Exhibit 10.1

Execution Copy

Published CUSIP Number: 88602GAC5

Term Loan CUSIP Number:88602GAD3

$700,000,000

 

TERM LOAN CREDIT AGREEMENT

 

dated as of March  1, 2021,

 

by and among

 

THRYV HOLDINGS, INC.,

as Holdings,

 

THRYV, INC.,

as Borrower,

 

THE LENDERS FROM TIME TO TIME PARTY HERETO,

as Lenders,

 

and

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent

 

WELLS FARGO SECURITIES, LLC,

as Sole Lead Arranger and Sole Bookrunner

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TERM LOAN CREDIT AGREEMENT, dated as of March 1, 2021, by and among THRYV HOLDINGS, INC., a Delaware corporation, as Holdings, THRYV, INC., a Delaware corporation, as Borrower, the lenders who are party to this Agreement and the lenders who may become a party to this Agreement from time to time pursuant to the terms hereof, as Lenders, and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as Administrative Agent and Australian Security Trustee for the Lenders.

 

STATEMENT OF PURPOSE

 

WHEREAS, the Borrower has requested, and subject to the terms and conditions set forth in this Agreement, the Administrative Agent and the Lenders have agreed to extend, a certain term loan credit facility to the Borrower.

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, such parties hereby agree as follows:

 

ARTICLE I

DEFINITIONS

 

SECTION 1.1        Definitions.  The following terms when used in this Agreement shall have the meanings assigned to them below:

 

“ABL Administrative Agent” means, individually or collectively as the context may require, (a) Wells Fargo, in its capacity as administrative agent and ABL Australian Security Trustee under the ABL Credit Agreement and (b) each co-collateral agent under the ABL Documents and, in each case, their respective successors and assigns in such capacity.

 

“ABL Australian Security Trustee” means the Australian security trustee appointed under the ABL Documents and its successors and assigns in such capacity.

 

“ABL Credit Agreement” means the Amended and Restated Credit Agreement, dated as of June 30, 2017, by and among the Borrower and certain of its Subsidiaries, as borrowers from time to time party thereto, the guarantors from time to time party thereto, the lenders from time to time party thereto in their capacities as lenders thereunder, and the ABL Administrative Agent, as administrative agent thereunder, as amended by that certain First Amendment to Amended and Restated Credit Agreement, dated as of January 31, 2019, that certain Second Amendment to Amended and Restated Credit Agreement, dated as of March 21, 2019, that certain Third Amendment to Amended and Restated Credit Agreement, dated as of August 20, 2019, that certain Fourth Amendment to Amended and Restated Credit Agreement, dated as of January 28, 2020 and that certain Fifth Amendment to Amended and Restated Credit Agreement, dated as of the date hereof (the “Fifth ABL Amendment”), and as further amended, supplemented, modified, replaced, restated or amended and restated from time to time in accordance with the terms thereof, the terms of this Agreement and the terms of the Closing Date Intercreditor Agreement.

 

“ABL Documents” means, collectively, the ABL Credit Agreement, all other “Loan Documents” as such term is defined in the ABL Credit Agreement, as amended, modified, supplemented, restated, or amended and restated from time to time in accordance with the terms thereof, this Agreement and the Closing Date Intercreditor Agreement.

 

“ABL Obligations” means “Obligations” as such term is defined in the ABL Credit Agreement; provided that the ABL Obligations shall at all times (a) be subject to, and the administrative agent thereunder party to, the Closing Date Intercreditor Agreement and (b) be an asset-based facility with advances thereunder based on a borrowing base.

 

“ABL Priority Collateral” has the meaning assigned to “ABL Priority Collateral” in the Closing Date Intercreditor Agreement.

 

“Acceptable Junior Lien Intercreditor Agreement” means, in connection with any Indebtedness that is, or is intended to be, secured by the Collateral on a junior basis, an intercreditor agreement that is reasonably satisfactory to the Borrower and the Administrative Agent, among the Administrative Agent, the ABL Administrative Agent (so long as the ABL Credit Agreement is in effect), one or more representatives for the holders of any Indebtedness that is, or is intended to be, secured by the Collateral on a pari passu basis (if applicable) and one or more representatives for the holders of any Indebtedness that is, or is intended to be, secured by the Collateral on a junior basis with the Secured Obligations, and acknowledged by the Credit Parties, as the same may be amended, restated, amended and restated, supplemented or otherwise modified in accordance with the terms hereof and thereof.

 

“Acquired EBITDA” means, with respect to any Person or business acquired pursuant to an Acquisition for any period, the amount for such period of Consolidated EBITDA of any such Person or business so acquired (determined using such definitions as if references to Holdings and its Subsidiaries therein were to such Person or business), as calculated by the Borrower in good faith and which shall be factually supported by historical financial statements or a quality of earnings report prepared by an independent third party accounting firm that is reasonably acceptable to the Administrative Agent; provided that, notwithstanding the foregoing to the contrary, in determining Acquired EBITDA for any Person or business that does not have historical financial accounting periods which coincide with that of the financial accounting periods of Holdings and its Subsidiaries (a) references to Reference Period in any applicable definitions shall be deemed to mean the same relevant period as the applicable period of determination for Holdings and its Subsidiaries and (b) to the extent the commencement of any such Reference Period shall occur during a fiscal quarter of such acquired Person or business (such that only a portion of such fiscal quarter shall be included in such Reference Period), Acquired EBITDA for the portion of such fiscal quarter so included in such Reference Period shall be deemed to be an amount equal to (x) Acquired EBITDA otherwise attributable to the entire fiscal quarter (determined in a manner consistent with the terms set forth above) multiplied by (y) a fraction, the numerator of which shall be the number of months of such fiscal quarter included in the relevant Reference Period and the denominator of which shall be actual months in such fiscal quarter.

 

“Acquired Entities” means, collectively, (a) Sensis Holdings, (b) Sunshine SPV and (c) the Sunshine Target and its domestic and Australian Subsidiaries (as defined in the Sunshine Acquisition Agreement).

 

“Acquisition” means any acquisition, or any series of related acquisitions, consummated on or after the date of this Agreement, by which any Credit Party or any of its Subsidiaries (a) acquires any business or all or substantially all of the assets of any Person, or business unit, line of business or division thereof, whether through purchase of assets, exchange, issuance of stock or other equity or debt securities, merger, reorganization, amalgamation, division or otherwise or (b) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the securities of a corporation which have ordinary voting power for the election of members of the board of directors or the equivalent governing body (other than securities having such power only by reason of the happening of a contingency) or a majority (by percentage or voting power) of the outstanding ownership interests of a partnership or limited liability company.

 

“Administrative Agent” means Wells Fargo, in its capacity as Administrative Agent hereunder, and where the context requires, shall include Wells Fargo, in its capacity as Australian Security Trustee, and any successor thereto appointed pursuant to Section 9.6.

 

“Administrative Agent’s Office” means the office of the Administrative Agent specified in or determined in accordance with the provisions of Section 10.1(c).

 

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

 

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

 

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

 

“Affiliated Lender” means, collectively, any Affiliate of the Borrower or a Permitted Investor (other than Holdings, the Borrower and their respective Subsidiaries or any natural Person) and shall include all of the Designated Affiliated Lenders and the Non-Designated Affiliated Lenders.

 

“Affiliated Lender Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.9) that is an Affiliated Lender, and accepted by the Administrative Agent, in substantially the form attached as Exhibit J or any other form reasonably satisfactory to the Administrative Agent.

 

“Affiliated Lender Cap” has the meaning assigned thereto in Section 10.9(h)(iv).

