Covenants Relating to Rule 144 For so long as the Company is subject to the reporting requirements of Section 13 or 15 of the Securities Act, the Company covenants that it will file the reports required to be filed by it under the Securities Act and Section 13(a) or 15(d) of the Exchange Act and the rules and regulations adopted by the Commission thereunder. If the Company ceases to be so required to file such reports, the Company covenants that it will upon the request of any Holder of Registrable Securities (a) make publicly available such information as is necessary to permit sales pursuant to Rule 144 under the Securities Act, (b) deliver such information to a prospective purchaser as is necessary to permit sales pursuant to Rule 144A under the Securities Act and it will take such further action as any Holder of Registrable Securities may reasonably request, and (c) take such further action that is reasonable in the circumstances, in each case, to the extent required, from time to time, to enable such Holder to sell its Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144 under the Securities Act, as such Rule may be amended from time to time, (ii) Rule 144A under the Securities Act, as such rule may be amended from time to time, or (iii) any similar rules or regulations hereafter adopted by the Commission. Upon the request of any Holder of Registrable Securities, the Company will deliver to such Holder a written statement as to whether it has complied with such requirements and of the Securities Act and the Exchange Act (at any time after it has become subject to the reporting requirements of the Exchange Act), a copy of the most recent annual and quarterly report(s) of the Company, and such other reports, documents or stockholder communications of the Company, and take such further actions consistent with this Section 8(a), as a Holder may reasonably request in availing itself of any rule or regulation of the Commission allowing a Holder to sell any such Registrable Securities without registration.
Covenants Relating to Conduct of Business (a) Except for matters set forth in Schedule 4.01 or otherwise expressly permitted by the terms of this Agreement, from the date hereof to the Closing, each Parent Party shall cause its respective Existing Business to be conducted in the usual, regular and ordinary course in substantially the same manner as previously conducted (including with respect to advertising, promotions, capital expenditures and inventory levels) and use all reasonable efforts to keep intact the respective businesses of such Parent Party's Existing Business, keep available the services of their current employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others with whom they deal to the end that their respective businesses shall be unimpaired at the Closing. Each Parent Party shall not, and shall not permit any of its Affiliates to, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in Article V not being satisfied. In addition (and without limiting the generality of the foregoing), except as set forth in Schedule 4.01 or otherwise expressly permitted or required by the terms of this Agreement, each Parent Party shall not, and shall not permit any of its Affiliates to, do any of the following in connection with its Existing Business without the prior written consent of the other Parent Party:
(i) with respect to any of its Contributed Subsidiaries, amend its Organizational Documents, except as is necessary to consummate the Transactions;
(ii) other than sweeping cash in the ordinary course of business consistent with past practice, make any declaration or payment of any dividend or any other distribution in respect of its equity interest in any Contributed Subsidiary;
(iii) with respect to any of its Contributed Subsidiaries, redeem or otherwise acquire any shares of its capital stock or issue any capital stock (except upon the exercise of outstanding options) or any option, warrant or right relating thereto or any securities convertible into or exchangeable for any shares of such capital stock;
(iv) incur or assume any indebtedness for borrowed money or guarantee any such indebtedness in connection with its Existing Business;
(v) permit, allow or suffer any Contributed Assets to become subjected to any Lien of any nature whatsoever, except Permitted Liens;
(vi) cancel any material indebtedness (individually or in the aggregate) or waive any claims or rights of substantial value relating to its Existing Business;
(vii) except for intercompany loans among Contributed Subsidiaries in the ordinary course of business or transactions in the ordinary course, consistent with past practice and not material in amount, pay, loan or advance any amount to, or sell, transfer or lease any of its assets to, or enter into any agreement or arrangement with any of its Affiliates;
(viii) make any change in any method of financial accounting or financial accounting practice or policy of its Existing Business other than those required by generally accepted accounting principles;
(ix) make any change in the methods or timing of collecting receivables or paying payables with respect to its Existing Business;
(x) other than in the ordinary course of business, make or incur any capital expenditure in connection with its Existing Business that is not currently approved in writing or budgeted;
(xi) sell, lease, license or otherwise dispose of any of the assets of its Existing Business, except inventory, programming or other goods or services sold in the ordinary course of business consistent with past practice; or
(xii) authorize any of, or commit or agree to take, whether in writing or otherwise, to do any of, the foregoing actions.
