Section 10.14	Collateral Custodian.	127
	Section 10.15	[Reserved].	127
	Section 10.16	Administrative Agent May File Proofs of Claim.	127
	Section 10.17	Defaults.	127
	Section 10.18	Erroneous Payments.	128

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ARTICLE XI
	GUARANTY		131
	Section 11.01	Guaranty.	131
	Section 11.02	Guaranty Absolute.	131
	Section 11.03	Waiver.	132
	Section 11.04	Continuing Guaranty; Assignments; Release.	133
	Section 11.05	Subrogation	133
	Section 11.06	Contribution.	134
ARTICLE XII
	MISCELLANEOUS		135
	Section 12.01	Notices, Etc.	135
	Section 12.02	Amendments, Etc.	138
	Section 12.03	No Waiver; Remedies, Etc.	140
	Section 12.04	Expenses; Attorneys’ Fees.	141
	Section 12.05	Right of Set-off.	142
	Section 12.06	Severability.	142
	Section 12.07	Assignments and Participations.	142
	Section 12.08	Counterparts; Electronic Signatures.	146
	Section 12.09	GOVERNING LAW.	146
	Section 12.10	CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE.	146
	Section 12.11	WAIVER OF JURY TRIAL, ETC.	147
	Section 12.12	Consent by the Agents and Lenders.	147
	Section 12.13	No Party Deemed Drafter.	147
	Section 12.14	Reinstatement; Certain Payments.	147
	Section 12.15	Indemnification; Limitation of Liability for Certain Damages.	148
	Section 12.16	Records.	149
	Section 12.17	Binding Effect.	149
	Section 12.18	Highest Lawful Rate.	150
	Section 12.19	Confidentiality.	151
	Section 12.20	Public Disclosure.	152
	Section 12.21	Integration.	152
	Section 12.22	USA PATRIOT Act.	152
	Section 12.23	Acknowledgement and Consent to Bail-In of Affected Financial Institutions.	153
	Section 12.24	Intercreditor Agreements	153
	Section 12.25	Certain ERISA Matters.	153
	Section 12.26	Acknowledgement Regarding Any Supported QFCs.	154

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SCHEDULE AND EXHIBITS

 

Schedule 1.01(A)	Lenders and Lenders’ Commitments
Schedule 1.01(B)	Amendment Closing Date Mortgaged Properties
Schedule 1.01(C)	Amendment Closing Date Immaterial Subsidiaries
Schedule 6.01(e)	Capitalization; Subsidiaries
Schedule 6.01(f)	Litigation
Schedule 6.01(i)	ERISA
Schedule 6.01(l)	Nature of Business
Schedule 6.01(q)	Environmental Matters
Schedule 6.01(r)	Insurance
Schedule 6.01(u)	Intellectual Property
Schedule 6.01(v)	Material Contracts
Schedule 7.01(r)	Post-Closing Matters
Schedule 7.02(a)	Existing Liens
Schedule 7.02(b)	Existing Indebtedness
Schedule 7.02(e)	Existing Investments
Schedule 7.02(k)	Limitations on Dividends and Other Payment Restrictions
Exhibit A	Form of Joinder Agreement
Exhibit B	Form of Assignment and Assumption
Exhibit C	Form of Notice of Borrowing
Exhibit D	Form of Promissory Note
Exhibit E	Form of Interest Election Request
Exhibit F	Form of Compliance Certificate
Exhibit G	Form of Joining Lender Joinder
Exhibit 2.09(d)-1	U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Exhibit 2.09(d)-2	U.S. Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Exhibit 2.09(d)-3	U.S. Tax Compliance Certificate (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Exhibit 2.09(d)-4	U.S. Tax Compliance Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)

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AMENDED AND RESTATED FIRST LIEN CREDIT AGREEMENT

 

Amended and Restated First Lien Credit Agreement, dated as of October 15, 2024, by and among Gannett Co., Inc., a Delaware corporation (“Holdings”), Gannett Holdings LLC, a Delaware limited liability company (the ”Borrower”), each Person listed as a “Guarantor” on the signature pages hereto (together with each other Person that executes a joinder agreement and becomes a “Guarantor” hereunder), the lenders from time to time party hereto (each a “Lender” and collectively, the ”Lenders”), Apollo Administrative Agency LLC, as collateral agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the ”Collateral Agent”), and as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the ”Administrative Agent” and together with the Collateral Agent, each an “Agent” and collectively, the “Agents”).

 

RECITALS

 

The Borrower has asked the Lenders to extend credit to the Borrower consisting of a term loan facility in the aggregate principal amount not to exceed $900,000,000, consisting of (a) an Initial Term Loan (as defined below) in an aggregate principal amount not to exceed $850,428,000 and (b) Delayed Draw Term Loan Commitments in an aggregate principal amount not to exceed $49,572,000.  The proceeds of the Term Loans shall be used by the Borrower for the purposes specified in Section 6.01(s).  The Lenders are severally, and not jointly, willing to extend such credit to the Borrower subject to the terms and conditions hereinafter set forth.

 

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

 

ARTICLE I

DEFINITIONS; CERTAIN TERMS

 

Section 1.01          Definitions.  As used in this Agreement, the following terms shall have the respective meanings indicated below:

 

“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.

 

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

 

“Account” has the meaning specified for such term in § 9.102 of the UCC.

 

“Account Debtor” means, with respect to any Person, each debtor, customer or obligor in any way obligated on or in connection with any Account of such Person.

 

“Acquisition” means the acquisition (whether by means of a merger, consolidation or otherwise) of all of the Equity Interests of any Person or all or substantially all of the assets of (or any division or business line of) any Person.

 

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“Action” has the meaning specified therefor in Section 12.12.

 

“Additional Amount” has the meaning specified therefor in Section 2.09(a).

 

“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to Term SOFR for such calculation; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.

 

“Administrative Agent” has the meaning specified therefor in the preamble hereto.

 

“Administrative Agent’s Account” means an account at a bank designated by the Administrative Agent from time to time as the account into which the Loan Parties shall make all payments to the Administrative Agent for the benefit of the Agents and the Lenders under this Agreement and the other Loan Documents.

 

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

 

“Affiliate” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Person.  For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the Equity Interests having ordinary voting power for the election of members of the Board of Directors of such Person or (b) direct or cause the direction of the management and policies of such Person whether through the ownership of voting securities, by contract or otherwise.  Notwithstanding anything herein to the contrary, in no event shall any Agent or any Lender be considered an “Affiliate” of any Loan Party.

 

“Affiliated Lender” means, collectively, Fortress Investment Group LLC, SoftBank Group Corp., Holdings and their respective Affiliates.

 

“Agent” has the meaning specified therefor in the preamble hereto.

 

“Agent Fee Letter” means that certain Fee Letter, dated as of August 24, 2024, among Holdings, Apollo Capital Management, L.P., Apollo Global Funding, LLC, Apollo Global Securities, LLC and the Administrative Agent.

 

“Agent Parties” has the meaning specified therefor in Section 12.01(d)(ii).

 

“Aggregate Payments” has the meaning specified therefor in Section 11.06.

 

“Agreement” means this Amended and Restated First Lien Credit Agreement, including all amendments, modifications and supplements and any exhibits or schedules to any of the foregoing.

 

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“All-in Yield” means, as to any Loans (or other Indebtedness, if applicable), the yield thereon to Lenders (or other lenders, as applicable) providing such Loans (or other Indebtedness, if applicable), as reasonably determined by the Administrative Agent in consultation with the Borrower taking into account (a) interest rate margins, (b) interest rate floors (subject to the proviso set forth below), (c) any amendment to the relevant interest rate margins and interest rate floors prior to the applicable date of determination and (d) original issue discount and upfront or similar fees (based on an assumed four-year average life to maturity or, if shorter, the remaining life to maturity), but excluding (i) any arrangement, commitment, structuring, underwriting and/or amendment fees (regardless of whether any such fees are paid to or shared in whole or in part with any lender) and (ii) any other fee that, in each case, is not payable to all relevant lenders generally; provided, however, that to the extent that the Adjusted Term SOFR (for a period of three months) or Alternate Base Rate (in each case, without giving effect to any floor specified in the definition thereof) (A) is less than any floor applicable to the loans in respect of which the All-in Yield is being calculated on the date on which the All-in Yield is determined, the amount of the resulting difference will be deemed added to the interest rate margin applicable to the relevant Indebtedness for purposes of calculating the All-in Yield and (B) is greater than any applicable floor on the date on which the All-in Yield is determined, the floor will be disregarded in calculating the All-in Yield.

 

“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Rate, which shall not be less than 0% per annum, in effect on such day plus 1/2 of 1.00% per annum and (c) Adjusted Term SOFR for a one-month tenor in effect on such day plus 1.00% per annum.  If the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Rate for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, then the Alternate Base Rate shall be determined without regard to clause (b) of the preceding sentence until the circumstances giving rise to such inability no longer exist.  Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Rate or the Adjusted Term SOFR shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Rate or the Adjusted Term SOFR, respectively.

 

“Amendment and Restatement Agreement” means the Amendment and Restatement Agreement dated as of October 15, 2024, by and among Holdings, the Borrower, the Guarantors party thereto, the lenders under the Existing Credit Agreement party thereto, the Lenders party thereto, Citibank, N.A., as the existing administrative agent and collateral agent, and the Agents.

 

“Amendment Closing Date” has the meaning assigned to the term “Amendment Closing Date” in the Amendment and Restatement Agreement.

 

“Amendment Closing Date Mortgaged Property” means the owned real property identified on Schedule 1.01(B), including the land on which each such property is located, all buildings and other improvements thereon, and all fixtures located thereat or used in connection therewith with respect to which a Mortgage is granted pursuant to Section 7.01(m).

 

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“Amortization Installment Amount” means, for any repayment of the Term Loans pursuant to Section 2.03(a) for any Fiscal Quarter, $17,000,000; provided that such amount shall be increased, via an amendment to this Agreement, by an amount to be agreed by the Administrative Agent and the Borrower, upon any Borrowing of Delayed Draw Term Loans to the extent necessary to cause such Delayed Draw Term Loans to be fungible (including for U.S. federal income tax purposes) with the Initial Term Loan; provided further that (a) any amendment to this Agreement to effect the foregoing increase shall require the consent of only the Administrative Agent and the Borrower and not any other party hereto and (b) no such amendment shall have the effect of decreasing the rate of amortization then in effect for the Term Loans outstanding as of the applicable Delayed Draw Term Loan Closing Date.

 

“Anti-Corruption Laws” has the meaning specified therefor in Section 6.01(z).

 

“Anti-Money Laundering and Anti-Terrorism Laws” means any Requirement of Law relating to terrorism, economic sanctions or money laundering, including (a) the Money Laundering Control Act of 1986 (i.e., 18 U.S.C. §§ 1956 and 1957), (b) the Bank Secrecy Act of 1970 (31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959), and the implementing regulations promulgated thereunder, (c) the USA PATRIOT Act and the implementing regulations promulgated thereunder, (d) the laws, regulations and Executive Orders administered under any Sanctions Programs, (e) any law prohibiting or directed against terrorist activities or the financing or support of terrorist activities (e.g., 18 U.S.C. §§ 2339A and 2339B), and (f) any similar laws enacted in the United States or any other jurisdictions in which the parties to this Agreement operate, as any of the foregoing laws have been, or shall hereafter be, amended, renewed, extended, or replaced and all other present and future legal requirements of any Governmental Authority governing, addressing, relating to, or attempting to eliminate, terrorist acts and acts of war and any regulations promulgated pursuant thereto, in each case applicable to Holdings or any Subsidiary.

 

“Applicable Margin” means, as of any date of determination, (a) with respect to the interest rate of the Term Loan (or any portion thereof), (i) 4.00% per annum, in the case of an ABR Loan, and (ii) 5.00% per annum, in the case of a SOFR Loan, and (b) with respect to the Incremental Term Loans of any series, the interest rate margin specified in the applicable Incremental Facility Amendment.

 

“Apollo” means, collectively, Apollo Capital Management, L.P., Apollo Global Funding, LLC and Apollo Global Securities, LLC.

 

“Apollo Funds” means funds, accounts or other clients managed by Apollo or its affiliates.

 

“Arranger” means Apollo Global Funding, LLC in its capacity as lead arranger and lead bookrunner for the term loan facilities hereunder.

 

“Assignment and Assumption” means an assignment and assumption entered into by an assigning Lender and an assignee, and accepted by the Borrower (as applicable), in accordance with Section 12.07 hereof and substantially in the form of Exhibit B hereto, or such other form (including electronic documentation generated by use of an electronic platform) as approved by the Administrative Agent.

 

“Auction Agent” means (a) the Administrative Agent or (b) any other financial institution or advisor employed by Holdings, the Borrower or any of its Restricted Subsidiaries (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Dutch auction pursuant to Section 12.07(m); 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 Holdings, the Borrower or any of the Restricted Subsidiaries may act as the Auction Agent.

 

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“Authorized Officer” means, with respect to any Person, the chief executive officer, chief operating officer, chief financial officer, director, company secretary, treasurer or other financial officer performing similar functions, president or executive vice president of such Person.

 

“Available Tenor” has the meaning specified therefor in Section 2.08.

 

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of any 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, as amended from time to time and any successor statute or any similar Federal or state law for the relief of debtors.

 

“Benchmark” has the meaning specified therefor in Section 2.08.

 

“Benchmark Replacement” has the meaning specified therefor in Section 2.08.

 

“Benchmark Replacement Adjustment” has the meaning specified therefor in Section 2.08.

 

“Benchmark Replacement Date” has the meaning specified therefor in Section 2.08.

 

“Benchmark Transition Event” has the meaning specified therefor in Section 2.08.

 

“Benchmark Transition Start Date” has the meaning specified therefor in Section 2.08.

 

“Benchmark Unavailability Period” has the meaning specified therefor in Section 2.08.

 

“Beneficial Ownership Certification” means a certification regarding beneficial ownership of the Borrower as required by the Beneficial Ownership Regulation.

 

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

 

“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

 

“Blocked Person” means any Person:

 

(a)         that (i) is identified on the list of “Specially Designated Nationals and Blocked Persons” published by the Office of Foreign Asset Control; (ii) resides, is organized or chartered in a country, region or territory that is the target of comprehensive sanctions under any Sanctions Program (a “Sanctioned Country”); or (iii) a Person listed in any economic or financial sanctions-related or trade embargoes-related list of designated Persons maintained under any of the Anti-Money Laundering and Anti-Terrorism Laws; and

 

(b)          that is owned or controlled by or that is acting for or on behalf of, any Person described in clause (a) above.

 

“Board” means the Board of Governors of the Federal Reserve System of the United States (or any successor).

 

“Board of Directors” means with respect to (a) any corporation, the board of directors of the corporation, (b) a partnership, the board of directors of the general partner of the partnership, (c) a limited liability company, the managing member or members or any controlling committee or board of directors of such company or the sole member or the managing member thereof, and (d) any other Person, the board or committee of such Person serving a similar function.

 

“Borrower” has the meaning specified therefor in the preamble hereto.

 

“Borrower Materials” has the meaning specified therefor in Section 12.01(e).

 

“Borrowing” means Loans of the same Class and Type made, converted or continued on the same date and, in the case of SOFR Loans, as to which a single Interest Period is in effect.

 

“BridgeTower Asset Purchase Agreement” means that certain asset purchase agreement, dated as of October 30, 2020, by and among BridgeTower Media, LLC, a Delaware limited liability company, as seller, the other sellers party thereto, BridgeTower OpCo, LLC, a Delaware limited liability company, as purchaser and BridgeTower Media, LLC, a Delaware limited liability company, solely in its capacity as the representative for the sellers party thereto, as in effect as of the Closing Date.

 

“Business Day” means, for all purposes, any day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required to close.

 

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“Capital Expenditures” means, with respect to any Person for any period, the sum of the aggregate of all expenditures by such Person and its Restricted Subsidiaries during such period that in accordance with GAAP are or should be included in “property, plant and equipment”, “intangible assets” or in a similar fixed asset account on its balance sheet, whether such expenditures are paid in cash or financed, including all Capitalized Lease Obligations, obligations under synthetic leases and capitalized software costs that are paid or due and payable during such period.

 

“Capitalized Lease” means, with respect to any Person, any lease of (or other arrangement conveying the right to use) real or personal property by such Person as lessee that is required under GAAP to be classified and accounted for as a finance lease on the balance sheet of such Person.

 

“Capitalized Lease Obligations” means, with respect to any Person, obligations of such Person and its Restricted Subsidiaries under Capitalized Leases, and, for purposes hereof, the amount of any such obligation shall be the capitalized amount thereof determined in accordance with GAAP.

 

“Cash Equivalents” means (a) marketable direct obligations issued or unconditionally guaranteed by the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case, maturing within six months from the date of acquisition thereof; (b) commercial paper, maturing not more than 270 days after the date of issue rated P‑1 by Moody’s or A‑1 by Standard & Poor’s; (c) certificates of deposit maturing not more than 270 days after the date of issue, issued by commercial banking institutions and money market or demand deposit accounts maintained at commercial banking institutions, each of which is a member of the Federal Reserve System and has a combined capital and surplus and undivided profits of not less than $500,000,000; (d) repurchase agreements having maturities of not more than 90 days from the date of acquisition which are entered into with major money center banks included in the commercial banking institutions described in clause (c) above and which are secured by readily marketable direct obligations of the United States Government or any agency thereof; (e) money market accounts maintained with mutual funds having assets in excess of $2,500,000,000, which assets are primarily comprised of Cash Equivalents described in another clause of this definition; (f) marketable tax exempt securities rated A or higher by Moody’s or A+ or higher by Standard & Poor’s, in each case, maturing within 270 days from the date of acquisition thereof; and (g) in the case of any Foreign Subsidiary, other short-term investments that are analogous to the foregoing, are of comparable credit quality and are customarily used by companies in the jurisdiction of such Foreign Subsidiary for cash management purposes.

 

“CFC” means (a) any Person that is a “controlled foreign corporation” (within the meaning of Section 957), but only if a “United States person” (within the meaning of Section 7701(a)(30)) that is an Affiliate of a Loan Party is, with respect to such Person, a “United States shareholder” (within the meaning of Section 951(b)) described in Section 951(a)(1); and (b) each Subsidiary of a Person described in clause (a).  For purposes of this definition, all Section references are to the Code.

 

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“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, judicial ruling, judgment or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives concerning capital adequacy promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities shall, in each case, be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

“Change of Control” means each occurrence of any of the following:

 

(a)          the acquisition, directly or indirectly, by any person or group (within the meaning of Section 13(d)(3) of the Exchange Act) of beneficial ownership of more than 50% of the aggregate outstanding voting or economic power of the Equity Interests of Holdings;

 

(b)          Holdings shall cease to have beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of 100% of the aggregate voting or economic power of the Equity Interests of the Borrower, free and clear of all Liens (other than Permitted Specified Liens); or

 

(c)         a “Change of Control” (or any comparable term or provision) under or with respect to the Senior Secured Notes, the Notes, the New Convertible Notes or any other Indebtedness of Holdings, the Borrower or any of their respective Restricted Subsidiaries, in each case in an aggregate principal amount in excess of $50,000,000.

 

“Citibank” means Citibank, N.A.

 

“Class”, when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are the Term Loans or Incremental Term Loans of any series, (b) any Commitment, refers to whether such Commitment is an Initial Term Loan Commitment, a Delayed Draw Term Loan Commitment or an Incremental Term Commitment of any series and (c) any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class.  Notwithstanding the foregoing, it is understood and agreed that all Delayed Draw Term Loans funded (or deemed funded) by the Term Loan Lenders to the Borrower on or after the Amendment Closing Date shall, from and after the date on which such Delayed Draw Term Loans are funded (or deemed funded), be “Term Loans” of the same Class as the Initial Term Loan for all purposes of this Agreement.

 

“Closing Date” means October 15, 2021.

 

“Collateral” means all of the property and assets and all interests therein and proceeds thereof now owned or hereafter acquired by any Person upon which a Lien is granted or purported to be granted by such Person as security for all or any part of the Obligations.

 

“Collateral Agent” has the meaning specified therefor in the preamble hereto.

 

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“Collateral Agent Advances” has the meaning specified therefor in Section 10.08(a).

 

“Commitments” means, with respect to each Lender, such Lender’s (a) Initial Term Loan Commitment, (b) Delayed Draw Term Loan Commitment and (c) Incremental Term Commitment.

 

“Communications” has the meaning specified therefor in Section 12.01(d)(ii).

 

“Compliance Certificate” has the meaning specified therefor in Section 7.01(a)(iv).

 

“Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 2.11 and other technical, administrative or operational matters) that the Administrative Agent (in consultation with the Borrower) decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent (in consultation with the Borrower) decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

 

“Consenting Lender” has the meaning specified therefor in Section 2.14(a).

 

“Consolidated EBITDA” means, with respect to any Person for any period:

 

(a)           the Consolidated Net Income of such Person for such period,

 

plus

 

(b)          without duplication, the sum of the following amounts for such period to the extent (except in the case of clause (xi)) deducted in the calculation of Consolidated Net Income for such period:

 

(i)            any provision for United States federal income taxes or other taxes measured by net income,

 

(ii)           Consolidated Net Interest Expense (but excluding interest expense related to operating leases that are not Capitalized Leases),

 

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(iii)          any depreciation and amortization expense (but excluding depreciation and amortization related to operating leases that are not Capitalized Leases),

 

(iv)           any aggregate net loss on the Disposition of property (other than accounts and Inventory) outside the ordinary course of business,

 

(v)            any other non-cash expenditure, charge or loss for such period (other than any non-cash expenditure, charge or loss relating to write-offs, write-downs or reserves with respect to accounts and Inventory),

 

(vi)           any restructuring and integration costs, any other extraordinary, non-recurring or unusual charges and expenses or deductions (collectively, “Extraordinary Expenses”); provided that, for any period of four consecutive Fiscal Quarters, the aggregate amount of cash Extraordinary Expenses that are added back pursuant to this clause (vi) in calculating Consolidated EBITDA (when taken together with add-backs pursuant to clause (xi) below for such period of four consecutive Fiscal Quarters) shall not exceed 20% of Consolidated EBITDA of such Person (which percentage shall be calculated prior to giving effect to any such add-backs and adjustments),

 

(vii)          deferred financing costs,

 

(viii)         management fee incentive expense incurred and paid using common Equity Interests,

 

(ix)           fees, costs and expenses in connection with the Transactions,

 

(x)            fees, costs and expenses relating to any contemplated or completed acquisitions or dispositions or to any contemplated or completed offering of securities or other Indebtedness, and

 

(xi)           (x) [reserved]; and (y) pro forma “run rate” cost savings, operating expense reductions and synergies related to acquisitions, dispositions and other specified transactions (including, for the avoidance of doubt, acquisitions occurring prior to the Amendment Closing Date), restructurings, cost savings initiatives and other initiatives that are reasonably identifiable, factually supportable and projected by the Borrower in good faith to result from actions that have been taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Borrower) within 18 months after such acquisition, disposition or other specified transaction, restructuring, cost savings initiative or other initiative (in the case of subclauses (x) and (y), without duplication of any actual benefits realized from such steps prior to or during the applicable test period); provided that (1) Holdings shall have delivered to the Administrative Agent a certificate of the chief financial officer of Holdings, in form and substance reasonably satisfactory to the Administrative Agent, certifying that such cost savings meet the requirements set forth in subclause (x) or (y), as applicable, together with reasonably detailed evidence in support thereof, (2) cost savings, operating expense reductions and synergies will cease to be included in the determination of Consolidated EBITDA if the Borrower ceases to reasonably expect substantial steps with respect thereto to be taken within such 18-month period or if the benefits thereof are no longer expected by the Borrower to be achieved and (3) for any period of four Fiscal Quarters, the aggregate amount added back to Consolidated EBITDA for such period pursuant to this clause (xi) (when taken together with add-backs pursuant to clause (vi) above for such period of four consecutive Fiscal Quarters) shall not exceed 20% of Consolidated EBITDA for such period (which percentage shall be calculated prior to giving effect to any such add-backs and adjustments),

 

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minus

 

(c)       without duplication, the sum of the following amounts for such period to the extent included in the calculation of such Consolidated Net Income for such period:

 

(i)            any credit for United States federal income taxes or other taxes measured by net income,

 

(ii)          any gain from extraordinary items,

 

(iii)         any aggregate net gain from the Disposition of property (other than accounts and Inventory) outside the ordinary course of business; and

 

(iv)        any other non-cash gain, including any reversal of a charge referred to in clause (b)(v) above by reason of a decrease in the value of any Equity Interest, but excluding any such non-cash gains (A) in respect of which cash was received in a prior period or will be received in a future period and (B) that represent the reversal of any accrual in a prior period for, or the reversal of any cash reserves established in a prior period for, anticipated cash charges.

 

“Consolidated Net Income” means, with respect to any Person, for any period, the consolidated net income (or loss) of such Person and its Restricted Subsidiaries for such period; provided, however, that the following shall be excluded:  (a) the net income of any other Person in which such Person or one of its Restricted Subsidiaries has a joint interest with a third-party (which interest does not cause the net income of such other Person to be consolidated into the net income of such Person), except to the extent of the amount of dividends or distributions paid to such Person or Restricted Subsidiary, (b) the net income of any Restricted Subsidiary (other than a Loan Party) of such Person that is, on the last day of such period, subject to any restriction or limitation on the payment of dividends or the making of other distributions, to the extent of such restriction or limitation, and (c) the net income of any other Person arising prior to such other Person becoming a Restricted Subsidiary of such Person or merging or consolidating into such Person or its Restricted Subsidiaries.

 

“Consolidated Net Interest Expense” means, with respect to any Person for any period, (a) gross interest expense of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis and in accordance with GAAP, less (b) the sum of (i) interest income for such period and (ii) gains for such period on Hedging Agreements (to the extent not included in interest income above and to the extent not deducted in the calculation of gross interest expense), plus (c) the sum of (i) losses for such period on Hedging Agreements (to the extent not included in gross interest expense), (ii) the upfront costs or fees for such period associated with Hedging Agreements (to the extent not included in gross interest expense) and (iii) amortization of original issue discount resulting from the issuance of Indebtedness at less than par or debt discount associated with the Senior Secured Notes, the Notes or the New Convertible Notes, in each case, determined on a consolidated basis and in accordance with GAAP.

 

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“Contingent Indemnity Obligations” means any Obligation constituting a contingent, unliquidated indemnification obligation of any Loan Party, in each case, to the extent (a) such obligation has not accrued and is not yet due and payable and (b) no claim has been made or is reasonably anticipated to be made with respect thereto.

 

“Contingent Obligation” means, with respect to any Person, any obligation of such Person guaranteeing any Indebtedness (“primary obligations”) of any other Person (the ”primary obligor”) in any manner, whether directly or indirectly, including (a) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of a primary obligor, (b) the obligation to make take-or-pay or similar payments, if required, regardless of nonperformance by any other party or parties to an agreement, (c) any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, assets, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term “Contingent Obligation” shall not include any product warranties extended in the ordinary course of business.  The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation with respect to which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto (assuming such Person is required to perform thereunder), as determined by such Person in good faith.

 

“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 Agreement” means, with respect to any deposit account, any securities account, any commodity account, any securities entitlement or any commodity contract, an agreement, in form and substance reasonably satisfactory to the Collateral Agent, among the Collateral Agent, the financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried and the Loan Party maintaining such account or entitlement or contract, effective to grant “control” (as defined under the applicable UCC) over such account, entitlement or contract to the Collateral Agent.

 

“Convertible Notes Exchange” means (i) the exchange by Holdings of the Notes held by the Apollo Funds and the delivery of consents with respect to certain amendments to the Notes Indenture as follows:  (x) 50% of the aggregate principal amount of Notes will be exchanged for cash at a rate of $1,110 per $1,000 principal amount of Notes exchanged and (y) 50% of the aggregate principal amount of Notes will be exchanged for New Convertible Notes; and (ii) one or more additional exchanges with other holders of the Notes on terms and conditions no more favorable to such holders (unless as may otherwise be agreed by Apollo) than the terms of the exchange described in the immediately preceding clause (i) (including with respect to the amount of cash, aggregate principal amount of New Convertible Notes or any other consideration delivered).

 

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“Corresponding Tenor “ has the meaning specified therefor in Section 2.08.

 

“Covered Party” has the meaning specified therefor in Section 12.26(a).

 

“Current Value” has the meaning specified therefor in Section 7.01(n).

 

“Debtor Relief Law” means the Bankruptcy Code and any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief law of the United States or other applicable jurisdiction from time to time in effect.

 

“Declining Lender” has the meaning specified therefor in Section 2.14(a).

 

“Default” means an event which, with the giving of notice or the lapse of time or both, would constitute an Event of Default.

 

“Delayed Draw Exchange” has the meaning specified therefor in Section 2.01(c).

 

“Delayed Draw Term Loan” means, collectively (i) the loans funded  by the Term Loan Lenders to the Borrower on each applicable Delayed Draw Term Loan Closing Date pursuant to the Delayed Draw Term Loan Commitments and (ii) Exchanged Delayed Draw Term Loans made pursuant to a Delayed Draw Exchange.

 

“Delayed Draw Term Loan Closing Date” means the date of any funding of Delayed Draw Term Loans or deemed funding of Exchanged Delayed Draw Term Loans pursuant to a Delayed Draw Exchange, in accordance with Sections 2.01(b), 2.01(c) and 5.01, as applicable.

 

“Delayed Draw Term Loan Commitment” means, with respect to each Lender, the commitment of such Lender to fund Delayed Draw Term Loans to the Borrower during the Delayed Draw Term Loan Commitment Period in an amount set forth in Schedule 1.01(A) hereto or in the Assignment and Assumption pursuant to which such Lender became a Lender under this Agreement, as the same may be terminated or reduced from time to time in accordance with the terms of this Agreement.

 

“Delayed Draw Term Loan Commitment Period” means the period commencing on the Amendment Closing Date and ending on the Delayed Draw Term Loan Commitment Termination Date.

 

“Delayed Draw Term Loan Commitment Termination Date” means the earliest to occur of (a) 5:00 p.m. on the date that is six months after the Amendment Closing Date (at which date and time all unfunded Delayed Draw Term Loan Commitments shall automatically be reduced to $0 and terminated), (b) the date on which all Delayed Draw Term Loan Commitments then outstanding have been funded (or deemed funded) in one or more Borrowings pursuant to Section 2.01(b) or (c), (c) the date on which all unfunded Delayed Draw Term Loan Commitments have been terminated by the Borrower pursuant to Section 2.05(a) and (d) the date on which all unfunded Delayed Draw Term Loan Commitments have been terminated pursuant to Section 9.01.

 

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“Designated Non-Cash Consideration” means the fair market value of non-cash consideration received by the Borrower or a Restricted Subsidiary in connection with a Disposition pursuant to Section 7.02(c) that is designated as Designated Non-Cash Consideration pursuant to a certificate of an Authorized Officer of the Borrower, setting forth the basis of such valuation (which amount will be reduced by the fair market value of the portion of the non-cash consideration converted to cash within 180 days following the consummation of such Disposition).

 

“Disposition” means any transaction, or series of related transactions, pursuant to which any Person or any of its Subsidiaries sells, assigns, transfers, leases, licenses (as licensor) or otherwise disposes of any property or assets (whether now owned or hereafter acquired) to any other Person, in each case, whether or not the consideration therefor consists of cash, securities or other assets owned by the acquiring Person. For purposes of clarification, “Disposition” shall include (a) the sale or other disposition for value of any contracts, (b) the early termination or modification of any contract resulting in the receipt by any Loan Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course for accrued and unpaid amounts due through the date of termination or modification), (c) any sale of merchant accounts (or any rights thereto (including any rights to any residual payment stream with respect thereto)) by any Loan Party or (d) any disposition of property through a “plan of division” under the Delaware Limited Liability Company Act or any comparable transaction under any similar law.

 

“Disqualified Equity Interests” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interest 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, pursuant to a sinking fund obligation or otherwise (except as a result of (i) the payment in full of the Obligations (other than Contingent Indemnity Obligations) and (ii) a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Term Loans and all other Obligations (other than Contingent Indemnity Obligations) and the termination of the Commitments), (b) is redeemable at the option of the holder thereof, in whole or in part, (c) provides for the scheduled payments of dividends or distributions in cash, or (d) is convertible into or exchangeable for (i) Indebtedness or (ii) any other Equity Interests that would constitute Disqualified Equity Interests, in each case of clauses (a) through (d), prior to the date that is 91 days after the Final Maturity Date.  Notwithstanding the foregoing, for all purposes of this Agreement and the other Loan Documents, Equity Interests (including, for the avoidance of doubt, rights to purchase Equity Interests) issued by Holdings pursuant to or in accordance with the Permitted Rights Agreement shall not constitute Disqualified Equity Interests as a result of providing for the scheduled payments of dividends or distributions in cash (but, for the avoidance of doubt, the Equity Interests issued pursuant to or in accordance with the Permitted Rights Agreement shall constitute Disqualified Equity Interests to the extent they have any of the characteristics described in the foregoing clauses (a), (b) or (d) (other than, in the case of clause (d), Equity Interests convertible into or exchangeable for other Equity Interests that would constitute Disqualified Equity Interests solely as a result of the application of clause (c) above)).

 

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“Dollar,” “Dollars” and the symbol “$” each means lawful money of the United States of America.

 

“Domestic Subsidiaries” means all Subsidiaries incorporated or organized under the laws of the United States of America, any State thereof or the District of Columbia.

 

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

 

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

 

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

 

“Electronic Signature” has the meaning specified therefor in Section 12.08.

 

“Employee Plan” means an employee benefit plan (other than a Multiemployer Plan) covered by Title IV of ERISA that is maintained by any Loan Party or with respect to which any Loan Party has any liability (including on account of any of its ERISA Affiliates).

 

“Environmental Actions” means any complaint, summons, citation, written notice or directive, order, claim, litigation, investigation, judicial or administrative proceeding or judgment by or before any Governmental Authority or an Action by any Person involving violations of Environmental Laws or Releases of or exposure of any Person to Hazardous Materials (a) from any assets, properties or businesses owned or operated by any Loan Party or any of its Subsidiaries or any legal predecessor in interest; (b) from adjoining properties or businesses onto or otherwise impacting any assets or properties owned or operated by any Loan Party or any of its Subsidiaries; or (c) onto any facilities which received Hazardous Materials generated by any Loan Party or any of its Subsidiaries or any predecessor in interest.

 

“Environmental Laws” means, as applicable, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601, et seq.), the Hazardous Materials Transportation Act (49 U.S.C. § 1801, et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901, et seq.), the Federal Clean Water Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.) and, as it relates to exposure to hazardous or toxic materials, the Occupational Safety and Health Act (29 U.S.C. § 651 et seq.), as such laws may be amended or otherwise modified from time to time, and any other Requirement of Law, permit, license or other binding determination of any Governmental Authority imposing liability or establishing standards of conduct for protection of the environment or other binding government restrictions relating to the protection of the environment or the generation, storage, use, labelling, transport, distribution, Release, deposit or migration of, or exposure of any Person to, any hazardous or toxic materials or materials listed, defined, or regulated as “hazardous”, “toxic”, a “pollutant”, or a “contaminant” or words of similar meaning under applicable Requirements of Law into the environment.

 

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“Environmental Liabilities and Costs” means all liabilities, monetary obligations, Remedial Actions, losses, damages, punitive damages, consequential damages, treble damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts and consultants and costs of investigations and feasibility studies), fines, penalties, sanctions and interest incurred as a result of any claim or demand by any Governmental Authority or any third party, and which, in each case, relate to any Loan Party’s noncompliance with Environmental Laws, or any environmental condition at or a Release of Hazardous Materials from or onto (a) any property presently or formerly owned by any Loan Party or any of its Subsidiaries or (b) any facility which received Hazardous Materials generated by any Loan Party or any of its Subsidiaries.

 

“Environmental Lien” means any Lien in favor of any Governmental Authority for Environmental Liabilities and Costs.

 

“Equity Interests” means (a) all shares of capital stock (whether denominated as common stock or preferred stock), equity interests, beneficial, partnership or membership interests, joint venture interests, participations or other ownership or profit interests in or equivalents (regardless of how designated) of or in a Person (other than an individual), whether voting or non-voting and (b) all securities convertible into or exchangeable for any of the foregoing and all warrants, options or other rights to purchase, subscribe for or otherwise acquire any of the foregoing, whether or not presently convertible, exchangeable or exercisable.

 

“Equity Issuance” means either (a) the sale or issuance by any Loan Party or any of its Restricted Subsidiaries of any shares of its Equity Interests or (b) the receipt by Holdings of any cash capital contributions.

 

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute of similar import, and regulations thereunder, in each case, as in effect from time to time.  References to sections of ERISA shall be construed also to refer to any successor sections.

 

“ERISA Affiliate” means, with respect to any Person, any trade or business (whether or not incorporated) which is a member of a group of which such Person is a member and which would be deemed to be a “controlled group” within the meaning of Sections 414(b), (c), (m) and (o) of the Internal Revenue Code.

 

“Erroneous Payment” has the meaning specified therefor in Section 10.18(a).

 

“Erroneous Payment Deficiency Assignment” has the meaning specified therefor in Section 10.18(d)(i).

 

“Erroneous Payment Impacted Class” has the meaning specified therefor in Section 10.18(d)(i).

 

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“Erroneous Payment Return Deficiency” has the meaning specified therefor in Section 10.18(d)(i).

 

“Erroneous Payment Subrogation Rights” has the meaning specified therefor in Section 10.18(e).

 

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

 

“Event of Default” has the meaning specified therefor in Section 9.01.

 

“Excess Cash Flow” means, with respect to any Person for any period,

 

(a) Consolidated EBITDA of such Person and its Restricted Subsidiaries for such period, adjusted to exclude any gains or losses attributable to events that trigger a mandatory prepayment requirement under Section 2.05(c)), less

 

(b) the sum of, without duplication,

 

(i)            the cash portion of Consolidated Net Interest Expense paid during such period,

 

(ii)           income taxes paid in cash by such Person and its Restricted Subsidiaries for such period,

 

(iii)          all cash principal payments made on the Loans during such period,

 

(iv)          [reserved],

 

(v)          the cash portion of Capital Expenditures made during such period  to the extent not funded with (x) an incurrence of Indebtedness or (y) proceeds from the issuance of Equity Interests,

 

(vi)         the excess, if any, of Working Capital at the end of such period over Working Capital at the beginning of such period (or, if the difference results in an amount less than zero, minus the excess, if any, of Working Capital at the beginning of such period over Working Capital at the end of such period),

 

(vii)         all cash expenses, fees, charges and amounts to the extent added back to Consolidated EBITDA (or its component definitions) for such period,

 

(viii)       cash payments to fund pension obligations made during such period,

 

(ix)        the cash portion of the purchase price paid in connection with Permitted Acquisitions made by such Person and its Restricted Subsidiaries during such period (excluding any Permitted Acquisitions to the extent financed with the proceeds of an Equity Issuance),

 

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(x)            any cash actually paid during such period in respect of any non-cash losses or charges recorded in a prior period, and

 

(xi)           the amount of Restricted Payments made during such period pursuant to clauses (f) and (g)(i) of “Permitted Restricted Payments”.

 

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

 

“Exchanging Note Holder” has the meaning specified therefor in Section 2.01(c).

 

“Exchanged Delayed Draw Term Loan” has the meaning specified therefor in Section 2.01(c).

 

“Excluded Subsidiary” means any of the following:  (a) an Unrestricted Subsidiary, (b) a Restricted Subsidiary that is a Foreign Subsidiary or a FSHCO, (c) an Immaterial Subsidiary, (d) Newsquest Media Group Limited and each of its Subsidiaries or (e) a Restricted Subsidiary that either (i) is not wholly owned, directly or indirectly, by the Borrower on the Amendment Closing Date or (ii) becomes a Restricted Subsidiary that is not wholly owned, directly or indirectly, by the Borrower after the Amendment Closing Date pursuant to a bona fide transaction with a non-affiliated party the primary purpose of which was other than causing such Restricted Subsidiary to become an Excluded Subsidiary, unless in the case of clauses (b), (c), (d) and (e), such Subsidiary is an obligor or guarantor under the Senior Secured Notes, the Notes, the New Convertible Notes or any other Indebtedness of Holdings, the Borrower or any of their respective Restricted Subsidiaries (excluding Indebtedness evidenced by this Agreement), in each case in an aggregate principal amount in excess of $50,000,000.

 

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.12(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.09, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender  acquires such interest in such Loan or Commitment or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.09(d) and (d) any U.S. federal withholding Taxes imposed under FATCA.

 

“Existing Credit Agreement” means the First Lien Credit Agreement dated as of October 15, 2021 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the Amendment Closing Date), by and among Holdings, the Borrower, each Guarantor from time to time party thereto, the lenders from time to time party thereto and Citibank, as administrative agent and collateral agent for the lenders thereunder.

 

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“Existing Maturity Date” has the meaning specified therefor in Section 2.14(a).

 

“Extension Effective Date” has the meaning specified therefor in Section 2.14(a).

 

“Extraordinary Receipts” means any cash received by Holdings, the Borrower or any of their respective Restricted Subsidiaries from casualty or condemnation awards (and payments in lieu thereof).

 

“Fair Market Value” means, with respect to any asset, the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, determined in good faith by the Borrower’s Board of Directors or a senior officer of the Borrower, which determination shall be conclusive absent fraud or gross negligence.

 

“Fair Share” has the meaning specified therefor in Section 11.06.

 

“Fair Share Contribution Amount” has the meaning specified therefor in Section 11.06.

 

“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.

 

“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreements, treaty or convention among Governmental Authorities implementing the foregoing.

 

“FCPA” has the meaning specified therefor in Section 6.01(z).

 

“Federal Funds Rate” means, for any day, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published on the next succeeding Business Day by the Federal Reserve Bank of New York; 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 the Administrative Agent on such day on such transactions as reasonably determined by the Administrative Agent.

 

“Final Maturity Date” means (a) with respect to the Term Loans, October 15, 2029, and (b) with respect to Incremental Term Loans of any series, the Incremental Term Maturity Date for such Incremental Term Loans set forth in the applicable Incremental Facility Amendment.