 

“Agent Parties” has the meaning assigned thereto in Section 10.1(e).

 

“Agreement” means this Term Loan Credit Agreement.

 

“All-In Yield” means, as to any Indebtedness, the effective all-in yield applicable thereto as determined in a manner consistent with generally accepted financial practices, taking into account: (a) interest rate margins, (b) original issue discount (“OID”) and upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower or any of its Subsidiaries or Affiliates to the lenders under, or holders of, such Indebtedness in the initial primary syndication thereof (with OID and upfront fees being equated to interest based on assumed four-year life to maturity (or, if less, the stated weighted average life to maturity at the time of its incurrence of the applicable Indebtedness)), and (c) any interest rate floor, but excluding (i) any arrangement, commitment, structuring, agency or underwriting fees that are not paid to or shared with all relevant lenders generally in connection with the commitment or syndication of such Indebtedness, (ii) any ticking, unused line or similar fees or (iii) any other fee that is not paid directly by the Borrower generally to all relevant lenders ratably in the primary syndication of such Indebtedness; provided that (A) to the extent that any interest rate specified for such Indebtedness that is subject to a floor (in each case, without giving effect to any such floor on the date on which the All-In Yield is being calculated) is less than such floor, the amount of such difference will be deemed added to the interest rate margin applicable to such Indebtedness for purposes of calculating the All-In Yield and (B) to the extent that any interest rate specified for such Indebtedness that is subject to a floor (in each case, without giving effect to any such floor on the date on which the All-In Yield is being calculated) is equal to or greater than such floor, the floor will be disregarded in calculating the All-In Yield.

 

“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction from time to time concerning or relating to bribery or corruption, including the United States Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder and the U.K. Bribery Act 2010 and the rules and regulations thereunder.

 

“Anti-Money Laundering Laws” means any and all laws, statutes, regulations or obligatory government orders, decrees, ordinances or rules related to terrorism financing, money laundering, any predicate crime to money laundering or any financial record keeping, including any applicable provision of the PATRIOT Act, The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959), the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) of Australia and the Anti-Money Laundering and Counter-Terrorism Financing Rules of Australia.

 

“Applicable ECF Percentage” means, with respect to any determination of Excess Cash Flow, (a) 100% for any fiscal quarter of the Borrower with respect to which the Total Net Leverage Ratio (as of the end of the applicable fiscal quarter for which Excess Cash Flow is being calculated) is greater than 1.50 to 1.00, (b) 75% for any fiscal quarter of the Borrower with respect to which the Total Net Leverage Ratio (as of the end of the applicable fiscal quarter for which Excess Cash Flow is being calculated) is greater than 1:00 to 1:00 but equal to or less than 1.50 to 1.00, (c) 50% for any fiscal quarter of the Borrower with respect to which the Total Net Leverage Ratio (as of the end of the applicable fiscal quarter for which Excess Cash Flow is being calculated) is greater than 0.50 to 1:00 but equal to or less than 1.00 to 1.00, and (d) 25% for any fiscal quarter of the Borrower with respect to which the Total Net Leverage Ratio (as of the end of the applicable fiscal quarter for which Excess Cash Flow is being calculated) is less than 0.50 to 1.00.

 

“Applicable Law” means all applicable provisions of constitutions, laws, statutes, ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders of Governmental Authorities and all orders and decrees of all courts and arbitrators.

 

“Applicable Margin” means a percentage per annum equal to (a) for LIBOR Rate Loans, 8.50%, and (b) for Base Rate Loans 7.50%.  The Applicable Margin shall be increased as, and solely to the extent, required by the MFN Protection.

 

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

 

“Arranger” means Wells Fargo Securities, LLC, in its capacity as sole lead arranger and sole bookrunner.

 

“ASIC” means the Australian Securities and Investments Commission.

 

“Asset Disposition” means the sale, transfer, license, lease or other disposition of any Property (including any sale and leaseback transaction or division), whether in a single transaction or a series of related transactions, by any Credit Party or any Subsidiary thereof, and any issuance of Equity Interests by any Subsidiary of Holdings to any Person that is not a Credit Party or any Subsidiary thereof. For the avoidance of doubt, the write-off of any assets subject to the Tucker Lease shall not be deemed to constitute an Asset Disposition.

 

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.9) that is not an Affiliated Lender, and accepted by the Administrative Agent, in substantially the form attached as Exhibit F or any other form reasonably satisfactory to the Administrative Agent.

 

“Attributable Indebtedness” means, on any date of determination, (a) in respect of any Capital Lease Obligation of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease or operating lease, the capitalized amount or principal amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capital Lease Obligation.

 

“Australia” means the Commonwealth of Australia.

 

“Australian Corporations Act” means the Corporations Act 2001 (Cth) of Australia.

 

“Australian Credit Party” means each Credit Party incorporated under the laws of Australia.

 

“Australian Featherweight Security Deed” means the featherweight security deed to be entered into on the Australian Sunshine Targets Accession Date between Thryv Ausco, each Australian Sunshine Target and the Australian Security Trustee, in form and substance reasonably satisfactory to the Administrative Agent.

“Australian General Security Deed” means the general security deed to be entered into on the Australian Sunshine Targets Accession Date between Thryv Ausco, each Australian Sunshine Target and the Australian Security Trustee, in form and substance reasonably satisfactory to the Administrative Agent.

 

“Australian PPSA” means the Personal Property Securities Act 2009 (Cth) of Australia.

 

“Australian Security Documents” means the collective reference to (a) the Australian General Security Deed, (b) the Australian Featherweight Security Deed, (c) the Australian Specific Security Deed, and (d) all other security documents governed by the laws of Australia hereafter delivered to the Administrative Agent granting a Lien on any property of any Person to secure the Secured Obligations.

 

 “Australian Security Trust Deed” means the security trust deed to be entered into on the Australian Sunshine Targets Accession Date between, among others, TIH, Thryv Ausco, each Australian Sunshine Target and the Australian Security Trustee, in form and substance reasonably satisfactory to the Administrative Agent.

 

“Australian Security Trustee” means Wells Fargo in its capacity as Australian security trustee hereunder and any successor or assign acting in such capacity.

 

“Australian Specific Security Deed” means the specific security deed (marketable securities) to be entered into on the Australian Sunshine Targets Accession Date between TIH and the Australian Security Trustee, in form and substance reasonably satisfactory to the Administrative Agent.

 

“Australian Subsidiary” means any Subsidiary incorporated or organized under the laws of Australia.

 

“Australian Sunshine Targets” means each of (a) Sunshine SPV, (b) the Sunshine Target, (c) Project Sunshine II Pty Limited ACN 167 275 890, (d) Project Sunshine III Pty Limited ACN 167 276 066, (e) Project Sunshine IV Pty Limited ACN 167 276 226, (f) Sensis Pty Ltd ACN 007 423 912, (g) Sensis Holdings Pty Ltd ACN 090 894 769, (h) Citysearch Australia Pty. Ltd. ACN 076 673 857, (i) Australian Local Search Pty Limited ACN 109 826 351, and (j) Life Events Media Pty Limited ACN 118 014 298.

 

“Australian Sunshine Targets Accession Date” means the date following the Australian Whitewash Completion Date (or such later date as may be determined by the Administrative Agent in its sole discretion) on which each Australian Sunshine Target, TIH and Thryv Ausco executes each of the documents to which it is a party under Section 6.18.

 

“Australian Tax Act” means the Income Tax Assessment Act 1936 (Cth) of Australia.

 

“Australian Tax Consolidated Group” means a “Consolidated Group” or an “MEC Group” as defined in the Australian Tax Act.

