CREDIT AGREEMENT Dated as of January 30, 2014 among VISKASE COMPANIES, INC., as the Borrower, THE LENDERS PARTY HERETO, and UBS AG, STAMFORD BRANCH, as Administrative Agent and Collateral Agent

Exhibit 6.1

Execution Version

CREDIT AGREEMENT

Dated as of January 30, 2014

among

VISKASE COMPANIES, INC.,
as the Borrower,

THE LENDERS PARTY HERETO,

and

UBS AG, STAMFORD BRANCH,
as Administrative Agent and Collateral Agent

UBS SECURITIES LLC,

as Sole Bookrunner and Sole Lead Arranger

SCHEDULES

Schedule 1.01(a) — Guarantors

Schedule 1.01(b) — Mortgaged Property

Schedule 1.01(c) — Unrestricted Subsidiaries

Schedule 2.01 — Lenders and Commitments

Schedule 3.04 — Government Approvals

Schedule 3.07 — Title to Properties

Schedule 3.08 — Subsidiaries

Schedule 3.09 — Litigation

Schedule 3.15 — ERISA Events

Schedule 3.16 — Environmental Matters

Schedule 3.17 — Insurance

Schedule 3.18 — Intellectual Property Matters

Schedule 3.18(a) — UCC Filing Offices

Schedule 3.18(c) — Mortgage Recording Offices

Schedule 3.19(a) — Owned Real Property

Schedule 3.19(b) — Leased Real Property

Schedule 4.01(k)(iii) — Local Counsel

Schedule 4.01(k)(iv) — Loan Documents

Schedule 5.15 — Post-Closing Matters

Schedule 6.01 — Indebtedness

Schedule 6.02 — Liens

Schedule 6.03 — Investments

Schedule 6.05 — Restrictive Agreements

Schedule 6.08(a) — Material Contracts

EXHIBITS

Exhibit A — Form of Administrative Questionnaire

Exhibit B — Form of Assignment and Assumption

Exhibit C — Form of Borrowing Request

Exhibit D — Form of Guarantee and Collateral Agreement

Exhibit E — Form of Mortgage

Exhibit F — Form of Note

Exhibit G — Form of Solvency Certificate

Exhibit H — Form of Intercompany Note

Exhibit I — Form of Interest Election Request

Exhibit J — Form of Second Lien Intercreditor Agreement

Exhibit K — Form of Pari Passu Intercreditor Agreement

Exhibit L — Form of ABL Intercreditor Agreement

Exhibit M — Form of Foreign Lender Certificate

Exhibit N — Form of Landlord Waiver and Consent

APPENDIX

Appendix A — Principal Office

CREDIT AGREEMENT

CREDIT AGREEMENT (as it may be amended, supplemented or otherwise modified from time to time, this “Agreement”) dated as of January 30, 2014, among VISKASE COMPANIES, INC., a Delaware corporation (the “Borrower”), the Lenders party hereto from time to time and UBS AG, STAMFORD BRANCH, as administrative agent (in such capacity, and together with its successors in such capacity, the “Administrative Agent”) and as collateral agent (in such capacity, and together with its successors in such capacity, the “Collateral Agent”) for the Lenders.

PRELIMINARY STATEMENT

WHEREAS, capitalized terms used in these recitals shall have the respective meanings set forth for such terms in Section 1.01 hereof;

WHEREAS, the Borrower has requested that the Lenders provide a senior secured term loan credit facility in an aggregate principal amount of $275,000,000 in order to (i) refinance certain existing indebtedness, including all of the Existing 2018 Notes, (ii) pay fees and expenses related to the Transactions and (iii) fund cash on the balance sheet and for other general corporate purposes of the Borrower and its Subsidiaries;

WHEREAS, the Lenders are willing to make available to the Borrower the Initial Term Loans upon the terms and subject to the conditions set forth herein; and

WHEREAS, each of the Guarantors has agreed to guaranty the obligations of the Borrower hereunder in accordance with the terms of the Guarantee and Collateral Agreement and each of the Borrower and each of the Guarantors has agreed, subject to the exceptions set forth herein and in the Security Documents, to secure its obligations to the Lenders hereunder with, inter alia, security interests in, and liens on, substantially all of its property and assets, whether real or personal, tangible or intangible, now existing or hereafter acquired or arising, all as more fully provided herein and in the Security Documents.