 

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“Financial Statements” means (a) the audited consolidated balance sheets of Holdings and its Subsidiaries for the Fiscal Year ended December 31, 2023, and the related consolidated statements of operations, stockholders’ equity and cash flows of Holdings and its Subsidiaries for the Fiscal Year then ended and (b) the unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations and cash flows of Holdings and its Subsidiaries for each subsequent Fiscal Quarter ended at least 45 days before the Amendment Closing Date (other than any fiscal fourth quarter) after the most recent fiscal period for which audited financial statements have been provided pursuant to clause (a) hereof, in each case prepared in accordance with GAAP.

 

“First Lien Net Leverage Ratio” means, with respect to any Person for any period, the ratio of (a) Total Indebtedness of such Person and its Restricted Subsidiaries on a consolidated basis outstanding as of the end of such period (excluding any Indebtedness to the extent unsecured or secured by a Lien on all or any portion of the Collateral ranking junior to the Liens securing the Obligations), minus Unrestricted Cash of such Person and its Restricted Subsidiaries to (b) Consolidated EBITDA of such Person and its Restricted Subsidiaries for the period of four consecutive Fiscal Quarters then last ended for which financial statements have been (or were required to be) delivered pursuant to Section 7.01(a)(ii) or Section 7.01(a)(iii), as applicable.  Unless otherwise specified, references to the “First Lien Net Leverage Ratio” herein shall mean the First Lien Net Leverage Ratio of Holdings, the Borrower and their respective Restricted Subsidiaries.

 

“Fiscal Quarter” means a fiscal quarter of Holdings and its Subsidiaries.

 

“Fiscal Year” means the fiscal year of Holdings and its Subsidiaries ending on December 31 of each calendar year.

 

“Fixed Incremental Amount” means, as of any date of determination, an amount equal to the aggregate principal amount of then outstanding Notes.

 

“Floor” means a rate of interest equal to 1.50%.

 

“Foreign Lender” has the meaning specified therefor in Section 2.09(d)(ii).

 

“Foreign Official” has the meaning specified therefor in Section 6.01(z).

 

“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.

 

“FSHCO” means any Restricted Subsidiary substantially all of whose assets consists of (a) Equity Interests or (b) Equity Interests and Indebtedness of one or more Foreign Subsidiaries that are CFCs.

 

“GAAP” means generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis, provided that if there occurs after the date of this Agreement any change in GAAP that affects in any respect the calculation of any covenant contained in Section 7.02 or Section 7.03 hereof or any other provision hereof, the Required Lenders and the Borrower shall negotiate in good faith amendments to the provisions of this Agreement that relate to the calculation of such covenant with the intent of having the respective positions of the Lenders and the Borrower after such change in GAAP conform as nearly as possible to their respective positions as of the date of this Agreement, and prior to the effectiveness of such amendment to this Agreement, such covenant or other provision shall be calculated without giving effect to such change in GAAP.

 

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“Governing 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 the operating agreement; (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture, declaration or other applicable agreement or documentation evidencing or otherwise relating to its formation or organization, governance and capitalization; and (d) with respect to any of the entities described above, any other 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.

 

“Governmental Authority” means any nation or government, any Federal, state, province, city, town, municipality, county, local or other political subdivision thereof or thereto and any department, commission, board, bureau, instrumentality, agency 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).

 

“Guaranteed Obligations” has the meaning specified therefor in Section 11.01.

 

“Guarantor” means (a) Holdings and each Subsidiary of Holdings (other than the Borrower) listed as a “Guarantor” on the signature pages hereto, and (b) each other Person which guarantees, pursuant to Section 7.01(b) or otherwise, all or any part of the Obligations; provided, however, that in no event shall any Excluded Subsidiary be a Guarantor unless, solely in the case of an Excluded Subsidiary referenced in clause (c) of the definition of “Excluded Subsidiary”, such Restricted Subsidiary has satisfied the requirements of Section 7.01(b).

 

“Guaranty” means (a) the guaranty of each Guarantor party hereto contained in Article XI hereof and (b) each other guaranty, in form and substance satisfactory to the Administrative Agent, made by any other Guarantor in favor of the Collateral Agent for the benefit of the Agents and the Lenders guaranteeing all or part of the Obligations.

 

“Hazardous Material” means (a) any element, compound or chemical that is defined, listed or otherwise classified as a contaminant, pollutant, toxic pollutant, toxic or hazardous substance, extremely hazardous substance or chemical, hazardous waste, special waste, or solid waste under Environmental Laws or that is likely to cause immediately, or at some future time, harm to or have an adverse effect on, the environment or human health or safety, including any pollutant, contaminant, waste, hazardous waste, toxic substance or dangerous good which is defined or identified in any Environmental Law and which is present in the environment in such quantity or state that it contravenes any Environmental Law; (b) petroleum and its refined products; (c) polychlorinated biphenyls; (d) any substance exhibiting a hazardous waste characteristic, including corrosivity, ignitability, toxicity or reactivity, that subjects it to regulation under Environmental Law, as well as any radioactive or explosive materials; and (e) any raw materials, building components (including asbestos-containing materials) and manufactured products containing hazardous substances listed or classified as such under Environmental Laws.

 

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“Hedging Agreement” means any interest rate, foreign currency, commodity or equity swap, collar, cap, floor or forward rate agreement, or other agreement or arrangement designed to protect against fluctuations in interest rates or currency, commodity or equity values (including any option with respect to any of the foregoing and any combination of the foregoing agreements or arrangements), and any confirmation executed in connection with any such agreement or arrangement.

 

“Highest Lawful Rate” means, with respect to any Agent or any Lender, the maximum non-usurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the Obligations under laws in any jurisdiction applicable to such Agent or such Lender which are currently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum non-usurious interest rate than applicable laws now allow.

 

“Holdings” has the meaning specified therefor in the preamble hereto.

 

“Holdout Lender” has the meaning specified therefor in Section 12.02(b).

 

“Immaterial Subsidiary” means each Restricted Subsidiary that is not a Material Subsidiary. As of the Amendment Closing Date, the Restricted Subsidiaries that are Immaterial Subsidiaries are listed on Schedule 1.01(C).

 

“Incremental Equivalent Indebtedness” has the meaning specified therefor in the definition of “Permitted Indebtedness”.

 

“Incremental Extensions of Credit” has the meaning specified therefor in Section 2.13(a).

 

“Incremental Facility Amendment” has the meaning specified therefor in Section 2.13(c).

 

“Incremental Lender” has the meaning specified therefor in Section 2.13(c).

 

“Incremental Term Commitments” has the meaning specified therefor in Section 2.13(a).

 

“Incremental Term Loans” has the meaning specified therefor in Section 2.13(a)

 

“Incremental Term Maturity Date” means, with respect to Incremental Term Loans of any series, the scheduled date on which such Incremental Term Loans shall become due and payable in full hereunder, as specified in the applicable Incremental Facility Amendment.

 

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“Indebtedness” means, with respect to any Person, without duplication, (a) all indebtedness of such Person for borrowed money; (b) all obligations of such Person for the deferred purchase price of property or services (other than trade payables or other accounts payable incurred in the ordinary course of such Person’s business and any earn-out, purchase price adjustment or similar obligation until such obligation appears in the liabilities section of the balance sheet of such Person and is no longer contingent); (c) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; (d) all reimbursement, payment or other obligations and liabilities of such Person created or arising under any conditional sales or other title retention agreement with respect to property used and/or acquired by such Person, even though the rights and remedies of the lessor, seller and/or lender thereunder may be limited to repossession or sale of such property; (e) all Capitalized Lease Obligations of such Person; (f) all obligations and liabilities, contingent or otherwise, of such Person, in respect of letters of credit, acceptances and similar facilities other than obligations that are cash collateralized on terms reasonably satisfactory to the Administrative Agent; (g) all net obligations and liabilities, calculated on a basis satisfactory to the Administrative Agent and in accordance with accepted practice, of such Person under Hedging Agreements; (h) all monetary obligations under any receivables factoring, receivable sales or similar transactions and all monetary obligations under any synthetic lease, tax ownership/operating lease, off-balance sheet financing or similar financing; (i) all Contingent Obligations in respect of obligations referred to in clauses (a) through (h) and (j) of this definition of another Person; (j) all Disqualified Equity Interests; and (k) all obligations referred to in clauses (a) through (j) of this definition of another Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) a Lien upon property owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness.  The Indebtedness of any Person shall include the Indebtedness of any partnership of or joint venture in which such Person is a general partner or a joint venturer so long as, in the case of a joint venture, such Indebtedness is recourse to any Loan Party.

 

“Indemnified Matters” has the meaning specified therefor in Section 12.15.

 

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

 

“Indemnitees” has the meaning specified therefor in Section 12.15.

 

“Initial Term Loan” means, collectively, (i) the loans funded by the Term Loan Lenders to the Borrower on the Amendment Closing Date pursuant to Section 1(a) of the Amendment and Restatement Agreement and (ii) Exchanged Initial Term Loans (as defined in the Amendment and Restatement Agreement) made pursuant to the Closing Date Exchange (as defined in the Amendment and Restatement Agreement).

 

“Initial Term Loan Commitment” means, with respect to each Lender, the commitment of such Lender to fund its ratable share of the Initial Term Loan to the Borrower on the Amendment Closing Date in the amount set forth in Schedule I to the Amendment and Restatement Agreement.

 

“Insolvency Proceeding” means any proceeding commenced by or against any Person under any provision of any Debtor Relief Law.

 

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

 

“Intercompany Subordination Agreement” means an Intercompany Subordination Agreement made by Holdings and its Subsidiaries in favor of the Collateral Agent for the benefit of the Agents and the Lenders, in form and substance reasonably satisfactory to the Collateral Agent.

 

“Interest Election Request” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.07, which shall be substantially in the form of Exhibit E or otherwise consistent with the requirements of Section 2.07.

 

“Interest Payment Date” means (a) with respect to any ABR Loan, the last day of each March, June, September and December and the applicable Final Maturity Date and (b) with respect to any SOFR Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and the applicable Final Maturity Date and, in the case of a SOFR Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period.

 

“Interest Period” means, with respect to any SOFR Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is 1, 3 or 6 months thereafter (in each case, subject to the availability thereof), in each case as the Borrower may elect; provided, however, that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the immediately preceding Business Day and (ii) no tenor that has been removed from this definition pursuant to Section 2.08(d) shall be available for specification in the applicable Notice of Borrowing or Interest Election Request.  Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period.  For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

 

“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended (or any successor statute thereto) and the regulations thereunder.

 

“Inventory” means, with respect to any Person, all goods and merchandise of such Person leased or held for sale or lease by such Person, including all raw materials, work-in-process and finished goods, and all packaging, supplies and materials of every nature used or usable in connection with the shipping, storing, advertising or sale of such goods and merchandise, whether now owned or hereafter acquired, and all such other property the sale or other disposition of which would give rise to an Account or cash.

 

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“Investment” means, with respect to any Person, (a) any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees, advances or other extensions of credit (excluding Accounts arising in the ordinary course of business), capital contributions or acquisitions of Indebtedness (including, any bonds, notes, debentures or other debt securities), Equity Interests, or all or substantially all of the assets of such other Person (or of any division or business line of such other Person), (b) the purchase or ownership of any futures contract or liability for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or (c) any investment in any other items that are or would be classified as investments on a balance sheet of such Person prepared in accordance with GAAP. The amount of any Investment shall be the amount actually invested (determined by reference to Fair Market Value) without adjustment for subsequent increases or decreases in value.

 

“Investor Agreement” means the Investor Agreement, dated and effective as of November 17, 2020, among Holdings and the Holders (as defined therein) party thereto, as in effect on the Closing Date.

 

“Joinder Agreement” means a Joinder Agreement, substantially in the form of Exhibit A, duly executed by a Subsidiary of a Loan Party made a party hereto pursuant to Section 7.01(b).

 

“Joinder Document Deliverable” has the meaning specified therefor in Section 7.01(b)(i).

 

“Joining Lender” has the meaning specified therefor in Section 2.01(c).

 

“Junior Indebtedness” means any Indebtedness of Holdings, the Borrower or any of their respective Restricted Subsidiaries that (a) is secured by a Lien that is junior in priority to the Lien securing the Obligations (including, for the avoidance of doubt, the Notes), (b) has been expressly subordinated in right of payment to the Obligations) or (c) is unsecured.

 

“Latest Maturity Date” means, at any time, the latest of the Final Maturity Dates in respect of the Classes of Loans that are outstanding at such time.

 

“LCT Election” has the meaning specified therefor in Section 1.07.

 

“LCT Test Date” has the meaning specified therefor in Section 1.07.

 

“Lender” has the meaning specified therefor in the preamble hereto.

 

“Lien” means any mortgage, deed of trust, pledge, lien (statutory or otherwise), security interest, charge or other encumbrance or security or preferential arrangement of any nature, including any conditional sale or title retention arrangement, any Capitalized Lease and any assignment, deposit arrangement or financing lease intended as, or having the effect of, security, but not including the interest of a lessor under a lease that is an operating lease.

 

“Limited Conditions Transaction” means a Permitted Acquisition or other Investment by Holdings, the Borrower or any of its Restricted Subsidiaries permitted hereunder where the consummation of such Permitted Acquisition or other Investment is not conditioned on the availability of, or on obtaining, third party financing.

 

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“Loan Document” means this Agreement, the Amendment and Restatement Agreement, any Control Agreement, the Agent Fee Letter, any Guaranty, the Intercompany Subordination Agreement, the Pari Passu Intercreditor Agreement, the Notes Junior Intercreditor Agreement, the New Convertible Notes Junior Intercreditor Agreement, any Joinder Agreement, any Mortgage, any Security Document, any Permitted Pari Passu Intercreditor Agreement, any Permitted Junior Intercreditor Agreement, any landlord waiver, any collateral access agreement, any Perfection Certificate and any other agreement, instrument, certificate, report and other document executed and delivered pursuant hereto or thereto or otherwise evidencing or securing any Loan or any other Obligation.

 

“Loan Party” means the Borrower and any Guarantor.

 

“Loans” means the loans made by the Lenders to the Borrower pursuant to this Agreement.

 

“Majority in Interest”, when used in reference to Lenders of any Class, means, at any time, Lenders holding outstanding Loans of such Class representing more than 50% of the aggregate principal amount of all Loans of such Class outstanding at such time.

 

“Management Agreement” means the Amended and Restated Management and Advisory Agreement, dated as of August 5, 2019 and effective as of November 19, 2019, between Holdings and FIG LLC, as in effect as of the Closing Date.

 

“Material Adverse Effect” means a material adverse effect on any of (a) the operations, assets, liabilities, or financial condition of the Loan Parties taken as a whole, (b) the ability of the Loan Parties taken as a whole to perform any of their obligations under any Loan Document or (c) the rights and remedies of any Agent or any Lender under any Loan Document.

 

“Material Asset” means any asset or property that is owned by a Loan Party and material to the business of the Borrower and its Subsidiaries, taken as a whole (in each case, as determined by the Borrower in good faith).

 

“Material Contract” means, with respect to any Person, (a) each contract or agreement to which such Person or any of its Subsidiaries is a party involving aggregate consideration payable to or by such Person or such Subsidiary of $5,000,000 or more in any Fiscal Year (other than purchase orders in the ordinary course of the business of such Person or such Subsidiary and other than contracts that by their terms may be terminated by such Person or Subsidiary upon less than 60 days’ notice without penalty or premium) and (b) all other contracts or agreements as to which the breach, nonperformance, cancellation or failure to renew by any party thereto would reasonably be expected to have a Material Adverse Effect.

 

“Material Intellectual Property” means any Intellectual Property that is owned by a Loan Party and material to the business of the Borrower and its Subsidiaries, taken as a whole (in each case, as determined by the Borrower in good faith).

 

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“Material Subsidiary” means each Restricted Subsidiary that, as of the last day of the Fiscal Quarter of Holdings most recently ended for which financial statements have been (or were required to be) delivered pursuant to Section 7.01(a)(ii) or Section 7.01(a)(iii), had revenues or total assets (determined on a consolidated basis for such Restricted Subsidiary and its Restricted Subsidiaries) for such Fiscal Quarter in excess of 2.5% of the consolidated revenues or consolidated total assets, as applicable, of Holdings, the Borrower and the Restricted Subsidiaries for such Fiscal Quarter or that is designated in writing by the Borrower as a Material Subsidiary; provided that if, as of the last day of the Fiscal Quarter of Holdings most recently ended for which financial statements have been (or were required to be) delivered pursuant to Section 7.01(a)(ii) or Section 7.01(a)(iii), the revenues or total assets of all Restricted Subsidiaries that do not constitute Material Subsidiaries as defined above in this definition (determined on a consolidated basis) for such Fiscal Quarter exceeds 5.0% of the consolidated revenues or consolidated total assets, as applicable, of Holdings, the Borrower and the Restricted Subsidiaries for such Fiscal Quarter, then one or more of such excluded Restricted Subsidiaries shall for all purposes of this Agreement be deemed to be Material Subsidiaries in descending order based on the amounts of their consolidated revenues or consolidated total assets, as applicable, until such excess shall have been eliminated.

 

“Maturity Date Extension Request” means a request by the Borrower, in a form reasonably satisfactory to the Administrative Agent, for the extension of the applicable Final Maturity Date pursuant to Section 2.14.

 

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

 

“Mortgage” means a mortgage, deed of trust or deed to secure debt, each in form and substance satisfactory to the Collateral Agent and the Borrower (it being agreed that the form of mortgage, deed of trust or deed to secure debt, as applicable, entered into by the Loan Parties in connection with the Existing Credit Agreement shall be satisfactory in form and substance to the Collateral Agent), made by a Loan Party in favor of the Collateral Agent for the benefit of the Agents and the Lenders, securing the Obligations and delivered to the Collateral Agent.

 

“Mortgaged Property” means the Amendment Closing Date Mortgaged Property and the New Mortgaged Property.

 

“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which any Loan Party or any of its ERISA Affiliates contributes or is obligated to contribute.

 

“Net Cash Proceeds” means, with respect to any issuance or incurrence of any Indebtedness, any Equity Issuance, any Disposition (including, for the avoidance of doubt, any Sale and Leaseback Transaction) or the receipt of any Extraordinary Receipts by any Person or any of its Restricted Subsidiaries, the aggregate amount of cash received (directly or indirectly) from time to time (whether as initial consideration or through the payment or disposition of deferred consideration) by or on behalf of such Person or such Restricted Subsidiary, in connection therewith after deducting therefrom only (a) in the case of any Disposition or the receipt of any Extraordinary Receipts consisting of insurance proceeds or condemnation awards, the amount of any Indebtedness secured by any Permitted Lien on any asset (other than Indebtedness assumed by the purchaser of such asset) which is required to be, and is, repaid in connection therewith (other than Indebtedness under this Agreement), (b) all expenses related thereto incurred by such Person or such Restricted Subsidiary in good faith in connection therewith (including, with respect to any Permitted Disposition or Sale and Leaseback Transaction permitted under Section 7.02(f), expenditures in respect of moving and build-out costs), (c) transfer taxes paid or reasonably estimated to be payable to any taxing authorities by such Person or such Restricted Subsidiary in connection therewith, and (d) net income taxes to be paid in connection therewith (after taking into account any tax credits or deductions and any tax sharing arrangements), in each case, to the extent, but only to the extent, that the amounts so deducted are (i) actually paid (or reasonably estimated to be payable) to a Person that, except in the case of out-of-pocket expenses and tax payments, is not an Affiliate of such Person or any of its Restricted Subsidiaries and (ii) properly attributable to such transaction or to the asset that is the subject thereof.

 

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 “New Convertible Notes” means up to $242,753,000 in aggregate principal amount of Holdings’ 6.0% Senior Secured Convertible Notes due 2031 issued pursuant to the New Convertible Notes Indenture.

 

“New Convertible Notes Indenture” means the Indenture, dated October 15, 2024, among Holdings, as issuer, the guarantors party thereto from time to time and U.S. Bank Trust Company, National Association, as trustee, as such document may be amended, restated, supplemented or otherwise modified from time to time.

 

“New Convertible Notes Junior Intercreditor Agreement” means the first-lien/second-lien intercreditor agreement dated as of the Amendment Closing Date, among the Agents, U.S. Bank Trust Company, National Association (formerly U.S. Bank National Association), as collateral agent in respect of the Senior Secured Notes, and Alter Domus Products Corp., as collateral agent in respect of the New Convertible Notes.

 

“New Mortgaged Property” has the meaning specified therefor in Section 7.01(n).

 

“Notes” means up to $500,000,000 in aggregate principal amount of Holdings’ 6.0% Senior Secured Convertible Notes due 2027 issued pursuant to the Notes Indenture.

 

“Notes Indenture” means the Indenture, dated November 17, 2020, among Holdings, as issuer, the guarantors party thereto from time to time and U.S. Bank Trust Company, National Association (formerly U.S. Bank National Association), as trustee, as amended as of the Closing Date and as such document is further amended, restated, supplemented or otherwise modified from time to time.

 

“Notes Junior Intercreditor Agreement” means the first-lien/second-lien intercreditor agreement dated as of the Closing Date, among the Agents, U.S. Bank Trust Company, National Association (formerly U.S. Bank National Association), as collateral agent in respect of the Senior Secured Notes and Alter Domus Products Corp., as collateral agent in respect of the Notes.

 

“Notice of Borrowing” has the meaning specified therefor in Section 2.02(a).

 

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“Obligations” means all present and future indebtedness, obligations, and liabilities of each Loan Party to the Agents and the Lenders arising under or in connection with this Agreement or any other Loan Document, whether or not the right of payment in respect of such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed, legal, equitable, secured or unsecured, and whether or not such claim is discharged, stayed or otherwise affected by any proceeding referred to in Section 9.01.  Without limiting the generality of the foregoing, the Obligations of each Loan Party under the Loan Documents include (a) the obligation (irrespective of whether a claim therefor is allowed in an Insolvency Proceeding) to pay principal, interest, charges, expenses, fees, premiums, attorneys’ fees and disbursements, indemnities and other amounts payable by such Person under the Loan Documents, (b) the obligation of such Person to reimburse any amount in respect of any of the foregoing that any Agent or any Lender (in its sole discretion) may elect to pay or advance on behalf of such Person, (c) all Collateral Agent Advances and (d) the obligation to pay, discharge and satisfy the Erroneous Payment Subrogation Rights.

 

“Option Awards Agreement” means the Nonqualified Stock Option Agreement, dated as of August 5, 2019, between Fortress Operating Entity I LP and Holdings, as in effect as of the Closing Date.

 

“Other Applicable Indebtedness” has the meaning specified therefor in Section 2.05(d).

 

“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.12(b).

 

“Pari Passu Intercreditor Agreement” means the first-lien/first-lien intercreditor agreement dated as of the Closing Date, among the Agents and U.S. Bank Trust Company, National Association (formerly U.S. Bank National Association), as collateral agent in respect of the Senior Secured Notes.

 

“Participant Register” has the meaning specified therefor in Section 12.07(i).

 

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“Payment Office” means the Administrative Agent’s office located at 9 West 57th Street, 41st Floor, New York, NY 10019, or at such other office or offices of the Administrative Agent as may be designated in writing from time to time by the Administrative Agent to the Lenders, the Collateral Agent and the Borrower.

 

“Payment Recipient” has the meaning specified therefor in Section 10.18(a).

 

“Payoff” means (a) prepayment in full of the Term Loans (as defined in the Existing Credit Agreement) outstanding immediately prior to the Amendment Closing Date, (b) the repurchase, redemption, defeasance or discharge of the Senior Secured Notes that are tendered by the holders thereof on or prior to the Amendment Closing Date pursuant to the Senior Secured Notes Exchange Offer and (c) the repurchase, redemption, defeasance or discharge of the Notes that are exchanged by the holders thereof on or prior to the Amendment Closing Date pursuant to the Convertible Notes Exchange.

 

“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.

 

“Perfection Certificate” means a certificate in form and substance reasonably satisfactory to the Collateral Agent and the Borrower providing information with respect to the property of each Loan Party.

 

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

 

“Permitted Acquisition” means any Acquisition by a Loan Party or any wholly-owned Restricted Subsidiary of a Loan Party to the extent that each of the following conditions shall have been satisfied:

 

(a)          no Event of Default shall have occurred and be continuing or would result from the consummation of the proposed Acquisition;

 

(b)        the Borrower shall have furnished to the Administrative Agent at least 10 Business Days prior to the consummation of such Acquisition (i) a term sheet (setting forth in reasonable detail the terms and conditions of such Acquisition) or executed purchase agreement and, at the request of any Agent, such other information and documents that any Agent may reasonably request with respect to such Acquisition, including executed counterparts of the respective agreements, instruments or other documents pursuant to which such Acquisition is to be consummated (including any related management, non-compete, employment, option or other material agreements), any schedules to such agreements, instruments or other documents and all other material ancillary agreements, instruments or other documents to be executed or delivered in connection therewith, (ii) solely to the extent prepared internally by the Borrower in connection with such Acquisition, pro forma financial statements of Holdings, the Borrower and its Restricted Subsidiaries after the consummation of such Acquisition, and (iii) a certificate of the chief financial officer of the Borrower, demonstrating on a pro forma basis compliance, as at the end of the most recently ended Fiscal Quarter for which internally prepared financial statements are available, with the covenant set forth in Section 7.03 hereof after the consummation of such Acquisition;

 

(c)          the agreements, instruments and other documents referred to in paragraph (b) above shall provide that (i) neither the Loan Parties nor any of their Restricted Subsidiaries shall, in connection with such Acquisition, assume or remain liable in respect of any Indebtedness of the applicable Seller or Sellers, or other obligation of the applicable Seller or Sellers (except for obligations incurred in the ordinary course of business in operating the property so acquired and necessary or desirable to the continued operation of such property and except for Permitted Indebtedness), and (ii) all property to be so acquired in connection with such Acquisition shall be free and clear of any and all Liens, except for Permitted Liens (and if any such property is subject to any Lien not permitted by this clause (ii) then concurrently with such Acquisition such Lien shall be released);

 

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(d)        the aggregate consideration in respect of Equity Interests in Persons that do not become Loan Parties upon the consummation of such Acquisition, and in respect of assets that are acquired by Restricted Subsidiaries that are not Loan Parties in connection with such Acquisition, shall not for all such Acquisitions made after the Amendment Closing Date (when taken together with the aggregate amount of Investments then outstanding under clause (d) of “Permitted Intercompany Investments”) exceed $100,000,000;

 

(e)         the assets being acquired (other than a de minimis amount of assets in relation to the Loan Parties’ and their Restricted Subsidiaries’ total assets), or the Person whose Equity Interests are being acquired, are useful in or engaged in, as applicable, the business of the Loan Parties and their Restricted Subsidiaries or a business reasonably related thereto;

 

(f)          the applicable Loan Party or Restricted Subsidiary shall execute and deliver the agreements, instruments and other documents required by Section 7.01(b) on or prior to the date of the consummation of such Acquisition (or arrangements reasonably satisfactory to the Administrative Agent for the taking of such actions within the grace periods provided in Section 7.01(b) for a newly-formed or acquired Restricted Subsidiary shall have been made);

 

(g)        the consideration for any such Acquisition shall consist solely of (x) Equity Interests of Holdings or cash generated by the issuance of Equity Interests of Holdings or (y) unrestricted cash on the balance sheet; and

 

(h)         the Total Net Leverage Ratio, recomputed on a pro forma basis as of the last day of the most recently ended Fiscal Quarter, is equal to or less than 3.00 to 1.00 after giving effect to such Permitted Acquisition.

 

“Permitted Disposition” means:

 

(a)          sale of Inventory in the ordinary course of business;

 

(b)          licensing or sub-licensing, on a non-exclusive basis, Intellectual Property rights in the ordinary course of business;

 

(c)          leasing or subleasing assets (including ground leases) in the ordinary course of business;

 

(d)          (i) the lapse of Registered Intellectual Property of the Borrower and its Restricted Subsidiaries to the extent not economically desirable in the conduct of their business or (ii) the abandonment of Intellectual Property rights in the ordinary course of business so long as (in each case under clauses (i) and (ii)), (A) with respect to copyrights, such copyrights are not material revenue generating copyrights, and (B) such lapse is not materially adverse to the interests of the Secured Parties;

 

(e)          any involuntary loss, damage or destruction of property;

 

(f)          any condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property;

 

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(g)        so long as no Event of Default has occurred and is continuing or would result therefrom, Dispositions of assets from Holdings, the Borrower or any of its Restricted Subsidiaries to Holdings, the Borrower or any of its Restricted Subsidiaries; provided that if the transferor of such property is a Loan Party (i) (x) the transferee thereof must be a Loan Party or (y) if the transferee thereof is not a Loan Party, (I) such Disposition must be for Fair Market Value or (II) if not for Fair Market Value, if such transaction constitutes an Investment, such Investment must be permitted by Section 7.02(e).

 

(h)          the granting of Permitted Liens;

 

(i)         (x) Disposition of obsolete or worn-out equipment or equipment that is no longer used or useful in the business of Holdings, the Borrower and its Restricted Subsidiaries, in each case in the ordinary course of business and (y) Dispositions of equipment to the extent such equipment is exchanged for credit against the purchase price of similar replacement property;

 

(j)         Dispositions of accounts receivable in connection with a compromise, write-down or collection thereof in the ordinary course of business or in connection with the bankruptcy or reorganization of the applicable counterparty and Dispositions of any securities received in any such bankruptcy or reorganization;

 

(k)         Dispositions of property or assets the aggregate amount of consideration received for which does not exceed, for all such Dispositions made pursuant to this clause (k), $10,000,000; and

 

(l)          Dispositions of property or assets not otherwise permitted in clauses (a) through (k) above as long as (i) the aggregate amount of consideration received is not less than the fair market value of such property or assets and (ii) 75% of the purchase price is payable in cash or Cash Equivalents; provided that (A) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition shall be deemed to be cash consideration in an amount equal to the liabilities so assumed and (B) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of any Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (B) that is at that time outstanding, not in excess of $5,000,000 at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash consideration.

 

“Permitted Indebtedness” means:

 

(a)          any Indebtedness owing to any Agent or any Lender under this Agreement and the other Loan Documents;

 

(b)          any other Indebtedness listed on Schedule 7.02(b), and any Permitted Refinancing Indebtedness in respect of such Indebtedness;

 

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(c)          any Refinancing Facilities;

 

(d)          Permitted Intercompany Investments;

 

(e)          Indebtedness incurred in the ordinary course of business under performance, surety, statutory, and appeal bonds and similar obligations (other than in respect of other Indebtedness);

 

(f)          Indebtedness owed to any Person (including obligations in respect of letters of credit, bank guarantees and similar instruments for the benefit of such Person) providing property, casualty, liability, or other insurance to the Loan Parties, so long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the period in which such Indebtedness is incurred and such Indebtedness is outstanding only during such period;

 

(g)       the incurrence by any Loan Party of Indebtedness under Hedging Agreements that are incurred for the bona fide purpose of hedging the interest rate, commodity, or foreign currency risks associated with such Loan Party’s operations and not for speculative purposes;

 

(h)       Indebtedness incurred in respect of credit cards, credit card processing services, debit cards, stored value cards, purchase cards (including so-called “procurement cards” or “P-cards”) or other similar cash management services, in each case, incurred in the ordinary course of business;

 

(i)          contingent liabilities in respect of any indemnification obligation, adjustment of purchase price, non-compete, or similar obligation of any Loan Party incurred in connection with the consummation of one or more Permitted Acquisitions;

 

(j)          Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within five Business Days of incurrence;

 

(k)         Indebtedness consisting of the financing of insurance premiums to the extent non-recourse (other than to the insurance premiums) incurred in the ordinary course of business;

 

(l)           customer deposits and advance payments received in the ordinary course of business from customers for goods purchased in the ordinary course of business;

 

(m)          Indebtedness in respect of Contingent Obligations of Holdings, the Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of Holdings, the Borrower or any of its Restricted Subsidiaries permitted hereunder; provided that, in the case of a Contingent Obligation of a Loan Party in respect of Indebtedness of a Restricted Subsidiary that is not a Loan Party, such Contingent Obligation is permitted under Section 7.02(e); provided further that no Loan Party shall guarantee any Indebtedness for borrowed money or other debt obligations evidenced by promissory notes, bonds, debentures, loan agreements or similar instruments incurred by Newsquest Media Group Limited or any of its Subsidiaries;

 

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(n)          other unsecured Indebtedness in an aggregate principal amount not exceeding $25,000,000 at any time outstanding;

 

(o)          [reserved];

 

(p)          (i) Indebtedness of the Borrower or any of its Restricted Subsidiaries incurred to finance the acquisition, construction, lease or improvement of any fixed or capital assets, including Capitalized Lease Obligations and any Indebtedness assumed by the Borrower or any of its Restricted Subsidiaries in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof; provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or lease or the completion of such construction or improvement, and (ii) Permitted Refinancing Indebtedness in respect of Indebtedness incurred or assumed pursuant to clause (i) above; provided further that the aggregate principal amount of Indebtedness permitted by this clause (p) shall not exceed, at any time outstanding, the greater of (x) $12,500,000 and (y) 2.5% of Consolidated EBITDA of Holdings, the Borrower and its Restricted Subsidiaries for the most recently ended period of four consecutive Fiscal Quarters for which financial statements are required to have been delivered pursuant to Section 7.01(a)(ii) or Section 7.01(a)(iii), as applicable;

 

(q)          (i) the Notes and Permitted Refinancing Indebtedness in respect thereof, (ii) the Senior Secured Notes and (iii) the New Convertible Notes and Permitted Refinancing Indebtedness in respect thereof;

 

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(r)          (i) Indebtedness in the form of one or more series of senior secured notes, junior secured notes, junior secured term loans, senior secured revolving credit facilities or junior secured revolving credit facilities (“Incremental Equivalent Indebtedness”) of the Borrower secured by the Collateral on either a pari passu basis (but without regard to control of remedies) with the Obligations or a junior basis to the Obligations or unsecured, in an aggregate principal amount not to exceed, at any one time outstanding, an amount if, immediately after giving effect to the incurrence of such amount and the application of the proceeds therefrom, (1) in the case of any Incremental Equivalent Indebtedness that will be secured by the Collateral on a pari passu basis (but without regard to control of remedies) with the Obligations in respect of the Term Loans, the First Lien Net Leverage Ratio, recomputed on a pro forma basis as of the last day of the most recently ended Fiscal Quarter giving effect to the incurrence of such Incremental Equivalent Indebtedness, is equal to or less than 2.00 to 1.00, (2) in the case of any Incremental Equivalent Indebtedness that will be secured by the Collateral on a junior basis to the Obligations in respect of the Term Loans, the Secured Net Leverage Ratio, recomputed on a pro forma basis as of the last day of the most recently ended Fiscal Quarter giving effect to the incurrence of such Incremental Equivalent Indebtedness, is equal to or less than 3.00 to 1.00 or (3) in the case of any Incremental Equivalent Indebtedness that will be unsecured, the Total Net Leverage Ratio, recomputed on a pro forma basis as of the last day of the most recently ended Fiscal Quarter giving effect to the incurrence of such Incremental Equivalent Indebtedness, is equal to or less than 3.50 to 1.00; provided that no Event of Default shall have occurred and be continuing at the time of incurrence of such Indebtedness or would result therefrom, provided, further, that such Indebtedness shall (1) if such Indebtedness is secured on a pari passu basis (but without regard to control of remedies) with the Obligations, have a maturity date that is no earlier than the Latest Maturity Date at the time such Indebtedness is incurred, and if such Indebtedness is secured on a junior basis to the Obligations or unsecured, have a maturity date that is at least 91 days after the later of (i) the Latest Maturity Date at the time such Indebtedness is incurred and (ii) the maturity date of the New Convertible Notes, (2) if such Indebtedness is secured on a pari passu basis (but without regard to control of remedies) with the Obligations (other than in the case of any senior secured revolving credit facilities), have a weighted average life to maturity no shorter than the longest remaining weighted average life to maturity of the Loans and, if such Indebtedness is secured on a junior basis to the Obligations or unsecured, shall not be subject to scheduled amortization prior to maturity, (3) if such Indebtedness is secured on a pari passu basis (but without regard to control of remedies) with the Obligations, not be subject to any mandatory prepayment, repurchase or redemption provisions, unless the prepayment, repurchase or redemption of such Indebtedness is accompanied by an offer to prepay a pro rata portion of the outstanding principal of the Loans hereunder pursuant to Section 2.05(d) and, if such Indebtedness is secured on a junior basis to the Obligations or unsecured, shall not be subject to mandatory redemption, repurchase, prepayment or sinking fund obligations (other than pursuant to customary asset sale, event of loss and change of control prepayment provisions and a customary acceleration right after an event of default), in each case prior to the Latest Maturity Date at the time such Indebtedness is incurred (provided that, in the case of any Incremental Equivalent Indebtedness in the form of revolving credit facilities, such Indebtedness may be prepaid in the event that the aggregate revolving exposure thereunder exceeds the aggregate revolving commitments thereunder), (4) if such Indebtedness is secured on a pari passu basis (but without regard to control of remedies) with the Obligations, be in the form of debt securities (and, for purposes of clarity, not loans) and subject to a Permitted Pari Passu Intercreditor Agreement and, if such Indebtedness is secured on a junior basis to the Obligations, be subject to a Permitted Junior Intercreditor Agreement, (5) not be (A) guaranteed by any Person other than the Guarantors or (B) secured by any asset or property of Holdings, the Borrower or any of the Restricted Subsidiaries other than the Collateral that secures the Obligations and (6) have terms and conditions (other than pricing, rate floors, discounts, fees, premiums and optional prepayment or optional redemption provisions) that in the good faith determination of the Borrower are not materially less favorable (when taken as a whole) to the Borrower than the terms and conditions of the Loan Documents (when taken as a whole); provided that (x) any Incremental Equivalent Indebtedness in the form of a revolving credit facility may have a financial maintenance covenant so long as such financial maintenance covenant applies to the Loans and (y) a certificate of the Borrower as to the satisfaction of the conditions described in this clause (6) delivered at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirements of this clause (6), shall be conclusive, unless the Administrative Agent shall have notified the Borrower of its objection to such determination not later than three Business Days after receipt of such notice, and (ii) any Permitted Refinancing Indebtedness in respect of such Indebtedness; provided, further that notwithstanding anything to the contrary contained in this Agreement, any Incremental Equivalent Indebtedness having a priority ranking equal to the priority of the Liens on the Collateral securing the Obligations (but without regard to the control of remedies) shall be subject to the MFN Protection set forth in section 2.13(b) as if such Incremental Equivalent Indebtedness were an Incremental Term Loan (in connection with any calculation of the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio or the Total Net Leverage Ratio for purposes of this clause (r), the cash proceeds of the applicable Incremental Extension of Credit will not be deducted from Total Indebtedness when making such calculation);

 

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(s)       Indebtedness of the Borrower or any Restricted Subsidiary in the form of purchase price adjustments, earn-outs, non-competition agreements or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any Permitted Acquisition or other Permitted Investment;

 

(t)       Indebtedness of Foreign Subsidiaries, including in respect of local lines of credit, letters of credit, bank guarantees, receivables financings, factoring arrangements, sale and leaseback transactions and similar extensions of credit in the ordinary course of business, in an aggregate principal amount not to exceed, at any time outstanding, the greater of (i) $25,000,000 and (ii) 5% of Consolidated EBITDA of Holdings, the Borrower and its Restricted Subsidiaries for the most recently ended period of four consecutive Fiscal Quarters for which financial statements are required to have been delivered pursuant to Section 7.01(a)(ii) or Section 7.01(a)(iii), as applicable; provided that if such Indebtedness is secured, it shall be secured only by the assets of such Foreign Subsidiary; and

 

(u)          Indebtedness of the Borrower or any Restricted Subsidiary under the Paycheck Protection Program of the U.S. Small Business Administration in an aggregate principal amount not to exceed, at any time outstanding, $20,000,000;

 

provided that notwithstanding anything to the contrary set forth herein, no Loan Party shall be permitted to create, incur, assume, guaranty or otherwise become or remain directly or indirectly liable with respect to any Indebtedness that is from or of a Restricted Subsidiary that is a not a Guarantor (such creation, incurrence, assumption or guaranty being referred to as “Non-Loan Party Indebtedness of Loan Parties”), in each case, to the extent that the structuring of any claims with respect to any Indebtedness created, assumed, incurred or guaranteed by such Loan Parties, together with any Non-Loan Party Indebtedness of Loan Parties, could or would result in two or more bankruptcy claims against the same Loan Party for direct and indirect obligations against the same Loan Party, arising from one transaction or series of transactions relating to the same underlying Non-Loan Party Indebtedness of Loan Parties.

 

“Permitted Intercompany Investments” means Investments made by (a) a Loan Party to or in another Loan Party, (b) a Restricted Subsidiary that is not a Loan Party to or in another Restricted Subsidiary that is not a Loan Party, (c) a Restricted Subsidiary that is not a Loan Party to or in a Loan Party, so long as, in the case of a loan or advance made pursuant to this clause (c), such loan or advance is unsecured and subordinated to the Obligations pursuant to the Intercompany Subordination Agreement, (d) a Loan Party to or in a Restricted Subsidiary that is not a Loan Party; provided that the aggregate amount of Investments made after the Amendment Closing Date pursuant to this clause (d) (when taken together with any Permitted Acquisitions made pursuant to clause (d) of the definition of “Permitted Acquisitions” after the Amendment Closing Date) shall not exceed $100,000,000 at any time outstanding; provided, further, that intercompany current liabilities incurred in the ordinary course of business and in good faith in connection with cash management operations of the Borrower and its Restricted Subsidiaries shall not count in calculating the limitation set forth in the immediately preceding proviso, and (e) Loan Parties as specified in Part II to Schedule 7.02(e) hereto.