 

“Australian TFA” means any tax funding agreement for Australian tax consolidation purposes.

 

“Australian TSA” means an agreement between the members of an Australian Tax Consolidated Group which takes effect as a tax sharing agreement under section 721-25 of the applicable Australian Tax Act and complies with the applicable Australian Tax Act and any applicable law, official directive, request, guideline or policy (whether or not having the force of law) issued in connection with the applicable Australian Tax Act.

 

“Australian Whitewash Completion Date” means the date (following the expiry of all required time periods under the Australian Corporations Act before the Australian Security Documents can be executed) of completion of the Australian Whitewash Transaction.

 

“Australian Whitewash Documents” means all documents (including all resolutions, notices of meeting, explanatory statements and forms) that are required to be lodged with ASIC in connection with the Australian Whitewash Transaction.

 

“Australian Whitewash Transaction” means the transaction by which Thryv Ausco and each Australian Sunshine Target, among others: (i) passes all resolutions that are required to be passed in accordance with section 260B of the Australian Corporations Act to approve the giving of financial assistance in connection with the entry into and performance of obligations under each Loan Document to which it is proposed to be a party within the required time periods; and (ii) lodges all its relevant Australian Whitewash Documents with ASIC in accordance with section 260B of the Australian Corporations Act.

 

“Available Amount” means, at any time, an amount, at such time (which shall not be less than zero) equal to the sum, without duplication, of:

 

(a)          $25,000,000; plus

 

(b)          Retained Excess Cash Flow: plus

 

(c)          one hundred percent (100%) of the aggregate Net Cash Proceeds and the fair market value of Cash Equivalents or other property received by the Borrower since the Closing Date from (i) an Equity Issuance of Qualified Equity Interests (other than an Equity Issuance (A) of Disqualified Equity Interests, (B) from Holdings or a Subsidiary thereof to Holdings or a Subsidiary thereof or (C) in connection with a Specified Equity Contribution) and (ii) Indebtedness of the Borrower or a Subsidiary of the Borrower that has been converted into or exchanged for Qualified Equity Interests of the Borrower or any direct or indirect parent company of the Borrower; plus

 

(d)        one hundred percent (100%) of the aggregate amount of cash and the fair market value of Cash Equivalents or other property contributed to the capital of the Borrower from a Person other than Holdings or its Subsidiaries following the Closing Date (other than Disqualified Equity Interests or any Specified Equity Contribution); plus

 

(e)          one hundred percent (100%) of (i) the aggregate amount received in cash and the fair market value of any Cash Equivalents or other Property received by means of (A) a sale or other disposition (other than to Holdings or its Subsidiaries) of Investments made by the Borrower or a Subsidiary pursuant to Section 7.3(n) and (B) repurchases and redemptions of such Investments from the Borrower or any of its Subsidiaries and repayments of loans or advances, and releases of guarantees, which constitute Investments made by the Borrower or the Subsidiaries pursuant to Section 7.3(n), in each case, not in an amount in excess of the original amount of such Investment and (ii) returns, profits, distributions and similar amounts actually received by the Borrower and its Subsidiaries on Investments made pursuant to Section 7.3(n) and not in an amount in excess of the original amount of such Investment; plus

 

(f)           the aggregate amount of Declined Proceeds retained by the Borrower and its Subsidiaries pursuant to Section 2.4(b)(vi); minus

 

(g)          the aggregate amount of Investments made pursuant to Section 7.3(n) prior to such date of determination; minus

 

(h)          the aggregate amount of Restricted Payments made pursuant to Section 7.6(f) prior to such date of determination; minus

 

(i)            the aggregate amount of Restricted Junior Debt Payments made pursuant to Section 7.9(b)(iv) prior to such date of determination.

 

“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (a) if the then-current Benchmark is a term rate, any tenor for such Benchmark or (b) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 3.8(c)(iv).

 

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.

 

“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

 

“Bankruptcy Code” means 11 U.S.C. §§ 101 et seq.

 

“Base Rate” means, at any time, the highest of (a) the Prime Rate, (b) the Federal Funds Rate plus 0.50% and (c) LIBOR for an Interest Period of one month plus 1%; each change in the Base Rate shall take effect simultaneously with the corresponding change or changes in the Prime Rate, the Federal Funds Rate or LIBOR (provided that clause (c) shall not be applicable during any period in which LIBOR is unavailable or unascertainable). Notwithstanding the foregoing, in no event shall the Base Rate be less than 2.00%.

 

“Base Rate Loan” means any Term Loan bearing interest at a rate based upon the Base Rate as provided in Section 3.1(a).

 

“Benchmark” means, initially, USD LIBOR; provided that if a Benchmark Transition Event, a Term SOFR Transition Event, or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to USD LIBOR 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 Section 3.8(c)(i).

 

“Benchmark Replacement” means, for any Available Tenor,

 

(a)          with respect to any Benchmark Transition Event or Early Opt-in Election, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:

 

 (1)        the sum of: (A) Term SOFR and (B) the related Benchmark Replacement Adjustment; provided that, if the Borrower has provided a notification to the Administrative Agent in writing on or prior to such Benchmark Replacement Date that the Borrower has a Hedge Agreement in place with respect to any of the Term Loans as of the date of such notice (which such notification the Administrative Agent shall be entitled to rely upon and shall have no duty or obligation to ascertain the correctness or completeness of), then the Administrative Agent, in its sole discretion, may decide not to determine the Benchmark Replacement pursuant to this clause (a)(1) for such Benchmark Transition Event or Early Opt-in Election, as applicable;

 

 (2)           the sum of: (A) Daily Simple SOFR and (B) the related Benchmark Replacement Adjustment;

 (3)         the sum of: (A) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time and (B) the related Benchmark Replacement Adjustment; or

 

(b)          with respect to any Term SOFR Transition Event, the sum of (i) Term SOFR and (ii) the related Benchmark Replacement Adjustment;

 

provided that, (i) in the case of clause (a)(1), if the Administrative Agent decides that Term SOFR is not administratively feasible for the Administrative Agent, then Term SOFR will be deemed unable to be determined for purposes of this definition and (ii) in the case of clause (a)(1) or clause (b) of this definition, the applicable Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion. If the Benchmark Replacement as determined pursuant to clause (a)(1), (a)(2) or (a)(3) or clause (b) of this definition would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.

 

“Benchmark Replacement Adjustment” means, with respect to any replacement of 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:

 

(1)          for purposes of clauses (a)(1) and (a)(2) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Administrative Agent:

 

 (a)          the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Available Tenor of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor;

 

 (b)         the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Available Tenor of such Benchmark for the applicable Corresponding Tenor;

 

(2)          for purposes of clause (a)(3) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Available Tenor of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Available Tenor of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities; and

 

(3)          for purposes of clause (b) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Available Tenor of USD LIBOR with a SOFR-based rate;

 

provided that, (x) in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Administrative Agent in its reasonable discretion and (y) if the then-current Benchmark is a term rate, more than one tenor of such Benchmark is available as of the applicable Benchmark Replacement Date and the applicable Unadjusted Benchmark Replacement that will replace such Benchmark in accordance with Section 3.8(c)(i) will not be a term rate, the Available Tenor of such Benchmark for purposes of this definition of “Benchmark Replacement Adjustment” shall be deemed to be, with respect to each Unadjusted Benchmark Replacement having a payment period for interest calculated with reference thereto, the Available Tenor that has approximately the same length (disregarding business day adjustments) as such payment period.