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:

ARTICLE I.
Definitions

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

“ABL Facility” shall mean (i) that certain loan and security agreement, dated as of November 14, 2007, as amended and restated on or prior to the date hereof and as may be further amended, amended and restated, modified or supplemented from time to time in accordance with the terms hereof and thereof (including by reference to the ABL Intercreditor Agreement), among the Borrower and Icahn Enterprises Holdings L.P. (as assignee of Arnos Corp.), as lender, and (ii) any other credit agreement, debt facility, loan agreement, note agreement, promissory note, indenture or other agreement or instrument evidencing or governing the terms

of any Indebtedness or other financial accommodation (including, without limitation, revolving credit loans, letters of credit, bankers’ acceptances, or other borrowings) that has been incurred to increase, extend (subject to the limitations set forth herein and in the ABL Intercreditor Agreement), replace or refinance in whole or in part the Indebtedness and other obligations outstanding under (x) the credit agreement referred to in clause (i) or (y) any subsequent credit agreement, unless such agreement or instrument expressly provides that it is not intended to be and is not an ABL Facility hereunder.  Any reference to the ABL Facility hereunder shall be deemed a reference to any ABL Facility then in existence.

“ABL Intercreditor Agreement” shall mean that certain Intercreditor Agreement substantially in the form of Exhibit L, dated as of the Closing Date, by and among the Administrative Agent, the Collateral Agent and Icahn Enterprises Holdings L.P. (as assignee of Arnos Corp.), as lender under the ABL Facility, as the same may be amended, supplemented or modified from time to time in accordance with the terms hereof and thereof.

“ABL Lender Priority Collateral” shall have the meaning assigned to such term in the ABL Intercreditor Agreement.

“ABL Loan Document” shall have the meaning assigned to the term “ABL Loan Documents” in the ABL Intercreditor Agreement.

“ABL Obligations” shall mean the “Obligations” as such term is defined in the ABL Facility or any equivalent term used to describe the obligations arising thereunder and in connection therewith.

“ABR Borrowing” shall mean a Borrowing comprised of ABR Loans.

“ABR Loan” shall mean any Term Loan bearing interest at a rate determined by reference to the Alternate Base Rate in accordance with the provisions of Article II.

“Acquisition Indebtedness” shall mean Indebtedness incurred by the Borrower or its Restricted Subsidiaries, the proceeds of which are intended to finance all or a portion of an acquisition of assets or a majority of the Voting Stock of any Person to be acquired subsequent to the incurrence of such Acquisition Indebtedness pursuant to binding contracts entered into on or prior to the incurrence of such Acquisition Indebtedness (any such acquisition, a “Prospective Acquisition”) so long as (a) the Net Cash Proceeds thereof  (the “Acquisition Indebtedness Net Proceeds”) are subject to escrow arrangements reasonably satisfactory to the Administrative Agent pursuant to which, among other things, (i) the providers of such Acquisition Indebtedness (or an agent or trustee on their behalf) (the “Acquisition Indebtedness Providers”) have “control” within the meaning of the UCC with respect to such Acquisition Net Proceeds and (ii) such Acquisition Indebtedness Providers agree that in the event the Prospective Acquisition is not consummated by a date certain, such Net Cash Proceeds shall be promptly applied to the repayment of such Acquisition Indebtedness, (b) the only collateral that may secure such Acquisition Indebtedness shall be the Net Cash Proceeds thereof subject to such escrow arrangements and (c) the Borrower shall have delivered an officer’s certificate of a Financial Officer to the Administrative Agent stating that (i) such Prospective Acquisition, when consummated, shall constitute a Permitted Acquisition and (ii) upon such consummation, the

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associated Acquisition Indebtedness must be permitted pursuant to Section 6.01 (without taking into consideration clause (s) thereof, it being acknowledged and agreed that upon consummation of any Prospective Acquisition any associated Acquisition Indebtedness shall thereafter cease to be Acquisition Indebtedness and, for purposes of determining compliance with Section 6.01, shall be deemed to have been incurred as of the date of such consummation of such Prospective Acquisition).

“Acquisition Indebtedness Providers” shall have the meaning assigned to such term in the definition of Acquisition Indebtedness.

“Acquisition Indebtedness Net Proceeds” shall have the meaning assigned to such term in the definition of Acquisition Indebtedness.

“Additional Guarantor” shall have the meaning assigned to such term in Section 5.12(b).