 

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“Permitted Investments” means:

 

(a)          Investments in cash and Cash Equivalents;

 

(b)          Investments in negotiable instruments deposited or to be deposited for collection in the ordinary course of business;

 

(c)          advances made in connection with purchases of goods or services in the ordinary course of business;

 

(d)         Investments received in settlement of amounts due to any Loan Party or any of its Restricted Subsidiaries effected in the ordinary course of business or owing to any Loan Party or any of its Restricted Subsidiaries as a result of Insolvency Proceedings involving an Account Debtor or upon the foreclosure or enforcement of any Lien in favor of a Loan Party or its Restricted Subsidiaries;

 

(e)          Investments existing on the Amendment Closing Date, as set forth in Part I to Schedule 7.02(e) hereto, but not any increase in the amount thereof as set forth in such Schedule or any other modification of the terms thereof;

 

(f)          Permitted Intercompany Investments;

 

(g)          Permitted Acquisitions;

 

(h)         (i) earn-outs that become due and payable to any Loan Party or its Restricted Subsidiaries pursuant to the terms of Section 1.8 of the BridgeTower Asset Purchase Agreement and (ii) other purchase price adjustments, earn-outs, non-competition agreements or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any Permitted Acquisition or other Permitted Investment;

 

(i)        Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;

 

(j)          Investments in Hedging Agreements permitted under Section 7.02(b);

 

(k)         extensions of trade credit in the ordinary course of business, and investments received in satisfaction or partial satisfaction thereof from financially troubled Account Debtors in the ordinary course of business;

 

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(l)        Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;

 

(m)        Investments consisting of the purchase of outstanding minority interests in non-wholly owned subsidiaries of the Loan Parties pursuant to obligations existing as of the Amendment Closing Date and set forth on Schedule 7.02(e);

 

(n)          Investments in the form of guarantees of third-party lease obligations arising in connection with Permitted Dispositions;

 

(o)          Investments of any Person (other than an Unrestricted Subsidiary) existing at the time such Person becomes a Restricted Subsidiary or consolidates or merges with the Borrower or any of its Restricted Subsidiaries so long as such Investments were not made in contemplation of such Person becoming a Restricted Subsidiary or of such consolidation or merger;

 

(p)          Guarantees by any Loan Party or any Restricted Subsidiary of obligations in respect of leases (including subleases) and other obligations, in each case that do not constitute Indebtedness; and

 

(q)          other Investments by the Borrower or any of its Restricted Subsidiaries in an aggregate amount, as valued at cost at the time each such Investment is made and including all related commitments for future Investments (and the principal amount of any Indebtedness that is assumed or otherwise incurred in connection with such Investment), in an aggregate amount at any time outstanding not in excess of, for any Fiscal Quarter, the RP/Investment Amount for such Fiscal Quarter (less the sum of (x) the aggregate amount of Restricted Payments that have been made pursuant to clause (g) of the definition of “Permitted Restricted Payments” during such Fiscal Quarter and (y) the aggregate principal amount of Junior Indebtedness that has been repaid pursuant to subclause (x) of Section 7.02(m)(ii)(A) during such Fiscal Quarter, in each case on or prior to the applicable date of determination); provided that (x) at the time such Investment is made pursuant to this clause (q), no Event of Default shall have occurred and be continuing or would result therefrom and (y) such Investment shall be made in the form of cash or Cash Equivalents;

 

provided that (a) the Borrower shall not permit any Subsidiary that is not a Loan Party to own, or hold exclusive rights in, any Material Intellectual Property and (b) no Loan Party may transfer (by means of Investment, Asset Sale, Restricted Payment or otherwise) any Material Assets to any other Subsidiary that is not a Loan Party or permit any Subsidiary that holds Material Assets to be designated as an Unrestricted Subsidiary pursuant to Article VIII.

 

“Permitted Junior Intercreditor Agreement” means, with respect to any Liens on Collateral that are intended to be junior to the Liens on the Collateral securing the Term Loans, an intercreditor agreement for the sharing of liens on a junior basis in form and substance that is reasonably acceptable to the Administrative Agent and the Collateral Agent in their sole discretion.

 

“Permitted Liens” means:

 

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(a)          Liens securing the Obligations;

 

(b)          Liens for taxes, assessments and governmental charges the payment of which is not required under Section 7.01(c)(ii);

 

(c)         Liens imposed by law, such as carriers’, warehousemen’s, mechanics’, materialmen’s and other similar Liens arising in the ordinary course of business and securing obligations (other than Indebtedness for borrowed money) that are not overdue by more than 30 days or are being contested in good faith and by appropriate proceedings initiated as promptly as practicable and diligently conducted, and a reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made therefor;

 

(d)          Liens described on Schedule 7.02(a), provided that any such Lien shall only secure the Indebtedness that it secures on the Amendment Closing Date and any Permitted Refinancing Indebtedness in respect thereof;

 

(e)         Liens in respect of Refinancing Facilities and subject to a Permitted Pari Passu Intercreditor Agreement or a Permitted Junior Intercreditor Agreement, as applicable;

 

(f)          deposits and pledges of cash securing (i) obligations incurred in respect of workers’ compensation, unemployment insurance or other forms of governmental insurance or benefits, (ii) the performance of bids, tenders, leases, contracts (other than for the payment of money) and statutory obligations or (iii) obligations on surety or appeal bonds (and, in the case of each of the foregoing, deposits and pledges of cash in respect of letters of credit, bank guarantees or similar instruments issued for the account of Holdings, the Borrower or any Subsidiary in support of any such obligations), but only to the extent such deposits or pledges are made or otherwise arise in the ordinary course of business and secure obligations not past due;

 

(g)        with respect to any Mortgaged Property, covenants, easements, zoning restrictions and similar encumbrances on real property and minor irregularities in the title thereto that do not (i) secure obligations for the payment of money (other than Indebtedness otherwise permitted hereunder) or (ii) materially impair the value of such property or its use by any Loan Party or any of its Subsidiaries in the normal conduct of such Person’s business;

 

(h)         Liens of landlords and mortgagees of landlords securing unpaid rents (i) arising by statute or under any lease or related Contractual Obligation entered into in the ordinary course of business, (ii) on fixtures and movable tangible property located on the real property leased or subleased from such landlord, or (iii) for amounts not yet due or that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves or other appropriate provisions are maintained on the books of such Person in accordance with GAAP;

 

(i)          the title and interest of a lessor or sublessor, or of a licensor or a sublicensor, in and to personal property leased or subleased (other than through a Capitalized Lease), or licensed or sublicensed, in each case extending only to such personal property;

 

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(j)          non-exclusive licenses of Intellectual Property granted in the ordinary course of business, consistent with past practice or industry norm;

 

(k)          judgment liens securing judgments and other proceedings not constituting an Event of Default under Section 9.01(j);

 

(l)          rights of set-off, bankers’ liens or similar rights and remedies upon deposits of cash in favor of banks or other depository institutions, solely to the extent incurred in connection with the maintenance of such deposit accounts in the ordinary course of business;

 

(m)        Liens granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent the financing is permitted under the definition of “Permitted Indebtedness”;

 

(n)          Liens solely on any cash earnest money deposits made by any Loan Party in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition;

 

(o)       Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;

 

(p)         Liens (x) of a collection bank arising under Section 4-208 of the Uniform Commercial Code (or any comparable or successor provision) on items in the course of collection, and (y) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business;

 

(q)          Liens that are contractual rights of set-off relating to purchase orders and other agreements entered into by the Borrower or any of its Subsidiaries in the ordinary course of business;

 

(r)          Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Borrower or any of its Subsidiaries in the ordinary course of business and in accordance with the past practices of such Person;

 

(s)        leases, subleases, licenses or sublicenses granted to others in the ordinary course of business which do not materially interfere with the ordinary conduct of the business of the Borrower or any of its Subsidiaries and do not secure any Indebtedness;

 

(t)          Liens arising from UCC or other applicable personal property financing statement filings regarding operating leases entered into by the Borrower and its Subsidiaries in the ordinary course of business;

 

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(u)       Liens on fixed or capital assets acquired, constructed or improved (including any such assets made the subject of a Capitalized Lease Obligation incurred) by the Borrower or any of its Restricted Subsidiaries; provided that (i) such Liens only secure Indebtedness incurred to finance such acquisition, construction or improvement and permitted by clause (p)(i) of the definition of “Permitted Indebtedness” or any Permitted Refinancing Indebtedness in respect thereof permitted by clause (p)(ii) of the definition of “Permitted Indebtedness”, (ii) such Liens and the Indebtedness secured thereby are incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement (provided that this clause (ii) shall not apply to any Permitted Refinancing Indebtedness permitted by clause (p)(ii) of the definition of “Permitted Indebtedness” or any Lien securing such Permitted Refinancing Indebtedness), (iii) the Indebtedness secured thereby does not exceed the lesser of the cost of acquiring, constructing or improving such fixed or capital asset or, in the case of Indebtedness permitted by clause (p)(i) of the definition of “Permitted Indebtedness”, its fair market value at the time such security interest attaches, and in any event, the aggregate principal amount of such Indebtedness does not exceed the principal amount of Indebtedness permitted under clause (p) of the definition of “Permitted Indebtedness” and (iv) such Liens shall not attach to any other property or assets of the Borrower or any of its Restricted Subsidiaries (except individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender);

 

(v)          Liens arising from Cash Equivalents described in clause (d) of the definition of “Cash Equivalents”;

 

(w)         (i) Liens securing the Notes and subject to the Notes Junior Intercreditor Agreement, (ii) Liens securing the Senior Secured Notes and subject to the Pari Passu Intercreditor Agreement and (iii) Liens securing the New Convertible Notes and subject to the New Convertible Notes Junior Intercreditor Agreement;

 

(x)         in the case of (i) any Restricted Subsidiary that is not a wholly owned Subsidiary or (ii) the Equity Interests in any Person that is not a Restricted Subsidiary, any encumbrance or restriction, including any put and call arrangements, related to Equity Interests in such Restricted Subsidiary or such other Person set forth in the organizational documents of such Restricted Subsidiary or such other Person or any related joint venture, shareholders’ or similar agreement;

 

(y)        Liens granted by a Restricted Subsidiary that is not a Loan Party on assets that do not constitute Collateral which secure Indebtedness permitted to be incurred by such Restricted Subsidiary under Section 7.02(b);

 

(z)         Liens granted by (i) the Borrower or any other Loan Party in respect of Indebtedness permitted to be incurred on a secured basis under clause (r) of the definition of “Permitted Indebtedness” and (ii) any Foreign Subsidiary in respect of Indebtedness permitted to be incurred under clause (t) of the definition of “Permitted Indebtedness”; and

 

(aa)      Liens not otherwise permitted by clauses (a) through (z) of this definition to the extent that neither (i) the aggregate outstanding principal amount of the obligations secured thereby nor (ii) the aggregate fair market value (determined as of the date such Lien is incurred) of the assets subject thereto exceeds $10,000,000 at any time outstanding.

 

“Permitted Pari Passu Intercreditor Agreement” means, with respect to any Liens on Collateral that are intended to be pari passu with the Liens on the Collateral securing the Term Loans, an intercreditor agreement for the sharing of liens on a pari passu in form and substance that is reasonably acceptable to the Administrative Agent and the Collateral Agent in their sole discretion.

 

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“Permitted Refinancing Indebtedness” means the extension of maturity, refinancing or modification of the terms of Indebtedness so long as:

 

(a)         after giving effect to such extension, refinancing or modification, the aggregate principal amount of such Indebtedness is not greater than the aggregate principal amount of Indebtedness and unused commitments outstanding immediately prior to such extension, refinancing or modification (other than by the amount of accrued and unpaid interest with respect thereto and premiums paid thereon and the fees and expenses incurred in connection therewith and by the amount of unfunded commitments with respect thereto);

 

(b)       such extension, refinancing or modification does not result in (i) the average weighted maturity (measured as of the extension, refinancing or modification) of the Indebtedness so extended, refinanced or modified being shorter than the shorter of (x) the remaining average weighted maturity of the Loans of each Class and (y) the remaining average weighted maturity of such Indebtedness prior to giving effect to such extension, refinancing or modification or (ii) the maturity date of the Indebtedness so extended, refinanced or modified being earlier than the earlier of (x) the Latest Maturity Date and (y) the maturity date of such Indebtedness prior to giving effect to such extension, refinancing or modification;

 

(c)        such extension, refinancing or modification is pursuant to terms (including terms relating to the payment of cash interest (which, in the case of any Permitted Refinancing Indebtedness in respect of any Indebtedness outstanding as of the Amendment Closing Date, cannot exceed the amount of cash interest payable on such Indebtedness as of the Amendment Closing Date)) that are not less favorable, when taken as a whole, to the Loan Parties and the Lenders than the terms of the Indebtedness being extended, refinanced or modified;

 

(d)         the Indebtedness that is extended, refinanced or modified is not recourse to any Loan Party or any of its Subsidiaries that is liable on account of the obligations other than those Persons which were obligated with respect to the Indebtedness that was refinanced, renewed, or extended;

 

(e)       if the Indebtedness that is extended, refinanced or modified is subordinated to the Obligations, then such extension, refinancing or modification shall also be subordinated to the Obligations on terms not less favorable in any material respect to the Lenders; and

 

(f)          such extension, refinancing or modification shall not be secured by any Lien on any asset other than the assets that secured such Indebtedness (or would have been required to secure such Indebtedness pursuant to the terms thereof).

 

“Permitted Restricted Payments” means any of the following Restricted Payments made by:

 

(a)          the Borrower or any of its Restricted Subsidiaries to Holdings, the Borrower or any of its Restricted Subsidiaries; provided that, if the Person making such Restricted Payment is a Loan Party, then the recipient of such Restricted Payment shall also be a Loan Party;

 

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(b)          Holdings to make Restricted Payments in the form of common Equity Interests;

 

(c)          [reserved];

 

(d)         Holdings to make cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchange for Equity Interests in Holdings;

 

(e)          Holdings to repurchase Equity Interests upon the exercise of stock options if such Equity Interests represent a portion of the exercise price of such stock options;

 

(f)        Detroit Newspaper Partnership, L.P., a Michigan limited partnership (the “Detroit Partnership”), to Detroit News, Inc., a Michigan corporation and a wholly owned subsidiary of Media News Group, Inc. (“Detroit News”), as required pursuant to the Amended and Restated Joint Operating Agreement dated as of August 3, 2005 (as amended as of February 6, 2009), by and between Detroit Free Press, Incorporated, a Michigan corporation, and Detroit News, as such agreement is in effect as of the Amendment Closing Date, and in an amount not to exceed $2,000,000 in any Fiscal Year;

 

(g)          Holdings to make Restricted Payments in an aggregate amount not in excess of, for any Fiscal Quarter, the RP/Investment Amount for such Fiscal Quarter (less the sum of (x) the aggregate amount of Investments outstanding (without giving effect to any write-off or write-down) that have been made pursuant to clause (q) of the definition of “Permitted Investment” during such Fiscal Quarter and (y) the aggregate principal amount of Junior Indebtedness that has been repaid pursuant to subclause (x) of Section 7.02(m)(ii)(A) during such Fiscal Quarter, in each case on or prior to the applicable date of determination); provided that at the time any such Restricted Payment is made pursuant to clause (g), no Event of Default shall have occurred and be continuing or would result therefrom; and

 

(h)         Holdings to repurchase the Notes pursuant to and in accordance with any Convertible Notes Exchange conducted on or prior to the Delayed Draw Term Loan Commitment Termination Date, the cash portion of which is funded with the proceeds of Delayed Draw Term Loans; provided that at the time any such repurchase is made pursuant to this clause (h), no Event of Default shall have occurred and be continuing or would result therefrom.

 

“Permitted Rights Agreement” means that certain Rights Agreement, to be dated on or around April 6, 2020 (as the same may be amended, restated, supplemented or otherwise modified in a manner that is not adverse to the interests of the Agents and the Lenders), entered into by Holdings and approved by the Board of Directors of Holdings, pursuant to or in accordance with which Holdings may issue, by dividend or otherwise, to the holders of its common stock purchase rights for the purchase of shares of common stock, preferred stock or other Equity Interests upon the occurrence of specified events, which stockholder rights agreement contains customary terms and conditions (including the right of Holdings to redeem such purchase rights for nominal consideration) for stockholders rights agreements of this type, together with all agreements, filings and other documentation customarily entered into or delivered in connection with such a rights agreement.

 

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“Permitted Specified Liens” means Permitted Liens described in clauses (a), (b), (c), (e) and (w) of the definition of “Permitted Liens”, and, solely in the case of Section 7.01(b)(i), including clauses (g), (h) and (i) of the definition of “Permitted Liens”.

 

“Permitted Tax Distribution” means, for any taxable period ending after the Amendment Closing Date during which (i) the Borrower and its Restricted Subsidiaries are part of a consolidated, combined, unitary or similar group for U.S. federal and/or applicable, state, local or foreign Tax purposes (a “Consolidated Group”) or (ii) the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a Person that is a member of a Consolidated Group, distributions to discharge the income Tax liabilities of such Consolidated Group, when and as due, in an amount not to exceed the amount that the Borrower would be required to pay in respect of income Taxes for such taxable period if the Borrower were the parent of a separate Consolidated Group consisting of the Borrower and its Restricted Subsidiaries that are (or are disregarded entities wholly owned by) members of such Consolidated Group (computed at the highest marginal tax rate applicable to a corporation residing in New York, New York and in effect for such taxable period, and taking into account the character and type of income earned and any actual carryovers and carrybacks of Tax attributes (such as net operating losses) of the Borrower and such Restricted Subsidiaries from other taxable years).

 

“Person” means an individual, corporation, limited liability company, partnership, association, joint-stock company, trust, unincorporated organization, joint venture or other enterprise or entity or Governmental Authority.

 

“Plan” means any Employee Plan or Multiemployer Plan.

 

“Platform” means Debt Domain, Intralinks, Syndtrak, DebtX or a substantially similar electronic transmission system.

 

“Prime Rate” means the per annum rate of interest last quoted by The Wall Street Journal as the “prime rate” in the United States or, if The Wall Street Journal ceases to quote such rate, the highest per annum rate of interest published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent).  Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.

 

“Pro Rata Share” means, with respect to a Lender’s obligation to make a Loan and the right to receive payments of interest, fees, and principal with respect thereto, the percentage obtained by dividing (i) such Lender’s Commitment of the applicable Class, by (ii) the aggregate Commitments of such Class; provided that if the aggregate Commitments of the applicable Class have been reduced to zero, the numerator shall be the aggregate unpaid principal amount of such Lender’s portion of the Loans of such Class and the denominator shall be the aggregate unpaid principal amount of the Loans of such Class held by all Lenders.

 

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“PTE” means a prohibited transaction class exemption issued by the United States Department of Labor, as any such exemption may be amended from time to time.

 

“Public Lender” has the meaning specified therefor in Section 12.01(e).

 

“QFC Credit Support” has the meaning specified therefor in Section 12.26.

 

“Qualified Cash” means, as of any date of determination, the aggregate amount of unrestricted cash on-hand of (x) the Loan Parties maintained in deposit accounts in the name of a Loan Party in the United States as of such date, which deposit accounts are, on and after the date that is 90 days after the Amendment Closing Date (unless a later date is otherwise agreed to by the Collateral Agent), subject to Control Agreements, and (y) the Excluded Subsidiaries referenced in clause (d) of the definition thereof.

 

“Qualified Equity Interests” means, with respect to any Person, all Equity Interests of such Person that are not Disqualified Equity Interests.

 

“Real Property Deliverables” means each of the following agreements, instruments and other documents in respect of each Mortgaged Property:

 

(a)         a Mortgage duly executed by the applicable Loan Party, in form and substance reasonably acceptable to the Collateral Agent and suitable for recording or filing, together with such other documents and instruments, payments of recording charges and/or taxes necessary to cause the same to be recorded in the real property records,

 

(b)         evidence of the recording of each Mortgage in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the Lien purported to be created thereby or to otherwise protect the rights of the Collateral Agent and the Lenders thereunder;

 

(c)          a Title Insurance Policy with respect to each Mortgage;

 

(d)         a current ALTA survey and a surveyor’s certificate, in form and substance satisfactory to the Collateral Agent, certified to the Collateral Agent and to the issuer of the Title Insurance Policy with respect thereto by a professional surveyor licensed in the state in which such Mortgaged Property is located and satisfactory to Collateral Agent; provided, however, that, with respect to any Mortgaged Property, Holdings and its Subsidiaries shall not be required to satisfy the requirements of this clause (d) if the Title Insurance Policy for the applicable Mortgage does not include a general exception concerning matters a survey would show based on an existing survey together with an affidavit of no change;

 

(e)          an opinion of counsel, reasonably satisfactory to the Collateral Agent, in the state where such Mortgaged Property is located with respect to the enforceability of the Mortgage to be recorded and such other reasonable and customary matters as the Collateral Agent may reasonably request;

 

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(f)         if requested by the Collateral Agent, a reasonably satisfactory ASTM 1527-13 Phase I Environmental Site Assessment of each Mortgaged Property, in form and substance and by an independent firm reasonably satisfactory to Collateral Agent;

 

(g)        if required by the Flood Laws, no later than three (3) Business Days prior to the delivery of the Mortgage, the following documents and instruments, in order to comply with the National Flood Insurance Reform Act of 1994 and related legislation (including the regulations of the Board of Governors of the Federal Reserve System): (1) a complete standard flood hazard determination form, (2) if any portion of the improvements on any Mortgaged Property is located in a special flood hazard area, a notification to the Borrower (“Borrower Notice”) and, if applicable, notification to the Borrower that flood insurance coverage under the National Flood Insurance Program (“NFIP”) is not available because the community does not participate in NFIP, (3) documentation evidencing the Borrower’s receipt of the Borrower Notice and (4) if the Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of the flood insurance policy, the Borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance reasonably satisfactory to the Collateral Agent; and

 

(h)        such other agreements, instruments and other documents (including guarantees and opinions of counsel) as the Collateral Agent may reasonably require.

 

“Recipient” means any Agent and any Lender, as applicable.

 

“Reference Rate” means, for any period, the greater of (i) the Federal Funds Rate plus 0.50% per annum, and (ii) the rate last quoted by The Wall Street Journal as the “Prime Rate” in the United States or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent).  Each change in the Reference Rate shall be effective from and including the date such change is publicly announced as being effective.

 

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“Refinancing Facilities” means, collectively, (i) any secured or unsecured term loans incurred by the Borrower (such loans, “Refinancing Term Loans”) or (ii) any secured or unsecured notes or loans issued by the Borrower (whether under an indenture, a credit agreement or otherwise) (such loans or notes, the “Refinancing Notes”) and, in each case, the Indebtedness represented thereby; provided, that (a) 100% of the Net Cash Proceeds of such Refinancing Term Loans or Refinancing Notes are used to permanently reduce Loans of the applicable Class on a dollar-for-dollar basis substantially simultaneously with the incurrence or issuance thereof; (b) the principal amount (or accreted value, if applicable) of such Refinancing Term Loans or Refinancing Notes does not exceed the principal amount (or accreted value, if applicable) of the aggregate principal amount of the Loans so reduced plus any fees, premiums, original issue discount and accrued interest associated therewith, and costs and expenses related thereto; (c) the final maturity date of such Refinancing Term Loans or Refinancing Notes is on or after the Final Maturity Date of the Loans of the applicable Class; (d) the Weighted Average Life to Maturity of such Refinancing Term Loans or Refinancing Notes is no shorter than the remaining Weighted Average Life to Maturity of the Loans so reduced; (e) the terms of such Refinancing Term Loans or Refinancing Notes do not require any mandatory prepayments or mandatory redemptions, pursuant to a sinking fund obligation or otherwise, prior to the Latest Maturity Date (except as a result of (i) the payment in full of the Obligations (other than Contingent Indemnity Obligations) and (ii) a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations (other than Contingent Indemnity Obligations) and the termination of the Commitments); (f) the other terms of such Refinancing Term Loans or Refinancing Notes, taken as a whole, are substantially similar to, or not materially less favorable to (i) the Borrower and its Subsidiaries or (ii) the Lenders, in each case, than the terms, taken as a whole, applicable to the Loans (other than any such less favorable terms that are (1) applicable only after the Latest Maturity Date or (2) added for the benefit of the existing Loans at the time of the applicable refinancing); (g) (1) there shall be no obligor in respect of such Refinancing Term Loans or Refinancing Notes that is not a Loan Party and (2) such Refinancing Term Loans or Refinancing Notes may not be issued or guaranteed by any Subsidiary that is not an obligor of the Indebtedness being refinanced (it being understood that the roles of such obligors as a borrower or a guarantor with respect to such obligations may be interchanged); (h) (1) there shall be no asset or property that secures such Refinancing Term Loans or Refinancing Notes that is not Collateral and (2) such Refinancing Term Loans or Refinancing Notes shall only be secured by a security interest in the Collateral that secured the Indebtedness being refinanced, except to the extent otherwise secured by a Permitted Lien; and (i) Refinancing Term Loans or Refinancing Notes that are secured by Collateral shall be subject to the provisions of a Permitted Pari Passu Intercreditor Agreement or a Permitted Junior Intercreditor Agreement, as applicable.

 

“Register” has the meaning specified therefor in Section 12.07(f).

 

“Registered Intellectual Property” means Intellectual Property that is issued, registered, renewed or the subject of a pending application with the U.S. Patent and Trademark Office or the U.S. Copyright Office, or any equivalent office or agency in any other country throughout the world.

 

“Registration Rights Agreements” means the Registration Rights Agreement, dated and effective as of the Closing Date, between Holdings and FIG LLC, as in effect on the Closing Date.

 

“Regulation T”, “Regulation U” and “Regulation X” mean, respectively, Regulations T, U and X of the Board or any successor, as the same may be amended or supplemented from time to time.

 

“Related Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in commercial loans and similar extensions of credit in the ordinary course of its activities and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

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“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, trustees, agents and advisors of such Person and such Person’s Affiliates.

 

“Relevant Governmental Body” has the meaning specified therefor in Section 2.08.

 

“Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, seeping, migrating, dumping or disposing of any Hazardous Material (including the abandonment or discarding of barrels, containers and other closed receptacles containing any Hazardous Material) into the indoor or outdoor environment, including the movement of Hazardous Materials through or in the ambient air, soil, surface or ground water, or property.

 

“Remedial Action” means all actions taken to (a) clean up, remove, remediate, contain, treat, monitor, assess, evaluate or in any other way address Hazardous Materials in the indoor or outdoor environment; (b) prevent or minimize a Release or threatened Release of Hazardous Materials so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment; (c) perform pre-remedial studies and investigations and post-remedial operation and maintenance activities; or (d) perform any other actions authorized by 42 U.S.C. § 9601.

 

“Replacement Lender” has the meaning specified therefor in Section 12.02(b).

 

“Reportable Event” means an event described in Section 4043 of ERISA (other than an event not subject to the provision for 30-day notice to the PBGC under the regulations promulgated under such Section).

 

“Required Lenders” means Lenders whose Pro Rata Shares of the Loans and Commitments of all Classes aggregate at least a majority by dollar amount of such Loans and Commitments.

 

“Requirements of Law” means, with respect to any Person, collectively, the common law and all Federal, state, provincial, local, foreign, multinational or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs, injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and other determinations, directives, requirements or requests of, any Governmental Authority, in each case that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

 

“Resignation Effective Date” has the meaning specified therefor in Section 10.07(a).

 

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

 

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“Responsible Officer” means, when used with respect to the Agent, any officer within the department of the Administrative Agent or Collateral Agent, as applicable, administering this matter, including any vice president, assistant vice president, senior associate, assistant secretary, assistant treasurer, trust officer or any other officer of the Agent who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any such matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Agreement.

 

“Restricted Payment” means (a) the declaration or payment of any dividend or other distribution, direct or indirect, on account of any Equity Interests of any Loan Party or any of its Restricted Subsidiaries, now or hereafter outstanding, (b) the making of any repurchase, redemption, retirement, defeasance, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Equity Interests of any Loan Party or any direct or indirect parent of any Loan Party, now or hereafter outstanding or (c) the making of any payment to retire, or to obtain the surrender of, any outstanding warrants, options or other rights for the purchase or acquisition of shares of any class of Equity Interests of any Loan Party, now or hereafter outstanding.

 

“Restricted Subsidiary” means each Subsidiary other than an Unrestricted Subsidiary.

 

“RP/Investment Amount” means, for any Fiscal Quarter, (a) if the First Lien Net Leverage Ratio, recomputed on a pro forma basis as of the last day of the immediately preceding Fiscal Quarter, is less than or equal to 2.0 to 1.0 but greater than 1.5 to 1.0, $25,000,000; (b) if the First Lien Net Leverage Ratio, recomputed on a pro forma basis as of the last day of the immediately preceding Fiscal Quarter, is less than or equal to 1.5 to 1.0 but greater than 1.0 to 1.0, $50,000,000; and (c) if the First Lien Net Leverage Ratio, recomputed on a pro forma basis as of the last day of the immediately preceding Fiscal Quarter, is less than or equal to 1.0 to 1.0, an unlimited amount.

 

“Sale and Leaseback Transaction” means, with respect to Holdings, the Borrower or any of its Restricted Subsidiaries, any arrangement, directly or indirectly, with any Person whereby Holdings, the Borrower or any of its Restricted Subsidiaries shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property (or any portion thereof) or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred.

 

“Sanctioned Country” has the meaning specified in the definition of “Blocked Person”.

 

“Sanctions Programs” means any of the sanctions programs and related Requirements of Law administered by (a) the U.S. government, including those administered by the Treasury Department’s Office of Foreign Assets Control or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, the Government of Canada or Her Majesty’s Treasury of the United Kingdom, in each case, as renewed, extended, amended, or replaced.

 

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“SEC” means the Securities and Exchange Commission or any other similar or successor agency of the Federal government administering the Securities Act.

 

“Secured Net Leverage Ratio” means, with respect to any Person for any period, the ratio of (a) Total Indebtedness of such Person and its Restricted Subsidiaries on a consolidated basis outstanding as of the end of such period (excluding any Indebtedness to the extent unsecured), minus Unrestricted Cash of such Person and its Restricted Subsidiaries to (b) Consolidated EBITDA of such Person and its Restricted Subsidiaries for the period of four consecutive Fiscal Quarters then last ended for which financial statements have been (or were required to be) delivered pursuant to Section 7.01(a)(ii) or Section 7.01(a)(iii), as applicable.  Unless otherwise specified, references to the “Secured Net Leverage Ratio” herein shall mean the Secured Net Leverage Ratio of Holdings, the Borrower and their respective Restricted Subsidiaries.

 

“Secured Party” means any Agent and any Lender.

 

“Securities Act” means the Securities Act of 1933, as amended, or any similar Federal statute, and the rules and regulations of the SEC thereunder, all as the same shall be in effect from time to time.

 

“Securitization” has the meaning specified therefor in Section 12.07(l).

 

“Security Agreement” means the Pledge and Security Agreement dated as of the Closing Date made by the Loan Parties in favor of the Collateral Agent for the benefit of the Secured Parties securing the Obligations.

 

“Security Documents” means, collectively, the Security Agreement, the Mortgages and each other security agreement or other instrument or document executed and delivered pursuant to any of the foregoing or pursuant to Section 7.01(b), Section 7.01(n) or Section 7.01(q) to secure any of the Obligations.

 

“Seller” means any Person that sells Equity Interests or other property or assets to a Loan Party or a Restricted Subsidiary of a Loan Party in a Permitted Acquisition.

 

“Senior Secured Notes” means up to $400,000,000 in aggregate principal amount of the Borrower’s 6.000% Senior Secured Notes due 2026 issued pursuant to the Senior Secured Notes Indenture.

 

“Senior Secured Notes Exchange Offer” means the exchange offer and consent solicitation made by Holdings to each holder of the issued and outstanding Senior Secured Notes to exchange Senior Secured Notes for, at the election of the applicable holder of Senior Secured Notes, cash or Term Loans hereunder, pursuant to the Offer to Exchange and Consent Solicitation Statement dated September 26, 2024.

 

“Senior Secured Notes Indenture” means the Indenture, dated October 15, 2021, among the Borrower, as issuer, the guarantors party thereto from time to time and U.S. Bank Trust Company, National Association (formerly U.S. Bank National Association), as trustee, as amended, restated, supplemented or otherwise modified from time to time.

 

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“Senior Secured Notes Redemption Amount” means the aggregate principal amount of Senior Secured Notes that have been repurchased, redeemed, defeased or discharged with the Net Cash Proceeds of Dispositions, Sale and Leaseback Transactions or Extraordinary Receipts pursuant to Sections 2.05(c)(ii) and (iv).

 

“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 “Alternate Base Rate”.

 

“Solvent” means, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is not less than the total amount of the liabilities of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its existing debts as they become absolute and matured, (c) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature, and (e) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute unreasonably small capital.

 

“Specified Transaction” means, with respect to any period, any investment, sale, transfer or other Disposition of assets, incurrence or repayment of Indebtedness, Restricted Payment, subsidiary designation, Investment or other event that by the terms of the Loan Documents requires pro forma compliance with a test or covenant hereunder or requires such test or covenant to be calculated on a pro forma basis.

 

“Standard & Poor’s” means S&P Global Ratings, a segment of S&P Global Inc., and any successor to its rating agency business.

 

“Stock Repurchases” means any repurchases by Holdings of its common stock pursuant to share repurchase programs approved by the board of directors of Holdings in open market transactions, including plans pursuant to Rule 10b5-1 under the Exchange Act and including repurchases via tender offers, accelerated stock buyback transactions, derivatives, other structured stock buyback transactions and privately negotiated transactions.

 

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“Subsidiary” means, with respect to any Person at any date, any corporation, limited or general partnership, limited liability company, trust, estate, association, joint venture or other business entity (a) the accounts of which would be consolidated with those of such Person in such Person’s consolidated financial statements if such financial statements were prepared in accordance with GAAP or (b) of which more than 50% of (i) the outstanding Equity Interests having (in the absence of contingencies) ordinary voting power to elect a majority of the Board of Directors of such Person, (ii) in the case of a partnership or limited liability company, the interest in the capital or profits of such partnership or limited liability company or (iii) in the case of a trust, estate, association, joint venture or other entity, the beneficial interest in such trust, estate, association or other entity business is, at the time of determination, owned or controlled directly or indirectly through one or more intermediaries, by such Person.  References to a Subsidiary shall mean a Subsidiary of Holdings unless the context expressly provides otherwise.

 

“Supported QFC” has the meaning specified therefor in Section 12.26.

 

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

“Termination Event” means (a) a Reportable Event with respect to any Employee Plan, (b) any event that causes any Loan Party or any of its ERISA Affiliates to incur liability under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 4971 or 4975 of the Internal Revenue Code, (c) the filing of a notice of intent to terminate an Employee Plan or the treatment of an Employee Plan amendment as a termination under Section 4041 of ERISA, (d) the institution of proceedings by the PBGC to terminate an Employee Plan, or (e) any other event or condition that would reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Employee Plan.

 

“Term Loan” means, collectively, (i) the Initial Term Loan and (ii) the Delayed Draw Term Loans.  It is understood and agreed that all Delayed Draw Term Loans funded (or deemed funded) by the Term Loan Lenders to the Borrower on or after the Amendment Closing Date shall, from and after the date on which such Delayed Draw Term Loans are funded (or deemed funded), be “Term Loans” of the same Class as the Initial Term Loan for all purposes of this Agreement.

 

“Term Loan Commitment” means, collectively, with respect to each Lender, such Lender’s (i) Initial Term Loan Commitment and (ii) Delayed Draw Term Loan Commitment.

 

“Term Loan Increase” has the meaning specified therefor in Section 2.13(a).

 

“Term Loan Lender” means a Lender with a Term Loan Commitment or a Term Loan.

 

“Term SOFR” means,

 

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(a)         for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period for such SOFR Loan on the day (such day, the “Periodic Term SOFR Determination Day”) that is two 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. on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date 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 U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and

 

(b)         for any calculation with respect to an ABR Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “ABR Term SOFR Determination Day”) that is two 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. on any ABR Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date 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 U.S. Government Securities Business Days prior to such ABR SOFR Determination Day.

 

“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.

 

“Title Insurance Policy” means a mortgagee’s loan policy, in form and substance reasonably satisfactory to the Collateral Agent, together with all endorsements made from time to time thereto, issued to the Collateral Agent by or on behalf of a title insurance company selected by or otherwise reasonably satisfactory to the Collateral Agent, insuring the Lien created by a Mortgage in an amount no greater than one hundred twenty (120%) percent of the fair market value of such property (as reasonably estimated by the Borrower) and with such endorsements reasonably satisfactory to the Collateral Agent (other than a zoning 3.1 endorsement).

 

“Total Delayed Draw Term Loan Commitment” means the sum of the amounts of the Lenders’ Delayed Draw Term Loan Commitments.  As of the Amendment Closing Date, the Total Delayed Draw Term Loan Commitment is $49,572,000.

 

“Total Indebtedness” means, with respect to any Person, all Indebtedness of such Person and its Restricted Subsidiaries for (i) borrowed money (including any purchase money debt), (ii) Capitalized Lease Obligations, (iii) unreimbursed obligations in respect of drawn letters of credit (to the extent not cash collateralized) and (iv) debt obligations evidenced by promissory notes, bonds, debentures, loan agreements or similar instruments (excluding any Indebtedness listed on Schedule 7.02(b) (other than any Permitted Refinancing Indebtedness in respect thereof)).

 

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“Total Net Leverage Ratio” means, with respect to any Person for any period, the ratio of (a) Total Indebtedness of such Person and its Restricted Subsidiaries on a consolidated basis outstanding as of the end of such period, minus Unrestricted Cash of such Person and its Restricted Subsidiaries to (b) Consolidated EBITDA of such Person and its Restricted Subsidiaries for the period of four consecutive Fiscal Quarters then last ended for which financial statements have been (or were required to be) delivered pursuant to Section 7.01(a)(ii) or Section 7.01(a)(iii), as applicable.  Unless otherwise specified, references to the “Total Net Leverage Ratio” herein shall mean the Total Net Leverage Ratio of Holdings, the Borrower and their respective Restricted Subsidiaries.

 

“Total Initial Term Loan Commitment” means the sum of the amounts of the Lenders’ Initial Term Loan Commitments.  As of the Amendment Closing Date, the Total Initial Term Loan Commitment is $850,428,000.

 

“Transactions” means, collectively, (i) the execution, delivery and performance of the Loan Documents, (ii) the consummation of the Payoff, (iii) the consummation of the Senior Notes Exchange Offer, (iv) the consummation of the Convertible Notes Exchange and (v) the payment of all fees and expenses to be paid and owing in connection with the foregoing.

 

“Transformative Acquisition” means any Acquisition by Holdings, the Borrower or any of its Restricted Subsidiaries that is either (a) not permitted by the terms of this Agreement immediately prior to the consummation of such Acquisition or (b) if permitted by the terms of this Agreement immediately prior to the consummation of such Acquisition, would not provide Holdings, the Borrower and its Restricted Subsidiaries with adequate flexibility under the Loan Documents for the continuation and/or expansion of their combined operations following such consummation, as reasonably determined by the Borrower acting in good faith.

 

“Transformative Disposition” means any Disposition by Holdings, the Borrower or any of its Restricted Subsidiaries that is either (a) not permitted by the terms of this Agreement immediately prior to the consummation of such Disposition or (b) if permitted by the terms of this Agreement immediately prior to the consummation of such Disposition, would not provide Holdings, the Borrower and its Restricted Subsidiaries with a durable capital structure following such consummation, as reasonably determined by the Borrower acting in good faith.

 

“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to Adjusted Term SOFR or the Alternate Base Rate.

 

“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

 

“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

 

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“Unadjusted Benchmark Replacement” has the meaning specified therefor in Section 2.08.

 

“Uniform Commercial Code” or “UCC” has the meaning specified therefor in Section 1.05.

 

“Unrestricted Cash” means, with respect to any Person as at any date of determination, all cash and Cash Equivalents of such Person and its Restricted Subsidiaries other than cash and Cash Equivalents that would be designated as restricted on the consolidated balance sheet of such Person and its Restricted Subsidiaries prepared in accordance with GAAP.

 

“Unrestricted Subsidiary” means (a) any Subsidiary that is designated as an Unrestricted Subsidiary by the Borrower pursuant to Article VIII subsequent to the Amendment Closing Date and (b) any Subsidiary of an Unrestricted Subsidiary.

 

“Unrestricted Subsidiary Reconciliation Statement” means, with respect to any consolidated balance sheet or statement of operations and retained earnings and or statement of cash flows of Holdings and its consolidated Subsidiaries, such financial statement (in substantially the same form) prepared on the basis of consolidating the accounts of Holdings, the Borrower and the Restricted Subsidiaries and treating Unrestricted Subsidiaries as if they were not consolidated with Holdings and otherwise eliminating all accounts of Unrestricted Subsidiaries, together with an explanation of reconciliation adjustments in reasonable detail.

 

“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.

 

“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Code.

 

“U.S. Special Resolution Regimes” has the meaning specified therefor in Section 12.26.

 

“U.S. Tax Compliance Certificate” has the meaning specified therefor in Section 2.09(d)(ii)(B)(3).

 

“USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001 (Title III of Pub. L. 107-56, Oct. 26, 2001) as amended by the USA Patriot Improvement and Reauthorization Act of 2005 (Pub. L. 109-177, March 9, 2006) and as the same may have been or may be further renewed, extended, amended, or replaced.

 

“WARN” has the meaning specified therefor in Section 6.01(p).

 

“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.

 

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“Withholding Agent” means any Loan Party, the Administrative Agent and any other applicable withholding agent.

 

“Working Capital” means, at any date of determination thereof, (a) the sum, for any Person and its Restricted Subsidiaries, of (i) the unpaid face amount of all Accounts of such Person and its Restricted Subsidiaries as at such date of determination, plus (ii) the aggregate amount of prepaid expenses and other current assets of such Person and its Restricted Subsidiaries as at such date of determination (other than cash, Cash Equivalents and any Indebtedness owing to such Person or any of its Restricted Subsidiaries by Affiliates of such Person), minus (b) the sum, for such Person and its Restricted Subsidiaries, of (i) the unpaid amount of all accounts payable of such Person and its Restricted Subsidiaries as at such date of determination, plus (ii) the aggregate amount of all accrued expenses of such Person and its Restricted Subsidiaries as at such date of determination (other than the current portion of long-term debt and lease liabilities and all accrued interest and taxes).

 

“Write-Down and Conversion Powers” means (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that Person or any other Person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

 

Section 1.02         Terms Generally.  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have the same meaning and effect as the word “shall”.  Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any right or interest in or to assets and properties of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.