 

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent (in consultation with the Borrower) decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

 

“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:

 

(a)          in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof);

 

(b)           in the case of clause (c) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein;

 

(c)           in the case of a Term SOFR Transition Event, the date that is thirty (30) days after the Administrative Agent has provided the Term SOFR Notice to the Lenders and the Borrower pursuant to Section 3.8(c)(i)(B); or

 

(d)          in the case of an Early Opt-in Election, the sixth (6^th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5^th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.

 

For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

 

“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:

 

(a)          a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);

 

(b)         a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the FRB, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or

 

(c)          a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer representative.

 

For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

 

“Benchmark Unavailability Period” means the period (if any) (a) beginning at the time that a Benchmark Replacement Date pursuant to clauses (a) or (b) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.8(c) and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.8(c).

 

“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

 

“Beneficial Ownership Regulation” means 31 CFR § 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”.

 

“Borrower” means Thryv, Inc., a Delaware corporation.

 

“Borrower Materials” has the meaning assigned thereto in Section 6.2.

 

“Business Day” means (a) for all purposes other than as set forth in clause (b) below, any day (other than a Saturday, Sunday or legal holiday) on which banks in Charlotte, North Carolina and New York, New York, are open for the conduct of their commercial banking business and (b) with respect to all notices and determinations in connection with, and payments of principal and interest on, any LIBOR Rate Loan, or any Base Rate Loan as to which the interest rate is determined by reference to LIBOR, any day that is a Business Day described in clause (a) and that is also a London Banking Day.

 

“Capital Expenditures” means, with respect to Holdings and its Subsidiaries on a Consolidated basis, for any period, (a) the additions to property, plant and equipment and other capital expenditures that are (or would be) set forth in a Consolidated statement of cash flows of such Person for such period prepared in accordance with GAAP and (b) Capital Lease Obligations during such period.

 

“Capital Lease Obligations” of any Person means, subject to Section 1.3(b), the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as finance leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

 

“Cash Equivalents” means, collectively, (a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case, maturing or allowing for liquidation at the original par value at the option of the holder within one year from the date of acquisition thereof; (b) investments in commercial paper (other than commercial paper issued by the Borrower or any of its Affiliates) maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s; (c) investments in certificates of deposit, banker’s acceptances, time deposits or overnight bank deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000, and having a debt rating of “A-1” or better from S&P or “P-1” or better from Moody’s; (d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above; and (e) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000.

 

“Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card (including non-card electronic payables and purchasing cards), electronic funds transfer and other cash management arrangements.

 

“CFC” means a Foreign Subsidiary (other than an Acquired Entity) that is a “controlled foreign corporation” under Section 957 of the Code and any Subsidiary owned directly or indirectly by such Foreign Subsidiary.

 

“CFC Holdco” means a Subsidiary substantially all the assets of which consist of Equity Interests in Foreign Subsidiaries that each constitute a CFC and/or Indebtedness or accounts receivable owed by Foreign Subsidiaries that each constitute a CFC or are treated as owed by any such Foreign Subsidiaries for U.S. federal income tax purposes.

 

“Change in Control” means an event or series of events by which:

 

(a)          at any time, Holdings shall fail to own one hundred percent (100%) of the Equity Interests of the Borrower entitled to vote in the election of members of the board of directors (or equivalent governing body) of the Borrower;

 

(b)         any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such person or its Subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) other than the Permitted Investors becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a “person” or “group” shall be deemed to have “beneficial ownership” of all Equity Interests that such “person” or “group” has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of the Equity Interests entitled to vote for members of the board of directors (or equivalent governing body) of Holdings on a fully diluted basis (and taking into account all such securities that such “person” or “group” has the right to acquire pursuant to any option right) representing more than 40% of the total voting power of all of the outstanding Equity Interests of Holdings; or

 

(c)          the occurrence of a change in control, or other similar provision, as defined in the ABL Credit Agreement or any agreement or instrument evidencing any Refinancing Equivalent Indebtedness, any Incremental Equivalent Indebtedness, any other Indebtedness or Equity Interests in excess of the Threshold Amount obligating Holdings or any of its Subsidiaries to repurchase, redeem or repay all or any part of the Indebtedness or Equity Interests provided for therein.

 

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

 

“Class” means, when used in reference to any Term Loan, whether such Term Loan is the Initial Term Loan, an Incremental Term Loan, an Extended Term Loan or a Refinancing Term Loan.

 

“Closing Date” means the date of this Agreement.

 

“Closing Date Intercreditor Agreement” means the Intercreditor Agreement, dated as of the date hereof, among the Administrative Agent and the ABL Administrative Agent and acknowledged by the Credit Parties.

 

“Co-Investor” means, with respect to Mudrick, any fund or investment vehicle that (a) is organized by Mudrick for the purpose of making equity or debt investments in one or more companies and (b) is advised, managed or controlled by, or under common control or management with, Mudrick, but in each case, excluding any portfolio companies of Mudrick or any portfolio companies of the Co-Investors. For purposes of this definition “control” means the power to direct or cause the direction of management and policies of a Person, whether by contract or otherwise.

 

“Code” means the Internal Revenue Code of 1986, and the rules and regulations promulgated thereunder.

 

“Collateral” means the collateral security for the Secured Obligations pledged or granted pursuant to the Security Documents.

 

“Collateral Agreement” means the collateral agreement of even date herewith executed by the Credit Parties in favor of the Administrative Agent, for the ratable benefit of the Secured Parties, which shall be in form and substance reasonably acceptable to the Borrower and the Administrative Agent.

 

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).

 

“Competitor” means any Person that is a competitor of the Sunshine Target, the Borrower or any of their respective Subsidiaries operating in the same industry or a substantially similar industry which offers a substantially similar product or service as the Sunshine Target, the Borrower or any of their respective Subsidiaries.

 

“Compliance Certificate” means a certificate of the chief financial officer or the treasurer of Holdings substantially in the form attached as Exhibit E.

 

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

 

“Consolidated” means, when used with reference to financial statements or financial statement items of any Person, such statements or items on a consolidated basis in accordance with applicable principles of consolidation under GAAP.

 

“Consolidated EBITDA” means, for any period, the sum of the following determined on a Consolidated basis, without duplication, for Holdings and its Subsidiaries:

 

(a)           Consolidated Net Income for such period; plus

 

(b)          the sum of the following, without duplication, and (except in the case of clauses (b)(viii) and (b)(x)(B) below) to the extent deducted in determining Consolidated Net Income for such period:

 

 (i)            Consolidated Interest Expense;

 

 (ii)          Taxes paid or provisions for Taxes, in each case, measured by net income, profits or capital (or any similar measures), including federal and state and local income Taxes, foreign income Taxes and franchise Taxes;

 

 (iii)         (A) depreciation and amortization (including, without limitation, amortization of goodwill, software and other intangible assets) and (B) other non-cash charges or expenses (including impairment charges, write-offs, write-downs and non-cash compensation charges arising from the granting of stock options, stock appreciation rights, profits interests and/or similar arrangements);

 

 (iv)         any non-recurring extraordinary charges or losses for such period (excluding losses from discontinued operations, but including any losses in connection with any actual or prospective legal settlement, fine, judgment or order); provided that in any applicable Reference Period the sum of (A) the aggregate amount of Net Extraordinary Charges and Losses added back to Consolidated EBITDA pursuant to this clause (b)(iv) in such Reference Period plus (B) the aggregate amount added back to Consolidated EBITDA pursuant to clauses (b)(x)(A) and (b)(x)(B) below in such Reference Period shall in no event exceed 15% of Consolidated EBITDA for such Reference Period;