“Adjusted LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest Period, (a) an interest rate per annum determined by the Administrative Agent to be equal to the LIBO Rate for such Eurodollar Borrowing in effect for such Interest Period divided by (b) 1 minus the Statutory Reserves (if any) for such Eurodollar Borrowing for such Interest Period; provided that, with respect to Term Loans, the Adjusted LIBO Rate shall be deemed to be not less than 1.00% per annum.

“Administrative Agent” shall have the meaning given in the preamble to this Agreement.

“Administrative Questionnaire” shall mean an Administrative Questionnaire substantially in the form of Exhibit A, or such other form as may be supplied from time to time by the Administrative Agent.

“Affiliate” shall mean, when used 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; provided, however, that (i) neither any Agent nor any Lender (nor any Affiliate thereof) shall be considered an Affiliate of Borrower or any Subsidiary (except for purposes of determining status as an Affiliated Lender hereunder) with respect to transactions relating to this Agreement or the other Loan Documents; and (ii) solely for purposes of determination of the Borrower’s or any Restricted Subsidiary’s compliance with Section 6.06 and Section 6.08(a), beneficial ownership of less than fifteen percent (15%) of the Voting Stock of a Person and the absence of the right, whether through the ownership of voting securities, by contract or otherwise, to elect, appoint, or designate fifteen percent (15%) or more of the then authorized number of directorships of such Person’s board of directors (or equivalent governing body), from time to time, shall be deemed to not constitute Control for purposes of determining whether one Person is an Affiliate of another Person.

“Affiliated Lender” shall mean a Lender that is any Person included in the definition of “Icahn Group” or an Affiliate of the Borrower (other than the Borrower, any Subsidiary of the Borrower or a natural person).

“Agent Parties” shall have the meaning given to such term in Section 9.01(c).

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“Agent’s Fee Letter” shall mean the Agency Fee Letter, dated as of January 9, 2014, between the Borrower and the Administrative Agent, as the same shall have been amended, modified and/or otherwise supplemented from time to time.

“Agents” shall mean the Administrative Agent and the Collateral Agent.

“Agreement” shall have the meaning given in the preamble to this Agreement.

“Alternate Base Rate” shall mean, for any day, a fluctuating rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 0.50% and (c) the Adjusted LIBO Rate for a Eurodollar Borrowing that has an Interest Period of one month beginning on such day (or if such day is not a Business Day, on the immediately preceding Business Day) plus 100 basis points; provided that, with respect to Term Loans, the Alternate Base Rate shall be deemed to be not less than 2.00% per annum.  If the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate for any reason on any day, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the Alternate Base Rate shall be determined without regard to clause (b) of the preceding sentence until the circumstances giving rise to such inability no longer exist.  Any change in the Alternate Base Rate due to a change in the Prime Rate, or the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective on the effective date of such change in the Prime Rate, or the Federal Funds Effective Rate or the Adjusted LIBO Rate, respectively.

“Applicable ECF Percentage” shall mean, for any Excess Cash Flow Period, (a) 50% if the First Lien Net Leverage Ratio as of the last day of such Excess Cash Flow Period is greater than or equal to 3.00 to 1.00, (b) 25% if the First Lien Net Leverage Ratio as of the last day of such Excess Cash Flow Period is less than 3.00 to 1.00 but greater than or equal to 2.50  to 1.00 and (c) 0% if the First Lien Net Leverage Ratio as of the last day of such Excess Cash Flow Period is less than 2.50 to 1.00.

“Applicable Margin” shall mean, with respect to an ABR Loan, 2.25% per annum, and (c) with respect to a Eurodollar Loan, 3.25% per annum.

“Arranger” shall mean UBS Securities LLC, as sole lead arranger and sole bookrunner hereunder.