 

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Section 1.03          Certain Matters of Construction.  A Default or Event of Default shall be deemed to exist at all times during the period commencing on the date that such Default or Event of Default occurs to the date on which such Default or Event of Default is waived in writing pursuant to this Agreement or, in the case of a Default, is cured within any period of cure expressly provided for in this Agreement; and an Event of Default shall “continue” or be “continuing” until such Event of Default has been waived in writing by the Required Lenders.  Any Lien referred to in this Agreement or any other Loan Document as having been created in favor of any Agent, any agreement entered into by any Agent pursuant to this Agreement or any other Loan Document, any payment made by or to or funds received by any Agent pursuant to or as contemplated by this Agreement or any other Loan Document, or any act taken or omitted to be taken by any Agent, shall, unless otherwise expressly provided, be created, entered into, made or received, or taken or omitted, for the benefit or account of the Agents and the Lenders. Wherever the phrase “to the knowledge of any Loan Party” or words of similar import relating to the knowledge or the awareness of any Loan Party are used in this Agreement or any other Loan Document, such phrase shall mean and refer to (i) the actual knowledge of a senior officer of any Loan Party or (ii) the knowledge that a senior officer would have obtained if such officer had engaged in good faith and diligent performance of such officer’s duties, including the making of such reasonably specific inquiries as may be necessary of the employees or agents of such Loan Party and a good faith attempt to ascertain the existence or accuracy of the matter to which such phrase relates.  All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or otherwise within the limitations of, another covenant shall not avoid the occurrence of a default if such action is taken or condition exists.  In addition, all representations and warranties hereunder shall be given independent effect so that if a particular representation or warranty proves to be incorrect or is breached, the fact that another representation or warranty concerning the same or similar subject matter is correct or is not breached will not affect the incorrectness of a breach of a representation or warranty hereunder.

 

Section 1.04         Pro Forma Calculations.

 

(a)         Notwithstanding anything to the contrary contained herein, financial ratios and tests (including the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio and the Total Net Leverage Ratio) pursuant to this Agreement shall be calculated in the manner prescribed by this Section 1.04.

 

(b)        In the event that the Borrower or any of its Restricted Subsidiaries redeems, repays, retires or extinguishes any Indebtedness (other than Indebtedness repaid under any revolving credit facility unless such Indebtedness has been permanently repaid and has not been replaced) subsequent to the end of the applicable period for which such financial ratio or test is being calculated but prior to or simultaneously with the event for which such calculation is being made, then such financial ratio or test shall be calculated giving pro forma effect to such redemption, repayment, retirement or extinguishment of Indebtedness, as if the same had occurred on the last day of the applicable period.

 

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(c)         With respect to any period during which any Permitted Acquisition or any Disposition of material assets outside the ordinary course of business occurs, financial ratios and tests (including the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio and the Total Net Leverage Ratio) pursuant to this Agreement shall be calculated giving pro forma effect to such Permitted Acquisition or Disposition, as if the same had occurred on the first day of the applicable period.

 

Section 1.05          Accounting and Other Terms.

 

(a)         Unless otherwise expressly provided herein, each accounting term used herein shall have the meaning given it under GAAP.  For purposes of determining compliance with any incurrence or expenditure tests set forth in Section 7.01 and Section 7.02, any amounts so incurred or expended (to the extent incurred or expended in a currency other than Dollars) shall be converted into Dollars on the basis of the exchange rates (as shown on the Bloomberg currency page for such currency or, if the same does not provide such exchange rate, by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by the Administrative Agent or, in the event no such service is selected, on such other basis as is reasonably satisfactory to the Administrative Agent (acting at the written direction of the Required Lenders) as in effect on the date of such incurrence or expenditure under any provision of any such Section that has an aggregate Dollar limitation provided for therein (and to the extent the respective incurrence or expenditure test regulates the aggregate amount outstanding at any time and it is expressed in terms of Dollars, all outstanding amounts originally incurred or spent in currencies other than Dollars shall be converted into Dollars on the basis of the exchange rates (as shown on the Bloomberg currency page for such currency or, if the same does not provide such exchange rate, by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by the Administrative Agent or, in the event no such service is selected, on such other basis as is reasonably satisfactory to the Administrative Agent (acting at the written direction of the Required Lenders)) as in effect on the date of any new incurrence or expenditures made under any provision of any such Section that regulates the Dollar amount outstanding at any time).  Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of Holdings and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.  Notwithstanding anything to the contrary contained in this Section 1.05(a) or in the definitions of “Capitalized Lease” or “Capitalized Lease Obligations”, any change in accounting for leases pursuant to GAAP resulting from the adoption of Financial Accounting Standards Board Accounting Standards Update No. 2016-02 , Leases (Topic 842) (“FAS 842”), to the extent such adoption would require treating any lease (or similar arrangement conveying the right to use) as a Capitalized Lease where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in effect on December 31, 2015, shall not result in such lease being considered a Capitalized Lease, and all calculations and deliverables under this Agreement or any other Loan Document shall be made or delivered, as applicable, in accordance therewith.

 

(b)           All terms used in this Agreement which are defined in Article 4, Article 8 or Article 9 of the Uniform Commercial Code as in effect from time to time in the State of New York (the “Uniform Commercial Code” or the “UCC”) and which are not otherwise defined herein shall have the same meanings herein as set forth therein, provided that terms used herein which are defined in the Uniform Commercial Code as in effect in the State of New York on the Amendment Closing Date shall continue to have the same meaning notwithstanding any replacement or amendment of such statute except as any Agent may otherwise determine.

 

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Section 1.06          Time References.  Unless otherwise indicated herein, all references to time of day refer to Eastern Standard Time or Eastern daylight saving time, as in effect in New York City on such day.  For purposes of the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”; provided, however, that with respect to a computation of fees or interest payable to any Secured Party, such period shall in any event consist of at least one full day.

 

Section 1.07       Limited Conditions Transaction.  Notwithstanding anything in this Agreement or any Loan Document to the contrary, when calculating any applicable ratio, the amount or availability of any basket based on Consolidated EBITDA or Consolidated Net Income, or determining other compliance with this Agreement (including the determination of compliance with any provision of this Agreement which requires that no Default or Event of Default has occurred, is continuing or would result therefrom) in connection with a Specified Transaction undertaken in connection with the consummation of a Limited Conditions Transaction, the date of determination of such ratio, the amount or availability of any basket based on Consolidated EBITDA or Consolidated Net Income, and determination of whether any Default or Event of Default has occurred, is continuing or would result therefrom, shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Conditions Transaction, an “LCT Election”), be deemed to be the date the definitive agreements for such Limited Conditions Transaction are entered into (the “LCT Test Date”) and if, after such ratios and other provisions are measured on a pro forma basis after giving effect to such Limited Conditions Transaction and the other Specified Transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they occurred at the beginning of the applicable test period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios and provisions, then such provisions shall be deemed to have been complied with.  For the avoidance of doubt, (x) if any of such ratios or other provisions are exceeded (or, in the case of the financial covenant in Section 7.03, is not reached) as a result of fluctuations in such ratio or other provision (including due to fluctuations in Consolidated EBITDA of the Borrower and the Restricted Subsidiaries) at or prior to the consummation of the relevant Limited Conditions Transaction, such ratios and other provisions will not be deemed to have been exceeded (or, in the case of the financial covenant in Section 7.03, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Conditions Transaction is permitted hereunder and (y) such ratios and other provisions shall not be tested at the time of consummation of such Limited Conditions Transaction or related Specified Transactions.  If the Borrower has made an LCT Election for any Limited Conditions Transaction, then in connection with any subsequent calculation of any ratio or basket availability with respect to any other Specified Transaction on or following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Conditions Transaction is consummated or the date that the definitive agreement for such Limited Conditions Transaction is terminated or expires without consummation of such Limited Conditions Transaction, any such ratio or basket shall be tested by calculating the availability under such ratio or basket on a pro forma basis assuming such Limited Conditions Transaction and the other Specified Transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated; provided that any Consolidated EBITDA and Consolidated Net Income attributable to the target of such Limited Conditions Transaction can only be used in the determination of the relevant ratios and baskets if and when such Limited Conditions Transaction has closed.

 

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Section 1.08          Cashless Rolls.

 

          Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document, any Lender may exchange, continue or roll over all or a portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative Agent and such Lender.

 

Section 1.09          Rates.

 

The Administrative Agent does not warrant or accept responsibility for, and shall not have any liability with respect to, (a) the continuation of, administration of, submission of, calculation of or any other matter related to ABR, the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, ABR, the Term SOFR Reference Rate,  Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes.  The Administrative Agent and its affiliates or other related entities may engage in transactions that affect the calculation of ABR, the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower.  The Administrative Agent may select information sources or services in its reasonable discretion to ascertain ABR, the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

 

ARTICLE II

 

THE LOANS

 

Section 2.01         Commitments; Loans.  (a)  Subject to the terms and conditions set forth in Section 4 of the Amendment and Restatement Agreement, each Term Loan Lender funded (or was deemed to have funded) to the Borrower its portion of the Initial Term Loan on the Amendment Closing Date.

 

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(b)          At any time after the Amendment Closing Date and from time to time during the Delayed Draw Term Loan Commitment Period, subject to the terms and conditions set forth in Section 5.01, each Lender with a Delayed Draw Term Loan Commitment severally agrees to make Delayed Draw Term Loans to the Borrower on each applicable Delayed Draw Term Loan Closing Date in an aggregate principal amount not to exceed the amount of such Lender’s Delayed Draw Term Loan Commitment immediately prior to giving effect to such Borrowing.

 

(c)          Subject to the terms and conditions set forth in Section 5.01, each holder of Senior Secured Notes on the Amendment Closing Date that validly elects to exchange, after the Amendment Closing Date, all or a portion of its Senior Secured Notes for Delayed Draw Term Loans pursuant to and in accordance with the Senior Secured Notes Exchange Offer (each, an “Exchanging Note Holder”) shall exchange its Senior Secured Notes (through a Borrowing of additional Delayed Draw Term Loans deemed made by cashless roll (each, a “Exchanged Delayed Draw Term Loan”) as a Lender under this Agreement (a “Joining Lender”)) on the applicable effective date of such exchange (which date, for purposes hereof, shall be a Delayed Draw Term Loan Closing Date), for a Delayed Draw Term Loan in an aggregate principal amount equal to $950 for each $1,000 of principal amount of the Senior Secured Notes of such Exchanging Note Holder that are so exchanged (each such exchange, a “Delayed Draw Exchange”).  The aggregate principal amount of the Total Delayed Draw Term Loan Commitments shall be reduced on a dollar-for-dollar basis by an amount equal to the aggregate principal amount of each Exchanged Delayed Draw Term Loan in each Delayed Draw Exchange, with such reduction to be allocated ratably to each Delayed Draw Term Loan Lender’s Delayed Draw Term Loan Commitment.  An Exchanging Note Holder shall become a Joining Lender hereunder on the relevant Delayed Draw Term Loan Closing Date by (i) its execution and delivery to the Administrative Agent and the Borrower of a joinder substantially in the form of Exhibit G hereto (a “Joining Lender Joinder”) and (ii) the Borrower paying all accrued and unpaid interest owing to such Exchanging Note Holder under the Senior Secured Notes Indenture at such time in accordance with the terms of the Senior Secured Notes Indenture and the Senior Secured Notes Exchange Offer in respect of the Senior Secured Notes that are exchanged into Exchanged Delayed Draw Term Loans in cash on the applicable Delayed Draw Term Loan Closing Date; provided, that the Delayed Draw Exchange shall occur at the time each of the foregoing conditions in (i) and (ii) is satisfied.

 

(d)          Upon the funding of, or consummation of any Delayed Draw Exchange in respect of, any Delayed Draw Term Loan (including, for the avoidance of doubt, any Exchanged Delayed Draw Term Loans) on any Delayed Draw Term Loan Closing Date, such Delayed Draw Term Loan (including, for the avoidance of doubt, any Exchanged Delayed Draw Term Loans) shall be automatically allocated, on a ratable basis, to each Borrowing in respect of the Initial Term Loan outstanding on that Delayed Draw Term Loan Closing Date.  Each Joining Lender, by providing its Exchanged Delayed Draw Term Loans pursuant to and in accordance with a Delayed Draw Exchange, shall be deemed to have agreed to the terms set forth herein applicable to the Term Loan Lenders and the Term Loans. All of the Initial Term Loans and any outstanding Delayed Draw Term Loans shall be treated as a single fungible tranche for U.S. federal income tax purposes.

 

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(e)          Notwithstanding the foregoing, (i) the aggregate principal amount of the Initial Term Loans made on the Amendment Closing Date shall not exceed the Total Initial Term Loan Commitment and (ii) the aggregate principal amount of the Delayed Draw Term Loans made on or after the Amendment Closing Date shall not exceed the Total Delayed Draw Term Loan Commitment.  Any principal amount of the Term Loan which is repaid or prepaid may not be reborrowed.

 

(f)         Subject to Section 2.08, each Borrowing shall be comprised entirely of ABR Loans or SOFR Loans as the Borrower may request in accordance herewith.  Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.

 

(g)          At the commencement of each Interest Period for any SOFR Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000; provided that (i) a SOFR Borrowing that results from a continuation of an outstanding SOFR Borrowing may be in an aggregate amount that is equal to such outstanding Borrowing and (ii) the foregoing limitation shall not apply to any SOFR Borrowing resulting from a Closing Date Exchange (as defined in the Amendment and Restatement Agreement) or a Delayed Draw Exchange.  Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at any time be more than a total of eight (8) (or such greater number as may be agreed to by the Administrative Agent) SOFR Borrowings outstanding.

 

(h)          Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert to or continue, any SOFR Borrowing of any Class if the Interest Period requested with respect thereto would end after the Final Maturity Date applicable thereto.

 

Section 2.02          Making the Loans.  With respect to the making of Loans:

 

(a)           The Borrower shall give the Administrative Agent prior written notice substantially in the form of Exhibit C hereto (a “Notice of Borrowing”), (x) in the case of a SOFR Borrowing, not later than 12:00 p.m. on the date which is three U.S. Government Securities Business Days’ prior to the date of the proposed Borrowing (or such shorter period as may be acceptable to the Administrative Agent) and (y) in the case of an ABR Borrowing, not later than 12:00 p.m. on the date which is one Business Day prior to the date of the proposed Borrowing (or such shorter period as may be acceptable to the Administrative Agent).  Such Notice of Borrowing shall be irrevocable and shall specify (i) the principal amount of the proposed Borrowing, (ii) whether the proposed Borrowing will be an ABR Borrowing or a SOFR Borrowing, (iii) in the case of a SOFR Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of “Interest Period”, (iv) wire instructions for the account of the Borrower into which such funds should be deposited, and (v) the proposed borrowing date, which must be a Business Day.  The Administrative Agent and the Lenders may act without liability upon the basis of written, emailed or telecopied notice believed by the Administrative Agent in good faith to be from the Borrower (or from any Authorized Officer thereof designated in writing purportedly from the Borrower to the Administrative Agent).  The Administrative Agent and each Lender shall be entitled to rely conclusively on any Authorized Officer’s authority to request a Loan on behalf of the Borrower until the Administrative Agent receives written notice to the contrary.  The Administrative Agent and the Lenders shall have no duty to verify the authenticity of the signature appearing on any written Notice of Borrowing.

 

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(b)         Each Notice of Borrowing pursuant to this Section 2.02 shall be irrevocable and the Borrower shall be bound to make a Borrowing in accordance therewith.

 

(c)         Except as otherwise provided in this Section 2.02(c), the Loans of any Class under this Agreement shall be made by the Lenders of such Class simultaneously and proportionately to their respective Pro Rata Shares of the Commitments of the applicable Class; it being understood that no Lender shall be responsible for any default by any other Lender in that other Lender’s obligations to make a Loan requested hereunder, nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Lender’s obligation to make a Loan requested hereunder, and each Lender shall be obligated to make the Loans required to be made by it by the terms of this Agreement regardless of the failure by any other Lender.  Not later than 1:00 p.m. on the borrowing date, each Lender shall deliver to the account of the Borrower specified in the Notice of Borrowing an amount in immediately available funds equal to the such Lender’s Pro Rata Share of the Loan to be made by the Lenders.

 

(d)          If no election as to the Type of Borrowing is specified in the applicable Notice of Borrowing, then the requested Loan shall be an ABR Borrowing.  If no Interest Period is specified with respect to any requested SOFR Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.

 

Section 2.03          Repayment of Term Loans; Evidence of Debt.

 

(a)        Commencing with the first full Fiscal Quarter ending after the Amendment Closing Date, on the last Business Day of each Fiscal Quarter, the Borrower shall repay a portion of the Term Loan in an aggregate principal amount equal to the Amortization Installment Amount.  Subject to adjustment as provided below, the Borrower shall repay Incremental Term Loans of any series in such amounts and on such date or dates as shall be specified therefor in the Incremental Facility Amendment establishing the Incremental Term Commitments of such series.  Any prepayment of Loans of any Class shall be applied to reduce the amount of the scheduled repayment of the Loans of such Class to be made on the Final Maturity Date and thereafter shall be applied to the remaining scheduled repayments of such Loans in reverse chronological order of maturity; provided that any prepayment of Incremental Term Loans of any series shall be applied to subsequent scheduled repayments as provided in the applicable Incremental Facility Amendment.  All repayments of Loans pursuant to this Section 2.03(a) shall be accompanied by accrued but unpaid interest on the amounts repaid.

 

(b)           The outstanding principal amount of (i) the Term Loan, and all accrued and unpaid interest thereon, shall be due and payable on the earlier of (A) the Final Maturity Date for the Term Loan and (B) the date on which the Term Loan is declared due and payable pursuant to the terms of this Agreement and (ii) the Incremental Term Loans of any series, and all accrued and unpaid interest thereon, shall be due and payable on the earlier of (A) the Final Maturity Date for the Incremental Term Loans of such series and (B) the date on which the Incremental Term Loans of such series are declared due and payable pursuant to the terms of this Agreement.

 

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(c)          Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of the Borrower to such Lender resulting from the Loans made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

 

(d)       The Administrative Agent shall maintain accounts in which it shall record (i) the amount of the Loans made hereunder, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.

 

(e)         The entries made in the accounts maintained pursuant to Section 2.03(c) or Section 2.03(d) shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that (i) the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement and (ii) in the event of any conflict between the entries made in the accounts maintained pursuant to Section 2.03(c) and the accounts maintained pursuant to Section 2.03(d), the accounts maintained pursuant to Section 2.03(d) shall govern and control.

 

(f)        Any Lender may request that Loans made by it be evidenced by a promissory note substantially in the form of Exhibit D hereto.  In such event, the Borrower shall execute and deliver to such Lender a promissory note payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns) in the form of Exhibit D hereto.  Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 12.07) be represented by one or more promissory notes in such form payable to the payee named therein.

 

Section 2.04          Interest.

 

(a)           [Reserved].

 

(b)          Interest Rate.  The Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate plus the Applicable Margin.  The Loans comprising each SOFR Borrowing shall bear interest at the Adjusted Term SOFR for the Interest Period in effect for such Borrowing plus the Applicable Margin.

 

(c)         Default Interest. Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2.00% per annum plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount, 2.00% per annum plus the rate applicable to ABR Loans as provided in paragraph (b) of this Section.  Payment or acceptance of the increased rates of interest provided for in this paragraph (c) is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of the Administrative Agent or any Lender.

 

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(d)          Interest Payment.  Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan; provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of a SOFR Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.

 

(e)         General.  All interest hereunder shall be computed on the basis of a year of 360 days (or in the case of interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate, such interest shall be computed on the basis of a year of 365 days (or 366 days in a leap year)), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day).  All interest hereunder on any Loan shall be computed on a daily basis based upon the outstanding principal amount of such Loan as of the applicable date of determination.  The applicable Alternate Base Rate or Adjusted Term SOFR shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.

 

(f)          Term SOFR Conforming Changes.  In connection with the use or administration of Term SOFR, the Administrative Agent will have the right (in consultation with the Borrower) to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.  The Administrative Agent will promptly notify the Borrower and the Lenders of the effectiveness of any Conforming Changes in connection with the use or administration of Term SOFR.

 

(g)          Inability to Determine Rates. Subject to Section 2.08, if, on or prior to the first day of any Interest Period for any SOFR Loan:

 

(i)         the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that Adjusted Term SOFR cannot be determined pursuant to the definition thereof, or

 

(ii)         the Required Lenders determine that for any reason in connection with any request for a SOFR Loan or a conversion thereto or a continuation thereof that Adjusted Term SOFR for any requested Interest Period with respect to a proposed SOFR Loan does not adequately and fairly reflect the cost to such Lenders of making and maintaining such Loan, and the Required Lenders have provided notice of such determination to the Administrative Agent,

 

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the Administrative Agent will promptly so notify the Borrower and each Lender.  Upon notice thereof by the Administrative Agent to the Borrower, any obligation of the Lenders to make SOFR Loans, and any right of the Borrower to continue SOFR Loans or to convert ABR Loans to SOFR Loans, shall be suspended (to the extent of the affected SOFR Loans or affected Interest Periods) until the Administrative Agent (with respect to clause (b), at the instruction of the Required Lenders) revokes such notice.  Upon receipt of such notice, (i) the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Loans (to the extent of the affected SOFR Loans or affected Interest Periods) or, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans in the amount specified therein and (ii) any outstanding affected SOFR Loans will be deemed to have been converted into ABR Loans at the end of the applicable Interest Period.  Upon any such conversion, the Borrower shall also pay accrued interest on the amount so converted, together with any additional amounts required pursuant to Section 2.11. Subject to Section 2.08, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that Adjusted Term SOFR cannot be determined pursuant to the definition thereof on any given day, the interest rate on ABR Loans shall be determined by the Administrative Agent without reference to clause (c) of the definition of “Alternate Base Rate” until the Administrative Agent revokes such determination.

 

Section 2.05         Termination of Commitment; Prepayment of Term Loans.

 

(a)          Termination of Commitments.

 

(i)          Optional Termination of Commitments. The Borrower may, upon written notice to the Administrative Agent, terminate the unused Delayed Draw Term Loan Commitments, or from time to time permanently reduce the unused Delayed Draw Term Loan Commitments, in each case without premium or penalty; provided that (A) any such notice shall be received by the Administrative Agent by 12:00 p.m. one Business Day prior to the date of termination or reduction (or such later time and date as the Administrative Agent may reasonably agree), and (B) any such partial reduction shall be in an aggregate amount of $1,000,000 or any whole multiple of $500,000 in excess thereof or, if less, the unfunded Delayed Draw Term Loan Commitments then outstanding.

 

(ii)         Mandatory Termination of Commitments. The Total Initial Term Loan Commitment shall terminate at 5:00 p.m. on the Amendment Closing Date. The Delayed Draw Term Loan Commitment of each Lender (A) shall be automatically and permanently reduced (x) on each Delayed Draw Term Loan Closing Date by the aggregate principal amount of Delayed Draw Term Loans funded by such Lender on such Delayed Draw Term Loan Closing Date pursuant to Section 2.01(b), (y) by an amount equal to the Senior Secured Notes Redemption Amount as provided in Section 2.05(c) and (z) as provided in Section 2.01(b) in connection with an Exchange and (B) shall automatically terminate at 5:00 p.m. on the Delayed Draw Term Loan Commitment Termination Date.

 

(b)          Optional Prepayment.

 

(i)            [Reserved].

 

(ii)         Optional Prepayments of Loan.  The Borrower may, at any time and from time to time, upon at least 3 Business Days’ prior written notice prior to 12:00 p.m. to the Administrative Agent, prepay the principal of the Loans of any Class, in whole or in part, at par plus accrued and unpaid interest to, but not including, the date of prepayment but without any premium or penalty.  Each prepayment notice delivered pursuant to this Section 2.05(b)(ii) shall be irrevocable (except that such notice may be conditioned on the closing of a replacement financing facility, in which case such notice may be revoked or extended by the Borrower if any such condition is not satisfied prior to the date of the applicable prepayment).

 

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(iii)         Termination of Agreement.  The Borrower may, upon at least 3 days’ prior written notice prior to 12:00 p.m. to the Administrative Agent, terminate this Agreement by paying to the Administrative Agent, in cash, the Obligations (but excluding any Contingent Indemnity Obligations) in full; provided that such notice may provide that it is conditioned upon the consummation of other financing or the consummation of a sale of Equity Interests, in which case, such notice may be revoked or extended by the Borrower if any such condition is not satisfied prior to the date of termination of this Agreement in such notice.  If the Borrower has sent a notice of termination pursuant to this Section 2.05(b)(iii), then the Lenders’ obligations to extend credit hereunder shall terminate and the Borrower shall be obligated to repay the Obligations (but excluding any Contingent Indemnity Obligations) in full on the date set forth in such notice (except as revoked or extended as provided above).

 

(c)          Mandatory Prepayment.

 

(i)           Within 5 Business Days after the delivery to the Agents and the Lenders of financial statements pursuant to Section 7.01(a)(iii), commencing with the delivery to the Agents and the Lenders of the financial statements for the first Fiscal Year ending after the Amendment Closing Date or, if such financial statements are not delivered to the Agents and the Lenders on the date such statements are required to be delivered pursuant to Section 7.01(a)(iii), on the date such statements are required to be delivered to the Agents and the Lenders pursuant to Section 7.01(a)(iii), the Borrower shall prepay the outstanding principal amount of the Loans in accordance with Section 2.05(d) in an amount equal to the amount by which (x) the aggregate amount of the cash and Cash Equivalents on-hand at Holdings, the Borrower and its Restricted Subsidiaries as of the last day of such Fiscal Year exceeds (y) $100,000,000.

 

(ii)          Within 5 Business Days (or, in the case of any application pursuant to clause (A) of this clause (ii), within 30 days) after any Sale and Leaseback Transaction or any Disposition (excluding Dispositions which qualify as Permitted Dispositions under clauses (a), (b), (c), (d), (e), (f), (g), (h), (i) (but only to the extent the fair market value of such property does not exceed $100,000 per such Disposition or series of related Dispositions) or (j) of the definition of “Permitted Disposition”) by any Loan Party or its Restricted Subsidiaries (other than Sale and Leaseback Transactions and Dispositions resulting in aggregate Net Cash Proceeds not exceeding $250,000 in the case of any single Sale and Leaseback Transaction or Disposition), the Borrower shall (A) on or prior to the occurrence of the Delayed Draw Term Loan Commitment Termination Date, apply such Net Cash Proceeds to repurchase, redeem, defease or discharge the Senior Secured Notes in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such Sale and Leaseback Transaction or Disposition, as applicable and (B) after the occurrence of the Delayed Draw Term Loan Termination Date, prepay the outstanding principal amount of the Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such Sale and Leaseback Transaction or Disposition, as applicable.  Nothing contained in this Section 2.05(c)(ii) shall permit any Loan Party or any of its Restricted Subsidiaries to make a Sale and Leaseback Transaction or Disposition of any property other than in accordance with Section 7.02(f) or Section 7.02(c)(ii), as applicable.

 

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(iii)      Within 1 Business Day after the issuance or incurrence by any Loan Party or any of its Restricted Subsidiaries of any Indebtedness (other than Permitted Indebtedness), the Borrower shall prepay the outstanding amount of the Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection therewith.  The provisions of this Section 2.05(c)(iii) shall not be deemed to be implied consent to any such issuance, incurrence or sale otherwise prohibited by the terms and conditions of this Agreement.

 

(iv)        Within 5 Business Days (or, in the case of any application pursuant to clause (A) of this clause (iv), within 30 days) after the receipt by any Loan Party or any of its Restricted Subsidiaries of any Extraordinary Receipts (other than any casualty or condemnation event resulting in aggregate Net Cash Proceeds not exceeding $250,000 in the case of any single casualty or condemnation event), the Borrower shall (A) on or prior to the occurrence of the Delayed Draw Term Loan Commitment Termination Date, apply such Net Cash Proceeds to repurchase, redeem, defease or discharge the Senior Secured Notes in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection therewith and (B) after the occurrence of the Delayed Draw Term Loan Termination Date, prepay the outstanding principal of the Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection therewith.

 

(v)          Notwithstanding the foregoing, with respect to Net Cash Proceeds received by any Loan Party or any of its Restricted Subsidiaries in connection with the receipt of Net Cash Proceeds of a Disposition or the receipt of Net Cash Proceeds in respect of Extraordinary Receipts consisting of insurance proceeds or condemnation awards that are required, after the occurrence of the Delayed Draw Term Loan Commitment Termination Date, to be used to prepay the Obligations pursuant to Section 2.05(c)(ii) or Section 2.05(c)(iv), respectively, shall not be required to be so used to prepay the Obligations to the extent that such Net Cash Proceeds are used, at the election of the Borrower, to acquire real property, equipment or other tangible assets to be used in the business of the Borrower and the Restricted Subsidiaries or to consummate any Permitted Acquisition (or any other acquisition of all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of) any Person) (a “Permitted Use”); provided that (A) no Default or Event of Default has occurred and is continuing on the date such Person receives such Net Cash Proceeds, (B) the Borrower delivers a certificate to the Administrative Agent within 5 Business Days after the receipt of such Net Cash Proceeds stating that such Net Cash Proceeds shall be used for a Permitted Use within a period specified in such certificate not to exceed twelve months after the date of receipt of such Net Cash Proceeds (or within a period of six months thereafter if by the end of such initial twelve-month period the Borrower or one or more Restricted Subsidiaries shall have entered into a binding and enforceable agreement with a third party to effect a Permitted Use), which certificate shall set forth estimates of the Net Cash Proceeds to be so expended, (C) upon the earlier of (1) the expiration of the period specified in the relevant certificate furnished to the Administrative Agent pursuant to clause (B) above or (2) the occurrence of a Default or an Event of Default, such Net Cash Proceeds, if not theretofore so used, shall be used to prepay the Obligations in accordance with Section 2.05(c)(ii) or Section 2.05(c)(iv), as applicable and (D) if, as of the last day of the most recently ended Fiscal Quarter, the Total Net Leverage Ratio, recomputed on a pro forma basis as of the last day of such Fiscal Quarter, is greater than 2.00 to 1.00, then the aggregate amount of Net Cash Proceeds applied to Permitted Uses in accordance with this clause (v) for the period beginning on the last day of such Fiscal Quarter and ending on the last day of the fourth Fiscal Quarter ending thereafter shall not exceed $25,000,000; provided that the limitation in this clause (D) shall (x) cease to apply with respect to such period of four consecutive Fiscal Quarters if, on the last day of any subsequent Fiscal Quarter ending during such period, the Total Net Leverage Ratio, recomputed on a pro forma basis as of the last day of such Fiscal Quarter, is less than or equal to 2.00 to 1.00, and the limitation in this clause (D) shall not subsequently apply to any period of four consecutive Fiscal Quarters unless the condition specified in this clause (D) occurs and (y) not prevent any Loan Party or Restricted Subsidiary from giving effect to any such application for a Permitted Use to which such Loan Party or Restricted Subsidiary committed if, at the time of such commitment, such Loan Party or Restricted Subsidiary would have been permitted to apply the Net Cash Proceeds for such Permitted Use without violating this clause (D).

 

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(vi)         Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Cash Proceeds or, in the case of clause (i) of this Section 2.05, other cash amounts attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law from being distributed to the Borrower, the portion of such Net Cash Proceeds or other cash amounts so affected will not be required to be applied to repay Loans at the times provided in this Section 2.05 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit distribution to any Loan Party (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such distribution), and once any of such affected Net Cash Proceeds or other cash amounts that, in each case, would otherwise be required to be used to prepay Loans pursuant to Section 2.05(c)(i), Section 2.05(c)(ii) or Section 2.05(c)(iv), as applicable, is permitted under the applicable local law to be distributed to any Loan Party, such distribution will be promptly made and such distributed Net Cash Proceeds or other cash amounts will be promptly (and in any event not later than two Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Loans pursuant to the applicable clause of this Section 2.05 and (B) to the extent that the Borrower has determined in good faith that distribution to the Borrower of any of or all the Net Cash Proceeds or other cash amounts attributable to Foreign Subsidiaries would have material adverse tax consequences to the Borrower and its Restricted Subsidiaries, such Net Cash Proceeds or other cash amounts so affected may be retained by the applicable Foreign Subsidiary; provided that, in the case of this clause (B), to the extent that within 12 months of the applicable prepayment event, the repatriation to the Borrower of any Net Cash Proceeds or other cash amounts attributable to any such Foreign Subsidiary would no longer have material adverse tax consequences, such Foreign Subsidiary shall promptly repatriate an amount equal to such Net Cash Proceeds or such other cash amounts, less applicable tax paid by the Borrower or any of its Restricted Subsidiaries in respect thereof, to the Administrative Agent, which amount shall be applied to the pro rata prepayment of the Loans in accordance with this Section 2.05.

 

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(d)          Application of Payments.  In the event of any mandatory prepayment of Loans made at a time when Loans of more than one Class remain outstanding, the Borrower shall select Loans to be prepaid so that the aggregate amount of such prepayment is allocated between the Term Loans and, to the extent provided in the Incremental Facility Amendment for any Class of Incremental Term Loans, the Loans of such Class, pro rata based on the aggregate principal amount of outstanding Loans of each such Class.  Notwithstanding the foregoing, after the occurrence and during the continuance of an Event of Default, the Collateral Agent shall, if directed in writing by the Required Lenders, apply payments in respect of any Obligations in accordance with Section 4.03(b), and apply prepayments required under Section 2.05(c) in the manner set forth in Section 4.03(b).  Notwithstanding anything herein to the contrary, if at the time of any required prepayment of the Loans pursuant to Section 2.05(c)(i), Section 2.05(c)(ii) or Section 2.05(c)(iv), the Borrower has outstanding any Incremental Equivalent Indebtedness (which term, solely for purposes of this Section 2.5(d), shall include the Senior Secured Notes) that is secured on a pari passu basis (but without regard to control of remedies) with the Obligations that, by its terms, requires the Borrower to offer to the holders thereof to repurchase or prepay such Incremental Equivalent Indebtedness with the Net Cash Proceeds or, in the case of Section 2.05(c)(i), other cash amounts that would otherwise be required to so prepay the Loans (such Incremental Equivalent Indebtedness required to be offered to be so repurchased or prepaid, “Other Applicable Indebtedness”), then the Borrower may apply such Net Cash Proceeds or such other cash amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness at such time; provided that the portion of such Net Cash Proceeds or other cash amounts allocated to Other Applicable Indebtedness shall not exceed the amount of such Net Cash Proceeds or other cash amounts required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds or other cash amounts shall be allocated to the Loans in accordance with the terms hereof) to the prepayment of the Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Loans that would otherwise have been required pursuant to Section 2.05(c)(i), Section 2.05(c)(ii) or Section 2.05(c)(iv), as applicable, shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness purchased, the declined amount shall promptly (and in any event within three Business Days after the date of such rejection) be applied to prepay the Loans in accordance with the terms hereof.

 

(e)         Interest and Fees.  Any prepayment made pursuant to this Section 2.05 shall be accompanied by accrued interest on the principal amount being prepaid to the date of prepayment.

 

(f)           Cumulative Prepayments.  Except as otherwise expressly provided in this Section 2.05, payments with respect to any subsection of this Section 2.05 are in addition to payments made or required to be made under any other subsection of this Section 2.05.

 

(g)          [Reserved].

 

(h)          Intercreditor Agreements.  Notwithstanding anything in this Section 2.05 to the contrary, in the event that the provisions of any Permitted Pari Passu Intercreditor Agreement provide that a portion of the proceeds of any mandatory prepayment event be allocated among the parties to such Permitted Pari Passu Intercreditor Agreement, the amount of Loans required to be prepaid pursuant to this Section 2.05 shall be reduced by the amount required to be allocated to creditors of Holdings other than the Lenders.

 

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Section 2.06          Fees. As and when due and payable under the terms of the Agent Fee Letter, the Borrower shall pay the fees set forth in the Agent Fee Letter.

 

Section 2.07         Interest Elections.

 

(a)         Each Borrowing initially shall be of the Type specified in the applicable Notice of Borrowing and, in the case of a SOFR Borrowing, shall have an initial Interest Period as specified in such Notice of Borrowing.  Thereafter, the Borrower may elect to convert such Borrowing to a Borrowing of a different Type or to continue such Borrowing and, in the case of a SOFR Borrowing, may elect Interest Periods therefor, all as provided in this Section.  The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.

 

(b)         To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election by the time that a Notice of Borrowing would be required under Section 2.02 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election.  Each such Interest Election Request shall be irrevocable and shall be signed by an Authorized Officer of the Borrower.

 

(c)          Each Interest Election Request shall specify the following information in compliance with Section 2.02:

 

(i)           the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);

 

(ii)        the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

 

(iii)          whether the resulting Borrowing is to be an ABR Borrowing or a SOFR Borrowing; and

 

(iv)        if the resulting Borrowing is to be a SOFR Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of “Interest Period”.

 

If any such Interest Election Request requests a SOFR Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.

 

(d)           Promptly following receipt of an Interest Election Request in accordance with this Section, the Administrative Agent shall advise each Lender of the applicable Class of the details thereof and of such Lender’s portion of each resulting Borrowing.

 

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(e)          If the Borrower fails to deliver a timely Interest Election Request with respect to a SOFR Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be continued as a SOFR Borrowing for an additional Interest Period of one month.  Notwithstanding any contrary provision hereof, if an Event of Default under clause (f) or (g) of Section 9.01 has occurred and is continuing with respect to Holdings or the Borrower, or if any other Event of Default has occurred and is continuing and the Administrative Agent, at the request of a Majority in Interest of the Lenders of any Class, has notified the Borrower of the election to give effect to this sentence on account of such other Event of Default, then, in each such case, so long as such Event of Default is continuing, (i) no outstanding Borrowing (or Borrowing of the applicable Class, as applicable) may be converted to or continued as a SOFR Borrowing and (ii) unless repaid, each SOFR Borrowing (or SOFR Borrowing of the applicable Class, as applicable) shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.

 

Section 2.08          Alternate Rate of Interest.

 

(a)          Benchmark Replacement.  Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement.  Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders.  No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 2.08 will occur prior to the applicable Benchmark Transition Start Date.

 

(b)     Benchmark Replacement Conforming Changes.  In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the right (in consultation with the Borrower) to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.

 

(c)          Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement.  The Administrative Agent will notify the Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.08(d) and (y) the commencement of any Benchmark Unavailability Period.  Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.08, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.08.

 

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(d)          Unavailability of Tenor of Benchmark.  Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.

 

(e)         Benchmark Unavailability Period.  Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any pending request for a SOFR Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans.  During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the Alternate Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Alternate Base Rate.

 

(f)            Certain Defined Terms.  As used in this Section 2.08:

 

“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to paragraph (e) of this Section 2.08.

 

“Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to paragraph (b) of this Section 2.08.

 

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“Benchmark Replacement” means, for any Available Tenor, the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.

 

“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.

 

“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:

 

(1)         in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or

 

(2)          in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.

 

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For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

 

“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:

 

(1)         a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);

 

(2)       a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or

 

(3)       a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.

 

For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

 

“Benchmark Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).

 

“Benchmark Unavailability Period” means the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with this Section 2.08 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with this Section 2.08.

 

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“Corresponding Tenor”, with respect to any Available Tenor, means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.

 

“Relevant Governmental Body” means the Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board or the Federal Reserve Bank of New York, or any successor thereto.

 

 “Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.

 

Section 2.09          Taxes.  (a)  Any and all payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall be made free and clear of and without deduction or withholding for any and all Taxes, except as required by applicable law.  If any applicable law (as determined in the good faith discretion of any Withholding Agent) requires the deduction or withholding of any Taxes from or in respect of any such payment, (i) the applicable Withholding Agent shall make such deduction or withholding (for which it shall have no liability hereunder or under any other Loan Document), (ii) the applicable Withholding Agent shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law and (iii) if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased by the amount (an “Additional Amount”) necessary such that after making all required deductions and withholdings (including deductions and withholdings applicable to additional sums payable under this Section 2.09), the applicable Recipient receives the amount equal to the sum it would have received had no such deduction or withholding been made.

 

(b)        In addition, each Loan Party shall pay to the relevant Governmental Authority in accordance with applicable law any Other Taxes, or at the option of the Administrative Agent timely reimburse it for the payment of any Other Taxes by any Secured Party.  Each Loan Party shall deliver to the Administrative Agent official receipts in respect of any Taxes or Other Taxes payable hereunder as promptly as practicable after payment of such Taxes or Other Taxes.

 

(c)        The Loan Parties hereby jointly and severally indemnify and agree to hold each Secured Party harmless from and against Indemnified Taxes (including Indemnified Taxes imposed on any amounts payable under this Section 2.09) paid or payable by such Secured Party or required to be withheld or deducted from a payment to such Secured Party and any expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally asserted.  Such indemnification shall be paid within 10 days from the date on which any such Person makes written demand therefore specifying in reasonable detail the nature and amount of such Indemnified Taxes.  A certificate as to the amount of such payment or liability delivered to the Borrower by a Secured Party (with a copy to the Administrative Agent) or by the Administrative Agent on its own behalf or on behalf of another Secured Party shall be conclusive absent manifest error.

 

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(d)         (i)           Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.09(d)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

 

(ii)           Without limiting the generality of the foregoing,

 

(A)          any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

 

(B)          any Lender that is not a U.S. Person (a “Foreign Lender”) shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be reasonably requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

 

(1)         in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

 

(2)          executed copies of IRS Form W-8ECI;

 

(3)        in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate substantially in the form of Exhibit 2.09(d)-1 hereto to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” that is related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code and that no payment under any Loan Document is effectively connected with such Foreign Lender’s conduct of a U.S. trade or business (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or W-8BEN-E; or

 

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(4)       to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit 2.09(d)-2 or Exhibit 2.09(d)-3, IRS Form W-9, or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit 2.09(d)-4 on behalf of such direct and indirect partner(s);

 

(C)         any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be reasonably requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and

 

(D)          if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

 

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Administrative Agent in writing of its legal inability to do so.

 

(e)         On or prior to the Amendment Closing Date, the Administrative Agent, if it is not a U.S. Person, shall deliver to the Borrower an accurate, complete, original, signed copy of IRS Form W-8IMY certifying in Part I that the Administrative Agent is a U.S. branch of a foreign bank and in Part VI that the Administrative Agent agrees to be treated as a U.S. Person with respect to any payments associated with such IRS Form W-8IMY.