 

 (v)          (A) Transaction Costs and/or (B) to the extent reducing Consolidated Net Income, any earn-out and contingent consideration obligations (including to the extent accounted for as bonuses, compensation or otherwise) incurred in connection with the Transactions and/or any other acquisition and/or other Investment which is paid or accrued during such period and, in each case, adjustments thereof;

 

 (vi)         the amount of any charge or expense that is actually reimbursed or reimbursable by one or more third parties pursuant to indemnification or reimbursement provisions or similar agreements or insurance; provided that in respect of any such charge or expense that is added back in reliance on this clause (b)(vi), the relevant Person in good faith expects to receive reimbursement for such charge or expense within the next four fiscal quarters (it being understood that to the extent any such reimbursement amount is not actually received within such four fiscal quarter period, such reimbursement amount shall be deducted in calculating Consolidated EBITDA for the last fiscal quarter of such period and each subsequent period which includes such quarter);

 

 (vii)         cash premiums, penalties or other payments payable in connection with the early extinguishment or repurchase of Indebtedness;

 

 (viii)       the amount of any proceeds of any business interruption insurance policy in an amount representing the earnings for the applicable period that such proceeds are intended to replace (whether or not then received so long as the relevant Person in good faith expects to receive such proceeds within the next four fiscal quarters (it being understood that to the extent such proceeds are not actually received within such four fiscal quarter period, such proceeds shall be deducted in calculating for the last fiscal quarter of such period and each subsequent period which includes such quarter));

 

 (ix)          any charge, expense or deduction that is associated with any Subsidiary and attributable to any non-controlling interest and/or minority interest of any third party; and/or

 

 (x)         (A) other cash expenses or charges, including restructuring charges, attributable to the undertaking and/or implementation of new initiatives, business optimization activities, cost savings initiatives, cost rationalization programs, operating expense reductions and/or synergies, and/or similar initiatives and/or similar programs, including expenses incurred in connection with inventory optimization programs, office or facility closure, relocation, headcount savings, product margin and integration savings, office or facility consolidations and openings, retention, severance, systems establishment costs, contract termination costs and reconstruction, decommissioning, recommissioning or reconfiguration of fixed assets for alternative uses; provided that for any applicable Reference Period, the sum of (A) the aggregate amount of Net Extraordinary Charges and Losses added back to Consolidated EBITDA pursuant to clause (b)(iv) above in such Reference Period, plus (B) the aggregate amount added back to Consolidated EBITDA pursuant to this clause (b)(x)(A) and clause (b)(x)(B) below in such Reference Period shall in no event exceed 15% of Consolidated EBITDA for such Reference Period; and (B) the amount of any “run rate” synergies, operating expense reductions and other net cost savings and integration costs, in each case projected by Holdings in connection with Permitted Acquisitions, Asset Dispositions (including the termination or discontinuance of activities constituting such business) and/or other operating improvement, restructuring, cost savings initiative or other similar initiative taken after the Closing Date that have been consummated during the applicable Reference Period (calculated on a Pro Forma Basis as though such synergies, expense reductions and cost savings had been realized on the first day of the period for which Consolidated EBITDA is being determined), net of the amount of actual benefits realized during such period from such actions; provided that (x) such synergies, expense reductions and cost savings are reasonably identifiable, factually supportable, expected to have a continuing impact on the operations of Holdings and its Subsidiaries and have been determined by Holdings in good faith to be reasonably anticipated to be realizable within 12 months following any such action as set forth in reasonable detail on a certificate of a Responsible Officer of Holdings delivered to the Administrative Agent, (y) no such amounts shall be added pursuant to this clause to the extent duplicative of any expenses or charges otherwise added to Consolidated EBITDA, whether through a pro forma adjustment, the definition of Pro Forma Basis or otherwise and (z) for any applicable Reference Period, the sum of (1) the aggregate amount added pursuant to this clause (x)(B) for such Reference Period plus (2) the aggregate amount of Net Extraordinary Charges and Losses added back to Consolidated EBITDA pursuant to clause (b)(iv) above in such Reference Period, plus (3) the aggregate amount added back to Consolidated EBITDA pursuant to clause (b)(x)(A) above in such Reference Period shall in no event exceed 15% of Consolidated EBITDA for such period;

 

minus

 

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

 

(i)             interest income;

 

(ii)            Federal, state, local and foreign income Tax credits of Holdings and its Subsidiaries for such period (to the extent not netted from income Tax expense);

 

(iii)           any extraordinary, unusual or non-recurring gains (including any gains in connection with any actual or prospective legal settlement, fine, judgment or order);

 

(iv)           non-cash gains or non-cash items;

 

(v)           any cash expense made during such period which represents the reversal of any non-cash expense that was added in a prior period pursuant to clause (b)(iii) above subsequent to the fiscal quarter in which the relevant non-cash expenses, charges or losses were incurred; and

 

(vi)           cash rental and other cash payments made for such period pursuant to the Tucker Lease.

 

For purposes of this Agreement, Consolidated EBITDA shall (x) exclude any non-cash impact attributable to the reduction in deferred revenue or reduction in deferred costs to balance sheet accounts as a result of the fair value exercise undertaken as required by purchase method of accounting for the transactions contemplated by any acquisition, in accordance with GAAP and (y) except for purposes of calculating Excess Cash Flow, be calculated on a Pro Forma Basis.

 

Notwithstanding anything to the contrary contained in this definition, for the purpose of determining Consolidated EBITDA under this Agreement for any period that includes the fiscal quarters ending December 31, 2019, March 31, 2020, June 30, 2020 and/or September 30, 2020, Consolidated EBITDA for such fiscal quarters shall be $147,805,000; $152,531,000; $159,899,000 and $72,713,000, respectively.

 

“Consolidated First Lien Net Indebtedness” means, as of any date of determination, Consolidated Total Net Indebtedness as of such date that is secured by any Lien on any assets of Holdings and its Subsidiaries that is not expressly subordinated or junior in priority to the Liens on such assets securing the Secured Obligations.  For the avoidance of doubt, the Secured Obligations and the ABL Obligations outstanding as of such date of determination shall each constitute Consolidated First Lien Net Indebtedness.

 

“Consolidated Interest Expense” means, for any period, the sum of the following determined on a Consolidated basis, without duplication, for Holdings and its Subsidiaries in accordance with GAAP, interest expense (including (i) any amortization of any debt issuance cost and/or deferred financing fees, (ii) interest expense attributable to Capital Lease Obligations and (iii) all net payment obligations pursuant to Hedge Agreements) for such period.