“Asset Sale” shall mean the sale, transfer, conveyance, assignment, lease or other disposition (by way of merger, casualty, condemnation or otherwise) by the Borrower or any Restricted Subsidiary to any Person other than the Borrower or any Restricted Subsidiary of (a) any Equity Interests held by the Borrower or any of the Restricted Subsidiaries (other than directors’ qualifying shares) or (b) any other assets of the Borrower or any of the Restricted Subsidiaries (other than (i) inventory in each case disposed of in the ordinary course of business, (ii) surplus, damaged, obsolete, scrap, idle or worn out assets, in each case disposed of in the ordinary course of business, (iii) the cross-licensing or nonexclusive licensing of Intellectual Property in the ordinary course of business, (iv) the sale or issuance of any Restricted Subsidiary’s equity to any Loan Party, (v) the sale or discount of overdue accounts receivables

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arising in the ordinary course of business (consistent with customary industry practice and not as part of any bulk sale or financing of receivables), (vi) the sale, transfer, conveyance, assignment, lease or other disposition of furniture, fixtures, equipment in the ordinary course of business), (vii) the leasing of Real Property in the ordinary course of business, (viii) Cash Equivalents or debt or equity securities of, or loans to (in each case, such securities or loans shall be any of the following: publicly traded loans or securities, syndicated loans, club loans, bank loans or other similar types of securities or loans, in each case initially invested in or by multiple non-Affiliated lenders or investors), Persons that are engaged in a Permitted Business (other than to the extent the Borrower or any Restricted Subsidiary has any management control of such Person) and (ix) any sale, transfer, conveyance, assignment, lease or other disposition or series of related sales, transfers, conveyances, assignments, leases or other related dispositions that have a purchase price not in excess of $1,000,000).

“Assignment and Assumption” shall mean an Assignment and Assumption entered into by a Lender and an assignee, and accepted by the Administrative Agent, substantially in the form of Exhibit B or such other form as shall be approved by the Administrative Agent.

“Available Amount” means a cumulative amount, equal to (a) the amount equal to: (i) $10,000,000 plus (ii) fifty percent (50%) of the cumulative Consolidated Net Income (or if cumulative Consolidated Net Income is a loss, minus 100% of such loss), measured from December 31, 2013 through the last day of the most recently ended fiscal quarter of the Borrower prior to the date such Investment or Restricted Payment is made (the “Applicable Measurement Period”), less (iii) the amount equal to the sum of: (X) Restricted Payments made during the Applicable Measurement Period which were made and permitted to be made under Section 6.05(a)(v), plus (Y) Investments made during the Applicable Measurement Period which were made and permitted to be made under Section 6.03(q) hereof, less (Z) returns, profits, distributions and similar amounts received on such Investments during the Applicable Measurement Period (in each case, up to the amount of the original Investment), plus (b) the proceeds of Equity Issuances of the Borrower (other than of Disqualified Capital Stock) during the Applicable Measurement Period, plus (c) the fair market value of capital contributions to the Borrower (other than of Disqualified Capital Stock) during the Applicable Measurement Period, plus (d) debt and Disqualified Capital Stock that have been, during the Applicable Measurement Period, exchanged or converted into Capital Stock (other than Disqualified Capital Stock), together with the fair market value of any property received, during the Applicable Measurement Period, upon such exchange or conversion, plus (e) the net proceeds of sales of Investments received during the Applicable Measurement Period, plus (f) Investments of the Borrower and its Restricted Subsidiaries in any Unrestricted Subsidiary that has been, during the Applicable Measurement Period, redesignated as a Restricted Subsidiary or that has been, during the Applicable Measurement Period, merged or consolidated into the Borrower or any of its Restricted Subsidiaries or the fair market value of the assets of any Unrestricted Subsidiary that have been, during the Applicable Measurement Period, transferred to the Borrower or any of its Restricted Subsidiaries.

“Bankruptcy Code” shall mean Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.

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“Board” shall mean the Board of Governors of the Federal Reserve System of the United States of America (or any successors).

“Borrower” shall have the meaning given in the preamble to this Agreement.

“Borrowing” shall mean Term Loans of the same Tranche and Type made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.

“Borrowing Request” shall mean a request by the Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit C, or such other form as shall be approved by the Administrative Agent.

“Brazil Settlement” shall mean the payment made on or about May 29, 2013 by the Borrower and its Subsidiaries to the State of São Paulo, Brazil in the amount of approximately $23,000,000.

“Business Day” shall mean any day other than a Saturday, Sunday or other day on which banks in New York City are authorized or required by law to close; provided, however, that when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.

“Capital Expenditures” shall mean, for any period, with respect to the Borrower or any Guarantor, the aggregate of all expenditures by the Borrower or any Guarantor for the acquisition or leasing of fixed or capital assets (including Capital Lease Obligations) that are or should be, or have been or should have been capitalized in accordance with GAAP and any expenditures by the Borrower or any Guarantor for maintenance, repairs, restoration or refurbishment of the condition or usefulness of property of such Person that are or should be, or have been or should have been, capitalized in accordance with GAAP.