(b) Except as set forth in Schedule 4.01 or otherwise expressly permitted by the terms of this Agreement or any ancillary agreements that may be entered into in connection with the Transactions, USAi shall not, and shall not permit any of its Affiliates to:
(i) adopt or amend any USAi Benefit Arrangement (or any plan or arrangement that would be an USAi Benefit Arrangement if adopted) relating primarily to its Existing Business or enter into, adopt, extend (beyond the Closing Date), renew or amend any collective bargaining agreement or other Contract relating to its Existing Business with any labor organization, union or association, except in each case, in the ordinary course of business and consistent with past practice or as required by Applicable Law; or
(ii) (A) grant to any USAi Business Employee any increase in compensation or benefits, except grants in the ordinary course of business and consistent with past practice or as may be required under agreements in existence on the date of this Agreement or (B) grant new options or restricted stock to any USAi Business Employee except as may be required under agreements in existence on the date of this Agreement.
(c) Each Parent Party shall promptly advise the other Parent Party in writing of the occurrence of any matter or event that is material to the business, assets, financial condition, or results of operations of its Existing Business, taken as a whole.
(d) Notwithstanding any other provision of this Agreement, following the date hereof, each Parent Party shall manage its cash (including any sweeps thereof), payables and receivables relating to its Existing Business in each case in the ordinary course of business and consistent with past practice.
Separateness Covenants Each Originator hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Buyer’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, from and after the date hereof, each Originator shall take all reasonable steps necessary to make it apparent to third Persons that the Buyer is an entity with assets and liabilities distinct from those of such Originator and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a) such Originator shall not be involved in the day to day management of the Buyer;
(b) such Originator shall maintain separate records and books of account from the Buyer and otherwise will observe corporate formalities and have a separate area from the Buyer for its business (which may be located at the same address as the Buyer, and, to the extent that it and the Buyer have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses);
(c) the financial statements and books and records of such Originator shall be prepared after the date of creation of the Buyer to reflect and shall reflect the separate existence of the Buyer; provided, that the Buyer’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate of the Buyer; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Buyer’s assets are not available to satisfy the obligations of such Affiliate;
(d) except as permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including, without limitation, deposit accounts) separately from the assets (including, without limitation, deposit accounts) of the Buyer and (ii) such Originator’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of the Buyer;
(e) such Originator shall not act as an agent for the Buyer (except in the capacity of Servicer or a Sub-Servicer);
(f) such Originator shall not conduct any of the business of the Buyer in its own name (except in the capacity of Servicer or a Sub-Servicer);
(g) such Originator shall not pay any liabilities of the Buyer out of its own funds or assets;
(h) such Originator shall maintain an arm’s-length relationship with the Buyer;
(i) such Originator shall not assume or guarantee or become obligated for the debts of the Buyer or hold out its credit as being available to satisfy the obligations of the Buyer;
(j) such Originator shall not acquire obligations of the Buyer (other than the Intercompany Loan Agreement and the Intercompany Loans);
(k) such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Buyer, including, without limitation, shared office space;
(l) such Originator shall identify and hold itself out as a separate and distinct entity from the Buyer;
(m) such Originator shall correct any known misunderstanding respecting its separate identity from the Buyer;
(n) such Originator shall not enter into, or be a party to, any transaction with the Buyer, except in the ordinary course of its business and on terms which are intrinsically fair and not less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;
(o) such Originator shall not pay the salaries of the Buyer’s employees, if any; and
(p) to the extent not already covered in paragraphs (a) through (o) above, such Originator shall comply and/or act in accordance with all of the other separateness covenants set forth in Section 8.03 of the Receivables Financing Agreement.
Conditions to Effectiveness of this Agreement (a) This Agreement and the First Amendment shall become effective (the date of such effectiveness being referred to herein as the “Forbearance Effective Date”) upon satisfaction or waiver of each of:
(i) execution of this Agreement and the First Amendment by the TL Agents, the Forbearing Lenders, and the Debt Parties and delivery of the same to the TL Agents;
(ii) execution of the Supplemental Indentures and delivery of the same to the Agents and the Forbearing Lenders, and such Notes Amendments have taken effect in accordance with their terms;