 

“Consolidated Net Income” means, for any period, the net income (or loss) of Holdings and its Subsidiaries for such period, determined on a Consolidated basis, without duplication, in accordance with GAAP and adjusted to eliminate any non-cash impact attributable to the reduction in deferred revenue or reduction in deferred costs to balance sheet accounts as a result of the fair value exercise undertaken as required by purchase method of accounting for the transactions contemplated by any acquisition, in accordance with GAAP; provided, that in calculating Consolidated Net Income of Holdings and its Subsidiaries for any period, there shall be excluded:

 

(a)          the net income (or loss) of any Person (other than a Subsidiary which shall be subject to clause (c) below), in which Holdings or any of its Subsidiaries has a joint interest with a third party, except to the extent such net income is actually paid in cash to Holdings or any of its Subsidiaries by dividend or other distribution during such period;

 

(b)         the net income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of Holdings or any of its Subsidiaries or is merged into or consolidated with Holdings or any of its Subsidiaries or that Person’s assets are acquired by Holdings or any of its Subsidiaries except to the extent included pursuant to the foregoing clause (a);

 

(c)          the net income (if positive), of any Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary to Holdings or any of its Subsidiaries of such net income (i) is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Subsidiary or (ii) would be subject to any taxes payable on such dividends or distributions, but in each case only to the extent of such prohibition or taxes;

 

(d)          the net income (or loss) of any Subsidiary that is not a Wholly-Owned Subsidiary to the extent such net income (or loss) is attributable to the minority interest in such Subsidiary;

 

(e)          any gain or loss from Asset Dispositions during such period;

 

(f)           any gain or loss attributable to the early extinguishment of Indebtedness (and the termination of any associated Hedge Agreement) and any cancellation of indebtedness income resulting from any purchase of any Term Loans by the Borrower;

 

(g)         any non-cash compensation expense recorded from grants of stock appreciation or similar rights, stock options, restricted stock or other rights (including equity compensation to employees (including pursuant to pension plans)) and non-cash charges associated with the roll-over, acceleration or payout of Equity Interests by management of the Borrower, Holdings or any direct or indirect parent thereof in connection with the Transactions or other Acquisitions;

 

(h)          (i) any realized or unrealized gain and/or loss in respect of (A) any obligation under any Hedge Agreement as determined in accordance with GAAP and/or (B) any other derivative instrument pursuant to, in the case of this clause (B), Financial Accounting Standards Board’s Accounting Standards Codification No. 815-Derivatives and Hedging and/or (ii) any realized or unrealized foreign currency exchange gain or loss (including any currency re-measurement of Indebtedness, any net gain or loss resulting from Hedge Agreements for currency exchange risk resulting from any intercompany Indebtedness), any foreign currency translation or transaction or any other currency-related risk; provided, that notwithstanding anything to the contrary herein, any realized gain or loss in respect of any Designated Operational FX Hedge shall be included in the calculation of Consolidated Net Income;

 

(i)         (i) the effects of adjustments resulting from the application of purchase accounting, recapitalization accounting and/or acquisition method accounting, as applicable, in relation to the Transactions or any consummated acquisition or other similar investment or the amortization or write-off of any amount thereof, net of Taxes and (ii) the cumulative effect of changes in accounting principles or policies made in such period in accordance with GAAP which affect Consolidated Net Income; and

 

(j)           the amount of any contingent payments related to any Acquisition or Investment permitted hereunder that are treated as compensation expense in accordance with GAAP.

 

“Consolidated Total Indebtedness” means, as of any date of determination with respect to Holdings and its Subsidiaries on a Consolidated basis, the sum of, without duplication, (a) all liabilities, obligations and indebtedness for borrowed money including, but not limited to, obligations evidenced by bonds, debentures, notes or other similar instruments of any such Person, (b) all purchase money Indebtedness, (c) all obligations to pay the deferred purchase price of property or services of any such Person (including all payment obligations under non-competition, earn-out or similar agreements, solely to the extent any such payment obligation under non-competition, earn-out or similar agreements becomes a liability on the balance sheet of such Person in accordance with GAAP), except trade payables arising in the ordinary course of business not more than ninety (90) days past due, or that are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided for on the books of such Person, (d) the Attributable Indebtedness of such Person with respect to such Person’s Capital Lease Obligations and Synthetic Leases (regardless of whether accounted for as indebtedness under GAAP), (e) all drawn and unreimbursed obligations, contingent or otherwise, of any such Person relative to letters of credit, including any reimbursement obligation with respect thereto, and banker’s acceptances issued for the account of any such Person, (f) all obligations of any such Person in respect of Disqualified Equity Interests which shall be valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends that are past due, (g) all Guarantees of any such Person with respect to any Indebtedness of the types referred to in clauses (a) through (f) above and (h) all Indebtedness of the types referred to in clauses (a) through (g) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to such Person.  For purposes of this Agreement and the other Loan Documents, the amount of Consolidated Total Indebtedness as of any date of determination may be adjusted to reflect the effect (as determined by the Borrower in good faith) of any Hedge Agreement entered into in respect of the currency exchange risk relating to any Consolidated Total Indebtedness. For purposes of this Agreement and the other Loan Documents, the amount of Consolidated Total Indebtedness as of any date of determination shall exclude the obligations (including rental payments) under the Tucker Lease.

 

“Consolidated Total Net Indebtedness” means, as of any date of determination, Consolidated Total Indebtedness as of such date minus the lesser of (a) Unrestricted cash and Cash Equivalents of Holdings and its Subsidiaries (excluding the proceeds of any Incremental Term Loans, Incremental Equivalent Indebtedness or any other Indebtedness incurred or made substantially concurrent with the determination of the amount of such Unrestricted cash and Cash Equivalents) and (b) $20,000,000.

 

“Contract Consideration” has the meaning assigned thereto in the definition of “Excess Cash Flow”.

 

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

 

“Controller” has the meaning given to it in section 9 of the Australian Corporations Act.

 

“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.

 

“Credit Agreement Refinancing Indebtedness” means Indebtedness of the Credit Parties in the form of (a) one or more additional tranches or Classes of term loans under this Agreement incurred pursuant to a Refinancing Amendment (“Refinancing Term Loans”) which refinance, renew, replace, defease or refund (collectively, “Refinance”), in whole or in part, one or more Classes of outstanding Term Loans or (b) other Pari Passu Indebtedness, Indebtedness secured by a junior Lien on the Collateral or unsecured Indebtedness (such Indebtedness under this clause (b), collectively, “Refinancing Equivalent Indebtedness”) which, in each case, shall Refinance, in whole or in part, one or more Classes of outstanding Term Loans or outstanding Refinancing Equivalent Indebtedness; provided that (a) such Indebtedness shall satisfy each of the requirements set forth in the definition of “Permitted Refinancing Indebtedness” with references therein to “Refinancing Indebtedness” (it being acknowledged and agreed that clause (h) thereof shall not be required to be satisfied in the case of a refinancing in full of all of the Initial Term Loans) being deemed to refer to such Indebtedness and references therein to “Refinanced Indebtedness” being deemed to refer to the Class or Classes (or the portions thereof) of Term Loans or existing Credit Agreement Refinancing Indebtedness being exchanged, extended, renewed, replaced, repurchased, retired or refinanced thereby, (b) the Net Cash Proceeds of any such Credit Agreement Refinancing Indebtedness shall be applied, concurrently or substantially concurrently with the incurrence thereof, solely to the repayment of the outstanding amount of one or more Classes (or the portions thereof) of Term Loans or existing Credit Agreement Refinancing Indebtedness, as applicable, and (c) any portion of such Refinancing Term Loans provided by an Affiliated Lender shall comply with Section 10.9(h).

 

“Credit Facility” means the term loan facility established pursuant to Article II, including each new term loan facility established pursuant to Section 3.13, each facility providing for the borrowing of Extended Term Loans and each facility providing for the borrowing of Refinancing Term Loans.

 

“Credit Parties” means, collectively, the Borrower and the Guarantors.

 

“Cure Expiration Date” has the meaning assigned thereto in Section 8.7.

 

“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.

 

“Debt Issuance” means the issuance of any Indebtedness for borrowed money by any Credit Party or any of its Subsidiaries.

 

“Debt Rating” means, as applicable, (a) the public corporate family rating of the Borrower as determined by Moody’s from time to time, (b) the public corporate rating of the Borrower as determined by S&P from time to time and (c) the public ratings of the Credit Facility as determined by Moody’s and/or S&P from time to time.

 

“Debtor Relief Laws” means the Bankruptcy Code of the United States of America, the Australian Corporations Act, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States, Australia or other applicable jurisdictions from time to time in effect.