“Capital Lease Obligations” of any Person shall mean 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 capital 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.

“Capital Stock” shall mean (1) in the case of a corporation, corporate stock, (2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock, (3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited), and (4) 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.

“Cash Equivalents” shall mean:

(a)                                 U.S. dollars;

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(b)                                 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 within one year from the date of acquisition thereof;

(c)                                  investments in commercial paper maturing within 365 days from the date of acquisition thereof and having, at such date of acquisition, a rating of at least A-1 by S&P or P-1 from ▇▇▇▇▇’▇;

(d)                                 investments in certificates of deposit, banker’s acceptances, securities backed by standby letters of credit, time deposits, deposit accounts, Eurodollar time deposits or overnight bank deposits maturing within one year from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, the Administrative Agent or any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof that has a combined capital and surplus and undivided profits of not less than $500,000,000;

(e)                                  fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (b) above and entered into with a financial institution satisfying the criteria of clause (d) above; and

(f)                                   investments in “money market funds” within the meaning of Rule 2a-7 of the Investment Company Act of 1940, as amended, substantially all of whose assets are invested in investments of the type described in clauses (a) through (d) above or in the form of cash equivalents (or foreign cash equivalents) or short term marketable debt securities.

“Cash Liquidity” means, at any date, the aggregate amount of Cash Equivalents of the Borrower that is not “restricted cash” (as determined in accordance with GAAP) on hand as of such date.

“Casualty Event” shall mean any involuntary loss of title, any involuntary loss of, damage to or any destruction of, or any condemnation or other taking (including by any Governmental Authority) of, any property of the Borrower or any of its Restricted Subsidiaries.  “Casualty Event” shall include but not be limited to any taking of all or any part of any Real Property of any person or any part thereof, in or by condemnation or other eminent domain proceedings pursuant to any Requirement of Law, or by reason of the temporary requisition of the use or occupancy of all or any part of any Real Property of any person or any part thereof by any Governmental Authority, civil or military, or any settlement in lieu thereof.

“Change in Law” shall mean (a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender (or, for purposes of Section 2.14(d), by any lending office of such Lender or by such Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that, notwithstanding anything herein to the contrary, (i) the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and all requests, rules,

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regulations, guidelines or directives thereunder or issued in connection therewith shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued and (ii) all requests, rules, guidelines 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, for the purposes of this Agreement, be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“Change of Control” shall mean and be deemed to have occurred if (a) the Permitted Holders shall at any time not beneficially own, in the aggregate, directly or indirectly, at least 35% of the voting power of the outstanding Voting Stock of the Borrower or (b) any person, entity or “group” (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended), other than the Permitted Holders, shall at any time have acquired direct or indirect beneficial ownership of a percentage of the voting power of the outstanding Voting Stock of the Borrower that exceeds 35% thereof, unless, in the case of either clause (a) or (b) above, the Permitted Holders have, at such time, the right or the ability by voting power, contract or otherwise to elect or designate for election at least a majority of the board of directors of the Borrower; or (c) at any time, a “change of control” (or similar term) under any indenture, instrument or agreement pursuant to which any Material Indebtedness or Indebtedness under the ABL Facility of the Borrower is outstanding shall have occurred.

“Closing Date” shall mean the date on which the conditions precedent set forth in Sections 4.01 and 4.02 are satisfied in accordance therewith and this Agreement becomes effective, which date was January 30, 2014.

“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time (unless as indicated otherwise).

“Collateral” shall mean all the “Collateral” as defined in any Security Document and shall also include the Mortgaged Properties.

“Collateral Agent” shall have the meaning given in the preamble to this Agreement.

“Commitment” shall mean, with respect to any Lender, its Initial Term Loan Commitment, its Refinancing Term Loan Commitment, its Extended Term Loan Commitment or its Incremental Term Loan Commitment, as the context may require.

“Communications” shall have the meaning assigned to such term in Section 9.01(b).

“Competitors” shall mean, from time to time, any Person, together with its Affiliates, that is engaged in the production and sale of casings for the processed meat and poultry industry, other than any bona fide debt fund or any such Person or its Affiliates that is generally in the business of investing in debt securities or syndicated loans.

“Confidential Information Memorandum” shall mean that certain confidential information memorandum dated as of January 2014.