 

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(f)        Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 12.07(i) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (f).

 

(g)         If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.09 (including by the payment of additional amounts pursuant to this Section 2.09), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.09 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.  This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

 

(h)        The obligations of the Loan Parties under this Section 2.09 shall survive the termination of this Agreement, the payment of the Term Loans and all other amounts payable hereunder and the resignation or removal of any Agent.

 

Section 2.10          Increased Costs and Reduced Return.  (a)  If any Secured Party shall have determined that any Change in Law shall (i) subject such Secured Party, or any Person controlling such Secured Party, to any Tax with respect to this Agreement or any Term Loans, or other Obligations, or its deposits, reserves, other liabilities or capital attributable thereto (except for Indemnified Taxes and Taxes described in clauses (b) through (d) of the definition of “Excluded Taxes”), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan or against assets of or held by, or deposits with or for the account of, or credit extended by, such Secured Party or any Person controlling such Secured Party or (iii) impose on such Secured Party or any Person controlling such Secured Party any other condition regarding this Agreement or any Loan, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to such Secured Party of making any Loan or agreeing to make any Loan, or to reduce any amount received or receivable by such Secured Party hereunder, then, upon demand by such Secured Party, the Borrower shall pay to such Secured Party such additional amounts as will compensate such Secured Party for such increased costs or reductions in amount.

 

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(b)           If any Secured Party shall have determined that any Change in Law either (i) affects or would affect the amount of capital required or expected to be maintained by such Secured Party or any Person controlling such Secured Party, and such Secured Party determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained or any guaranty or participation with respect thereto or any agreement to make Loans or such Secured Party’s or such other controlling Person’s other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on such Secured Party’s or such other controlling Person’s capital to a level below that which such Secured Party or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained or any guaranty or participation with respect thereto or any agreement to make Loans or such Secured Party’s or such other controlling Person’s other obligations hereunder (in each case, taking into consideration such Secured Party’s or such other controlling Person’s policies with respect to capital adequacy), then, upon demand by such Secured Party, the Borrower shall pay to such Secured Party from time to time such additional amounts as will compensate such Secured Party for such cost of maintaining such increased capital or such reduction in the rate of return on such Secured Party’s or such other controlling Person’s capital.

 

(c)           All amounts payable under this Section 2.10 shall bear interest from the date that is 10 days after the date of demand by any Secured Party until payment in full to such Secured Party at the Reference Rate.  A certificate of such Secured Party claiming compensation under this Section 2.10, specifying the event herein above described and the nature of such event shall be submitted by such Secured Party to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and such Secured Party’s reasons for invoking the provisions of this Section 2.10, and shall be final and conclusive absent manifest error.

 

(d)           Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section 2.10 shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to the foregoing provisions of this Section 2.10 for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

 

(e)           The obligations of the Loan Parties under this Section 2.10 shall survive the termination of this Agreement, the payment of the Loans and all other amounts payable hereunder and the resignation or removal of any Agent.

 

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Section 2.11          Break Funding Payments.  In the event of (a) the payment of any principal of any SOFR Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any SOFR Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Loan on the date specified in any notice delivered pursuant hereto (whether or not such notice may be revoked in accordance with the terms hereof) or (d) the assignment of any SOFR Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.12(b) or Section 12.02(b), then, in any such event, the Borrower shall compensate each Lender for any loss, cost and expense attributable to such event, including any loss, cost or expense arising from the liquidation or redeployment of funds or from any fees payable (but excluding any loss of profit or loss relating to the Applicable Margin).  A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error.  The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.

 

Section 2.12          Mitigation Obligations; Replacement of Lenders.

 

(a)            If any Lender requires the Borrower to pay any Additional Amounts under Section 2.09 or requests compensation under Section 2.10, then such Lender shall (at the request of the Borrower) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to such Section in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  The Borrower hereby agrees to pay all reasonable and documented out-of-pocket costs and expenses incurred by any Lender in connection with any such designation or assignment.

 

(b)           If any Lender requires the Borrower to pay any Additional Amounts under Section 2.09 or requests compensation under Section 2.10 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with clause (a) above, or if any Lender has become a Declining Lender under Section 2.14, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 12.07), all of its interests, rights and obligations under this Agreement and the other Loan Documents (or, in the case of any such assignment and delegation resulting from a Lender having become a Declining Lender, all its interests, rights and obligations under this Agreement and the other Loan Documents in respect of the applicable Class of Loans with respect to which such Lender is a Declining Lender) to an assignee that shall assume such obligations (which assignee may be another Lender, if such Lender accepts such assignment); provided that:

 

(i)          the Borrower shall have paid to the Agents any assignment fees specified in Section 12.07;

 

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(ii)          such Lender shall have received payment of an amount equal to the outstanding principal of its Loans (or, in the case of a Lender that has become a Declining Lender, Loans of the applicable Class with respect to which such Lender is a Declining Lender), accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 2.09) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);

 

(iii)        in the case of any such assignment resulting from payments required to be made pursuant to Section 2.09 or a claim for compensation under Section 2.10, such assignment will result in a reduction in such compensation or payments thereafter; and

 

(iv)         such assignment does not conflict with applicable law.

 

Prior to the effective date of such assignment, the assigning Lender shall execute and deliver an Assignment and Assumption, subject only to the conditions set forth above.  If the assigning Lender shall refuse or fail to execute and deliver any such Assignment and Assumption prior to the effective date of such assignment, the assigning Lender shall be deemed to have executed and delivered such Assignment and Assumption.  Any such assignment shall be made in accordance with the terms of Section 12.07.

 

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

 

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Section 2.13          Incremental Extensions of Credit.

 

(a)          At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) to add one or more additional tranches of term loan commitments (“Incremental Term Commitments” and the loans made thereunder, the “Incremental Term Loans”) or (ii) one or more increases in the aggregate principal amount of any Class of Loans (each such increase, a “Term Loan Increase” and, together with the Incremental Term Loans, the “Incremental Extensions of Credit”), in an aggregate principal amount not to exceed the sum of (x) the Fixed Incremental Amount, plus (y) [reserved], plus (z) an additional amount if, immediately after giving effect to the incurrence of such additional amount (but without giving effect to any amount incurred simultaneously under the immediately preceding clause (x)) and the application of the proceeds therefrom, (1) in the case of any Term Loan Increase or any Incremental Term Loans that will be secured by the Collateral on a pari passu basis (but without regard to control of remedies) with the Obligations in respect of the Term Loans, the First Lien Net Leverage Ratio, recomputed on a pro forma basis as of the last day of the most recently ended Fiscal Quarter giving effect to the incurrence of such Incremental Extension of Credit, is equal to or less than 2.00 to 1.00 or (2) in the case of any Incremental Term Loans that will be secured by the Collateral on a junior basis to the Obligations in respect of the Term Loans, the Secured Net Leverage Ratio, recomputed on a pro forma basis as of the last day of the most recently ended Fiscal Quarter giving effect to the incurrence of such Incremental Extension of Credit, is equal to or less than 3.00 to 1.00; provided that at the time of each such request and upon the effectiveness of the applicable Incremental Facility Amendment, (A) no Default or Event of Default has occurred and is continuing or shall result therefrom (provided that if the proceeds of the applicable Incremental Extension of Credit are to be used to finance a Limited Conditions Transaction, then the condition precedent set forth in this clause (A) may be limited to Defaults described in clauses (a), (f) and (g) of Section 9.01), (B) the representations and warranties of the Loan Parties set forth in the Loan Documents would be true and correct in all material respects (or, in the case of representations and warranties qualified as to materiality, in all respects) on and as of the date of, and immediately after giving effect to, the effectiveness of the applicable Incremental Facility Amendment, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date (provided that if the proceeds of the applicable Incremental Extension of Credit are to be used to finance a Limited Conditions Transaction, then the condition precedent set forth in this clause (B) may be limited to (x) customary specified representations and warranties with respect to Holdings, the Borrower and the Restricted Subsidiaries and (y) customary specified acquisition agreement representations and warranties with respect to the Person to be acquired) and (C) with respect to any Incremental Term Commitments in the form of delayed draw term loans, such Incremental Term Commitments shall be treated as being fully drawn on the date of implementation thereof; provided, further, that if the applicable Incremental Term Loans are to be secured by the Collateral on a junior basis to the Obligations in respect of the Term Loans, then such Incremental Term Loans shall be subject to an intercreditor agreement reasonably satisfactory to the Administrative Agent.  In connection with any calculation of the First Lien Net Leverage Ratio or the Secured Net Leverage Ratio for purposes of this Section 2.13(a), the cash proceeds of the applicable Incremental Extension of Credit will not be deducted from Total Indebtedness when making such calculation.  Each tranche of Incremental Extensions of Credit shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $5,000,000; provided that such amount may be less than $5,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Extensions of Credit set forth above.

 

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(b)        The Incremental Term Loans (i) shall rank pari passu or junior in right of payment and security with the Term Loans, (ii) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term Loans and (iii) except as provided in the immediately preceding clauses (i) and (ii) and other than amortization, pricing, maturity date or prepayment premiums, shall have the same terms as the Term Loans; provided that (A) if the All-In Yield relating to any Incremental Term Loan incurred in reliance on the Fixed Incremental Amount exceeds the All-In Yield relating to the Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, then the Applicable Margin relating to the Term Loans shall be adjusted so that the All-In Yield relating to such Incremental Term Loans shall not exceed the All-In Yield relating to the Term Loans by more than 0.50% (this proviso, the “MFN Protection”); provided, however, that (x) the requirements set forth in this clause (A) shall not apply to any Incremental Term Loans the effective date of which is more than six months after the Amendment Closing Date and (y) any increase in the Applicable Margin required pursuant to this clause (A) resulting from the application of any interest rate “floor” on any Incremental Term Loan will be effected solely through the establishment or increase of an interest rate “floor” on the Term Loans, (B) any Incremental Term Loan shall not have a final maturity date earlier than the Final Maturity Date for the Term Loans (or if such Incremental Term Loans are secured on a junior basis to the Obligations, have a maturity date that is at least 91 days after the later of (i) the Latest Maturity Date at the time such Indebtedness is incurred and (ii) the maturity date of the New Convertible Notes) and (C) any Incremental Term Loan shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-remaining Term Loans.  Any term loans incurred by the Borrower pursuant to a Term Loan Increase shall have the same terms as the Term Loans.  Any Incremental Term Commitments established pursuant to an Incremental Facility Amendment that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement.  For the avoidance of doubt, there shall be no borrowers or guarantors in respect of any Incremental Term Loans other than the Borrower and the Guarantors, and the Incremental Term Loans shall not be secured by any property or assets that do not constitute Collateral. Any Incremental Term Loans shall be denominated in Dollars.

 

(c)         Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Extension of Credit. Initially, the Borrower will offer the existing Lenders on a pro rata basis based on the percentage of the then outstanding Loans an opportunity to participate in such Incremental Extension of Credit, and, if the Lenders have not agreed to provide all or a portion of such Incremental Extension of Credit within five (5) Business Days of such written notice, the Borrower may invite, on the same terms as offered to the existing Lenders, any additional bank, financial institution or other Person that is reasonably satisfactory to the Borrower and the Administrative Agent to extend such Incremental Extension of Credit. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Extensions of Credit shall be reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender (any such bank, financial institution or other Person being called an “Incremental Lender”), shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender and the Administrative Agent.  No Lender shall be obligated to provide any Incremental Extension of Credit, unless it so agrees.  Commitments in respect of any Incremental Extensions of Credit shall become Commitments under this Agreement upon the effectiveness of the applicable Incremental Facility Amendment.  An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section.

 

(d)          Notwithstanding the foregoing, the Incremental Extensions of Credit pursuant to this Section shall not be effective with respect to any Incremental Lender unless:

 

(i)          the Administrative Agent shall have received a duly executed Notice of Borrowing in respect of such Incremental Extension of Credit;

 

(ii)          [reserved];

 

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(iii)        to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received (A) customary legal opinions addressed to the Administrative Agent, the Collateral Agent and the Lenders, board resolutions and officers’ certificates consistent with those delivered on the Amendment Closing Date other than changes to such legal opinion resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent and (B) reaffirmation agreements and/or such amendments to the Security Documents (including modifications to the Mortgages), as may be reasonably requested by the Administrative Agent in order to ensure that the enforceability of the Security Documents and the perfection and priority of the Liens thereunder are preserved and maintained; and

 

(iv)       as of such effective date of the Incremental Facility Amendment of Credit, upon the Administrative Agent’s receipt of the documents required by this paragraph (d), the Administrative Agent shall record the information contained in the applicable Joinder Agreement(s) in the Register and give prompt notice of the Incremental Term Commitments to the Borrower and the Lenders (including each Incremental Lender).

 

Section 2.14          Extension of Maturity Date.

 

(a)          The Borrower may, by delivery of a Maturity Date Extension Request to the Administrative Agent (who shall promptly deliver a copy thereof to each of the Lenders) not less than 30 days prior to the then existing Final Maturity Date for the applicable Class of Loans hereunder to be extended (the “Existing Maturity Date”), request that the Lenders extend the Existing Maturity Date in accordance with this Section.  Each Maturity Date Extension Request shall specify (i) the applicable Class of Loans hereunder to be extended, (ii) the date to which the applicable Final Maturity Date is sought to be extended, (iii) the changes, if any, to the Applicable Margin to be applied in determining the interest payable on the Loans of, and fees payable hereunder to, Consenting Lenders (as defined below) in respect of that portion of their Loans extended to such new Final Maturity Date and the time as of which such changes will become effective (which may be prior to the Existing Maturity Date) and (iv) any other amendments or modifications to this Agreement to be effected in connection with such Maturity Date Extension Request; provided that no such changes or modifications requiring approvals pursuant to the provisos in Section 12.02(a) shall become effective prior to the then Existing Maturity Date unless such other approvals have been obtained.  In the event a Maturity Date Extension Request shall have been delivered by the Borrower, each Lender of the applicable Class shall have the right to agree to the extension of the Existing Maturity Date for such Class and other matters contemplated thereby on the terms and subject to the conditions set forth therein (each Lender agreeing to the Maturity Date Extension Request being referred to herein as a “Consenting Lender” and each Lender not agreeing thereto being referred to herein as a “Declining Lender”), which right may be exercised by written notice thereof, specifying the maximum principal amount of the Loans of such Class of such Lender with respect to which such Lender agrees to the extension of the Final Maturity Date, delivered to the Borrower (with a copy to the Administrative Agent) not later than a day to be agreed upon by the Borrower and the Administrative Agent following the date on which the Maturity Date Extension Request shall have been delivered by the Borrower (it being understood and agreed that any Lender that shall have failed to exercise such right as set forth above shall be deemed to be a Declining Lender).  If a Lender elects to extend only a portion of its then existing Loans of the applicable Class, it will be deemed for purposes hereof to be a Consenting Lender in respect of such extended portion and a Declining Lender in respect of the remaining portion of its Loans of such Class, and the aggregate principal amount of each Type of Loans of the applicable Class of such Lender shall be allocated ratably among the extended and non-extended portions of the Loans of such Lender based on the aggregate principal amount of such Loans so extended and not extended.  If Consenting Lenders shall have agreed to such Maturity Date Extension Request in respect of Loans held by them, then, subject to paragraph (d) of this Section, on the date specified in the Maturity Date Extension Request as the effective date thereof (the “Extension Effective Date”), (i) the Existing Maturity Date of the applicable Loans shall, as to the Consenting Lenders, be extended to such date as shall be specified therein, (ii) the terms and conditions of the applicable Loans of the Consenting Lenders (including interest and fees payable in respect thereof) shall be modified as set forth in the Maturity Date Extension Request and (iii) such other modifications and amendments hereto specified in the Maturity Date Extension Request shall (subject to any required approvals (including those of the Required Lenders) having been obtained) become effective; provided that the extended Loans of such Class shall not be (A) guaranteed by any Person other than the Guarantors or (B) secured by any asset or property other than the Collateral that secures the Obligations.

 

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(b)          Notwithstanding the foregoing, the Borrower shall have the right, in accordance with the provisions of Sections 2.12(b) and 12.07, at any time prior to the Existing Maturity Date, to replace a Declining Lender (for the avoidance of doubt, only in respect of that portion of such Lender’s Loans subject to a Maturity Date Extension Request that it has not agreed to extend) with a Lender or other financial institution that will agree to such Maturity Date Extension Request, and any such replacement Lender shall for all purposes constitute a Consenting Lender in respect of the Loans assigned to and assumed by it on and after the effective time of such replacement.

 

(c)          If a Maturity Date Extension Request has become effective hereunder, on the Existing Maturity Date, the Borrower shall repay all the Loans of such Class of each Declining Lender, to the extent such Loans shall not have been so purchased, assigned and transferred, in each case together with accrued and unpaid interest and all fees and other amounts owing to such Declining Lender hereunder.

 

(d)          Notwithstanding the foregoing, no Maturity Date Extension Request shall become effective hereunder unless, on the Extension Effective Date, the conditions set forth in Sections 5.01(a) and 5.01(b) shall be satisfied (with all references in such Sections to a Borrowing being deemed to be references to such Maturity Date Extension Request and all references in such Sections to the date of any such Borrowing being deemed to be references to such Extension Effective Date) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer.

 

(e)          Notwithstanding any provision of this Agreement to the contrary, it is hereby agreed that no extension of an Existing Maturity Date in accordance with the express terms of this Section, or any amendment or modification of the terms and conditions of the Commitments and the Loans of the Consenting Lenders effected pursuant thereto, shall be deemed to (i) violate any provision of this Agreement requiring the ratable sharing of payments or (ii) require the consent of all Lenders or all affected Lenders under Section 12.02(a).

 

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(f)           The Borrower, the Administrative Agent and the Consenting Lenders may enter into an amendment to this Agreement to effect such modifications as may be necessary to reflect the terms of any Maturity Date Extension Request that has become effective in accordance with the provisions of this Section.

 

(g)        To the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received (A) customary legal opinions addressed to the Administrative Agent, the Collateral Agent and the Lenders, board resolutions and officers’ certificates consistent with those delivered on the Closing Date other than changes to such legal opinion resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent and (B) reaffirmation agreements and/or such amendments to the Security Documents (including modifications to the Mortgages), as may be reasonably requested by the Administrative Agent in order to ensure that the enforceability of the Security Documents and the perfection and priority of the Liens thereunder are preserved and maintained.

 

ARTICLE III

 

[RESERVED]

 

ARTICLE IV

 

APPLICATION OF PAYMENTS

 

Section 4.01         Payments; Computations and Statements.  The Borrower will make each payment under this Agreement not later than 2:00 p.m. on the day when due, in lawful money of the United States of America and in immediately available funds, to the Administrative Agent’s Account.  All payments received by the Administrative Agent after 2:00 p.m. on any Business Day may, in the Administrative Agent’s discretion, be credited on the next succeeding Business Day.  All payments shall be made by the Borrower without set-off, counterclaim, recoupment, deduction or other defense to the Agents and the Lenders.  Except as provided in Section 2.02, after receipt, the Administrative Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal ratably to the Lenders of the applicable Class in accordance with their Pro Rata Shares and like funds relating to the payment of any other amount payable to any Lender to such Lender, in each case to be applied in accordance with the terms of this Agreement.  The Lenders and the Borrower hereby authorize the Administrative Agent to, and the Administrative Agent may, from time to time, revise the Register with any amount due and payable by the Borrower under any Loan Document.  Each of the Lenders and the Borrower agrees that the Administrative Agent shall have the right to make such changes whether or not any Default or Event of Default shall have occurred and be continuing. The Lenders and the Borrower confirm that any changes which the Administrative Agent may so make to the Register as herein provided will be made as an accommodation to the Borrower and solely at the Administrative Agent’s discretion; provided that the Administrative Agent shall from time to time upon the request of the Required Lenders, revise the Register with any amount due and payable under any Loan Document.  Whenever any payment to be made under any such Loan Document shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall in such case be included in the computation of interest or fees, as the case may be.  Each determination by the Administrative Agent of an interest rate hereunder shall be conclusive and binding for all purposes in the absence of manifest error.

 

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Section 4.02        Sharing of Payments.  Except as provided in Section 2.02 hereof, if any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of any Obligation in excess of its ratable share of payments on account of similar obligations obtained by all the applicable Lenders, such Lender shall forthwith purchase from the other Lenders such participations in such similar obligations held by them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided, however, that (a) if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and each Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with an amount equal to such Lender’s ratable share (according to the proportion of (i) the amount of such Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid by the purchasing Lender in respect of the total amount so recovered and (b) the provisions of this Section shall not be construed to apply to (i) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement, or (ii) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than to any Loan Party or any Subsidiary thereof in a transaction that does not comply with Section 12.07(m) (as to which the provisions of this Section shall apply).  The Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section may, to the fullest extent permitted by law, exercise all of its rights (including the Lender’s right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation.

 

Section 4.03          Apportionment of Payments.  Subject to Section 2.02 hereof:

 

(a)          All payments of principal and interest in respect of outstanding Loans and all other payments in respect of any other Obligations, shall be allocated by the Administrative Agent among such of the Lenders as are entitled thereto, in proportion to their respective Pro Rata Shares or otherwise as provided herein or, in respect of payments not made on account of Loans, as designated by the Person making payment when the payment is made.

 

(b)          (w) After the occurrence and during the continuance of an Event of Default described in Section 9.01(a), (f) or (g), (x) after the acceleration of the Loans pursuant to Section 9.01, (y) after the exercise of enforcement remedies by the Collateral Agent pursuant to the Loan Documents or (z) otherwise upon the written direction of the Required Lenders, after the occurrence and during the continuance of an Event of Default, in each case, the Administrative Agent shall apply all payments in respect of any Obligations, including proceeds of the Collateral and any amounts received on account of the Obligations (whether received as a consequence of the exercise of any remedies under Section 9.01 hereof or any Loan Document or as a distribution out of any proceeding in respect of or commenced under any bankruptcy or insolvency proceeding including payments in respect of “adequate protection” for the use of Collateral during such proceeding or under any plan of reorganization or on account of any liquidation of any Loan Party, subject to the provisions of this Agreement), (i) first, ratably to pay the Obligations in respect of any fees, expense reimbursements, indemnities and other amounts then due and payable to the Agents until paid in full; (ii) second, to pay interest then due and payable in respect of the Collateral Agent Advances until paid in full; (iii) third, to pay principal of the Collateral Agent Advances until paid in full; (iv) fourth, ratably to pay the Obligations in respect of any fees, expense reimbursements, indemnities and other amounts then due and payable to the Lenders until paid in full; (v) fifth, ratably to pay interest then due and payable in respect of the Loans until paid in full; (vi) sixth, ratably to pay principal of the Loans until paid in full; (vii) seventh, to the ratable payment of all other Obligations then due and payable; and (viii) eighth, to the extent of any remaining amounts, to the Borrower or as a court of competent jurisdiction may otherwise direct.

 

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(c)          [reserved.]

 

(d)          In the event of a conflict between the priority provisions of this Section 4.03 and other provisions contained in any other Loan Document, the terms and provisions of this Section 4.03 shall control and govern.

 

ARTICLE V

 

CONDITIONS TO DELAYED DRAW TERM LOANS

 

Section 5.01          Conditions Precedent to Borrowings of Delayed Draw Term Loans.  The obligation of each Lender to honor a Notice of Borrowing with respect to a Borrowing of Delayed Draw Term Loans on or after the Amendment Closing Date is subject to the following conditions precedent:

 

(a)          Representations and Warranties.  The representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or, in the case of representations and warranties qualified as to materiality, in all respects) immediately prior to, and immediately after giving effect to, the incurrence of such Borrowing, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date.

 

(b)          No Default.  At the time of and immediately after giving effect to such Borrowing, no Default shall have occurred and be continuing.

 

(c)          Notice of Borrowing.  The Administrative Agent shall have received a duly executed Notice of Borrowing in respect of such Borrowing of Delayed Draw Term Loans.

 

ARTICLE VI

 

REPRESENTATIONS AND WARRANTIES

 

Section 6.01          Representations and Warranties.  Each Loan Party hereby represents and warrants to the Secured Parties as follows:

 

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(a)          Organization, Good Standing, Etc.  Each Loan Party (i) is a corporation, limited liability company or limited partnership duly organized, validly existing and in good standing under the laws of the state or jurisdiction of its organization, (ii) has all requisite power and authority to conduct its business as now conducted and as presently contemplated and, in the case of the Borrower, to make the borrowings hereunder, and to execute and deliver each Loan Document to which it is a party, and to consummate the transactions contemplated thereby, and (iii) is duly qualified to do business and is in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary, except (solely for the purposes of this subclause (iii)) where the failure to be so qualified and in good standing could reasonably be expected to have a Material Adverse Effect.

 

(b)          Authorization, Etc.   The execution, delivery and performance by each Loan Party of each Loan Document to which it is or will be a party, (i) have been duly authorized by all necessary action, (ii) do not and will not contravene (A) any of its Governing Documents, (B) any applicable material Requirement of Law or (C) any material Contractual Obligation binding on or otherwise affecting it or any of its properties, (iii) do not and will not result in or require the creation of any Lien (other than pursuant to any Loan Document) upon or with respect to any of its properties, and (iv) do not and will not result in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any permit, license, authorization or approval applicable to its operations or any of its properties, except, in the case of clause (iv), to the extent where such contravention, default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal would not reasonably be expected to have a Material Adverse Effect.

 

(c)          Governmental Approvals.  No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required in connection with the due execution, delivery and performance by any Loan Party of any Loan Document to which it is or will be a party other than filings and recordings with respect to Collateral to be made, or otherwise delivered to the Collateral Agent for filing or recordation, on or prior to the Amendment Closing Date.

 

(d)         Enforceability of Loan Documents.  This Agreement is, and each other Loan Document to which any Loan Party is or will be a party, when delivered hereunder, will be, a legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.

 

(e)          Capitalization.  On the Amendment Closing Date, after giving effect to the transactions contemplated hereby to occur on the Amendment Closing Date, the authorized Equity Interests of Holdings and each of its Subsidiaries and the issued and outstanding Equity Interests of Holdings and each of its Subsidiaries are as set forth on Schedule 6.01(e).  All of the issued and outstanding shares of Equity Interests of Holdings and each of its Subsidiaries have been validly issued and are fully paid and nonassessable, and the holders thereof are not entitled to any preemptive, first refusal or other similar rights.  All Equity Interests of such Subsidiaries of Holdings are owned by Holdings free and clear of all Liens (other than Permitted Specified Liens).  Except as described on Schedule 6.01(e), there are no outstanding debt or equity securities of Holdings or any of its Subsidiaries and no outstanding obligations of Holdings or any of its Subsidiaries, in each case convertible into or exchangeable for, or warrants, options or other rights for the purchase or acquisition from Holdings or any of its Subsidiaries, or other obligations of Holdings or any of its Subsidiaries to issue, directly or indirectly, any shares of Equity Interests of Holdings or any of its Subsidiaries.

 

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(f)         Litigation.  Except as set forth in Schedule 6.01(f), there is no pending or, to the best knowledge of any Loan Party, threatened action, suit or proceeding (or, to the best knowledge of any Loan Party, investigation) affecting any Loan Party or any of its properties before any court or other Governmental Authority or any arbitrator that (i) if adversely determined, could reasonably be expected to have a Material Adverse Effect or (ii) relates to this Agreement or any other Loan Document or any transaction contemplated hereby or thereby.

 

(g)          Financial Statements.  The Financial Statements, copies of which have been delivered to each Agent and each Lender, fairly present the consolidated financial condition of Holdings, the Borrower and its Subsidiaries as at the respective dates thereof and the consolidated results of operations of Holdings, the Borrower and its Subsidiaries for the fiscal periods ended on such respective dates, all in accordance with GAAP.

 

(h)        Compliance with Law, Etc.  No Loan Party or any of its Subsidiaries is in violation of (i) any of its Governing Documents, (ii) any material Requirement of Law or (iii) any material term of any material Contractual Obligation (including any Material Contract) binding on or otherwise affecting it or any of its properties, and no default or event of default has occurred and is continuing thereunder.

 

(i)          ERISA.  Except as would not reasonably be expected to have a Material Adverse Effect, (i) each Employee Plan is in substantial compliance with ERISA and the Internal Revenue Code, (ii) no Termination Event has occurred nor is reasonably expected to occur with respect to any Employee Plan, (iii) the most recent annual report (Form 5500 Series) with respect to each Employee Plan, including any required Schedule B (Actuarial Information) thereto, copies of which have been filed with the Internal Revenue Service and delivered to the Lenders, is complete and correct and fairly presents the funding status of such Employee Plan, and since the date of such report there has been no material adverse change in such funding status, (iv) copies of each agreement entered into with the PBGC, the U.S. Department of Labor or the Internal Revenue Service with respect to any Employee Plan have been delivered to the Agents, (v) no Employee Plan had an accumulated or waived funding deficiency or permitted decrease which would create a deficiency in its funding standard account or has applied for an extension of any amortization period within the meaning of Section 412 of the Internal Revenue Code at any time during the previous 60 months, and (vi) no Lien imposed under the Internal Revenue Code or ERISA exists or is likely to arise on account of any Employee Plan within the meaning of Section 412 of the Internal Revenue Code.  Except as set forth on Schedule 6.01(i), no Loan Party or any of its ERISA Affiliates has incurred or may reasonably be expected to incur any withdrawal liability under ERISA with respect to any Multiemployer Plan.  Except as would not reasonably be expected to have a Material Adverse Effect, no Loan Party or any of its ERISA Affiliates nor any fiduciary of any Employee Plan has (i) engaged in a nonexempt prohibited transaction described in Sections 406 of ERISA or 4975 of the Internal Revenue Code, (ii) failed to pay any required installment or other payment required under Section 412 of the Internal Revenue Code on or before the due date for such required installment or payment, (iii) engaged in a transaction within the meaning of Section 4069 of ERISA or (iv) incurred any liability to the PBGC which remains outstanding other than the payment of premiums, and there are no premium payments which have become due which are unpaid.  Except as would not reasonably be expected to have a Material Adverse Effect, there are no pending or, to the best knowledge of any Loan Party, threatened claims, actions, proceedings or lawsuits (other than claims for benefits in the normal course) asserted or instituted against (i) any Employee Plan or its assets, (ii) any fiduciary with respect to any Employee Plan, or (iii) any Loan Party or any of its ERISA Affiliates with respect to any Employee Plan.  Except as required by Section 4980B of the Internal Revenue Code or any other applicable law or as would not be material, no Loan Party or any of its ERISA Affiliates maintains an employee welfare benefit plan (as defined in Section 3(1) of ERISA) which provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of any Loan Party or any of its ERISA Affiliates or coverage after a participant’s termination of employment.

 

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(j)           Taxes, Etc.  (i) All material Federal, state, provincial and local tax returns and other reports required by applicable Requirements of Law to be filed by any Loan Party have been filed, or extensions have been obtained, and (ii) all taxes, assessments and other governmental charges imposed upon any Loan Party or any property of any Loan Party and which have become due and payable on or prior to the Amendment Closing Date have been paid, except (x) to the extent contested in good faith by proper proceedings which stay the imposition of any penalty, fine or Lien resulting from the non-payment thereof and with respect to which adequate reserves have been set aside for the payment thereof on the financial statements of Holdings and its Subsidiaries in accordance with GAAP or (y) unpaid taxes, assessment and other governmental charges in an aggregate amount not exceed $25,000,000.

 

(k)          Regulations T, U and X.  No Loan Party is or will be engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation T, U or X), and no proceeds of any Term Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock or for any purpose that violates, or is inconsistent with, the provisions of Regulation T, U and X.

 

(l)           Nature of Business.

 

(i)        No Loan Party is engaged in any business other than as set forth on Schedule 6.01(l) or business activities incidental or related thereto.

 

(ii)         Holdings does not have any material liabilities (other than liabilities arising under the Loan Documents), own any material assets (other than the Equity Interests of its Subsidiaries or cash and cash equivalents held in connection with the performing of activities in each case permitted under this Agreement) or engage in any operations or business (other than the ownership of its Subsidiaries).

 

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(m)         Adverse Agreements, Etc.  No Loan Party or any of its Subsidiaries is a party to any Contractual Obligation or subject to any restriction or limitation in any Governing Document or any judgment, order, regulation, ruling or other requirement of a court or other Governmental Authority, which (either individually or in the aggregate) has, or in the future would reasonably be expected (either individually or in the aggregate) to have, a Material Adverse Effect.

 

(n)         Permits, Etc.  Each Loan Party has, and is in compliance with, all permits, licenses, authorizations, approvals, entitlements and accreditations required for such Person lawfully to own, lease, manage or operate, or to acquire, each business and Mortgaged Property currently owned, leased, managed or operated by such Person, except to the extent the failure to have or be in compliance therewith would not reasonably be expected to have a Material Adverse Effect.  No condition exists or event has occurred which, in itself or with the giving of notice or lapse of time or both, would result in the suspension, revocation, impairment, forfeiture or non-renewal of any such permit, license, authorization, approval, entitlement or accreditation, and there is no claim that any thereof is not in full force and effect, except as would not reasonably be expected to have a Material Adverse Effect.

 

(o)          Properties.  Each Loan Party has good and marketable title to, valid leasehold interests in, or valid licenses to use, all property and assets material to its business, free and clear of all Liens, except Permitted Liens.  Except as would not reasonably be expected to have a Material Adverse Effect, all such properties and assets are in good operating condition and repair, ordinary wear and tear excepted.

 

(p)          Employee and Labor Matters.  There is (i) no unfair labor practice complaint pending or, to the best knowledge of any Loan Party, threatened against any Loan Party before any Governmental Authority and no grievance or arbitration proceeding pending or threatened against any Loan Party which arises out of or under any collective bargaining agreement, (ii) no strike, labor dispute, slowdown, stoppage or similar action or grievance pending or threatened against any Loan Party or (iii) to the knowledge of each Loan Party, no union representation question existing with respect to the employees of any Loan Party and no union organizing activity taking place with respect to any of the employees of any Loan Party, in each case, except as would not reasonably be expected to have a Material Adverse Effect.  No Loan Party or any of its ERISA Affiliates has incurred any material liability or material obligation under the Worker Adjustment and Retraining Notification Act (“WARN”) or similar state law, which remains unpaid or unsatisfied.  The hours worked and payments made to employees of any Loan Party have not been in violation of the Fair Labor Standards Act or any other applicable legal requirements, except to the extent such violations would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.  All payments due from any Loan Party on account of wages and employee health and welfare insurance and other benefits have been paid or accrued as a liability on the books of such Loan Party, except where the failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

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(q)       Environmental Matters.  Except as set forth on Schedule 6.01(q), (i) the operations of each Loan Party are in material compliance with all Environmental Laws, except for such noncompliance that would not reasonably be expected to have a Material Adverse Effect; (ii) there has been no Release at any of the properties owned or operated by any Loan Party or a legal predecessor in interest, or at any disposal or treatment facility which received Hazardous Materials generated by any Loan Party or any legal predecessor in interest which in either case would reasonably be expected to have a Material Adverse Effect; (iii) no Environmental Action has been asserted against any Loan Party or any predecessor in interest, nor does any Loan Party have knowledge or notice of any threatened or pending Environmental Action against any Loan Party or any predecessor in interest, which, in either case, would reasonably be expected to have a Material Adverse Effect; (iv) no Environmental Actions have been asserted against any facilities that have received Hazardous Materials generated by any Loan Party or any predecessor in interest which in either case would reasonably be expected to be material to the Loan Parties; (v) no property now or formerly owned or operated by a Loan Party has been used as a treatment or disposal site for any Hazardous Material in a manner which violates Environmental Laws in any material respect or has resulted in or would reasonably be expected to result in an Environmental Action, Environmental Liabilities and Costs, or an obligation on the part of any Loan Party or any of its Subsidiaries to conduct a Remedial Action, in each case which would reasonably be expected to have a Material Adverse Effect; (vi) no Loan Party has failed to report to the proper Governmental Authority any Release which is required to be so reported by any Environmental Laws which would reasonably be expected to have a Material Adverse Effect; (vii) each Loan Party holds all licenses, permits and approvals required under any Environmental Laws in connection with the operation of the business carried on by it, except for such licenses, permits and approvals as to which a Loan Party’s failure to maintain or comply with would not reasonably be expected to have a Material Adverse Effect; and (viii) no Loan Party has received any written notification by any Governmental Authority pursuant to any Environmental Laws that (A) any work, repairs, construction or Capital Expenditures are required to be made to continue to comply with any Environmental Laws, or any license, permit or approval issued pursuant thereto or (B) any license, permit or approval referred to above is about to be reviewed, made, subject to limitations or conditions, revoked, withdrawn or terminated, in each case, except as would not reasonably be expected to have a Material Adverse Effect.

 

(r)          Insurance.  Each Loan Party maintains the insurance and required services and financial assurance as required by law and as required by Section 7.01(h).  Schedule 6.01(r) sets forth a list of all insurance maintained by each Loan Party on the Amendment Closing Date.

 

(s)           Use of Proceeds.  The proceeds of the Initial Term Loan shall be used by the Borrower on or after the Amendment Closing Date (i) to consummate the Transactions and (ii) to pay fees and expenses incurred to obtain the Initial Term Loan and to consummate the Transactions.  The proceeds of the Delayed Draw Term Loans shall be used by the Borrower on or after the Amendment Closing Date (A) to repurchase, redeem, defease or otherwise discharge the Senior Secured Notes that are not held by the Apollo Funds on the Amendment Closing Date (including, for the avoidance of doubt, pursuant to a Delayed Draw Exchange), (B) to repurchase, redeem, defease of otherwise discharge Notes that are not held by the Apollo Funds on the Amendment Closing Date that are exchanged pursuant to the Convertible Notes Exchange and (C) to pay fees and expenses incurred to obtain the Delayed Draw Term Loans.  The proceeds of Incremental Term Loans (unless otherwise provided in the applicable Incremental Facility Amendment) will be used solely for working capital and other general corporate purposes (including Permitted Acquisitions) of Holdings, the Borrower and its Restricted Subsidiaries.

 

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(t)           Solvency.  Immediately after giving effect to the transactions contemplated by this Agreement to occur on the Amendment Closing Date (including the funding of (x) the Initial Term Loan and (y) any Delayed Draw Term Loans to be funded (or deemed to be funded) on the Amendment Closing Date), the Borrower and its Subsidiaries on a consolidated basis are Solvent.  No transfer of property is being made by any Loan Party and no obligation is being incurred by any Loan Party in connection with the transactions contemplated by this Agreement or the other Loan Documents with the intent to hinder, delay, or defraud either present or future creditors of such Loan Party.

 

(u)          Intellectual Property.  Each Loan Party owns or licenses or otherwise has the right to use all Intellectual Property rights that are necessary for the operation of its business, without infringement upon or conflict with the rights of any other Person with respect thereto, except for such infringements and conflicts which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.  Subject to Section 6(b) of the Security Agreement, set forth on Schedule 6.01(u) is a complete and accurate list as of the Closing Date of each item of Registered Intellectual Property (except with respect to copyrights, which shall be limited to the Material Copyrights (as defined in the Security Agreement)) owned by each Loan Party.  No trademark or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by any Loan Party infringes upon or conflicts with any rights owned by any other Person, and no claim or litigation regarding any of the foregoing is pending or threatened, except for such infringements and conflicts which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.  To the knowledge of each Loan Party, no patent, invention, device, application, principle or any statute, law, rule, regulation, standard or code pertaining to Intellectual Property is pending or proposed, which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

 

(v)          Material Contracts.  Set forth on Schedule 6.01(v) is a complete and accurate list as of the Amendment Closing Date of all Material Contracts of each Loan Party.  Each such Material Contract (i) is in full force and effect and is binding upon and enforceable against each Loan Party that is a party thereto and, to the best knowledge of such Loan Party, all other parties thereto in accordance with its terms, except as such may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally and by general equitable principles, (ii) has not been otherwise amended or modified, and (iii) is not in default due to the action of any Loan Party or, to the best knowledge of any Loan Party, any other party thereto.

 

(w)        Investment Company Act.  None of the Loan Parties is (i) an “investment company” or an “affiliated person” or “promoter” of, or “principal underwriter” of or for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended, or (ii) subject to regulation under any Requirement of Law that limits in any respect its ability to incur Indebtedness or which may otherwise render all or a portion of the Obligations unenforceable.

 

(x)         Customers and Suppliers.  Except as would not reasonably be expected to have a Material Adverse Effect, there exists no actual or threatened termination, cancellation or limitation of, or modification to or change in, the business relationship between (i) any Loan Party, on the one hand, and any customer or any group thereof, on the other hand, whose agreements with any Loan Party are individually or in the aggregate material to the business or operations of such Loan Party, or (ii) any Loan Party, on the one hand, and any supplier or any group thereof, on the other hand, whose agreements with any Loan Party are individually or in the aggregate material to the business or operations of such Loan Party.

 

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(y)          Anti-Money Laundering and Anti-Terrorism Laws.

 

(i)          None of the Loan Parties, any of their respective Subsidiaries, their respective directors, officers or employees nor to the knowledge of the Borrower, their respective agents, has violated or is in violation of any of the Anti-Money Laundering and Anti-Terrorism Laws in any material respect or has engaged in or conspired to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the Anti-Money Laundering and Anti-Terrorism Laws.

 

(ii)         None of the Loan Parties, nor any Subsidiary of any of the Loan Parties, nor any officer, director, employees or principal shareholder or owner of any of the Loan Parties or any of their Subsidiaries, nor, to the knowledge of the Loan Parties, any of the Loan Parties’ or any of their Subsidiaries’ respective agents acting or benefiting in any capacity in connection with the Term Loans or other transactions hereunder, is a Blocked Person.

 

(iii)       None of the Loan Parties, nor any Subsidiary of any of the Loan Parties, nor, to the knowledge of the Loan Parties, any of their respective agents acting in any capacity in connection with the Term Loans or other transactions hereunder, (A) conducts any business with or for the benefit of any Blocked Person or engages in making or receiving any contribution of funds, goods or services to, from or for the benefit of any Blocked Person, or (B) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked or subject to blocking pursuant to any Sanctions Programs.