 

“Declined Proceeds” has the meaning assigned thereto in Section 2.4(b)(vi).

 

“Default” means any of the events specified in Section 8.1 which with the passage of time, the giving of notice or any other condition, would constitute an Event of Default.

 

“Defaulting Lender” means, any Lender that has, or has a direct or indirect parent company that has, (a) become the subject of a proceeding under any Debtor Relief Law, (b) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the FDIC or any other state or federal regulatory authority acting in such a capacity or (c) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.

 

“Designated Affiliated Lender” means an Affiliated Lender that (a) is primarily engaged in, including through advising of funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of business, (b) in each case, has one or more bona fide investors to whom its managers owe fiduciary duties independent of their fiduciary duties to any Permitted Investor and (c) is identified in a writing on a list delivered to the Arranger at least two (2) Business Days prior to the Closing Date or a written notice delivered pursuant to Section 10.9(h)(vi).

 

“Designated Non-Cash Consideration” means the fair market value (as determined by the Borrower in good faith) of non-cash consideration received by the Borrower or any Subsidiary in connection with any Asset Disposition pursuant to Section 7.5(n) and/or Sale Leaseback pursuant to Section 7.13 that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent prior to the closing of such Asset Disposition, setting forth the basis of such valuation (which amount will be reduced by the amount of cash or Cash Equivalents received in connection with a subsequent sale or conversion of such Designated Non-Cash Consideration to cash or Cash Equivalents).

 

“Designated Operational FX Hedge” means any Hedge Agreement entered into for the purpose of hedging currency-related risks in respect of the revenues, cash flows or other balance sheet items of the Borrower or any of its Subsidiaries and irrevocably designated at the time entered into (or on or prior to the Closing Date, with respect to any Hedge Agreement entered into on or prior to the Closing Date) as a Designated Operational FX Hedge by the Borrower in a writing to the Administrative Agent and which is further set forth on Schedule 1.1 or a supplement to Schedule 1.1 delivered in accordance with Section 6.2 with the Compliance Certificate provided promptly after such Hedge Agreement is entered into.

 

“Discretionary Guarantor” has the meaning assigned thereto in the definition of “Guarantor”.

 

“Disinterested Member” means a member of Holdings’ board of directors (or equivalent governing body) who does not have a financial interest in a relevant transaction or arrangement (or series of related transactions or arrangements), excluding, in all cases, a financial interest in such transaction or arrangement (or series of transactions or arrangements) solely as an equity holder or member of the board of directors (or equivalent governing body) of Holdings and/or its Subsidiaries.

 

“Disposed EBITDA” means, with respect to any Person or business that is sold or disposed of in an Asset Disposition during any period, the amount for such period of Consolidated EBITDA of any such Person or business subject to such Asset Disposition (determined using such definitions as if references to Holdings and its Subsidiaries therein were to such Person or business), as calculated by the Borrower in good faith.

 

“Disqualified Equity Interests” means, with respect to any Person, any Equity Interests of such Person that, by their terms (or by the terms of any security or other Equity Interest into which they are convertible or for which they are exchangeable) or upon the happening of any event or condition, (a) mature or are mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full in cash of the Term Loans and all other Obligations ((other than contingent indemnification obligations not then due) and the termination of the Term Loan Commitments), (b) are redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests) (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full in cash of the Term Loans and all other Obligations ((other than contingent indemnification obligations not then due) and the termination of the Term Loan Commitments), in whole or in part, (c) provide for the scheduled payment of dividends in cash or (d) are or become convertible into, or exchangeable for, Indebtedness or 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 latest scheduled maturity date of the Term Loans and Term Loan Commitments; provided that if such Equity Interests are issued pursuant to a plan for the benefit of Holdings or its Subsidiaries or by any such plan to such officers or employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by Holdings or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.

 

“Disqualified Institution” means (a)(i) any Person that was identified in writing to the Arranger on or prior to December 18, 2020, (ii) any Affiliate of any Person described in clause (a)(i) above that is reasonably identifiable as an Affiliate of such Person solely on the basis of such Affiliate’s name and (iii) any other Affiliate of any Person described in clause (a)(i) above that is identified in a written notice by the Borrower to the Administrative Agent after the Closing Date (which such notice shall be specifically labeled as a supplement to the DQ List and delivered to each address of the Administrative Agent set forth in Section 10.1(a)); and/or (b)(i) any Person that is a Competitor or an Affiliate of a Competitor, in each case that was identified in writing by the Borrower to the Arranger on or prior to December 18, 2020, and (ii) any other Competitor or Affiliate of a Competitor that is identified in a written notice by the Borrower to the Administrative Agent after the Closing Date (which such notice shall be specifically labeled as a supplement to the DQ List and delivered to each address of the Administrative Agent set forth in Section 10.1(a)); provided that, supplements to the list of Disqualified Institutions shall become effective three (3) Business Days after delivery thereof to the Administrative Agent and shall not apply retroactively to disqualify any person that has previously acquired an assignment, participation or other interest in the Credit Facility; provided further that any bona fide debt fund or investment vehicle that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business which is managed, sponsored or advised by any Person Controlling, Controlled by or under common Control with any Person described in clause (b) above or its Controlling owner and for which no personnel involved with the competitive activities of such person or Controlling owner (i) makes any investment decisions for such debt fund or (ii) has access to any confidential information (other than publicly available information) relating to the Sunshine Target, the Borrower and or their respective Subsidiaries shall be deemed not to be included in clause (b) above.

 

“Dollars” or “$” means, unless otherwise qualified, dollars in lawful currency of the United States.

 

“DQ List” has the meaning assigned thereto in Section 10.9(i)(iv).

 

“Dutch Auction” has the meaning assigned thereto in Section 10.9(g).

 

“Early Opt-in Election” means, if the then-current Benchmark is USD LIBOR, the occurrence of:

 

(a)          a notification by the Administrative Agent to (or the request by the Borrower to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding Dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based on SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and

 

(b)          the joint election by the Administrative Agent and the Borrower to trigger a fallback from USD LIBOR and the provision by the Administrative Agent of written notice of such election to the Lenders.

 

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

 

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

 

“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any credit institution or investment firm established in any EEA Member Country.

 

“Electronic Record” has the meaning assigned to that term in, and shall be interpreted in accordance with, 15 U.S.C. 7006.

 

“Electronic Signature” has the meaning assigned to that term in, and shall be interpreted in accordance with, 15 U.S.C. 7006.

 

“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.9(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 10.9(b)(iii)).  For the avoidance of doubt, and subject to Section 10.9(i), “Eligible Assignee” shall not include any Disqualified Institution.

 

“Employee Benefit Plan” means (a) any employee benefit plan within the meaning of Section 3(3) of ERISA that is maintained for employees of any Credit Party or any ERISA Affiliate or (b) any Pension Plan or Multiemployer Plan that has at any time within the preceding five (5) years been maintained, funded or administered for the employees of any Credit Party or any current or former ERISA Affiliate.

 

“Engagement Letter” means the separate engagement letter, dated December 18, 2020, between the Borrower and the Arranger.

 

“Environmental Claims” means any written complaint, summons, citation, notice, directive, order, claim, litigation, investigation, judicial or administrative proceeding, judgment, letter, or other written communication from any Governmental Authority, or any third party involving violations of Environmental Laws or releases of Hazardous Materials (a) from any assets, properties, or businesses of the Borrower, any of its Subsidiaries, or any of their respective predecessors in interest, (b) from adjoining properties or businesses, or (c) from or onto any facilities which received Hazardous Materials generated by the Borrower, any of its Subsidiaries, or any of their respective predecessors in interest.