(iii) amendments to the ABL North America Credit Documents (the “ABL Amendments”), in the form executed and delivered on the date hereof, reflecting, among other things, the additional incurrence of no less than $4.48 million of Indebtedness under the ABL North America Credit Agreement to be provided by the ABL Lenders on the Forbearance Effective Date (the “Supplemental Financing”), the conversion of certain Holdings Preferred Equity Interests into an amount of unsecured and subordinated ABL North America Obligations (the “Preferred Roll-Up”), and forbearances and consents by the lenders under the ABL North America Credit Documents (collectively, the “ABL Lenders”) (the “ABL Forbearances and Consents”), in each case as set forth therein and in accordance with the ABL North America Intercreditor Agreement, as amended in accordance herewith;
(iv) the Intercreditor Agreements have each been amended (each, an “Intercreditor Amendment”) so as to permit or otherwise facilitate the Initial Transactions, and such amendments have been executed by the parties thereto, delivered to the Parties hereto, and have taken effect in accordance with their terms;
(v) [Reserved]
(vi) the Holdings Preferred Equity Documents, in form and substance reasonably acceptable to the Forbearing Lenders, have become effective in accordance with their terms, and have been delivered to the Parties hereto;
(vii) International Holdings becomes a co-Administrative Borrower under the Credit Agreement;
(viii) the IP Transfer, IP NA License, IP Europe License, TDX IP License, Motion IP License, Dolomite IP License, and Aviva IP License have occurred on terms reasonably acceptable to the Forbearing Lenders;
(ix) entry by the applicable Forbearing Lenders and the Ad Hoc Group into the mutual release agreement attached hereto as Exhibit J (the “Mutual Lender Release”);
(x) delivery by the Debt Parties of any and all updated perfection certificates and other security documents required under the Credit Agreement, Indentures, and any of the Company’s other Material Indebtedness;
(xi) the other Initial Transaction Documents, each being in form and substance reasonably acceptable to the Forbearing Lenders, shall have been executed by the parties thereto, delivered to the Parties hereto, and have taken effect in accordance with their terms;
(xii) the other Initial Transactions, each being on terms reasonably acceptable to the Forbearing Lenders, shall have been effectuated;
(xiii) Highbridge and ▇▇▇▇▇ ▇▇▇▇ shall have received access to any and all datarooms used by the Company and/or its Related Parties in the Sale Process to provide prospective buyers with diligence or other marketing materials;
(xiv) payment by the Administrative Borrower to the Administrative Agent for the benefit of each Forbearing Lender in the manner and amount set forth in clause (a) of Schedule 5 hereto (the “Forbearance Fee”);
(xv) payment to the parties and in the amounts set forth in clause (b) of Schedule 5 hereto;
(xvi) all required board and other governance approvals (any such approval or consent not to be unreasonably withheld, conditioned, or delayed) have been received for, and the transactions contemplated under and by, this Agreement, including all Initial Transactions, have been fully authorized;
(xvii) the Company has provided to the Forbearing Lenders: (1) the most recent Monthly Reporting; (2) a Budget for the then subsequent month; (3) an initial Account Balance Report; (4) a Variance Report; and (5) a Rolling 13-Week Cash Flow Forecast for the week prior to the date of this Agreement;
(xviii) the Administrative Borrower has paid all interest (excluding applicable default interest) and other amounts in cash that became due on or about August 5, 2024 under the Credit Agreement and remain due immediately prior to the Forbearance Effective Date;
(xix) the Company has provided the Forbearing Lenders and TL Agents with Compliance Certificates of a type set forth in sections 5.01(d)(ii) and 5.03(b) of the Credit Agreement;
(xx) the ABL Lenders have provided the Company with the Supplemental Financing in accordance with its terms;
(xxi) the Administrative Agent shall have received a customary written opinion (addressed to the Agents and the Lenders and dated as the Forbearance Effective Date) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLC, as counsel to the Debt Parties, in form and substance reasonably satisfactory to the Lenders (or their counsel);
(xxii) that certain ▇▇▇▇▇▇▇ and Restated Non-Employee Director Compensation Policy is approved by the board of directors of Holdings; and
(xxiii) the ▇▇▇▇▇▇▇ Incentive Agreement, satisfactory to ▇▇▇▇▇ ▇▇▇▇▇▇▇, is approved by the board of directors of International Holdings. For purposes of determining compliance with the conditions specified in this section 8, each Forbearing Lender that has signed this Agreement shall be deemed to have consented to, approved, or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to, approved by, or acceptable or satisfactory to a Forbearing Lender unless the Administrative Agent shall have received notice from such Forbearing Lender prior to the proposed Forbearance Effective Date specifying its objection thereto.
Schedules and Documents Relating to Accounts Borrower shall deliver to Bank transaction reports and schedules of collections, as provided in Section 6.2, on Bank’s standard forms; provided, however, that Borrower’s failure to execute and deliver the same shall not affect or limit Bank’s Lien and other rights in all of Borrower’s Accounts, nor shall Bank’s failure to advance or lend against a specific Account affect or limit Bank’s Lien and other rights therein. If requested by Bank, Borrower shall furnish Bank with copies (or, at Bank’s request, originals) of all contracts, orders, invoices, and other similar documents, and all shipping instructions, delivery receipts, bills of lading, and other evidence of delivery, for any goods the sale or disposition of which gave rise to such Accounts. In addition, Borrower shall deliver to Bank, on its request, the originals of all instruments, chattel paper, security agreements, guarantees and other documents and property evidencing or securing any Accounts, in the same form as received, with all necessary indorsements, and copies of all credit memos.