 

(iv)      The Borrower will not request any Term Loan, and the Borrower shall not use, and shall procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Term Loan (A) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Blocked Person, or in any Sanctioned Country, or (B) in any manner that would result in the violation of Anti-Money Laundering and Anti-Terrorism Laws applicable to any by any Person (including any Lender or any Agent).

 

(v)          The Loan Parties have adopted, implemented and maintain policies and procedures that are reasonably designed to ensure compliance with the Anti-Money Laundering and Anti-Terrorism Laws by the Loan Parties, their respective Subsidiaries and their respective directors, officers, employees and agents.

 

(z)          Anti-Bribery and Anti-Corruption Laws.

 

(i)          The Loan Parties, their respective Subsidiaries, their respective directors, officers and employees and to the knowledge of the Borrower, their respective agents, are in compliance with the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), and the anti-bribery and anti-corruption laws, rules and regulations of any jurisdictions applicable to the Loan Parties or their Subsidiaries from time to time (collectively, the “Anti-Corruption Laws”).

 

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(ii)          None of the Loan Parties has at any time:

 

(A)          offered, promised, paid, given, or authorized the payment or giving of any money, gift or other thing of value, directly or indirectly, to or for the benefit of any employee, official, or other person acting on behalf of any foreign (i.e., non-U.S.) Governmental Authority, or of any public international organization, or any foreign political party or official thereof, or candidate for foreign political office (collectively, “Foreign Official”), for the purpose of: (1) improperly influencing any act or decision of such Foreign Official in his, her, or its official capacity; or (2) inducing such Foreign Official to do, or omit to do, an act in violation of the lawful duty of such Foreign Official, or (3) securing any improper advantage, in order to obtain or retain business for, or with, or to direct business to, any Person; or

 

(B)         acted or attempted to act in any manner which would subject any of the Loan Parties to liability under any Anti-Corruption Law.

 

(iii)       There are, and have been, no allegations, investigations or inquiries with regard to a potential violation of any Anti-Corruption Law by any of the Loan Parties or any of their respective current or former directors, officers, employees, stockholders or agents, or other persons acting on their behalf.

 

(iv)      The Loan Parties have adopted, implemented and maintain anti-bribery and anti-corruption policies and procedures that are reasonably designed to ensure compliance with the Anti-Corruption Laws by the Loan Parties, their respective Subsidiaries and their respective directors, officers, employees and agents.

 

(v)       The Borrower will not request any Term Loan, and the Borrower shall not use, and shall procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Term Loan in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws.

 

(aa)          Full Disclosure.

 

(i)         Each Loan Party has disclosed to the Agents all agreements, instruments and corporate or other restrictions to which it is subject, and all other matters known to it, that, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect.  None of the reports, financial statements, certificates or other information furnished by or on behalf of any Loan Party to the Agents (other than forward-looking information and projections and information of a general economic nature and general information about Borrower’s industry) in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which it was made, not materially misleading.

 

(ii)         As of the Amendment Closing Date, the information included in any Beneficial Ownership Certification is true and correct in all material respects.

 

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(bb)       Material Adverse Effect.  Since December 31, 2023, no event or development has occurred that has had or could reasonably be expected to have a Material Adverse Effect.

 

ARTICLE VII

 

COVENANTS OF THE LOAN PARTIES

 

Section 7.01          Affirmative Covenants.  So long as any principal of or interest on any Loan or any other Obligation (whether or not due) shall remain unpaid (other than Contingent Indemnity Obligations) or any Lender shall have any Commitment hereunder, each Loan Party will:

 

(a)           Reporting Requirements.  Furnish to each Agent and each Lender:

 

(i)          [reserved];

 

(ii)       as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year, commencing with the first such Fiscal Quarter ending after the Amendment Closing Date, unaudited consolidated balance sheets, statements of operations and retained earnings and statements of cash flows of Holdings and its Subsidiaries as at the end of such quarter, and for the period commencing at the end of the immediately preceding Fiscal Year and ending with the end of such quarter, setting forth in each case in comparative form the figures for the corresponding date or period set forth in the financial statements for the immediately preceding Fiscal Year, all in reasonable detail and certified by an Authorized Officer of Holdings as fairly presenting, in all material respects, the financial position of Holdings and its Subsidiaries as of the end of such quarter and the results of operations of Holdings and its Subsidiaries for such quarter and for such year-to-date period and the cash flows of Holdings and its Subsidiaries for such year-to-date period, in accordance with GAAP applied in a manner consistent with that of the most recent audited financial statements of Holdings and its Subsidiaries furnished to the Agents and the Lenders, subject to the absence of footnotes and normal year-end adjustments;

 

(iii)       as soon as available, and in any event within 75 days after the end of each Fiscal Year, commencing with the first Fiscal Year ending after the Amendment Closing Date, consolidated balance sheets, statements of operations and retained earnings and statements of cash flows of Holdings and its Subsidiaries as at the end of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding date or period set forth in the financial statements for the immediately preceding Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, and accompanied by a report and an opinion, prepared in accordance with generally accepted auditing standards, of independent certified public accountants of recognized standing selected by the Borrower and satisfactory to the Administrative Agent (which opinion shall be without (1) a “going concern” or like qualification or exception, or (2) any qualification or exception as to the scope of such audit (other than solely as a result of the impending maturity of any Indebtedness or as a result of a prospective or actual default under any financial maintenance covenant in any agreement governing Term Loans of Holdings, the Borrower or any of its Restricted Subsidiaries or governing the Senior Secured Notes, the Notes or the New Convertible Notes)), together with a written statement of such accountants (x) to the effect that, in making the examination necessary for their certification of such financial statements, they have not obtained any knowledge of the existence of an Event of Default or a Default under Section 7.03 and (y) if such accountants shall have obtained any knowledge of the existence of an Event of Default or such Default, describing the nature thereof;

 

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(iv)         simultaneously with the delivery of the financial statements of Holdings and its Subsidiaries required by clauses (ii) and (iii) of this Section 7.01(a), a certificate of an Authorized Officer of Holdings (a “Compliance Certificate”), which shall be substantially in the form of Exhibit F:

 

(A)         stating that such Authorized Officer has reviewed the provisions of this Agreement and the other Loan Documents and has made or caused to be made under his or her supervision a review of the condition and operations of Holdings, the Borrower and its Restricted Subsidiaries during the period covered by such financial statements with a view to determining whether the Loan Parties were in compliance with all of the provisions of this Agreement and such Loan Documents at the times such compliance is required hereby and thereby, and that such review has not disclosed, and such Authorized Officer has no knowledge of, the occurrence and continuance during such period of an Event of Default or Default or, if an Event of Default or Default had occurred and continued or is continuing, describing the nature and period of existence thereof and the action which the Loan Parties propose to take or have taken with respect thereto,

 

(B)          (1) attaching a schedule showing a reasonably detailed calculation of the First Lien Net Leverage Ratio at the end of the relevant period, (2) solely in the case of any Compliance Certificate delivered together with the financial statements required by clause (iii) of this Section 7.01(a), attaching a schedule showing the calculation of the Excess Cash Flow, (3) attaching a schedule showing the calculation of the liquidity of the Loan Parties with respect to Section 7.03, (4) at any time when there is any Unrestricted Subsidiary, attaching an Unrestricted Subsidiary Reconciliation Statement and (5) to the extent not included in the applicable financial statements, including a discussion and analysis of the financial condition and results of operations of Holdings and its Subsidiaries for the portion of the Fiscal Year then elapsed and discussing the reasons for any significant variations from the figures for the corresponding period in the previous Fiscal Year, and

 

(C)          in the case of the delivery of the financial statements of Holdings and its Subsidiaries required by clause (iii) of this Section 7.01(a), attaching (1) a summary of all material insurance coverage maintained as of the date thereof by any Loan Party, together with such other related documents and information as the Administrative Agent may reasonably require and (2) confirmation that there have been no changes to the information contained in the Perfection Certificate delivered on the Amendment Closing Date or the date of the most recently updated Perfection Certificate delivered pursuant to this clause (iv) and/or attaching an updated Perfection Certificate identifying any such changes to the information contained therein;

 

(v)         participate in a customary quarterly conference call with the Lenders, at a time selected by the Administrative Agent and reasonably acceptable to the Borrower, to discuss the financial condition of Holdings and its Subsidiaries; provided that, any public earnings call open to the Lenders and Agents shall be deemed to satisfy this requirement;

 

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(vi)         [reserved];

 

(vii)      as promptly as practicable after submission to any Governmental Authority, all documents and information furnished to such Governmental Authority in connection with any investigation of any Loan Party other than routine inquiries by such Governmental Authority;

 

(viii)      as soon as possible, and in any event within 3 Business Days after the occurrence of an Event of Default or Default or the occurrence of any event or development that would reasonably be expected to have a Material Adverse Effect, the written statement of an Authorized Officer of the Borrower setting forth the details of such Event of Default or Default or other event or development that would reasonably be expected to have a Material Adverse Effect and the action which the affected Loan Party proposes to take with respect thereto;

 

(ix)       (A) as promptly as practicable and in any event within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that (1) any Reportable Event with respect to any Employee Plan has occurred, (2) any other Termination Event with respect to any Employee Plan has occurred, or (3) an accumulated funding deficiency has been incurred or an application has been made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including installment payments) or an extension of any amortization period under Section 412 of the Internal Revenue Code with respect to an Employee Plan, a statement of an Authorized Officer of the Borrower setting forth the details of such occurrence and the action, if any, which such Loan Party or such ERISA Affiliate proposes to take with respect thereto, (B) as promptly as practicable and in any event within 3 days after receipt thereof by any Loan Party or any ERISA Affiliate thereof from the PBGC, copies of each notice received by any Loan Party or any ERISA Affiliate thereof of the PBGC’s intention to terminate any Plan or to have a trustee appointed to administer any Plan, (C) as promptly as practicable and in any event within 10 days after the filing thereof with the Internal Revenue Service if requested by the Administrative Agent, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Employee Plan and Multiemployer Plan, (D) as promptly as practicable and in any event within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that a required installment within the meaning of Section 412 of the Internal Revenue Code has not been made when due with respect to an Employee Plan and (E) as promptly as practicable and in any event within 3 days after receipt thereof by any Loan Party or any ERISA Affiliate thereof from a sponsor of a Multiemployer Plan or from the PBGC, a copy of each notice received by any Loan Party or any ERISA Affiliate thereof concerning the imposition or amount of withdrawal liability under Section 4202 of ERISA or indicating that such Multiemployer Plan may enter reorganization status under Section 4241 of ERISA;

 

(x)          as promptly as practicable after the commencement thereof but in any event not later than 5 Business Days after service of process with respect thereto on, or the obtaining of knowledge thereof by, any Loan Party, notice of each action, suit or proceeding before any court or other Governmental Authority or other regulatory body or any arbitrator which, if adversely determined, could reasonably be expected to have a Material Adverse Effect;

 

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(xi)        as promptly as practicable and in any event within 5 Business Days after execution, receipt or delivery thereof, copies of any material notices that any Loan Party executes or receives in connection with any Material Contract;

 

(xii)       as promptly as practicable and in any event within 5 Business Days after execution, receipt or delivery thereof, copies of any material notices that any Loan Party executes or receives in connection with the sale or other Disposition of the Equity Interests of, or all or substantially all of the assets of, any Loan Party;

 

(xiii)       [reserved];

 

(xiv)       [reserved];

 

(xv)       as promptly as practicable upon receipt thereof, copies of all management letters, if any, submitted to any Loan Party by its auditors in connection with any annual or interim audit of the books thereof;

 

(xvi)      as promptly as practicable upon request, any certification or other evidence reasonably requested from time to time by any Lender in its sole discretion, confirming the Borrower’s compliance with Section 7.02(r);

 

(xvii)     simultaneously with the delivery of the financial statements of Holdings and its Subsidiaries required by clauses (ii) and (iii) of this Section 7.01(a), if, as a result of any change in accounting principles and policies from those used in the preparation of the Financial Statements that is permitted by Section 7.02(q), the consolidated financial statements of Holdings and its Subsidiaries delivered pursuant to clauses (ii) and (iii) of this Section 7.01(a) will differ from the consolidated financial statements that would have been delivered pursuant to such subdivisions had no such change in accounting principles and policies been made, then, together with the first delivery of such financial statements after such change, one or more statements of reconciliation for all such prior financial statements in form and substance reasonably satisfactory to the Administrative Agent;

 

(xviii)     [reserved]; and

 

(xix)       as promptly as practicable upon request, such other information concerning the condition or operations, financial or otherwise, of any Loan Party as any Agent may from time to time may reasonably request.

 

For the avoidance of doubt, delivery of any reports, information and documents to an Agent hereunder is for informational purposes only and such Agent’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Borrower’s compliance with any of its covenants hereunder.

 

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Information required to be furnished pursuant to clause (ii) or (iii) of this Section 7.01(a) shall be deemed to have been furnished if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the Administrative Agent on the Platform or shall be available on the website of the SEC at http://www.sec.gov.  Information required to be furnished pursuant to this Section 7.01(a) may also be furnished by electronic communications pursuant to procedures approved by the Administrative Agent.

 

(b)          Additional Guarantors and Collateral Security.  Cause:

 

(i)          each Restricted Subsidiary of any Loan Party not in existence on the Amendment Closing Date (other than any Excluded Subsidiary) to execute and deliver to the Collateral Agent as promptly as practicable and in any event within 30 days (except as provided in clause (D) below and unless a later date is otherwise agreed to by the Collateral Agent) after the formation, acquisition or change in status thereof, (A) a Joinder Agreement, pursuant to which such Restricted Subsidiary shall be made a party to this Agreement as a Guarantor, (B) a supplement to the Security Agreement, together with (1) certificates evidencing all of the Equity Interests of any Person owned by such Restricted Subsidiary required to be pledged under the terms of the Security Agreement as well as any Equity Interests in such Restricted Subsidiary, (2) undated stock powers for such Equity Interests executed in blank with signature guaranteed, and (3) such opinions of counsel as the Collateral Agent may reasonably request, (C) to the extent required under the terms of this Agreement, within ninety (90) days after such formation, acquisition or change in status (unless a later date is otherwise agreed to by the Collateral Agent), one or more Mortgages creating on the fee-owned real property of such Restricted Subsidiary a perfected, first priority Lien (in terms of priority, subject only to Permitted Specified Liens) on such real property and such other Real Property Deliverables as may be required by the Collateral Agent with respect to each such real property and (D) such other agreements, instruments, approvals or other documents reasonably requested by the Collateral Agent in order to create, perfect, establish the first priority of or otherwise protect any Lien purported to be covered by any such Security Document or otherwise to effect the intent that such Restricted Subsidiary shall become bound by all of the terms, covenants and agreements contained in the Loan Documents and that all property and assets of such Restricted Subsidiary shall become Collateral for the Obligations (each such deliverable set out in this clause (i) being a “Joinder Document Deliverable”); and

 

(ii)          each Loan Party that is the owner of the Equity Interests of any such Restricted Subsidiary to execute and deliver as promptly as practicable and in any event within 10 Business Days after the formation or acquisition of such Restricted Subsidiary, a Pledge Amendment (as defined in the Security Agreement), together with (A) certificates evidencing all of the Equity Interests of such Restricted Subsidiary required to be pledged under the terms of the Security Agreement, (B) to the extent required by the terms of the Security Agreement, undated stock powers or other appropriate instruments of assignment for such Equity Interests executed in blank with signature guaranteed, (C) such opinions of counsel as the Collateral Agent may reasonably request and (D) such other agreements, instruments, approvals or other documents requested by the Collateral Agent; provided that the Loan Parties shall not be required to pledge more than 65% of the outstanding voting Equity Interests (and, for purposes of clarity, 100% of the outstanding non-voting Equity Interests) of any Foreign Subsidiary that is a CFC or FSHCO if a pledge of a greater percentage of the outstanding voting Equity Interests would result in a material adverse tax consequence to Holdings, the Borrower or any of its Restricted Subsidiaries as reasonably determined by the Borrower;

 

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provided that neither the Borrower nor any Guarantor shall be required, nor may the Administrative Agent or the Collateral Agent be authorized, to take any action in any jurisdiction (or pursuant to any Requirement of Law of any jurisdiction) other than the United States of America, any State thereof or the District of Columbia in order to create or perfect any security interests or Liens (as applicable) in assets located or titled outside the United States of America, any State thereof or the District of Columbia or to perfect such security interests or Liens (as applicable), including any Intellectual Property registered in any such jurisdiction (it being understood and agreed that there shall be no security agreements or pledge agreements governed under the laws of any jurisdiction other than the United States of America, any State thereof or the District of Columbia).

 

(c)          Compliance with Laws; Payment of Taxes.

 

(i)         Comply, and cause each of its Restricted Subsidiaries to comply, with all Requirements of Law (including all Environmental Laws), judgments and awards (including any settlement of any claim that, if breached, could give rise to any of the foregoing), except to the extent the failure to so comply would not reasonably be expected to have a Material Adverse Effect.

 

(ii)         Pay, and cause each of its Restricted Subsidiaries to pay, in full before delinquency or before the expiration of any extension period, all taxes, assessments and other governmental charges imposed upon any Loan Party or any of its Restricted Subsidiaries or any property of any Loan Party or any of its Restricted Subsidiaries, except to the extent (x) contested in good faith by proper proceedings which stay the imposition of any penalty, fine or Lien resulting from the non-payment thereof and with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP or (y) unpaid taxes, assessments and other governmental charges in an aggregate amount not exceed $25,000,000.

 

(d)          Preservation of Existence, Etc.  Except as otherwise expressly permitted by this Agreement, maintain and preserve, and cause each of its Restricted Subsidiaries to maintain and preserve, its existence, rights and privileges (except as otherwise permitted by Section 7.02(c)), and become or remain, and cause each of its Restricted Subsidiaries to become or remain, duly qualified and in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary, except to the extent that the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect.

 

(e)          Keeping of Records and Books of Account.  Keep, and cause each of its Restricted Subsidiaries to keep, adequate records and books of account, with complete entries made to permit the preparation of financial statements in accordance with GAAP.

 

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(f)          Inspection Rights.  (i) Permit, and cause each of its Restricted Subsidiaries to permit, the agents and representatives of any Agent  at any time and from time to time during normal business hours, at the expense of the Borrower, to examine and make copies of and abstracts from its records and books of account, to visit and inspect its properties, to verify materials, leases, notes, accounts receivable, deposit accounts and its other assets, to conduct audits, physical counts, valuations, appraisals or non-intrusive examinations and to discuss its affairs, finances and accounts with any of its directors, officers, managerial employees, independent accountants or any of its other representatives and (ii) at the request of the Collateral Agent and at Borrower’s expense, conduct and provide to the Collateral Agent (x) a Phase I Environmental Site Assessment of the applicable Mortgaged Property using a consultant reasonably acceptable to the Collateral Agent (the “Phase I Report”) and (y) to the extent such Phase I Report concludes that a Phase II Environmental Site Assessment is reasonably necessary to mitigate or address an impact or threat to the environment or human health and safety posed by any environmental condition identified in the Phase I Report, or recommends a Phase II Environmental Site Assessment to investigate a “Recognized Environmental Condition” identified in the Phase I Report, a reasonably-scoped Phase II Environmental Site Assessment; provided, however, that, excluding any such visits and inspections during the continuation of an Event of Default, the Agents shall not exercise the rights under this Section 7.01(f) more often than one time during any calendar year, provided that the Agents may exercise such rights under this Section 7.01(f) following the receipt of a notice pursuant to Section 7.01(j).  In furtherance of the foregoing, each Loan Party hereby authorizes its independent accountants, and the independent accountants of each of its Restricted Subsidiaries, to discuss the affairs, finances and accounts of such Person (independently or together with representatives of such Person) with the agents and representatives of any Agent in accordance with this Section 7.01(f).

 

(g)          Maintenance of Properties, Etc.  Maintain and preserve, and cause each of its Restricted Subsidiaries to maintain and preserve, all of its properties which are necessary or useful in the proper conduct of its business in good working order and condition, ordinary wear and tear and casualty excepted, and comply, and cause each of its Restricted Subsidiaries to comply, at all times with the provisions of all leases to which it is a party as lessee or under which it occupies property, so as to prevent any loss or forfeiture thereof or thereunder, except to the extent the failure to so maintain and preserve or so comply would not reasonably be expected to have a Material Adverse Effect.

 

(h)          Maintenance of Insurance.  Maintain, and cause each of its Restricted Subsidiaries to maintain, insurance with responsible and reputable insurance companies or associations (including comprehensive general liability, hazard, rent, worker’s compensation and business interruption insurance) with respect to its properties (including all real properties leased or owned by it) and business, in such amounts and covering such risks as is required by any Governmental Authority having jurisdiction with respect thereto or as is carried generally in accordance with sound business practice by companies in similar businesses similarly situated and in any event in amount, adequacy and scope reasonably satisfactory to the Collateral Agent (it being understood and agreed that the amount, adequacy and scope of insurance coverage that exists on the Amendment Closing Date is satisfactory to the Collateral Agent).  All policies covering the Collateral are to be made payable to the Collateral Agent for the benefit of the Agents and the Lenders, as its interests may appear, in case of loss, under a standard non‑contributory “lender” or “secured party” clause and are to contain such other provisions as the Collateral Agent may reasonably require to fully protect the Lenders’ interest in the Collateral and to any payments to be made under such policies.  All certificates of insurance are to be delivered to the Collateral Agent, with the loss payable and additional insured endorsement in favor of the Collateral Agent and such other Persons as the Collateral Agent may designate from time to time, and shall provide for not less than 30 days’ (10 days’ in the case of non-payment) prior written notice to the Collateral Agent of the exercise of any right of cancellation.  If any Loan Party or any of its Restricted Subsidiaries fails to maintain such insurance, the Collateral Agent may arrange for such insurance, but at the Borrower’s expense and without any responsibility on the Collateral Agent’s part for obtaining the insurance, the solvency of the insurance companies, the adequacy of the coverage, or the collection of claims.  Upon the occurrence and during the continuance of an Event of Default, upon the written direction of the Collateral Agent or the Required Lenders, the Collateral Agent shall have the sole right, in the name of the Lenders, any Loan Party and its Restricted Subsidiaries, to file claims under any insurance policies, to receive, receipt and give acquittance for any payments that may be payable thereunder, and to execute any and all endorsements, receipts, releases, assignments, reassignments or other documents that may be necessary to effect the collection, compromise or settlement of any claims under any such insurance policies.

 

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(i)           Obtaining of Permits, Etc.  Obtain, maintain and preserve, and cause each of its Restricted Subsidiaries to obtain, maintain and preserve, and take all necessary action to timely renew, all permits, licenses, authorizations, approvals, entitlements and accreditations that are necessary or useful in the proper conduct of its business, in each case, except to the extent the failure to obtain, maintain, preserve or take such action would not reasonably be expected to have a Material Adverse Effect.

 

(j)          Environmental.  (i)  Keep any property either owned or operated by it or any of its Restricted Subsidiaries free of any Environmental Liens; (ii) comply, and cause each of its Restricted Subsidiaries to comply, with all Environmental Laws and provide to the Collateral Agent any documentation of such compliance which the Collateral Agent may reasonably request; (iii) provide the Agents written notice within 20 days of becoming aware of any Release of a Hazardous Material in excess of any reportable quantity from or onto property at any time owned or operated by it or any of its Restricted Subsidiaries and take any Remedial Actions required to abate said Release; and (iv) provide the Agents with written notice within 20 days of the receipt of any of the following:  (A) notice that an Environmental Lien has been filed against any property of any Loan Party or any of its Restricted Subsidiaries; (B) commencement of any Environmental Action or notice that an Environmental Action will be filed against any Loan Party or any of its Restricted Subsidiaries; and (C) notice of a violation, citation or other administrative order which, in the case of item (i), (ii) or (iii) of this paragraph, would reasonably be expected to have a Material Adverse Effect.

 

(k)           Fiscal Year.  Cause the Fiscal Year of the Borrower and its Subsidiaries to end on December 31 of each calendar year.

 

(l)            [Reserved].

 

(m)          [Reserved].

 

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(n)          After Acquired Real Property.  Upon the acquisition by it or any of its Restricted Subsidiaries after the Amendment Closing Date of any fee interest in any real property (wherever located) (each such interest being a “New Mortgaged Property”) with a Current Value (as defined below) in excess of $5,000,000, so notify, as promptly as practicable, the Collateral Agent, setting forth with specificity a description of the interest acquired, the location of the real property, any structures or improvements thereon and either an appraisal or such Loan Party’s good-faith estimate of the current value of such real property (for purposes of this Section, the ”Current Value”).  The Collateral Agent shall notify such Loan Party whether it intends to require a Mortgage (and any other Real Property Deliverables) with respect to such New Mortgaged Property.  Upon receipt of such notice requesting a Mortgage (and any other Real Property Deliverables), the Person that has acquired such New Mortgaged Property shall promptly furnish no more than 90 days after the acquisition (unless a later date is otherwise agreed to by the Collateral Agent) the same to the Collateral Agent.  The Borrower shall pay all reasonable and documented out-of-pocket fees and expenses, including reasonable attorneys’ fees and expenses, and all title insurance charges and premiums, in connection with each Loan Party’s obligations under this Section 7.01(n).

 

(o)           Anti-Bribery and Anti-Corruption Laws; Anti-Money Laundering and Anti-Terrorism Laws.  Maintain, and cause each of its Restricted Subsidiaries to maintain, policies and procedures that are reasonably designed to ensure compliance by the Loan Parties, their respective Restricted Subsidiaries and their respective directors, officers, employees and agents with the Anti-Corruption Laws and the Anti-Money Laundering and Anti-Terrorism Laws.

 

(p)          Lender Meetings.  Upon the request of the Required Lenders (which request, so long as no Event of Default shall have occurred and be continuing, shall not be made more than once during each Fiscal Year), participate in (i) a conference call or (ii) a meeting with the Agents and the Lenders at the Borrower’s corporate offices (or at such other location as may be agreed to by the Borrower and the Required Lenders), in each case, at such time as may be agreed to by the Borrower and the Administrative Agent.

 

(q)          Further Assurances.  Take such action and execute, acknowledge and deliver, and cause each of its Restricted Subsidiaries to take such action and execute, acknowledge and deliver, at its sole cost and expense, such agreements, instruments or other documents as any Agent may reasonably require from time to time in order (i) to carry out more effectively the purposes of this Agreement and the other Loan Documents, (ii) to subject to valid and perfected first priority Liens (subject to Permitted Liens) any of the Collateral or any other property of any Loan Party and its Restricted Subsidiaries that is required, pursuant to the terms of any Security Document, to become Collateral, (iii) to establish and maintain the validity and effectiveness of any of the Loan Documents and the validity, perfection and priority of the Liens intended to be created thereby, and (iv) to better assure, convey, grant, assign, transfer and confirm unto each Secured Party the rights now or hereafter intended to be granted to it under this Agreement or any other Loan Document.  In furtherance of, and to the extent necessary to accomplish, the foregoing, to the maximum extent permitted by applicable law, each Loan Party (i) authorizes each Agent, upon the occurrence and during the continuance of an Event of Default, to execute any such agreements, instruments or other documents in such Loan Party’s name and to file such agreements, instruments or other documents in any appropriate filing office, (ii) authorizes (but without any obligation to do so) each Agent to file any financing statement required hereunder or under any other Loan Document, and any continuation statement or amendment with respect thereto, in any appropriate filing office without the signature of such Loan Party, and (iii) ratifies the filing of any financing statement, and any continuation statement or amendment with respect thereto, filed without the signature of such Loan Party prior to the Amendment Closing Date.

 

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(r)          Post-Closing Matters.  As promptly as practicable, take all necessary actions to satisfy the items described on Schedule 7.01(r) within the applicable period of time specified in such Schedule (unless a later date is otherwise agreed to by the Collateral Agent).

 

(s)          [Reserved].

 

(t)          Control Agreements.  Deliver to the Collateral Agent no later than 90 days after the Amendment Closing Date (unless a later date is otherwise agreed to by the Collateral Agent) each Control Agreement that, in the reasonable judgment of the Collateral Agent, are required for the Loan Parties to comply with the Loan Documents, each duly executed by, in addition to the applicable Loan Party, the applicable financial institution.

 

(u)          [Reserved].

 

(v)          [Reserved].

 

(w)         Casualty and Condemnation. Furnish to the Agents and the Lenders prompt written notice of any casualty or other insured damage to any material portion of any Collateral or the commencement of any action or proceeding for the taking of any Collateral or any part thereof or interest therein under power of eminent domain or by condemnation or similar proceeding.

 

Section 7.02        Negative Covenants.  From and after the Amendment Closing Date, so long as any principal of or interest on any Loan or any other Obligation (whether or not due) shall remain unpaid (other than Contingent Indemnity Obligations) or any Lender shall have any Commitment hereunder, each Loan Party shall not:

 

(a)          Liens, Etc.  Create, incur, assume or suffer to exist, or permit any of its Restricted Subsidiaries to create, incur, assume or suffer to exist, any Lien upon or with respect to any of its properties, whether now owned or hereafter acquired, or on any income or revenues or rights in respect of any thereof; file or suffer to exist under the Uniform Commercial Code or any Requirement of Law of any jurisdiction, a financing statement (or the equivalent thereof) that names it or any of its Restricted Subsidiaries as debtor; or sign or suffer to exist any security agreement authorizing any secured party thereunder to file such financing statement (or the equivalent thereof) other than, as to all of the above, Permitted Liens.

 

(b)         Indebtedness.  Create, incur, assume, guarantee or suffer to exist, or otherwise become or remain liable with respect to, or permit any of its Restricted Subsidiaries to create, incur, assume, guarantee or suffer to exist or otherwise become or remain liable with respect to, any Indebtedness other than Permitted Indebtedness.

 

(c)          Fundamental Changes; Dispositions.

 

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(i)          Wind-up, liquidate or dissolve, or merge, consolidate or amalgamate with any Person, including by means of a “plan of division” under the Delaware Limited Liability Company Act or any comparable transaction under any similar law, or permit any of its Restricted Subsidiaries to do (or agree to do) any of the foregoing; provided, however, that (x) any wholly-owned Restricted Subsidiary of any Loan Party may be merged into such Loan Party or another wholly-owned Restricted Subsidiary of such Loan Party, or may consolidate or amalgamate with such Loan Party or another wholly-owned Restricted Subsidiary of such Loan Party, and any Person may merge into or consolidate or amalgamate with any Restricted Subsidiary in a transaction permitted by Section 7.02(e) in which, after giving effect to such transaction, the surviving entity is a Restricted Subsidiary, so long as (A) no other provision of this Agreement would be violated thereby, (B) such Loan Party gives the Agents at least 10 days’ prior written notice of such merger, consolidation or amalgamation accompanied by true, correct and complete copies of all material agreements, documents and instruments relating to such merger, consolidation or amalgamation, including the certificate or certificates of merger or amalgamation to be filed with each appropriate Secretary of State (with a copy as filed as promptly as practicable after such filing), (C) no Default or Event of Default shall have occurred and be continuing either before or after giving effect to such transaction, (D) the Lenders’ rights in any Collateral, including the existence, perfection and priority of any Lien thereon, are not adversely affected in any material respect by such merger, consolidation or amalgamation, (E) if any party to such transaction is a Loan Party, the surviving Restricted Subsidiary, if any, if not already a Loan Party, is joined as a Loan Party hereunder pursuant to a Joinder Agreement and becomes a party to the Security Agreement and the Equity Interests of such Restricted Subsidiary become the subject of the Security Agreement, in each case, which is in full force and effect not later than the date that is 30 days after giving effect to such merger, consolidation or amalgamation (unless a later date is otherwise agreed to by the Collateral Agent) and (F) if the Borrower is a party to such transaction, the Borrower shall be the surviving entity, (y) any Restricted Subsidiary that is not a Loan Party may merge into or consolidate or amalgamate with another Restricted Subsidiary that is not a Loan Party or, if the surviving entity is or becomes a Loan Party, with a Restricted Subsidiary that is a Loan Party and (z) any Restricted Subsidiary (other than the Borrower) may wind-up, liquidate or dissolve if the Borrower determines in good faith that such winding-up, liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Secured Parties; and

 

(ii)        Make any Disposition, whether in one transaction or a series of related transactions, of all or any part of its business, property or assets, whether now owned or hereafter acquired (or agree to do any of the foregoing), or permit any of its Restricted Subsidiaries to do any of the foregoing; provided, however, that any Loan Party and its Restricted Subsidiaries may make Permitted Dispositions.

 

(d)          Change in Nature of Business. Make, or permit any of its Restricted Subsidiaries to make, any change in the nature of its business as described in Section 6.01(l).

 

(e)          Loans, Advances, Investments, Etc.  Make or commit or agree to make, or permit any of its Restricted Subsidiaries make or commit or agree to make, any Investment in any other Person except for Permitted Investments.

 

(f)           Sale and Leaseback Transactions.  Enter into, or permit any of its Restricted Subsidiaries to enter into, any Sale and Leaseback Transaction except to the extent the Net Cash Proceeds thereof are paid to the Administrative Agent for the benefit of the Agents and the Lenders pursuant to the terms of Section 2.05(c)(ii).

 

(g)          [Reserved].

 

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(h)         Restricted Payments.  Make or permit any of its Restricted Subsidiaries to make any Restricted Payment other than (a) Permitted Restricted Payments and (b) Permitted Tax Distributions.

 

(i)           Federal Reserve Regulations.  Permit any Term Loan or the proceeds of any Term Loan under this Agreement to be used for any purpose that would cause such Term Loan to be a margin loan under and in a manner that violates the provisions of Regulation T, U or X of the Board.

 

(j)          Transactions with Affiliates.  Enter into, renew, extend or be a party to, or permit any of its Restricted Subsidiaries to enter into, renew, extend or be a party to, any transaction or series of related transactions (including the purchase, sale, lease, transfer or exchange of property or assets of any kind or the rendering of services of any kind) with any Affiliate, except (i) transactions consummated in the ordinary course of business in a manner and to an extent consistent with past practice and necessary or desirable for the prudent operation of its business, for fair consideration and on terms no less favorable to it or its Restricted Subsidiaries than would be obtainable in a comparable arm’s length transaction with a Person that is not an Affiliate thereof if they involve one or more payments by Holdings, the Borrower or any of its Restricted Subsidiaries in excess of $1,000,000 for any single transaction or series of related transactions, (ii) transactions by a Loan Party with another Loan Party not involving any other Affiliate and transactions by a Restricted Subsidiary that is not a Loan Party with another Restricted Subsidiary that is not a Loan Party not involving any other Affiliate, (iii) transactions permitted by Section 7.02(e) and Section 7.02(h), (iv) sales of Qualified Equity Interests of Holdings to Affiliates of Holdings not otherwise prohibited by the Loan Documents and the granting of registration and other customary rights in connection therewith under agreements to which such Loan Party or such Restricted Subsidiary is a party as of the Amendment Closing Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of or the performance by any Loan Party or any of its Restricted Subsidiaries of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Amendment Closing Date shall only be permitted by this clause (iv) to the extent that the terms of any such amendment or new agreement are not otherwise materially disadvantageous to the Lenders when taken as a whole, (v) reasonable and customary director and officer compensation (including bonuses and stock option programs), benefits and indemnification arrangements, in each case approved by the Board of Directors (or a committee thereof) of such Loan Party or such Restricted Subsidiary, (vi) so long as no Default or Event of Default, in each case, pursuant to Section 9.01(a) has occurred and is continuing or would result therefrom, the payment of all amounts payable under the Management Agreement upon the termination thereof pursuant to the terms of such termination, (vii) transactions, when viewed together with any related transactions, on terms that the Board of Directors of Holdings determines pursuant to a resolution of the Board of Directors of Holdings are no less favorable to such Loan Party or its Restricted Subsidiaries than would be obtainable in a comparable arm’s length transaction with a Person that is not an Affiliate thereof and (viii) transactions under the Investor Agreement, the Registration Rights Agreement and the Option Awards Agreement.

 

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(k)         Limitations on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries.  Create or otherwise cause, incur, assume, suffer or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary of any Loan Party (i) to pay dividends or to make any other distribution on any shares of Equity Interests of such Restricted Subsidiary owned by any Loan Party or any of its Restricted Subsidiaries, (ii) to pay or prepay or to subordinate any Indebtedness owed to any Loan Party or any of its Restricted Subsidiaries, (iii) to make loans or advances to any Loan Party or any of its Restricted Subsidiaries or (iv) to transfer any of its property or assets to any Loan Party or any of its Restricted Subsidiaries, or permit any of its Restricted Subsidiaries to do any of the foregoing; provided, however, that nothing in any of clauses (i) through (iv) of this Section 7.02(k) shall prohibit or restrict compliance with:

 

(A)        this Agreement and the other Loan Documents and the definitive documentation for any Refinancing Facility;

 

(B)       any agreement in effect on the date of this Agreement and described on Schedule 7.02(k), or any extension, replacement or continuation of any such agreement; provided, that, any such encumbrance or restriction contained in such extended, replaced or continued agreement is no less favorable in any material respect to the Agents and the Lenders than the encumbrance or restriction under or pursuant to the agreement so extended, replaced or continued;

 

(C)        any applicable law, rule or regulation (including applicable currency control laws and applicable state corporate statutes restricting the payment of dividends in certain circumstances);

 

(D)        in the case of clause (iv), (1) customary restrictions on the subletting, assignment or transfer of any specified property or asset set forth in a lease, license, asset sale agreement or similar contract for the conveyance of such property or asset and (2) instrument or other document evidencing a Permitted Lien (or the Indebtedness secured thereby) from restricting on customary terms the transfer of any property or assets subject thereto;

 

(E)          customary restrictions on dispositions of real property interests in reciprocal easement agreements;

 

(F)          customary restrictions in agreements for the sale of assets on the transfer or encumbrance of such assets during an interim period prior to the closing of the sale of such assets;

 

(G)          customary restrictions in contracts that prohibit the assignment of such contract;

 

(H)         customary restrictions set forth in the Governing Documents of any Restricted Subsidiary that is not a wholly-owned Restricted Subsidiary; or

 

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(I)          the Senior Secured Notes Indenture, the Notes Indenture or the New Convertible Notes Indenture.

 

(l)          Limitations on Negative Pledges.  Enter into, incur or permit to exist, or permit any Restricted Subsidiary to enter into, incur or permit to exist, directly or indirectly, any agreement, instrument, deed, lease or other arrangement that prohibits, restricts or imposes any condition upon the ability of any Loan Party or any of its Restricted Subsidiaries of any Loan Party to create, incur or permit to exist any Lien (other than Permitted Liens) upon any of its property or revenues in favor of the Secured Parties to secure the Obligations under the Loan Documents, whether now owned or hereafter acquired, or that requires the grant of any security for an obligation if security is granted for another obligation, except the following:  (i) this Agreement and the other Loan Documents or in the definitive documentation for any Refinancing Facility, (ii) restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by Section 7.02(b) of this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (iii) any customary restrictions and conditions contained in agreements relating to the sale or other disposition of assets or of a Restricted Subsidiary pending such sale or other disposition; provided that such restrictions and conditions apply only to the assets or Restricted Subsidiary to be sold or disposed of and such sale or disposition is permitted hereunder, (iv) customary provisions in leases restricting the assignment or sublet thereof, (v) customary restrictions in contracts that prohibit the assignment of such contracts, (vi) customary restrictions set forth in the Governing Documents of any Restricted Subsidiary that is not a wholly-owned Restricted Subsidiary and (vii) the Senior Secured Notes Indenture, the Notes Indenture or the New Convertible Notes Indenture.

 

(m)          Modifications of Indebtedness, Organizational Documents and Certain Other Agreements; Etc.

 

(i)          Amend, modify or otherwise change (or permit the amendment, modification or other change in any manner of) any of the provisions of any of its or its Restricted Subsidiaries’ Indebtedness outstanding as of the Amendment Closing Date or of any instrument or agreement (including any purchase agreement, indenture, loan agreement or security agreement) relating to any such Indebtedness if such amendment, modification or change would (A) shorten the final maturity of such Indebtedness, or shorten the average life to maturity of such Indebtedness, to a date earlier than 91 days after the Latest Maturity Date then in effect, (B) require any payment to be made on such Indebtedness earlier than the date originally scheduled on such Indebtedness, unless such payment is to be made after the date that is 91 days after the Latest Maturity Date then in effect, (C) increase the interest rate applicable to such Indebtedness or (D) change the subordination provision, if any, of such Indebtedness;

 

(ii)        except for the Obligations or for any Indebtedness owing by a Restricted Subsidiary of a Loan Party to a Loan Party,

 

(A)         make any mandatory, voluntary or optional payment (including any payment of interest in cash that, at the option of the issuer, may be paid in cash or in kind), prepayment, redemption, defeasance, sinking fund payment or other acquisition for value of any of its or its Restricted Subsidiaries’ Junior Indebtedness (including by way of depositing money or securities with the trustee therefor before the date required for the purpose of paying any portion of such Junior Indebtedness when due), except (I) the repurchase of Notes pursuant to and in accordance with any Convertible Notes Exchange conducted on or prior to the Delayed Draw Term Loan Commitment Termination Date, the cash portion of which is funded with the proceeds of Delayed Draw Term Loans and (II) in an aggregate amount not in excess of, for any Fiscal Quarter, the RP/Investment Amount for such Fiscal Quarter (less the sum of (1) the aggregate amount of Investments outstanding (without giving effect to any write-off or write-down) that have been made pursuant to clause (q) of the definition of “Permitted Investment” during such Fiscal Quarter and (2) the aggregate amount of Restricted Payments that have been made pursuant to clause (g) of the definition of “Permitted Restricted Payments” during such Fiscal Quarter, in each case on or prior to the applicable date of determination); provided that at the time any such payment is made pursuant to clause (I) or (II) of this clause (A), no Default or Event of Default shall have occurred and be continuing or would result therefrom; provided further that, solely with respect to any Restricted Payment described in clause (II) of this clause (A), (x) no payment may be made pursuant to this clause (A)(x) or (A)(y) other than with respect to the Notes or the New Convertible Notes until such date as the Notes or the New Convertible Notes, as applicable, have been prepaid or redeemed in full and (y) the aggregate principal amount of the Notes and New Convertible Notes that may be redeemed during any Fiscal Quarter shall not exceed $10,000,000, or

 

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(B)         refund, refinance, replace or exchange any other Junior Indebtedness for any such Indebtedness (other than with respect to Permitted Refinancing Indebtedness);

 

(iii)        amend, modify or otherwise change any of its Governing Documents (including by the filing or modification of any certificate of designation, or any agreement or arrangement entered into by it) with respect to any of its Equity Interests (including any shareholders’ agreement), or enter into any new agreement with respect to any of its Equity Interests, except any such amendments, modifications or changes or any such new agreements or arrangements pursuant to this clause (iii) that either individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect; provided that no such amendment, modification or change or new agreement or arrangement shall provide for any plan of division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any similar statute or provision under applicable law); or

 

(iv)       agree to any amendment, modification or other change to or waiver of any of its rights under any Material Contract if such amendment, modification, change or waiver would be adverse in any material respect to any Loan Party or any of its Restricted Subsidiaries or the Agents and the Lenders.