 

“Environmental Laws” means any applicable federal, state or local statute, law, rule, regulation, ordinance, code, binding and enforceable guideline, binding and enforceable written policy, or rule of common law now or hereafter in effect and in each case as amended, or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, in each case, to the extent binding on any Credit Party or its Subsidiaries, relating to the environment, the effect of the environment on employee health or exposure to Hazardous Materials.

 

“Equity Interests” means (a) in the case of a corporation, capital stock, (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (c) in the case of a partnership, partnership interests (whether general or limited), (d) in the case of a limited liability company, membership interests, (e) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person and (f) any and all warrants, rights or options to purchase any of the foregoing.

 

“Equity Issuance” means (a) any issuance by Holdings of shares of its Equity Interests to any Person that is not a Credit Party (including in connection with the exercise of options or warrants or the conversion of any debt securities to equity) and (b) any capital contribution from any Person that is not a Credit Party into any Credit Party or any Subsidiary thereof.  The term “Equity Issuance” shall not include (A) any Asset Disposition or (B) any Debt Issuance.

 

“ERISA” means the Employee Retirement Income Security Act of 1974, and the rules and regulations thereunder.

 

“ERISA Affiliate” means any Person who together with any Credit Party or any of its Subsidiaries is treated as a single employer within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001(b) of ERISA.

 

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

 

“Eurodollar Reserve Percentage” means, for any day, the percentage which is in effect for such day as prescribed by the FRB for determining the maximum reserve requirement (including any basic, supplemental or emergency reserves) in respect of eurocurrency liabilities or any similar category of liabilities for a member bank of the Federal Reserve System in New York City.

 

“Event of Default” means any of the events specified in Section 8.1; provided that any requirement for passage of time, giving of notice, or any other condition, has been satisfied.

 

“Excess Cash Flow” means, for Holdings and its Subsidiaries on a Consolidated basis, for any fiscal quarter, an amount (if positive) equal to excess of:

 

(a)          the sum, without duplication, of:

 

(i)             Consolidated Net Income for such fiscal quarter; plus

 

(ii)           an amount equal to (A) the amount of all non-cash charges to the extent deducted in determining Consolidated Net Income for such fiscal quarter (including amounts expensed in such fiscal quarter with respect to cash expenditures made in a prior fiscal quarter) and (B) cash receipts to the extent not otherwise included in determining Consolidated Net Income for such fiscal quarter; plus

 

(iii)         an amount equal to the aggregate net non-cash loss on Asset Dispositions or Insurance and Condemnation Events (other than Asset Dispositions in the ordinary course of business) that were deducted in determining Consolidated Net Income for such fiscal quarter (up to the amount of such deduction); plus

 

(iv)          increases in current and non-current deferred revenue (to the extent deducted or otherwise not included in determining Consolidated Net Income for such fiscal quarter); plus

 

(v)            extraordinary, non-recurring or unusual cash gains; plus

 

(vi)           decreases in Working Capital for such fiscal quarter;

 

minus

 

(b)          the sum, without duplication, of

 

(i)            an amount equal to the amount of all non-cash credits included in determining Consolidated Net Income for such fiscal quarter and all cash charges to the extent excluded in determining Consolidated Net Income for such fiscal quarter; plus

 

(ii)           the aggregate amount of Capital Expenditures or Permitted Acquisitions made in cash during such fiscal quarter, except to the extent financed (directly or indirectly) with (A) proceeds of long-term Indebtedness of Holdings or any of its Subsidiaries, other than intercompany loans permitted hereunder and revolving Indebtedness, (B) the Retained Excess Cash Flow portion of the Available Amount or (C) Net Cash Proceeds reinvested pursuant to Section 2.4(b); plus

 

(iii)          the aggregate amount of all principal payments of Indebtedness (other than voluntary prepayments or scheduled repayments of the Term Loans) of Holdings and its Subsidiaries (including, without limitation, (1) the principal component of payments in respect of Capital Lease Obligations, (2) the amount of a mandatory prepayment of Term Loans pursuant to Section 2.4(b) to the extent required due to an Asset Disposition that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase (but excluding all other mandatory prepayments of Term Loans made during such fiscal quarter) and (3) the amount of principal prepayments of the ABL Obligations made in accordance with the requirements of the ABL Documents, including as a result of the aggregate principal of the ABL Obligations exceeding the borrowing base thereunder or as otherwise necessary to avoid the commencement of a Cash Dominion Trigger Period (as defined in the ABL Credit Agreement), in each case, except to the extent such principal payments are financed (directly or indirectly) with (A) proceeds of long-term Indebtedness of Holdings or any of its Subsidiaries other than intercompany loans permitted hereunder and revolving Indebtedness, (B) the Retained Excess Cash Flow portion of the Available Amount or (C) Net Cash Proceeds reinvested pursuant to Section 2.4(b); plus

 

(iv)          an amount equal to the aggregate net non-cash gain on Asset Dispositions or Insurance and Condemnation Events (other than Asset Dispositions in the ordinary course of business) that resulted in an increase in determining Consolidated Net Income for such fiscal quarter (up to the amount of such increase); plus

 

(v)           payments in cash by Holdings and its Subsidiaries during such period in respect of any purchase price holdbacks, earn-out obligations, and long-term liabilities of Holdings and its Subsidiaries (other than Indebtedness), to the extent not expensed during such fiscal quarter or already deducted in determining Consolidated Net Income for such fiscal quarter, in each case to the extent not financed by proceeds of long-term Indebtedness of Holdings or any of its Subsidiaries other than intercompany loans permitted hereunder and revolving Indebtedness; plus

 

(vi)        the aggregate amount of cash consideration paid by Holdings and its Subsidiaries (on a Consolidated basis) in connection with Investments (including Acquisitions, but excluding Investments in cash or Cash Equivalents, Investments in Holdings or its Subsidiaries and the amount of any Investments deducted pursuant to clause (b)(ii) or (b)(v) above or clause (b)(x) below) made during such fiscal quarter pursuant to Section 7.3 to the extent that such Investments were not financed (directly or indirectly) with (A) proceeds of long-term Indebtedness of Holdings or any of its Subsidiaries other than intercompany loans permitted hereunder and revolving Indebtedness, (B) the issuance of Equity Interests, (C) the Retained Excess Cash Flow portion of the Available Amount or (D) Net Cash Proceeds reinvested pursuant to Section 2.4(b); plus

 

(vii)         the aggregate amount of Restricted Payments paid or made in cash during such fiscal quarter (on a Consolidated basis) by Holdings and its Subsidiaries, to the extent such Restricted Payments were not financed (directly or indirectly) with (A) proceeds of long-term Indebtedness of Holdings or any of its Subsidiaries other than intercompany loans permitted hereunder and revolving Indebtedness or (B) the Retained Excess Cash Flow portion of the Available Amount; plus

 

(viii)       the aggregate amount of expenditures actually made by Holdings and its Subsidiaries in cash during such fiscal quarter (including expenditures for the payment of financing fees and cash restructuring charges) to the extent that such expenditures are not expensed during such fiscal quarter and are not deducted in determining Consolidated Net Income for such fiscal quarter; plus

 

(ix)           the aggregate amount of any premium, make-whole, or penalty payments actually paid in cash by Holdings and its Subsidiaries during such fiscal quarter that are made in connection with any prepayment, early extinguishment or conversion of Indebtedness to the extent that such payments are not deducted in determining Consolidated Net Income for such fiscal quarter; plus