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“Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such period plus (a) without duplication and to the extent deducted (and not already added back) in determining such Consolidated Net Income, the sum of (i) Consolidated Net Interest Expense for such period, (ii) consolidated income tax expense for such period, (iii) all amounts attributable to depreciation and amortization for such period, (iv) any non-cash charges (including, but not limited to, the write down or impairment of any assets, whether or not current assets), losses or expenses for such period, (v) losses or expenses related to force-majeure events to the extent such losses or expenses are covered by an effective insurance policy, (vi) non-cash stock-option based and other equity based compensation expenses, (vii) any pension expense in respect of defined benefit plans, (viii) severance expenses related to the termination of employees and other restructuring charges, and (ix) costs and expenses incurred in connection with the Transactions and any Permitted Acquisitions (whether or not consummated), and minus (b) without duplication (i) all cash payments made during such period on account of reserves, restructuring charges and other non-cash charges for a prior period added to Consolidated Net Income for a prior Test Period and (ii) any non-cash gains for such period, all determined on a consolidated basis in accordance with GAAP; provided that Consolidated EBITDA shall be calculated on a Pro Forma Basis to give effect to any Permitted Acquisitions, Investments permitted under Section 6.03, acquisitions and Asset Sales permitted under Section 6.04(b) and other dispositions permitted under Section 6.04(b) consummated at any time on or after the first day of the applicable Test Period and prior to the date of determination as if each such Permitted Acquisition, or other Investment, acquisition, Asset Sale or disposition had been effected on the first day of such period and as if each such Asset Sale had been consummated on the day prior to the first day of such period.

“Consolidated Net Income” shall mean, for any period, the net income or loss of the Borrower and the Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income of any Restricted Subsidiary to the extent that the declaration or payment of dividends or similar distributions by the Restricted Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, statute, rule or governmental regulation applicable to such Restricted Subsidiary (provided that, if any approval of any Governmental Authority is required for any such payment or distribution, this clause (a) shall not apply unless and until the applicable Governmental Authority has issued an order restricting such payment or distribution), (b) the income or loss of any Person accrued prior to the date it becomes a subsidiary or is merged into or consolidated with the Borrower or any Restricted Subsidiary or prior to the date that such Person’s assets are acquired by the Borrower or any Restricted Subsidiary, (c) the income of any Person in which any other Person (other than the Borrower or a wholly owned Restricted Subsidiary or any director holding qualifying shares in accordance with applicable law) has a joint interest to the extent such net income is subject to restrictions, directly or indirectly, on the payment of dividends or the making of distributions by such Person, directly or indirectly, to the Borrower or any Restricted Subsidiary and (d) any gains or losses attributable to sales of assets out of the ordinary course of business or any other non-recurring or extraordinary gains or losses, including, without limitation, any non-cash impairment charges.

“Consolidated Net Interest Expense” shall mean, for any period, (a) the sum of (i) the interest expense (including imputed interest expense in respect of Capital Lease Obligations and

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Synthetic Lease Obligations or any dividends or other payments made in respect of any Equity Interest) of the Borrower and the Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, plus (ii) any interest accrued during such period in respect of Indebtedness of the Borrower and the Restricted Subsidiaries that is required to be capitalized rather than included in consolidated interest expense for such period in accordance with GAAP minus (b) the sum of (i) total interest income of the Borrower and the Restricted Subsidiaries for such period, in each case determined in accordance with GAAP plus (ii) non-cash charges related to the amortization or write-off of debt discount or debt issuance costs and commissions to the extent included in the interest expense for such period.  For purposes of the foregoing, interest expense shall be determined after giving effect to any net payments made or received by the Borrower and the Restricted Subsidiary or any Restricted Subsidiaries with respect to interest rate Hedging Agreements.

Consolidated Net Interest Expense shall be calculated on a Pro Forma Basis to give effect to any Indebtedness (other than Indebtedness incurred for ordinary course working capital needs under ordinary course revolving or letter of credit facilities) incurred, assumed or permanently repaid or extinguished at any time on or after the first day of the Test Period and prior to the date of determination in connection with any Permitted Acquisitions and Asset Sales (other than any dispositions in the ordinary course of business) as if such incurrence, assumption, repayment or extinguishment had been effected on the first day of such period.

“Control” shall mean 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 ownership of voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings correlative thereto.