 

(n)          Investment Company Act of 1940.  Engage in any business, enter into any transaction, use any securities or take any other action or permit any of its Restricted Subsidiaries to do any of the foregoing, that would cause it or any of its Restricted Subsidiaries to be required to register under the registration requirements of the Investment Company Act of 1940, as amended, by virtue of being an “investment company” or a company “controlled” by an “investment company” not entitled to an exemption within the meaning of such Act.

 

(o)          ERISA.  (i) Engage, or permit any ERISA Affiliate to engage, in any transaction described in Section 4069 of ERISA; (ii) engage, or permit any ERISA Affiliate to engage, in any prohibited transaction described in Section 406 of ERISA or 4975 of the Internal Revenue Code for which a statutory or class exemption is not available or a private exemption has not previously been obtained from the U.S. Department of Labor; (iii) adopt or permit any ERISA Affiliate to adopt any employee welfare benefit plan within the meaning of Section 3(1) of ERISA which provides benefits to employees after termination of employment other than as required by Section 601 of ERISA or applicable law; (iv) fail to make any contribution or payment to any Multiemployer Plan which it or any ERISA Affiliate may be required to make under any agreement relating to such Multiemployer Plan, or any law pertaining thereto; or (v) fail, or permit any ERISA Affiliate to fail, to pay any required installment or any other payment required under Section 412 of the Internal Revenue Code on or before the due date for such installment or other payment.

 

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(p)           Environmental.  Permit the use, handling, generation, storage, treatment, Release or disposal of Hazardous Materials at any property owned or leased by it or any of its Restricted Subsidiaries, except in compliance with Environmental Laws (other than any noncompliance that would not reasonably be expected to have a Material Adverse Effect).

 

(q)           [Reserved].

 

(r)            Anti-Money Laundering and Anti-Terrorism Laws.

 

(i)          None of the Loan Parties, nor any of their Restricted Subsidiaries shall:

 

(A)        conduct any business or engage in any transaction or dealing with or for the benefit of any Blocked Person, including the making or receiving of any contribution of funds, goods or services to, from or for the benefit of any Blocked Person;

 

(B)          deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked or subject to blocking pursuant to the Sanctions Programs;

 

(C)        use any of the proceeds of the Term Loans or the transactions contemplated by this Agreement to finance, promote or otherwise support in any manner any illegal activity, including any violation of the Anti-Money Laundering and Anti-Terrorism Laws or any specified unlawful activity as that term is defined in the Money Laundering Control Act of 1986, 18 U.S.C. §§ 1956 and 1957; or

 

(D)         violate, attempt to violate, or engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, any of the Anti-Money Laundering and Anti-Terrorism Laws in any material respects.

 

(ii)         None of the Loan Parties, nor any Restricted Subsidiary of any of the Loan Parties, nor any officer, director or principal shareholder or owner of any of the Loan Parties, nor, to the knowledge of any Loan Party, any of the Loan Parties’ respective agents acting or benefiting in any capacity in connection with the Term Loans or other transactions hereunder, shall be or shall become a Blocked Person.

 

(s)             Anti-Bribery and Anti-Corruption Laws.  None of the Loan Parties shall:

 

(i)          offer, promise, pay, give, or authorize the payment or giving of any money, gift or other thing of value, directly or indirectly, to or for the benefit of any Foreign Official for the purpose of: (1) influencing any act or decision of such Foreign Official in his, her, or its official capacity; (2) inducing such Foreign Official to do, or omit to do, an act in violation of the lawful duty of such Foreign Official, or (3) securing any improper advantage, in order to obtain or retain business for, or with, or to direct business to, any Person; or

 

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(ii)      act or attempt to act in any manner which would subject any of the Loan Parties to liability under any Anti-Corruption Law.

 

(t)            Divisions.  Notwithstanding anything herein or any other Loan Document to the contrary, no Loan Party that is a limited liability company may divide itself into two or more limited liability companies (pursuant to a “plan of division” as contemplated under the Delaware Limited Liability Company Act or otherwise) without the prior written consent of the Administrative Agent, and in the event that any Loan Party that is a limited liability company divides itself into two or more limited liability companies (with or without the prior consent of Administrative Agent as required above), any limited liability companies formed as a result of such division shall be required to comply with the obligations set forth in Section 7.01(b) and the other further assurances obligations set forth in the Loan Documents and become a Borrower or Guarantor (as required by the Administrative Agent) under this Agreement and the other Loan Documents.

 

Notwithstanding the foregoing, the limitations set forth in paragraphs (h) and (m) of this Section 7.02 shall not prohibit Holdings’ entry into the Permitted Rights Agreement or, subject to the proviso in clause (ii) below, the taking of any action by Holdings or any of the Subsidiaries pursuant to or in accordance with such Permitted Rights Agreement, including (i) the issuance (by dividend or otherwise) of common stock, preferred stock or other Equity Interests of Holdings or purchase rights for the purchase of any of the foregoing; (ii) the making of Restricted Payments in respect of any Equity Interests or purchase rights described in the immediately preceding clause (i) (including the redemption of any such purchase rights); provided that any such Restricted Payments made in the form of cash shall be subject to Section 7.02(h); and (iii) the filing of a certificate of designation or similar documentation in respect of any preferred stock or other Equity Interests of Holdings that may be issued pursuant to or in accordance with such Permitted Rights Agreement.

 

Section 7.03          Minimum Liquidity.  So long as any principal of or interest on any Term Loan or any other Obligation (whether or not due) shall remain unpaid (other than Contingent Indemnity Obligations) or any Lender shall have any Commitment hereunder, each Loan Party shall not permit, as of the last day of any Fiscal Quarter (beginning with the Fiscal Quarter in which the Amendment Closing Date occurs), the aggregate amount of Qualified Cash of Holdings, the Borrower and its Restricted Subsidiaries to be less than $30,000,000.

 

ARTICLE VIII

 

DESIGNATION OF SUBSIDIARIES

 

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The Borrower may at any time designate any of its Restricted Subsidiaries as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) immediately before and after such designation, (x) no Default or Event of Default shall have occurred and be continuing or would immediately result from such designation and (y) the Borrower shall be in pro forma compliance with the covenant set forth in Section 7.03 after giving effect to such designation and (ii) no Restricted Subsidiary may be designated as an Unrestricted Subsidiary if it is designated as a Restricted Subsidiary under the Senior Secured Notes Indenture, the Notes Indenture or the New Convertible Notes Indenture.  The Borrower may not designate a Restricted Subsidiary as an Unrestricted Subsidiary if, at the time of such designation (and, thereafter, any Unrestricted Subsidiary shall cease to be an Unrestricted Subsidiary automatically if) such Restricted Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or holds any Lien on any property of, Holdings, the Borrower or any other Subsidiary (other than (x) any Subsidiary of such Restricted Subsidiary and (y) any Unrestricted Subsidiary).  The designation of any Restricted Subsidiary as an Unrestricted Subsidiary shall constitute an investment by the parent company of such Subsidiary therein under Section 7.02(e) at the date of designation in an amount equal to the net book value of such parent company’s investment therein.  The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Subsidiary, and the making of an investment by such Subsidiary in any investments of such Subsidiary, in each case existing at such time.  Notwithstanding anything in this Agreement or any other Loan Document to the contrary (including Section 7.02(e)), none of Holdings, the Borrower or any of its Restricted Subsidiaries may invest, exclusively license or otherwise transfer Intellectual Property to, and Intellectual Property may not be owned by, any Unrestricted Subsidiary.

 

ARTICLE IX

 

EVENTS OF DEFAULT

 

Section 9.01          Events of Default.  Each of the following events shall constitute an event of default (each, an “Event of Default”):

 

(a)          the Borrower shall fail to pay, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), (i) any interest on any Term Loan, any Collateral Agent Advance or any fee, indemnity or other amount payable under this Agreement (other than any portion thereof constituting principal of the Term Loans) or any other Loan Document, and such failure continues for a period of three Business Days or (ii) all or any portion of the principal of the Term Loans;

 

(b)          any representation or warranty made by or on behalf of any Loan Party or by any officer of the foregoing under or in connection with any Loan Document or under or in connection with any certificate delivered to any Secured Party pursuant to any Loan Document shall have been incorrect in any material respect (or in any respect if such representation or warranty is qualified or modified as to materiality or “Material Adverse Effect” in the text thereof) when made or deemed made;

 

(c)          any Loan Party shall fail to perform or comply with any covenant or agreement contained in Section 7.01(a), Section 7.01(d) (with respect to the Borrower), Section 7.01(k), Section 7.01(m), Section 7.01(t), Section 7.01(v), Section 7.01(x), Section 7.02, Section 7.03 or the last sentence of Article VIII;

 

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(d)         any Loan Party shall fail to perform or comply with any other term, covenant or agreement contained in any Loan Document to be performed or observed by it and, except as set forth in subsections (a), (b) and (c) of this Section 9.01, such failure, if capable of being remedied, shall remain unremedied for 30 days after the earlier of the date a senior officer of any Loan Party has knowledge of such failure and the date written notice of such default shall have been given by any Agent (acting at the written direction of the Required Lenders) to such Loan Party;

 

(e)        Holdings, the Borrower or any of their respective Restricted Subsidiaries shall fail to pay when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) any principal, interest or other amount payable in respect of the Senior Secured Notes, the Notes or any other Indebtedness (excluding Indebtedness evidenced by this Agreement) having an aggregate amount outstanding in excess of $50,000,000, and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to the Senior Secured Notes, the Notes, the New Convertible Notes or any such Indebtedness, or any other default under any agreement or instrument relating to the Senior Secured Notes, the Notes, the New Convertible Notes or any such Indebtedness, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of the Senior Secured Notes, the Notes, the New Convertible Notes or any such Indebtedness; or the Senior Secured Notes, the Notes, the New Convertible Notes or any such Indebtedness shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased or an offer to prepay, redeem, purchase or defease such Senior Secured Notes, such Notes, such New Convertible Notes or any such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof;

 

(f)          Holdings, the Borrower or any of its Material Subsidiaries (i) shall institute any proceeding or voluntary case seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for any such Person or for any substantial part of its property, (ii) shall be generally not paying its debts as such debts become due or shall admit in writing its inability to pay its debts generally, (iii) shall make a general assignment for the benefit of creditors, or (iv) shall take any action to authorize or effect any of the actions set forth above in this subsection (f);

 

(g)          any proceeding shall be instituted against Holdings, the Borrower or any of its Material Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for any such Person or for any substantial part of its property, and either such proceeding shall remain undismissed or unstayed for a period of 60 days or any of the actions sought in such proceeding (including the entry of an order for relief against any such Person or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur;

 

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(h)          any material provision of any Loan Document shall at any time for any reason (other than pursuant to the express terms thereof) cease to be valid and binding on or enforceable against any Loan Party intended to be a party thereto, or the validity or enforceability thereof shall be contested by any party thereto, or a proceeding shall be commenced by any Loan Party or any Governmental Authority having jurisdiction over any of them, seeking to establish the invalidity or unenforceability thereof, or any Loan Party shall deny in writing that it has any liability or obligation purported to be created under any Loan Document;

 

(i)          the Security Agreement, any Mortgage or any other Security Document, after delivery thereof pursuant hereto, shall for any reason (other than release by the Collateral Agent pursuant to the terms hereof of thereof or the failure of the Agents to take required actions based on accurate information timely provided by the Loan Parties) fail or cease to create a valid and perfected and, except to the extent permitted by the terms hereof or thereof, first priority Lien in favor of the Collateral Agent for the benefit of the Agents and the Lenders on any Collateral purported to be covered thereby;

 

(j)          one or more judgments, orders or awards (or any settlement of any litigation or other proceeding that, if breached, could result in a judgment, order or award) for the payment of money exceeding $50,000,000 in the aggregate (except to the extent fully covered (other than to the extent of customary deductibles) by insurance pursuant to which the insurer has been notified and has not denied coverage) shall be rendered against Holdings, the Borrower or any of its Restricted Subsidiaries and remain unsatisfied and (i) enforcement proceedings shall have been commenced by any creditor upon any such judgment, order, award or settlement or (ii) there shall be a period of 30 consecutive days after entry thereof during which (A) a stay of enforcement thereof is not be in effect or (B) the same is not vacated, discharged, stayed or bonded pending appeal;

 

(k)           any Senior Secured Notes remain outstanding on or after 5:00 p.m. on the date that is the six months after the Amendment Closing Date;

 

(l)           [reserved];

 

(m)         [reserved];

 

(n)          [reserved];

 

(o)          any Loan Party or any of its ERISA Affiliates shall have made a complete or partial withdrawal from a Multiemployer Plan, and, as a result of such complete or partial withdrawal, any Loan Party or any of its ERISA Affiliates incurs a withdrawal liability in an annual amount that would reasonably be expected to result in a Material Adverse Effect; or a Multiemployer Plan enters reorganization status under Section 4241 of ERISA, and, as a result thereof any Loan Party’s or any of its ERISA Affiliates’ annual contribution requirements with respect to such Multiemployer Plan increases in an annual amount that would reasonably be expected to result in a Material Adverse Effect;

 

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(p)          any Termination Event with respect to any Employee Plan shall have occurred, and, 30 days after notice thereof shall have been given to any Loan Party by any Agent, (i) such Termination Event (if correctable) shall not have been corrected, and (ii) the then current value of such Employee Plan’s vested benefits exceeds the then current value of assets allocable to such benefits in such Employee Plan by an amount that would reasonably be expected to result in a Material Adverse Effect (or, in the case of a Termination Event involving liability under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 4971 or 4975 of the Internal Revenue Code, the liability is in excess of such amount);

 

(q)         (i) any of the Obligations for any reason shall cease to be (x) “Senior Indebtedness” or “Designated Senior Indebtedness” (or any comparable terms) under, and as defined in the documents evidencing or governing, any Junior Indebtedness, or (y) “First Priority Obligations” (or any comparable terms) under, and as defined in, the Notes Junior Intercreditor Agreement or the New Convertibles Notes Junior Intercreditor Agreement, (ii) any Indebtedness other than the Obligations shall constitute “Designated Senior Indebtedness” (or any comparable term) under, and as defined in, the documents evidencing or governing any Junior Indebtedness, (iii) any holder of Junior Indebtedness shall fail to perform or comply with any of the subordination provisions of the documents evidencing or governing such Junior Indebtedness, including the Notes Junior Intercreditor Agreement and the New Convertible Notes Junior Intercreditor Agreement, or (iv) the subordination provisions of the documents evidencing or governing any Junior Indebtedness (including the Notes Junior Intercreditor Agreement and the New Convertible Notes Junior Intercreditor Agreement) shall, in whole or in part, terminate, cease to be effective or cease to be legally valid, binding and enforceable against any holder of the applicable Junior Indebtedness; or

 

(r)           a Change of Control shall have occurred;

 

then, and in any such event, the Collateral Agent shall, at the written direction of the Required Lenders, by notice to the Borrower, (i) terminate or reduce all Commitments, whereupon all Commitments shall immediately be so terminated or reduced, (ii) declare all or any portion of the Loans then outstanding to be accelerated and due and payable, whereupon all or such portion of the aggregate principal of all Loans, all accrued and unpaid interest thereon, all fees and all other amounts payable under this Agreement and the other Loan Documents shall become due and payable immediately, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by each Loan Party and (iii) exercise any and all of its other rights and remedies under applicable law, hereunder and under the other Loan Documents; provided, however, that upon the occurrence of any Event of Default described in subsection (f) or (g) of this Section 9.01 with respect to any Loan Party, without any notice to any Loan Party or any other Person or any act by any Agent or any Lender, all Commitments shall automatically terminate and all Loans then outstanding, together with all accrued and unpaid interest thereon, all fees and all other amounts due under this Agreement and the other Loan Documents shall be accelerated and become due and payable automatically and immediately, without presentment, demand, protest or notice of any kind, all of which are expressly waived by each Loan Party.

 

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ARTICLE X

 

AGENTS

 

Section 10.01      Appointment.  Each of the Lenders (and each subsequent maker of any Loan by its making thereof) hereby irrevocably appoints, authorizes and empowers the Administrative Agent and the Collateral Agent to take such actions on its behalf and perform the duties of each such Agent as set forth in this Agreement and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto.  The Agents shall not be required to take any action which, in the opinion of any Agent or its counsel, may expose such Agent to liability or which is contrary to this Agreement or any other Loan Document or applicable law.  If any Agent so requests, it shall first be indemnified to its satisfaction from the Lenders or Required Lenders, as applicable, against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action.  No provision of this Agreement or any other Loan Document or any agreement or instrument contemplated hereby or thereby, or the transactions contemplated hereby or thereby shall require any Agent to: (i) expend or risk its own funds or provide indemnities in the performance of any of its duties hereunder or the exercise of any of its rights or power or (ii) otherwise incur any financial liability in the performance of its duties or the exercise of any of its rights or powers.

 

Section 10.02      Nature of Duties; Delegation.  (a) The Agents shall have no duties or responsibilities except those expressly set forth in this Agreement or in the other Loan Documents.  The Agents shall not have by reason of this Agreement or any other Loan Document a fiduciary relationship in respect of any Lender.  Nothing in this Agreement or any other Loan Document, express or implied, is intended to or shall be construed to impose upon the Agents any obligations in respect of this Agreement or any other Loan Document except as expressly set forth herein or therein.  Each of the Lenders shall make its own independent investigation of the financial condition and affairs of the Loan Parties in connection with the making and the continuance of the Term Loans hereunder and shall make its own appraisal of the creditworthiness of the Loan Parties and the value of the Collateral, and the Agents shall have no duty or responsibility, either initially or on a continuing basis, to provide any Lender with any credit or other information with respect thereto, whether coming into their possession before the initial Loans hereunder or at any time or times thereafter, provided that, upon the reasonable request of a Lender, each Agent shall provide to such Lender any documents or reports delivered to such Agent by the Loan Parties pursuant to the terms of this Agreement or any other Loan Document.  If any Agent seeks the consent or approval of the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents) to the taking or refraining from taking any action hereunder, such Agent shall send notice thereof to each Lender.

 

(b)         Each Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any one or more sub-agents (including such Agent’s officers, directors, agents and affiliations), trustees, co-agents, employees, attorney-in-facts and any other Person (including any Lender) appointed by it.  Any such Person shall benefit from this Article X to the extent provided by the applicable Agent.  The exculpatory provisions of Section 10.03 shall apply to any such Person and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Agent. No Agent shall be responsible for the negligence or misconduct of any such Person.

 

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Section 10.03      Rights, Exculpation, Etc.  The Agents and their directors, officers, agents or employees shall not be liable for any action taken or omitted to be taken by them (a) at or by the direction of the Required Lenders, or (b) under or in connection with this Agreement or the other Loan Documents, except for their own gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction.  Without limiting the generality of the foregoing, the Agents (i) may treat the payee of any Loan as the owner thereof until the Administrative Agent receives written notice of the assignment or transfer thereof, pursuant to Section 12.07 hereof, signed by such payee and in form satisfactory to the Administrative Agent; (ii) may consult with legal counsel (including counsel to any Agent or counsel to the Loan Parties), independent public accountants, and other experts selected by any of them and shall not be liable for any action taken or omitted to be taken in good faith by any of them in accordance with the advice of such counsel or experts; (iii) make no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, certificates, warranties or representations made in or in connection with this Agreement or the other Loan Documents; (iv) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the other Loan Documents on the part of any Person, the existence or possible existence of any Default or Event of Default, or to inspect the Collateral or other property (including the books and records) of any Person; (v) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto; and (vi) shall not be deemed to have made any representation or warranty regarding the existence, value or collectibility of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Agents be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.  The Agents shall not be liable for any apportionment or distribution of payments made in good faith pursuant to Section 4.03, and if any such apportionment or distribution is subsequently determined to have been made in error, and the sole recourse of any Lender to whom payment was due but not made shall be to recover from other Lenders any payment in excess of the amount which they are determined to be entitled.  The Agents may at any time request instructions from the Lenders with respect to any actions or approvals which by the terms of this Agreement or of any of the other Loan Documents the Agents are permitted or required to take or to grant, and the Agents shall be absolutely entitled to refrain from taking any action or to withhold any approval under any of the Loan Documents until they shall have received such instructions from the Required Lenders.  Without limiting the foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting under this Agreement or any of the other Loan Documents in accordance with the instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents).  The Agents shall not be responsible or liable for any failure or delay in the performance of their obligations under this Agreement or the other Loan Documents arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; pandemics; riots; business interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication services; accidents; labor disputes; acts of civil or military authority and governmental action.  In no event shall any Agent be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.  No Agent shall be required to qualify in any jurisdiction in which it is not presently qualified to perform its obligations as Agent or to enforce any rights and remedies in any foreign jurisdiction.

 

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Section 10.04       Reliance.

 

(a)        Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet, or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for Holdings and the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

 

(b)         In determining compliance with any condition hereunder to the making of a Loan, that by its terms must be fulfilled to the satisfaction of a Lender, an Agent may presume that such condition is satisfactory to such Lender unless an Agent has received notice to the contrary from such Lender prior to the making of such Loan.

 

(c)          Before an Agent acts or refrains from acting, it may require an officer’s certificate from the Borrower and/or an opinion of counsel satisfactory to such Agent with respect to the proposed action or inaction, such certificate and opinion to be given at the Borrower’s expense.  No Agent shall be liable for any action it takes or omits to take in good faith in reliance upon such certificate or opinion.  Whenever in the administration of the Loan Documents any Agent shall deem it necessary or desirable that a matter be proved or established before taking or suffering or omitting to take any act under any Loan Document, such matter (unless other evidence in respect thereof is herein specifically prescribed) may, in the absence of gross negligence or willful misconduct on the part of such Agent, be deemed to be conclusively proved and established by an officers’ certificate delivered to such Agent, and such certificate, in the absence of gross negligence or willful misconduct on the part of such Agent, shall be full warrant to that Agent for any action taken, suffered or omitted to be taken by it under the Loan Documents upon the faith thereof.

 

Section 10.05       Indemnification.  To the extent that any Agent is not reimbursed and indemnified by any Loan Party, and whether or not such Agent has made demand on any Loan Party for the same, the Lenders will, within five days of written demand by such Agent (and, with respect to any Affected Financial Institution, such amounts shall be deemed due and payable no later than six days after demand therefor), reimburse such Agent for and indemnify such Agent, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges, expenses (including client charges and reasonable and documented out-of-pocket expenses of counsel or any other advisor to such Agent), advances or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against such Agent, in any way relating to or arising out of this Agreement or any of the other Loan Documents or any action taken or omitted by such Agent, under this Agreement or any of the other Loan Documents, including in connection with proceedings where such Lender is a party thereto, in proportion to each Lender’s Pro Rata Share, including advances and disbursements made pursuant to Section 10.08; provided, however, that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, advances or disbursements for which there has been a final non-appealable judicial determination that such liability resulted from such Agent’s gross negligence or willful misconduct.  The obligations of the Lenders under this Section 10.05 shall survive the payment in full of the Loans, the resignation or removal of any Agent, the termination of this Agreement and the exercise of Write-Down and Conversion Powers by a Resolution Authority with respect to any Lender that is an Affected Financial Institution.

 

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Section 10.06      Agents Individually.  With respect to its Pro Rata Share of the Commitments hereunder and the Loans made by it, each Agent shall have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein for any other Lender.  The terms “Lenders” or “Required Lenders” or any similar terms shall, unless the context clearly otherwise indicates, include each Agent in its individual capacity as a Lender or one of the Required Lenders.  Each Agent and its Affiliates may accept deposits from, lend money to, and generally engage in any kind of banking, trust or other business with any Borrower as if it were not acting as an Agent pursuant hereto without any duty to account to the other Lenders. The Lenders acknowledge that, pursuant to such activities, an Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that any such Agent shall not be under any obligation to provide such information to them.

 

Section 10.07       Successor Agent.  (a)  Any Agent may at any time give at least 30 days prior written notice of its resignation to the Lenders and the Borrower.  Upon receipt of any such notice of resignation, the Required Lenders shall have the right to appoint a successor Agent.  If no such successor Agent shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a successor Agent.  In either case, such appointment shall be subject to the prior written approval of the Borrower (which approval may not be unreasonably withheld or delayed and shall not be required while an Event of Default has occurred and is continuing).  Whether or not a successor Agent has been appointed or approved, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.

 

(b)         With effect from the Resignation Effective Date, (i) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any Collateral held by such Agent on behalf of the Lenders under any of the Loan Documents, the retiring Agent shall continue to hold such collateral security until such time as a successor Agent is appointed) and (ii) all payments, communications and determinations provided to be made by, to or through such retiring Agent shall instead be made by or to each Lender directly, until such time, if any, as a successor Agent shall have been appointed as provided for above.  Upon the acceptance of a successor’s Agent’s appointment as Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents.  After the retiring Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article, Section 12.04 and Section 12.15 shall continue in effect for the benefit of such retiring Agent in respect of any actions taken or omitted to be taken by it while the retiring Agent was acting as Agent.

 

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Section 10.08       Collateral Matters.

 

(a)        The Collateral Agent may, but shall be under no obligation to, from time to time, at the written direction of the Required Lenders, make such disbursements and advances (“Collateral Agent Advances”) which the Required Lenders, in their sole discretion, deem necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrower of the Term Loans and other Obligations or to pay any other amount chargeable to the Borrower pursuant to the terms of this Agreement, including costs, fees and expenses as described in Section 12.04.  The Collateral Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the Reference Rate.  The Collateral Agent Advances shall constitute Obligations hereunder.  The Collateral Agent shall notify each Lender and the Borrower in writing of each such Collateral Agent Advance, which notice shall include a description of the purpose of such Collateral Agent Advance.  Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the Collateral Agent, upon the Collateral Agent’s demand, in Dollars in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Collateral Agent Advance.  If such funds are not made available to the Collateral Agent by such Lender, the Collateral Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Collateral Agent, at the Federal Funds Rate for three Business Days and thereafter at the Reference Rate.

 

(b)         The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon termination of the Commitments and payment and satisfaction in full in cash of all Loans and all other Obligations (other than Contingent Indemnity Obligations) in accordance with the terms hereof; (ii) constituting property being sold, transferred or disposed of in the ordinary course of any Loan Party’s business to any Person other than another Loan Party, to the extent such sale, transfer or other disposition is made in compliance with the terms of this Agreement and the other Loan Documents; (iii) constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or (iv) if approved, authorized or ratified in writing by the Lenders in accordance with Section 12.02.  Notwithstanding anything to the contrary contained herein or in any other Loan Document, upon the written request of the Borrower in connection with any Liens permitted by the Loan Documents, the Collateral Agent may, and the Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion to, take such actions as shall be required to subordinate the Lien on any Collateral to any Lien permitted under Section 7.02(a) to the extent such Lien is expressly permitted pursuant to Section 7.02(a) to be senior in right of security to the Liens in favor of the Collateral Agent.

 

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(c)          Each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release, in accordance with Section 10.08(b), of the Liens granted to the Collateral Agent for the benefit of the Agents and the Secured Parties upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party; provided, further, that prior to any release in accordance with this Section 10.08, the Collateral Agent may request the Borrower deliver a certificate of an Authorized Officer certifying that such transactions and releases are permitted by the Loan Documents (and the Collateral Agent may rely conclusively on such certificate without further inquiry).

 

(d)         Anything contained in any of the Loan Documents to the contrary notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent acting at the written direction of the Required Lenders for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale.

 

(e)          The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein.

 

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(f)          Beyond the exercise of reasonable care in the custody thereof, no Agent shall have any duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto.  No Agent shall be responsible for (i) perfecting, maintaining, monitoring, preserving or protecting the security interest or Liens granted under this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, (ii) the filing, re-filing, recording, re-recording or continuing or any document, financing statement, mortgage, assignment, notice, instrument of further assurance or other instrument in any public office at any time or times or (iii) providing, maintaining, monitoring or preserving insurance on or the payment of taxes with respect to any of the Collateral.  The actions described in items (i) through (iii) shall be the sole responsibility of the Borrower.  The Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent in good faith.

 

(g)          No Agent shall be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of such Agent (as determined by a final, nonappealable judgment by a court of competent jurisdiction), for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral.  The Agents hereby disclaim any representation or warranty to the present and future holders of the Obligations concerning the perfection of the Liens granted hereunder or in the value of any of the Collateral.

 

(h)          In the event that any Agent is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in such Agent’s sole discretion may cause the Agent, to be considered an “owner or operator” under any Environmental Laws or otherwise cause the Agent to incur, or be exposed to, any liability under Environmental Law, (i) each Agent reserves the right, instead of taking such action, either to resign as Agent or to arrange for the transfer of the title or control of the asset to a court appointed receiver and (ii) no Agent will be liable to any Person for any Environmental Liabilities and Costs or any environmental liabilities or contribution actions under any federal, state or local law, rule or regulation by reason of such Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or Release or threatened discharge or Release of any Hazardous Materials into the environment, unless and only to the extent that such liability results from such Agent’s gross negligence or willful misconduct as finally judicially determined in a court of competent jurisdiction.

 

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Section 10.09      Agency for Perfection.  Each Agent and each other Secured Party hereby appoints each other Agent and each other Secured Party as agent and bailee for the purpose of perfecting the security interests in and liens upon the Collateral in assets which, in accordance with Article 9 of the Uniform Commercial Code, can be perfected only by possession or control (or where the security interest of a secured party with possession or control has priority over the security interest of another secured party) and each Agent and each other Secured Party hereby acknowledges that it holds possession of or otherwise controls any such Collateral for the benefit of the Agents and the other Secured Parties as secured party.  Should the Administrative Agent or any other Secured Party obtain possession or control of any such Collateral, the Administrative Agent or such other Secured Party shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or in accordance with the Collateral Agent’s instructions.  In addition, the Collateral Agent shall also have the power and authority hereunder to appoint such other sub-agents as may be necessary or required under applicable state law or otherwise to perform its duties and enforce its rights with respect to the Collateral and under the Loan Documents.  Each Loan Party by its execution and delivery of this Agreement hereby consents to the foregoing.

 

Section 10.10      No Reliance on any Agent’s Customer Identification Program.  Each Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates, participants or assignees, may rely on any Agent to carry out such Lender’s, Affiliate’s, participant’s or assignee’s customer identification program, or other requirements imposed by the USA PATRIOT Act or the regulations issued thereunder, including the regulations set forth in 31 C.F.R. §§ 1010.100(yy), (iii), 1020.100, and 1020.220 (formerly 31 C.F.R. § 103.121), as hereafter amended or replaced (“CIP Regulations”), or any other Anti-Terrorism Laws, including any programs involving any of the following items relating to or in connection with any of the Loan Parties, their Affiliates or their agents, the Loan Documents or the transactions hereunder or contemplated hereby:  (1) any identity verification procedures, (2) any recordkeeping, (3) comparisons with government lists, (4) customer notices or (5) other procedures required under the CIP Regulations or other regulations issued under the USA PATRIOT Act.  Each Lender, Affiliate, participant or assignee subject to Section 326 of the USA PATRIOT Act will perform the measures necessary to satisfy its own responsibilities under the CIP Regulations.

 

Section 10.11       No Third Party Beneficiaries.  Except as expressly set forth in Section 10.07, the provisions of this Article are solely for the benefit of the Secured Parties, and no Loan Party shall have rights as a third-party beneficiary of any of such provisions.

 

Section 10.12       No Fiduciary Relationship.  It is understood and agreed that the use of the term “agent” herein or in any other Loan Document (or any other similar term) with reference to any Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine or any applicable law, regardless of whether a Default has occurred and is continuing or an Event of Default exists.  Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.

 

Section 10.13      Arranger.  The Arranger shall not have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but such Person shall have the benefit of the indemnities provided for hereunder.

 

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Section 10.14        Collateral Custodian.  Upon the occurrence and during the continuance of any Default or Event of Default, the Collateral Agent or its designee may, at any time and from time to time employ and maintain on the premises of any Loan Party a custodian selected by the Collateral Agent who shall have full authority to do all acts necessary to protect the Agents’ and the Secured Parties’ interests.  Each Loan Party hereby agrees to, and to cause its Subsidiaries to, cooperate with any such custodian and to do whatever the Collateral Agent or its designee may reasonably request to preserve the Collateral.  All costs and expenses incurred by the Collateral Agent or its designee by reason of the employment of the custodian shall be the responsibility of the Borrower and shall be part of the Obligations hereunder.

 

Section 10.15       [Reserved].

 

Section 10.16      Administrative Agent May File Proofs of Claim.  In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether any Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:

 

(a)          to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Secured Parties (including any claim for the compensation, expenses, disbursements and advances of the Secured Parties and their respective agents and counsel and all other amounts due the Secured Parties hereunder and under the other Loan Documents) allowed in such judicial proceeding; and

 

(b)          to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

 

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Secured Parties, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent hereunder and under the other Loan Documents.

 

Section 10.17        Defaults.  No Agent shall be deemed to have knowledge or notice of the occurrence of a Default or an Event of Default unless a Responsible Officer has received written notice from a Lender, the Borrower or a Guarantor specifying such Default or Event of Default and stating that such notice is a “Notice of Default.”  If an Agent receives such a notice, then it shall give prompt notice thereof to the Lenders and the Borrower (if such notice is received from a Lender).  Such Agent shall (subject to Section 10.01) take such action with respect to any such Default or Event of Default as shall be directed in writing by the Required Lenders; provided that unless and until such Agent shall have received such directions, it may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interest of the Lenders.

 

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Section 10.18        Erroneous Payments.

 

(a)          If the Administrative Agent (x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its reasonable discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf)  (any such funds, whether  transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 10.18 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.

 

(b)         Without limiting immediately preceding clause (a), each Lender, Secured Party or any Person who has received funds on behalf of a Lender or Secured Party (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each such case:

 

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(i)          it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and

 

(ii)          such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 10.18(b).

 

For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 10.18(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 10.18(a) or on whether or not an Erroneous Payment has been made.

 

(c)          Each Lender or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party under any Loan Document with respect to any payment of principal, interest, fees or other amounts, against any amount that the Administrative Agent has demanded to be returned under immediately preceding clause (a).

 

(d)         (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time, then effective immediately (with the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Loans of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an approved electronic platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any notes evidencing such Loans to the Borrower or the Administrative Agent (but the failure of such Person to deliver any such notes shall not affect the effectiveness of the foregoing assignment), (B) the Administrative Agent as the assignee Lender shall be deemed to have acquired the Erroneous Payment Deficiency Assignment, (C) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender, (D) the Administrative Agent and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.

 

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(ii)          Subject to Section 12.07 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Administrative Agent may, in its discretion, sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Administrative Agent on or with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.

 

(e)          The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party, to the rights and interests of such Lender or Secured Party, as the case may be) under the Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Loan Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to the Administrative Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; provided that this Section 10.18 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower for the purpose of making such Erroneous Payment.

 

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(f)          To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to  an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including, without limitation, any defense based on “discharge for value” or any similar doctrine.

 

(g)          Each party’s obligations, agreements and waivers under this Section 10.18 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.

 

ARTICLE XI

 

GUARANTY

 

Section 11.01       Guaranty.  Each Guarantor hereby jointly and severally and unconditionally and irrevocably guarantees the punctual payment when due, whether at stated maturity, by acceleration or otherwise, of all Obligations of the Borrower and each other Loan Party now or hereafter existing under any Loan Document, whether for principal, interest (including all interest that accrues after the commencement of any Insolvency Proceeding of any Borrower, whether or not a claim for post-filing interest is allowed in such Insolvency Proceeding), fees, commissions, expense reimbursements, indemnifications or otherwise (such obligations, to the extent not paid by the Borrower, being the ”Guaranteed Obligations”), and agrees to pay any and all reasonable and documented out-of-pocket expenses (including reasonable and documented out-of-pocket fees and expenses of (i) one outside counsel and one local counsel in each relevant jurisdiction for the Agents and (ii) one outside counsel and one local counsel in each relevant jurisdiction for the other Lenders taken as a whole) incurred in enforcing any rights under the guaranty set forth in this Article XI.  Without limiting the generality of the foregoing, each Guarantor’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by the Borrower or any other Loan Party to the Secured Parties under any Loan Document but for the fact that they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Borrower or such other Loan Party.

 

Section 11.02      Guaranty Absolute.  Each Guarantor jointly and severally guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Secured Parties with respect thereto.  Each Guarantor agrees that this Article XI constitutes a guaranty of payment when due and not of collection and waives any right to require that any resort be made by any Agent or any Lender to any Collateral.  The obligations of each Guarantor under this Article XI are independent of the Guaranteed Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce such obligations, irrespective of whether any action is brought against any Loan Party or whether any Loan Party is joined in any such action or actions.  The liability of each Guarantor under this Article XI shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defenses it may now or hereafter have in any way relating to, any or all of the following:

 

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(a)          any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;

 

(b)         any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations, or any other amendment or waiver of or any consent to departure from any Loan Document, including any increase in the Guaranteed Obligations resulting from the extension of additional credit to any Loan Party or otherwise;

 

(c)          any taking, exchange, release or non-perfection of any Collateral, or any taking, release or amendment or waiver of or consent to departure from any other guaranty, for all or any of the Guaranteed Obligations;

 

(d)          the existence of any claim, set-off, defense or other right that any Guarantor may have at any time against any Person, including any Secured Party;

 

(e)          any change, restructuring or termination of the corporate, limited liability company or partnership structure or existence of any Loan Party; or

 

(f)          any other circumstance (other than defense of payment, but including any statute of limitations) or any existence of or reliance on any representation by the Secured Parties that might otherwise constitute a defense available to, or a discharge of, any Loan Party or any other guarantor or surety.

 

This Article XI shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by Secured Parties or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise, all as though such payment had not been made.

 

Section 11.03      Waiver.  Each Guarantor hereby waives (i) promptness and diligence, (ii) notice of acceptance and any other notice with respect to any of the Guaranteed Obligations and this Article XI and any requirement that the Secured Parties exhaust any right or take any action against any Loan Party or any other Person or any Collateral, (iii) any right to compel or direct any Secured Party to seek payment or recovery of any amounts owed under this Article XI from any one particular fund or source or to exhaust any right or take any action against any other Loan Party, any other Person or any Collateral, (iv) any requirement that any Secured Party protect, secure, perfect or insure any security interest or Lien on any property subject thereto or exhaust any right to take any action against any Loan Party, any other Person or any Collateral, and (v) any other defense available to any Guarantor.  Each Guarantor agrees that the Secured Parties shall have no obligation to marshal any assets in favor of any Guarantor or against, or in payment of, any or all of the Obligations.  Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated herein and that the waiver set forth in this Section 11.03 is knowingly made in contemplation of such benefits.  Each Guarantor hereby waives any right to revoke this Article XI, and acknowledges that this Article XI is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.

 

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Section 11.04        Continuing Guaranty; Assignments; Release. This Article XI is a continuing guaranty and shall (i) remain in full force and effect until the later of the cash payment in full of the Guaranteed Obligations (other than Contingent Indemnity Obligations) and all other amounts payable under this Article XI and the Final Maturity Date, (ii) be binding upon each Guarantor, its successors and assigns and (iii) inure to the benefit of and be enforceable by the Secured Parties and their successors, pledgees, transferees and assigns.  Without limiting the generality of the foregoing clause (iii), any Lender may pledge, assign or otherwise transfer all or any portion of its rights and obligations under this Agreement (including all or any portion of its Commitments and its Loans) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted such Lender herein or otherwise, in each case as provided in Section 12.07. A Restricted Subsidiary shall automatically be released from its obligations under this Article XI upon the consummation of any transaction permitted by this Agreement as a result of which such Restricted Subsidiary ceases to be a Subsidiary or becomes an Excluded Subsidiary; provided that the Required Lenders shall have consented to such transaction (to the extent required by this Agreement) and the terms of such consent did not provide otherwise.  In connection with any termination or release pursuant to this Section 11.04, the Administrative Agent shall execute and deliver to the applicable Guarantor, at such Guarantor’s expense, all documents that such Guarantor shall reasonably request to evidence such termination or release; provided, further, that prior to any release in accordance with this Section 11.04, the Administrative Agent may request the Borrower deliver a certificate of an Authorized Officer certifying that such transactions and releases are permitted by the Loan Documents (and the Administrative Agent may rely conclusively on such certificate without further inquiry).  Any execution and delivery of documents pursuant to this Section 11.04 shall be without recourse to or warranty by the Administrative Agent.  Notwithstanding the foregoing, no Restricted Subsidiary shall be released from its obligations under this Article XI solely by virtue of no longer being a wholly owned Restricted Subsidiary of the Borrower unless (i) the Borrower or the applicable Restricted Subsidiary of the Borrower that is the holder of the Equity Interests of such Restricted Subsidiary shall be deemed to have made an Investment in such Restricted Subsidiary in an amount equal to its outstanding Investment therein at the time of such release and such Investment is permitted under Section 7.02(e) at such time, (ii) no Event of Default has occurred and is continuing or would exist therefrom and (iii) such Restricted Subsidiary does not continue to be wholly owned by the Borrower and/or one or more Affiliates of the Borrower.

 

Section 11.05        Subrogation.  No Guarantor will exercise any rights that it may now or hereafter acquire against any Loan Party or any other guarantor that arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under this Article XI, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Secured Parties against any Loan Party or any other guarantor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from any Loan Party or any other guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations (other than Contingent Indemnity Obligations) and all other amounts payable under this Article XI shall have been paid in full in cash and the Final Maturity Date shall have occurred.  If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the later of the payment in full in cash of the Guaranteed Obligations (other than Contingent Indemnity Obligations) and all other amounts payable under this Article XI and the Final Maturity Date, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Secured Parties to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Article XI, whether matured or unmatured, in accordance with the terms of this Agreement, or to be held as Collateral for any Guaranteed Obligations or other amounts payable under this Article XI thereafter arising.  If (i) any Guarantor shall make payment to the Secured Parties of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations (other than Contingent Indemnity Obligations) and all other amounts payable under this Article XI shall be paid in full in cash and (iii) the Final Maturity Date shall have occurred, the Secured Parties will, at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the Guaranteed Obligations resulting from such payment by such Guarantor

 

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Section 11.06      Contribution.  All Guarantors desire to allocate among themselves, in a fair and equitable manner, their obligations arising under this Guaranty.  Accordingly, in the event any payment or distribution is made on any date by a Guarantor under this Guaranty such that its Aggregate Payments exceeds its Fair Share as of such date, such Guarantor shall be entitled to a contribution from each of the other Guarantors in an amount sufficient to cause each Guarantor’s Aggregate Payments to equal its Fair Share as of such date.  “Fair Share” means, with respect to any Guarantor as of any date of determination, an amount equal to (a) the ratio of (i) the Fair Share Contribution Amount with respect to such Guarantor, to (ii) the aggregate of the Fair Share Contribution Amounts with respect to all Guarantors multiplied by, (b) the aggregate amount paid or distributed on or before such date by all Guarantors under this Guaranty in respect of the obligations Guaranteed.  “Fair Share Contribution Amount” means, with respect to any Guarantor as of any date of determination, the maximum aggregate amount of the obligations of such Guarantor under this Guaranty that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any comparable applicable provisions of state law; provided that, solely for purposes of calculating the “Fair Share Contribution Amount” with respect to any Guarantor for purposes of this Section 11.06, any assets or liabilities of such Guarantor arising by virtue of any rights to subrogation, reimbursement or indemnification or any rights to or obligations of contribution hereunder shall not be considered as assets or liabilities of such Guarantor.  “Aggregate Payments” means, with respect to any Guarantor as of any date of determination, an amount equal to (A) the aggregate amount of all payments and distributions made on or before such date by such Guarantor in respect of this Guaranty (including in respect of this Section 11.06), minus (B) the aggregate amount of all payments received on or before such date by such Guarantor from the other Guarantors as contributions under this Section 11.06.  The amounts payable as contributions hereunder shall be determined as of the date on which the related payment or distribution is made by the applicable Guarantor.  The allocation among Guarantors of their obligations as set forth in this Section 11.06 shall not be construed in any way to limit the liability of any Guarantor hereunder.  Each Guarantor is a third party beneficiary to the contribution agreement set forth in this Section 11.06.

 

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ARTICLE XII

 

MISCELLANEOUS

 

Section 12.01        Notices, Etc.

 

(a)          Notices Generally.  All notices and other communications provided for hereunder shall be in writing and shall be delivered by hand, sent by registered or certified mail (postage prepaid, return receipt requested), overnight courier, or telecopier.  In the case of notices or other communications to any Loan Party, Administrative Agent or the Collateral Agent, as the case may be, they shall be sent to the respective address set forth below (or, as to each party, at such other address as shall be designated by such party in a written notice to the other parties complying as to delivery with the terms of this Section 12.01):

	Gannett Holdings LLC c/o Gannett Co., Inc. 175 Sully’s Trail, #203 Pittsford, NY  14534 Attention:  Polly Sack Telephone:  [phone] Telecopier:  [phone]   with a copy to:   Cravath, Swaine & Moore LLP Attention: George E. Zobitz, Esq. Telephone:  [phone] Telecopier:  [phone] Email:  [e-mail]   if to the Administrative Agent or the Collateral Agent, to it at the following address with respect to notices: Apollo Administrative Agency LLC 9 West 57th Street New York, NY 10019 Attn: Mark Villaneuva and Apollo Agency Team Telephone: Email: [e-mail]; [e-mail]; [e-mail] if to the Administrative Agent or the Collateral Agent, to it at the following address with respect to financial and compliance deliverables: Apollo Administrative Agency LLC 9 West 57th Street New York, NY 10019 Attention: Apollo Agency Compliance Email: [e-mail]; [e-mail]; [e-mail] in each case, with a copy to: Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019 Attention: Brian Kim Email: [e-mail]

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All notices or other communications sent in accordance with this Section 12.01, shall be deemed received on the earlier of the date of actual receipt or 3 Business Days after the deposit thereof in the mail; provided that (i) notices sent by overnight courier service shall be deemed to have been given when received and (ii) notices by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient); provided, further that notices to any Agent pursuant to Article II shall not be effective until received by such Agent, as the case may be.

 

(b)           Electronic Communications.

 

(i)         Each Agent and the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.  Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e‑mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Agents that it is incapable of receiving notices under such Article by electronic communication.

 

(ii)         Unless the Collateral Agent otherwise prescribes, (A) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (B) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (A), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (A) and (B) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.

 

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(c)         The Agents shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Agreement and sent by unsecured e-mail, pdf, facsimile transmission or other similar unsecured electronic methods; provided, however, that the Borrower shall amend the incumbency certificate provided by the Borrower in accordance with Section 4(b)(i) of the Amendment and Restatement Agreement whenever a person is to be added or deleted from the list.  If the Borrower elects to give any Agent Instructions using e-mail or facsimile instructions (or instructions by a similar electronic method) and the Agent in its discretion elects to act upon such Instructions, the Agent’s reasonable understanding of such Instructions shall be deemed controlling.  The Borrower understands and agrees that the Agents cannot determine the identity of the actual sender of such Instructions and that the Agents shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to such Agent have been sent by such Authorized Officer.  The Borrower shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Agents and that the Borrower and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Borrower.  No Agent shall be liable for any losses, costs or expenses arising directly or indirectly from such Agent’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction.  The Borrower agrees (i) to assume all risks arising out of the use of e-mail or facsimile instructions (or instructions by a similar electronic method) to submit Instructions to the Agents, including the risk of such Agent acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Agents and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Borrower; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the applicable Agent immediately upon learning of any compromise or unauthorized use of the security procedures.

 

(d)           Platform.

 

(i)        The Borrower agrees that the Agents may, but shall not be obligated to, make the Communications (as defined below) available to the Lenders by posting the Communications on the Platform.

 

(ii)          The Platform is provided “as is” and “as available.”  The Agent Parties (as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications.  No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform.  In no event shall the Agents or any of their Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender or any other Person or entity for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Borrower’s or the Agents’ transmission of communications through the Platform.  “Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of the Borrower pursuant to any Loan Document or the transactions contemplated therein that is distributed to the Agents or any Lender by means of electronic communications pursuant to this Section, including through the Platform.

 

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(e)           Public Information.  The Borrower hereby acknowledges that certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Person’s securities.  The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the materials and information provided by or on behalf of the Borrower hereunder and under the other Loan Documents (collectively, “Borrower Materials”) that may be distributed to the Public Lenders and that (i) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC,” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (ii) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Agents and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of U.S. federal and state securities laws (provided, however, that to the extent that such Borrower Materials constitute non-public information, they shall be subject to Section 12.19); (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (iv) the Agents shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information”.  Each Public Lender will designate one or more representatives that shall be permitted to receive information that is not designated as being available for Public Lenders.

 

Section 12.02      Amendments, Etc.  (a) Except as expressly provided in the definition of “Amortization Installment Amount” and Section 2.13, no amendment or waiver of any provision of this Agreement or any other Loan Document (excluding the Agent Fee Letter), and no consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed (x) in the case of an amendment, consent or waiver to cure any ambiguity, omission, defect or inconsistency or granting a new Lien for the benefit of the Agents and the Secured Parties or extending an existing Lien over additional property, by the Agents and the Borrower, (y) in the case of any other waiver or consent, by the Required Lenders (or by the Collateral Agent with the written consent of the Required Lenders), with a copy to each Agent, and (z) in the case of any other amendment, by the Required Lenders (or by the Collateral Agent with the written consent of the Required Lenders) and the Borrower, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or consent shall:

 

(i)           increase the Commitment of any Lender, reduce the principal of, or interest on, the Loans payable to any Lender, reduce the amount of any fee payable for the account of any Lender, or postpone or extend any scheduled date fixed for any payment of principal of, or interest or fees on, the Loans payable to any Lender without the written consent of such Lender;

 

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(ii)          change the percentage of the Commitments or of the aggregate unpaid principal amount of the Loans, or any other provision specifying the number of Lenders or portion of the Commitments or Loans, in each case, that is required for the Lenders or any of them to take any action under the Loan Documents without the written consent of each Lender;

 

(iii)          amend the definition of “Required Lenders” or “Pro Rata Share” without the written consent of each Lender;

 

(iv)          (A) release all or substantially all the Collateral (except as otherwise permitted under this Agreement and the other Loan Documents (in each case, as in effect on the date hereof)), (B) subordinate (x) any Lien securing the Obligations to any other Indebtedness that is secured by a Lien on the Collateral or (y) the Obligations in right of payment to any other Indebtedness, except, in each case of clauses (x) and (y), (1) as expressly permitted by this Agreement or the other Loan Documents as of the Closing Date, (2) in connection with any “debtor-in-possession” financing (or similar facility under applicable law) and (3) in connection with any transaction in which the Borrower offered the applicable Lenders that are directly and adversely affected by such transaction an opportunity to ratably participate on the same terms (other than backstop fees and similar fees and reimbursement of counsel fees and other expenses in connection with the negotiation of the terms of such transaction) as the other Lenders, which offer remained open to such Lenders for a reasonable period of time (as determined by the Borrower in good faith), or (C) release the Guaranty of Holdings or of all or substantially all of the value of the Guaranty provided by the other Guarantors (except as otherwise provided in this Agreement and the other Loan Documents), in each case, without the written consent of each Lender;

 

(v)           amend, modify or waive Section 4.02, Section 4.03 or this Section 12.02 of this Agreement without the written consent of each Lender;

 

(vi)        change any provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to, or the Collateral of, Lenders holding Loans of any Class differently than those holding Loans of any other Class, without the written consent of Lenders representing a Majority in Interest of each affected Class; or

 

(vii)      amend, modify or waive (x) the definitions of “Material Intellectual Property” or “Material Assets”, (y) the last proviso set forth in the definition of “Permitted Indebtedness” or (z) the last proviso set forth in the definition of “Permitted Investments”, without the written consent of each Lender.

 

Notwithstanding the foregoing, (A) no amendment, waiver or consent shall, unless in writing and signed by an Agent, affect the rights or duties of such Agent (but not in its capacity as a Lender) under this Agreement or the other Loan Documents, (B) any waiver, amendment or other modification of this Agreement that by its terms affects the rights or duties under this Agreement of the Lenders of one or more Classes (but not the Lenders of any other Class) may be effected by an agreement or agreements in writing entered into solely by the Borrower and the requisite number or percentage in interest of each affected Class of Lenders that would be required to consent thereto under this Section if such Class of Lenders were the only Class of Lenders hereunder at the time and (C) this Agreement may be amended to provide for Incremental Extensions of Credit in the manner contemplated by Section 2.13 without any additional consents.

 

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If the Administrative Agent and the Borrower shall have jointly identified an obvious error (including an incorrect cross-reference) or any error or omission of a technical or immaterial nature, in each case, in any provision of this Agreement or any other Loan Document (including, for the avoidance of doubt, any exhibit, schedule or other attachment to any Loan Document), then the Administrative Agent (acting in its sole discretion) and the Borrower or any other relevant Loan Party shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document.

 

(b)         If any action to be taken by the Lenders hereunder requires the consent, authorization, or agreement of all of the Lenders or any Lender affected thereby, and a Lender (the “Holdout Lender”) fails to give its consent, authorization, or agreement to a proposed action which the Required Lenders have agreed to such consent, authorization or agreement, then the Borrower, upon at least 5 Business Days prior irrevocable notice to the Holdout Lender, may permanently replace the Holdout Lender with one or more substitute lenders (each, a “Replacement Lender”), and the Holdout Lender shall have no right to refuse to be replaced hereunder.  Such notice to replace the Holdout Lender shall specify an effective date for such replacement, which date shall not be later than 15 Business Days after the date such notice is given.  Prior to the effective date of such replacement, the Holdout Lender and each Replacement Lender shall execute and deliver an Assignment and Assumption, subject only to the Holdout Lender being repaid its share of the outstanding Obligations without any premium or penalty of any kind whatsoever.  If the Holdout Lender shall refuse or fail to execute and deliver any such Assignment and Assumption prior to the effective date of such replacement, the Holdout Lender shall be deemed to have executed and delivered such Assignment and Assumption.  The replacement of any Holdout Lender shall be made in accordance with the terms of Section 12.07.

 

Section 12.03       No Waiver; Remedies, Etc.  No failure on the part of any Agent or any Lender to exercise, and no delay in exercising, any right hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right under any Loan Document preclude any other or further exercise thereof or the exercise of any other right.  The rights and remedies of the Agents and the Lenders provided herein and in the other Loan Documents are cumulative and are in addition to, and not exclusive of, any rights or remedies provided by law.  The rights of the Agents and the Lenders under any Loan Document against any party thereto are not conditional or contingent on any attempt by the Agents and the Lenders to exercise any of their rights under any other Loan Document against such party or against any other Person.

 

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Section 12.04      Expenses; Attorneys’ Fees.  The Borrower will pay as promptly as practicable, and in any event within 10 days of a delivery of an invoice, all reasonable and documented out-of-pocket fees, costs and expenses incurred by or on behalf of each Agent and each Lender, regardless of whether the Transactions are consummated, including reasonable fees, costs, client charges and expenses (including reasonable and documented out-of-pocket fees and expenses of (i) one outside counsel and one local counsel in each relevant jurisdiction for the Agents and (ii) one outside counsel and one local counsel in each relevant jurisdiction for the other Lenders taken as a whole, and, in the case of an actual or perceived conflict of interest where the Agent or Lender affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel (and local counsel, if applicable, for such affected Agent or Lender), accounting, due diligence, valuations, investigations, searches and filings, monitoring of assets, appraisals of Collateral, title searches and reviewing environmental assessments, miscellaneous disbursements, examination, travel, lodging and meals, arising from or relating to:  (a) the negotiation, preparation, execution, delivery, performance and administration of this Agreement and the other Loan Documents (including the preparation of any additional Loan Documents pursuant to Section 7.01(b) or the review of any of the agreements, instruments and documents referred to in Section 7.01(f)), (b) any requested amendments, waivers or consents to this Agreement or the other Loan Documents whether or not such documents become effective or are given, (c) the preservation and protection of the Agents’ or any of the Lenders’ rights under this Agreement or the other Loan Documents, (d) the defense of any claim or action asserted or brought against any Agent or any Lender by any Person that arises from or relates to this Agreement, any other Loan Document, the Agents’ or the Lenders’ claims against any Loan Party under the Loan Documents, or any and all matters in connection therewith, (e) the commencement or defense of, or intervention in, any court proceeding arising from or related to this Agreement or any other Loan Document, (f) the filing of any petition, complaint, answer, motion or other pleading by any Agent or any Lender, or the taking of any action in respect of the Collateral, in connection with this Agreement or any other Loan Document, (g) the protection, collection, lease, sale, taking possession of or liquidation of, any Collateral in connection with this Agreement or any other Loan Document, (h) any attempt to enforce any Lien or security interest in any Collateral in connection with this Agreement or any other Loan Document, (i) any attempt to collect from any Loan Party, (j) all liabilities and costs arising from or in connection with the past, present or future operations of any Loan Party involving any damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Hazardous Materials on, upon or into such property, (k) any Environmental Liabilities and Costs incurred in connection with the investigation, removal, cleanup and/or remediation of any Hazardous Materials present or arising out of the operations of any Mortgaged Property of any Loan Party, (l) any Environmental Liabilities and Costs incurred in connection with any Environmental Lien, or (m) the receipt by any Agent or any Lender of any advice from professionals with respect to any of the foregoing; provided, however, that the Borrower shall not have any obligation to reimburse any fees, costs and expenses under this Section 12.04 to the extent caused by the gross negligence, bad faith or willful misconduct of any Agent or any Lender (or, in each case, any of its Related Parties), as determined by a final non-appealable judgment of a court of competent jurisdiction.  Without limitation of the foregoing or any other provision of any Loan Document, the Borrower agrees to pay all broker fees that may become due in connection with the transactions contemplated by this Agreement and the other Loan Documents.  The obligations of the Borrower under this Section 12.04 shall survive the repayment of the Obligations and discharge of any Liens granted under the Loan Documents and the resignation or removal of any Agent.

 

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Section 12.05       Right of Set-off.  Upon the occurrence and during the continuance of any Event of Default, any Agent or any Lender may, and is hereby authorized to, at any time and from time to time, without notice to any Loan Party (any such notice being expressly waived by the Loan Parties) and to the fullest extent permitted by law, set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other Indebtedness at any time owing by such Agent or such Lender or any of their respective Affiliates to or for the credit or the account of any Loan Party against any and all obligations of the Loan Parties either now or hereafter existing under any Loan Document, irrespective of whether or not such Agent or such Lender shall have made any demand hereunder or thereunder and although such obligations may be contingent or unmatured. Each Agent and each Lender agrees to notify such Loan Party promptly after any such set-off and application made by such Agent or such Lender or any of their respective Affiliates provided that the failure to give such notice shall not affect the validity of such set-off and application.  The rights of the Agents and the Lenders under this Section 12.05 are in addition to the other rights and remedies (including other rights of set-off) which the Agents and the Lenders may have under this Agreement or any other Loan Documents of law or otherwise.

 

Section 12.06       Severability.   Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.

 

Section 12.07       Assignments and Participations.

 

(a)          This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Agent and each Lender and any such assignment without the Agents’ and Lenders’ prior written consent shall be null and void.

 

(b)          Subject to the conditions set forth in clause (c) below, each Lender may assign to one or more other Lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to:

 

(i)            all or a portion of its Commitment and any Loan made by it with the written consent of the Borrower (which consent shall not be unreasonably withheld, conditioned or delayed), and

 

(ii)           [reserved]; and

 

provided, however, that (x) no written consent of the Borrower shall be required in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender and (y) no written consent of the Borrower shall be required during the continuance of an Event of Default pursuant to Sections 9.01(a), (f) or (g); provided further that the Borrower shall be deemed to have consented to any assignment hereunder, unless it shall have objected thereto by written notice to the assigning Lender within 10 Business Days after having received written notice thereof.

 

(c)          Assignments shall be subject to the following additional conditions:

 

(i)           Each such assignment shall be in an amount which is at least $1,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender’s Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (A) a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (B) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $1,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender’s Commitment));

 

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(ii)         Except as provided in the last sentence of this Section 12.07(c)(ii), the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acknowledgment, an Assignment and Assumption, together with any promissory note subject to such assignment and all documentation and other information with respect to the assignee that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, and such parties shall deliver to the Administrative Agent, for the benefit of the Administrative Agent, a processing and recordation fee of $3,500 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender); and

 

(iii)          Except as expressly provided in Section 12.07(m), no such assignment shall be made to an Affiliated Lender or to a natural person.

 

(d)          Upon such execution, delivery and acceptance, from and after the effective date specified in each Assignment and Assumption and recordation on the Register, (i) the assignee thereunder shall become a “Lender” hereunder and, in addition to the rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Assumption and (ii) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto).

 

(e)          By executing and delivering an Assignment and Assumption, the assigning Lender and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows:  (i) other than as provided in such Assignment and Assumption, the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto; (ii) the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement and the other Loan Documents, together with such other documents and information it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Assumption; (iv) such assignee will, independently and without reliance upon the assigning Lender, any Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the other Loan Documents; (v) such assignee appoints and authorizes the Agents to take such action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.

 

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(f)          The Administrative Agent shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain, or cause to be maintained at the Payment Office, a copy of each Assignment and Assumption delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitments of, and the principal amount of the Loans (and stated interest thereon).The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement.  The Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior written notice.

 

(g)        Upon receipt by the Administrative Agent of a completed Assignment and Assumption and all documents required under Section 12.07(c), and subject to the acknowledgment required from the Administrative Agent pursuant to Section 12.07(b) (which acknowledgment of the Administrative Agent must be evidenced by such Agent’s execution of an acceptance to such Assignment and Assumption), the Administrative Agent shall accept such assignment, and record the information contained therein in the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the Term Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with delivery of the assignment to the Administrative Agent).

 

(h)         A Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide).  Any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s).  Prior to the registration of assignment or sale of any Loan (and the registered note, if any, evidencing the same), the Agents shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered on the Register as the owner thereof for the purpose of receiving all payments thereon, notwithstanding notice to the contrary.

 

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(i)          In the event that any Lender sells a participation in a Loan, such Lender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrower, maintain, or cause to be maintained, a register, on which it enters the name and address of all participants in the Loans held by it and the principal amount (and stated interest thereon) of the portion of the Loan that is the subject of the participation (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

 

(j)           Any Foreign Lender who purchases or is assigned or participates in any portion of such Loan shall comply with Section 2.09(d).

 

(k)          Each Lender may sell, without the consent of, or notice to, the Borrower or the Administrative Agent, participations to one or more banks or other entities (other than any Affiliated Lender) in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including all or a portion of its Commitments and the Loans made by it); provided that (i) such Lender’s obligations under this Agreement (including its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or substantially all of the Collateral (except as otherwise provided in this Agreement and the other Loan Documents) or a release of the Guaranty of Holdings or of all or substantially all of the value of the Guaranty provided by the other Guarantors (except as otherwise provided in this Agreement and the other Loan Documents).  For the avoidance of doubt, a participant may not vote on waivers of Defaults or Events of Default.  The Loan Parties agree that each participant shall be entitled to the benefits of Section 2.09 (subject to such participant’s compliance with Section 2.09(d), it being understood that the tax documentation required thereby shall be delivered to the participating Lender), Section 2.10 and Section 2.11 of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender.

 

(l)           Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to such Lender pursuant to securitization or similar credit facility (a ”Securitization”); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.  The Loan Parties shall cooperate with such Lender and its Affiliates to effect the Securitization, including by providing such information as may be reasonably requested by such Lender in connection with the rating of its Loans or the Securitization.

 

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Section 12.08       Counterparts; Electronic Signatures.  This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.  Delivery of an executed counterpart of this Agreement by telecopier or electronic mail shall be equally as effective as delivery of an original executed counterpart of this Agreement.  Any party delivering an executed counterpart of this Agreement by telecopier or electronic mail also shall deliver an original executed counterpart of this Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Agreement.  The foregoing shall apply to each other Loan Document mutatis mutandis.  The words “execution”, “signed”, “signature”, “delivery” and words of like import in or relating to any document to be signed in connection with this Agreement or any other Loan Document and the transactions contemplated hereby shall be deemed to include Electronic Signatures (as defined below), deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act or any other similar State laws based on the Uniform Electronic Transactions Act; provided that nothing herein shall require the Administrative Agent to accept electronic signatures in any form or format without its prior written consent.  “Electronic Signature” means an electronic sound, symbol or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.

 

Section 12.09     GOVERNING LAW.  THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.

 

Section 12.10      CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK IN THE COUNTY OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN OR OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH LOAN PARTY HEREBY IRREVOCABLY ACCEPTS IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS.  EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS AND IN ANY SUCH ACTION OR PROCEEDING BY ANY MEANS PERMITTED BY APPLICABLE LAW, INCLUDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS FOR NOTICES AS SET FORTH IN SECTION 12.01, SUCH SERVICE TO BECOME EFFECTIVE 10 DAYS AFTER SUCH MAILING.  EACH PARTY HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.  NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENTS AND THE LENDERS TO SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY LOAN PARTY IN ANY OTHER JURISDICTION.  EACH PARTY HERETO HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE JURISDICTION OR LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

 

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Section 12.11       WAIVER OF JURY TRIAL, ETC.  EACH LOAN PARTY, EACH AGENT AND EACH LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR UNDER ANY AMENDMENT, WAIVER, CONSENT, INSTRUMENT, DOCUMENT OR OTHER AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED IN CONNECTION THEREWITH, OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION, PROCEEDINGS OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.  EACH LOAN PARTY CERTIFIES THAT NO OFFICER, REPRESENTATIVE, AGENT OR ATTORNEY OF ANY AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT ANY AGENT OR ANY LENDER WOULD NOT, IN THE EVENT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM, SEEK TO ENFORCE THE FOREGOING WAIVERS.  EACH LOAN PARTY HEREBY ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS AND THE LENDERS ENTERING INTO THIS AGREEMENT.

 

Section 12.12       Consent by the Agents and Lenders.  Except as otherwise expressly set forth herein to the contrary or in any other Loan Document, if the consent, approval, satisfaction, determination, judgment, acceptance or similar action (an “Action”) of any Agent or any Lender shall be permitted or required pursuant to any provision hereof or any provision of any other agreement to which any Loan Party is a party and to which any Agent or any Lender has succeeded thereto, such Action shall be required to be in writing and may be withheld or denied by such Agent or such Lender, in its sole discretion, with or without any reason, and without being subject to question or challenge on the grounds that such Action was not taken in good faith.

 

Section 12.13       No Party Deemed Drafter.  Each of the parties hereto agrees that no party hereto shall be deemed to be the drafter of this Agreement.

 

Section 12.14       Reinstatement; Certain Payments.  If any claim is ever made upon any Secured Party for repayment or recovery of any amount or amounts received by such Secured Party in payment or on account of any of the Obligations, such Secured Party shall give prompt notice of such claim to each other Agent and Lender and the Borrower, and if such Secured Party repays all or part of such amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such Secured Party or any of its property, or (ii) any good faith settlement or compromise of any such claim effected by such Secured Party with any such claimant, then and in such event each Loan Party agrees that (A) any such judgment, decree, order, settlement or compromise shall be binding upon it notwithstanding the cancellation of any Indebtedness hereunder or under the other Loan Documents or the termination of this Agreement or the other Loan Documents, and (B) it shall be and remain liable to such Secured Party hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by such Secured Party.

 

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Section 12.15        Indemnification; Limitation of Liability for Certain Damages.

 

(a)          The Borrower and each Loan Party shall, jointly and severally, indemnify the Agents (and any sub-agent thereof) and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from and against any and all losses, claims, damages, liabilities, obligations, penalties, fees, reasonable costs and related expenses (including the fees, costs, charges and disbursements of one firm of counsel for the Agents and its Related Parties, taken as a whole and all other Indemnitees, taken as a whole (and, if necessary, of a single firm of local counsel in each appropriate jurisdiction for all Indemnitees, take as a whole) (and, in the case of an actual or perceived conflict of interest where the Indemnitee affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel (and local counsel, if applicable, for such affected Indemnitee)) incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Borrower or any Loan Party), whether prior to or from and after the Amendment Closing Date, whether direct, indirect or consequential, as a result of or arising from or relating to or in connection with any of the following:  (i) the negotiation, preparation, execution, delivery, administration or performance or enforcement of this Agreement, any other Loan Document or of any other document executed in connection with the transactions contemplated by this Agreement, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Lender’s furnishing of funds to the Borrower under this Agreement or the other Loan Documents, including the management of any such Loans or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liabilities and Costs related in any way to the Borrower or any of its Subsidiaries, (iv) the Agents and the Lenders relying on any instructions of the Borrower or the handling of the Register and Collateral of the Borrower as herein provided, (v) any matter relating to the Transactions or the other Loan Documents or by any document executed in connection with the transactions contemplated by this Agreement or the other Loan Documents, or (vi) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether brought by a third party or by the Borrower or any Loan Party, and regardless of whether or not any Indemnitee is a party thereto (collectively, the ”Indemnified Matters”); provided, however, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities, obligations, penalties, fees, costs or expenses (A) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from (x) the gross negligence or willful misconduct of such Indemnitee or (y) a claim brought by Holdings, the Borrower or any of its Restricted Subsidiaries against an Indemnitee for breach in bad faith of such Indemnitee’s obligations under this Agreement or (B) result from a claim not involving an act or omission of the Borrower and that is brought by an Indemnitee against another Indemnitee (other than against the Arranger or the Administrative Agent in their capacities as such).  This paragraph shall not apply with respect to Taxes, other than Taxes that represent losses, claims or damages arising from any non-Tax claim.

 

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(b)           To the extent that the undertaking to indemnify, pay and hold harmless set forth in this Section 12.15 may be unenforceable because it is violative of any law or public policy, each Loan Party shall, jointly and severally, contribute the maximum portion which it is permitted to pay and satisfy under applicable law, to the payment and satisfaction of all Indemnified Matters incurred by the Indemnitees.

 

(c)           To the fullest extent permitted by applicable law, no party hereto shall assert, and each party hereto hereby waives, any claim against any other party hereto, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any other Loan Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith; provided, however, that the foregoing shall not limit any Loan Party’s indemnification obligations pursuant to Section 12.15(a). No Indemnitee referred to in paragraph (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.

 

(d)          All amounts due under this Section 12.15 shall be payable promptly after demand therefor.

 

(e)          The indemnities and waivers set forth in this Section 12.15 shall survive the repayment of the Obligations and discharge of any Liens granted under the Loan Documents and the resignation or removal of any Agent.

 

Section 12.16        Records.  The unpaid principal of and interest on the Loans, the interest rate or rates applicable to such unpaid principal and interest, the duration of such applicability, the Commitments, and the accrued and unpaid fees payable pursuant to Section 2.06 hereof, shall at all times be ascertained from the records of the Agents, which shall be conclusive and binding absent manifest error.

 

Section 12.17      Binding Effect.  This Agreement shall become effective on the Amendment Closing Date and thereafter shall be binding upon and inure to the benefit of each Loan Party, each Agent and each Lender, and their respective successors and assigns, except that the Loan Parties shall not have the right to assign their rights hereunder or any interest herein without the prior written consent of each Agent and each Lender, and any assignment by any Lender shall be governed by Section 12.07 hereof.

 

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Section 12.18      Highest Lawful Rate.  It is the intention of the parties hereto that each Agent and each Lender shall conform strictly to usury laws applicable to it.  Accordingly, if the transactions contemplated hereby or by any other Loan Document would be usurious as to any Agent or any Lender under laws applicable to it (including the laws of the United States of America and the State of New York or any other jurisdiction whose laws may be mandatorily applicable to such Agent or such Lender notwithstanding the other provisions of this Agreement), then, in that event, notwithstanding anything to the contrary in this Agreement or any other Loan Document or any agreement entered into in connection with or as security for the Obligations, it is agreed as follows:  (i) the aggregate of all consideration which constitutes interest under law applicable to any Agent or any Lender that is contracted for, taken, reserved, charged or received by such Agent or such Lender under this Agreement or any other Loan Document or agreements or otherwise in connection with the Obligations shall under no circumstances exceed the maximum amount allowed by such applicable law, and any excess shall be canceled automatically and if theretofore paid shall be credited by such Agent or such Lender on the principal amount of the Obligations (or, to the extent that the principal amount of the Obligations shall have been or would thereby be paid in full, refunded by such Agent or such Lender, as applicable, to the Borrower); and (ii) in the event that the maturity of the Obligations is accelerated by reason of any Event of Default under this Agreement or otherwise, or in the event of any required or permitted prepayment, then such consideration that constitutes interest under law applicable to any Agent or any Lender may never include more than the maximum amount allowed by such applicable law, and excess interest, if any, provided for in this Agreement or otherwise shall, subject to the last sentence of this Section 12.18, be canceled automatically by such Agent or such Lender, as applicable, as of the date of such acceleration or prepayment and, if theretofore paid, shall be credited by such Agent or such Lender, as applicable, on the principal amount of the Obligations (or, to the extent that the principal amount of the Obligations shall have been or would thereby be paid in full, refunded by such Agent or such Lender to the Borrower).  All sums paid or agreed to be paid to any Agent or any Lender for the use, forbearance or detention of sums due hereunder shall, to the extent permitted by law applicable to such Agent or such Lender, be amortized, prorated, allocated and spread throughout the full term of the Loans until payment in full so that the rate or amount of interest on account of any Loans hereunder does not exceed the maximum amount allowed by such applicable law.  If at any time and from time to time (x) the amount of interest payable to any Agent or any Lender on any date shall be computed at the Highest Lawful Rate applicable to such Agent or such Lender pursuant to this Section 12.18 and (y) in respect of any subsequent interest computation period the amount of interest otherwise payable to such Agent or such Lender would be less than the amount of interest payable to such Agent or such Lender computed at the Highest Lawful Rate applicable to such Agent or such Lender, then the amount of interest payable to such Agent or such Lender in respect of such subsequent interest computation period shall continue to be computed at the Highest Lawful Rate applicable to such Agent or such Lender until the total amount of interest payable to such Agent or such Lender shall equal the total amount of interest which would have been payable to such Agent or such Lender if the total amount of interest had been computed without giving effect to this Section 12.18.

 

For purposes of this Section 12.18, the term “applicable law” shall mean that law in effect from time to time and applicable to the loan transaction between the Borrower, on the one hand, and the Agents and the Lenders, on the other, that lawfully permits the charging and collection of the highest permissible, lawful non-usurious rate of interest on such loan transaction and this Agreement, including laws of the State of New York and, to the extent controlling, laws of the United States of America.

 

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The right to accelerate the maturity of the Obligations does not include the right to accelerate any interest that has not accrued as of the date of acceleration.

 

Section 12.19       Confidentiality.

 

(a)        Each Agent and each Lender agrees (on behalf of itself and each of its affiliates, directors, officers, employees and representatives) to use reasonable precautions to keep confidential, in accordance with its customary procedures for handling confidential information of this nature and in accordance with safe and sound practices of comparable commercial finance companies, any non-public information supplied to it by the Loan Parties pursuant to this Agreement or the other Loan Documents which is identified in writing by the Loan Parties as being confidential at the time the same is delivered to such Person (and which at the time is not, and does not thereafter become, publicly available or available to such Person from another source not known to be subject to a confidentiality obligation to such Person not to disclose such information), provided that nothing herein shall limit the disclosure by any Agent or any Lender of any such information (i) to its Affiliates, Related Funds, managed funds and managed accounts and their respective equityholders (including current and prospective investors and partners), directors, officers, employees, agents, trustees, counsel, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such information and instructed to keep such information confidential in accordance with this Section 12.19, and such Agent or Lender shall be responsible for any such Person’s compliance with this requirement); (ii) to any other party hereto; (iii) to any assignee or participant (or prospective assignee or participant), financing source or any party to a Securitization so long as such assignee or participant (or prospective assignee or participant), financing source or party to a Securitization first agrees, in writing, to be bound by confidentiality provisions similar in substance to this Section 12.19; (iv) to the extent required by any Requirement of Law or judicial process or as otherwise requested by any Governmental Authority or any other regulatory or self-regulatory authority having or claiming jurisdiction over such Person or its Affiliates (in which case, such Agent or Lender shall promptly notify the Borrower in advance to the extent permitted by law); (v) to the National Association of Insurance Commissioners or any similar organization, any examiner, auditor or accountant or any nationally recognized rating agency or otherwise to the extent consisting of general portfolio information that does not identify Loan Parties; (vi) in connection with any litigation to which any Agent or any Lender is a party (in which case, such Agent or Lender shall promptly notify the Borrower in advance to the extent permitted by law); (vii) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder; (viii) to the extent such information presently is or hereafter becomes (A) available to or in the possession of such Lender or Agent or any of their Affiliates, as the case may be, from a source (other than any Loan Party) not known by them to be subject to disclosure restrictions or (B) was independently developed by Agent, any Lender or any of their respective Affiliates or (ix) with the consent of the Borrower.

 

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(b)         Tombstones. Each Loan Party consents to the publication by the Administrative Agent or any Lender of any press releases, tombstones, advertising or other promotional materials (including via any Electronic Transmission) relating to the financing transactions contemplated by this Agreement using such Loan Party’s name, product photographs, logo or trademark in a form and manner appropriate for announcements of the financing transactions as the Administrative Agent or such Lender shall deem appropriate after consulting with the Loan Parties; provided that each Lender agrees not to include the name of the other Lenders in such advertisements or other materials without the prior consent of such Lender. The Administrative Agent or such Lender shall provide a draft of any such press release, advertising or other promotional material to Borrower for review and approval (not to be unreasonably withheld, delayed, conditioned or denied) reasonably in advance of the publication thereof.

 

(c)          Press Release and Related Matters. No Loan Party shall, and no Loan Party shall permit any of its Affiliates to, issue any press release or other public disclosure (other than any document filed with any Governmental Authority relating to a public offering of securities of any Loan Party) using the name, logo or otherwise referring to the Administrative Agent or of any of its Affiliates, the Loan Documents or any transaction contemplated herein or therein to which the Administrative Agent or any of its Affiliates is party without the prior written consent of the Administrative Agent or such Affiliate except to the extent required to do so under applicable Requirements of Law.

 

Section 12.20       Public Disclosure.  Each Loan Party agrees that neither it nor any of its Affiliates will now or in the future issue any press release or other public disclosure using the name of an Agent, any Lender or any of their respective Affiliates or referring to this Agreement or any other Loan Document without the prior written consent of such Agent or such Lender, except to the extent that such Loan Party or such Affiliate is required to do so under applicable law (in which event, such Loan Party or such Affiliate will consult with such Agent or such Lender before issuing such press release or other public disclosure).  Each Loan Party hereby authorizes each Agent and each Lender, after consultation with the Borrower, to advertise the closing of the transactions contemplated by this Agreement, and to make appropriate announcements of the financial arrangements entered into among the parties hereto, as such Agent or such Lender shall deem appropriate, including on a home page or similar place for dissemination of information on the Internet or worldwide web, or in announcements commonly known as tombstones, in such trade publications, business journals, newspapers of general circulation and to such selected parties as such Agent or such Lender shall deem appropriate.

 

Section 12.21      Integration.  This Agreement, together with the other Loan Documents, reflects the entire understanding of the parties with respect to the transactions contemplated hereby and shall not be contradicted or qualified by any other agreement, oral or written, before the Amendment Closing Date.

 

Section 12.22      USA PATRIOT Act. Each Agent and each Lender that is subject to the requirements of the USA PATRIOT Act and the Beneficial Ownership Regulation hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act and the Beneficial Ownership Regulation, it is required to obtain, verify and record information that identifies the entities composing the Borrower, which information includes the name and address of each such entity and other information that will allow such Agent and Lender to identify the entities composing the Borrower in accordance with the USA PATRIOT Act and the Beneficial Ownership Regulation.  Each Loan Party agrees to take such action and execute, acknowledge and deliver at its sole cost and expense, such instruments and documents as any Agent or any Lender may reasonably require from time to time in order to enable such Agent or Lender to comply with the USA PATRIOT Act and the Beneficial Ownership Regulation.

 

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Section 12.23    Acknowledgement and Consent to Bail-In of Affected Financial Institutions.  Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

 

(a)         the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and

 

(b)          the effects of any Bail-in Action on any such liability, including, if applicable:

 

(i)            a reduction in full or in part or cancellation of any such liability;

 

(ii)           a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

 

(iii)          the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority.

 

Section 12.24       Intercreditor Agreements.  Each Lender (a) hereby agrees that it will be bound by and will take no actions contrary to the provisions of the Pari Passu Intercreditor Agreement, the Notes Junior Intercreditor Agreement, the New Convertible Notes Junior Intercreditor Agreement, each Permitted Pari Passu Intercreditor Agreement, each Permitted Junior Intercreditor Agreement and any other intercreditor agreement entered into in accordance with the terms of this Agreement and (b) hereby authorizes and instructs the Administrative Agent and Collateral Agent to enter into each of the Pari Passu Intercreditor Agreement, the Notes Junior Intercreditor Agreement, the New Convertible Notes Junior Intercreditor Agreement, the Permitted Pari Passu Intercreditor Agreements, the Permitted Junior Intercreditor Agreements and, to the extent expressly permitted by the terms of this Agreement, each such other intercreditor agreement and to subject the Liens securing the Obligations to the provisions thereof.

 

Section 12.25       Certain ERISA Matters. (a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower, that at least one of the following is and will be true:

 

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(i)         such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments or this Agreement,

 

(ii)        the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement,

 

(iii)       (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84- 14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or

 

(iv)        such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.

 

(b)         In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).

 

Section 12.26      Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Hedging Agreements or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):

 

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(a)          In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States.

 

(b)           As used in this Section 12.26, the following terms have the following meanings:

 

“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

 

“Covered Entity” means any of the following:

 

(i)            a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b)

 

(ii)           a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

 

(iii)          a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

 

“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

 

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Section 12.27       Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively, the “Applicable Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable Requirements of Law, the rate of interest payable in respect of such Loan hereunder, together with all Applicable Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Applicable Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the interest and Applicable Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Rate to the date of repayment, shall have been received by such Lender.

 

Section 12.28      Restatement of Existing Credit Agreement.  As of the Amendment Closing Date, all obligations of each Loan Party under the Existing Credit Agreement shall become obligations of such Loan Party hereunder, secured by the Security Documents, and the provisions of the Existing Credit Agreement shall be superseded by the provisions hereof.  Each of the parties hereto confirms that the amendment and restatement of the Existing Credit Agreement pursuant to the Amendment and Restatement Agreement shall not constitute a novation of the Existing Credit Agreement.

 

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[Schedules and Exhibits to the Amended and Restated First Lien Credit Agreement on file with the Administrative Agent]

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Document and Entity Information	Oct. 15, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Oct. 15, 2024
Entity File Number	001-36097
Entity Registrant Name	GANNETT CO., INC.
Entity Central Index Key	0001579684
Entity Incorporation, State or Country Code	DE
Entity Tax Identification Number	38-3910250
Entity Address, Address Line One	175 Sully's Trail
Entity Address, Address Line Two	Suite 203
Entity Address, City or Town	Pittsford
Entity Address, State or Province	NY
Entity Address, Postal Zip Code	14534
City Area Code	585
Local Phone Number	598-0030
Title of 12(b) Security	Common Stock, par value $0.01 per share
Trading Symbol	GCI
Security Exchange Name	NYSE
Entity Emerging Growth Company	false
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false

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