“Control Agreements” shall mean (i) those certain Deposit Account Control Agreement, dated as of the date hereof, among the Borrower, the Collateral Agent and Bank of America, N.A. and (ii) any other deposit account control agreement or securities account control agreement with respect to any Deposit Account or Securities Account that has the effect of providing the Collateral Agent “control” within the meaning of the UCC with respect to such Deposit Account or Securities Account, as applicable.

“Credit Extension” shall mean the making of a Term Loan by a Lender.

“Default” shall mean any event or condition which upon notice, lapse of time or both would constitute an Event of Default.

“Default Rate” shall have the meaning assigned to such term in Section 2.06(c).

“Defaulting Lender” shall mean, subject to Section 2.17, any Lender that has (a) defaulted in its obligation to make a Loan required to be made or funded by it hereunder within two Business Days of the date such Loan was required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, (b) notified the Administrative Agent or the Borrower in

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writing that it does not intend to satisfy any such obligation hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect controlling parent company that has (in each case, after the Closing Date), (i) become the subject of a proceeding under the Bankruptcy Code or any Federal, state or foreign bankruptcy, insolvency, receivership or similar law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.17) upon delivery of written notice of such determination to the Borrower and each Lender.

“Deposit Account” shall have the meaning given to such term in the UCC.

“Disqualified Capital Stock” shall mean any Equity Interest which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the first anniversary of the Latest Maturity Date, (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities (other than Permitted Unsecured Debt) or (ii) any Equity Interests referred to in (a) above, in each case at any time on or prior to the first anniversary of the Latest Maturity Date, or (c) contains any repurchase obligation which may come into effect prior to payment in full of all Obligations; provided, however, that any Equity Interests that would not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or the holders of any security into or for which such Equity Interests is convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem such Equity Interests upon the occurrence of a change in control or an asset sale occurring prior to the first anniversary of the Latest Maturity Date shall not constitute Disqualified Capital Stock if such Equity Interests provide that the issuer thereof will not redeem any such Equity Interests pursuant to such provisions prior to the repayment in full of the Obligations.

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“Disqualified Institution” shall mean (i) those institutions (including those institutions identified as Competitors) set forth on the list provided by the Borrower to the Arranger, dated January 30, 2014, and posted to all Lenders, (ii) any other Person reasonably identified in writing by the Borrower to the Administrative Agent as a Competitor from time to time after the date hereof (other than upon and during the continuance of an Event of Default), and posted to all Lenders, and (iii) any Affiliate of any such Person to the extent that such Affiliate is at such time reasonably identifiable to be an Affiliate of such Person (it being agreed by each of the parties hereto that the Administrative Agent and the Arranger shall be under no duty to monitor or otherwise make any determinations with respect to the foregoing and neither the Administrative Agent nor the Arranger shall be liable for any losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements of any kind or nature whatsoever incurred or suffered by any Person (including the Loan Parties) in connection with any compliance or non-compliance with the foregoing).

“Dollars” or “$” shall mean lawful money of the United States of America.

“Domestic Restricted Subsidiary” shall mean a Domestic Subsidiary that is a Restricted Subsidiary.

“Domestic Subsidiaries” shall mean all Subsidiaries of the Borrower or the Guarantors that are incorporated or organized under the laws of the United States of America, any State thereof or the District of Columbia.

“Effective Yield” shall mean, as to any Term Loans of any Tranche, the effective yield on such Term Loans as determined by the Administrative Agent, taking into account the applicable interest rate margins (provided that, if the applicable interest rate in respect of such Term Loans includes a floor greater than the floor applicable to the Initial Term Loans, such increased amount shall be equated to an interest rate for purposes of determining the applicable interest rate under such Term Loans) and all fees, including upfront or similar fees or original issue discount (which fees or discount shall be equated to interest margins in a manner consistent with GAAP based on an assumed four-year life to maturity) payable generally to Lenders making such Term Loans, but excluding any arrangement, structuring, commitment, underwriting or other fees payable in connection therewith that are not generally shared with the relevant Lenders and customary consent fees paid generally to consenting Lenders.

“Eligible Assignee” shall mean any Person that is a Lender immediately prior to giving effect to an assignment or participation, any commercial bank, insurance company, or finance company, financial institution, any fund that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act), any Affiliate of any Lender, any Related Fund of any Lender or, to the extent permitted under Section 9.04(i), any Affiliated Lender provided that “Eligible Assignee” shall not include any natural person, any Disqualified Institution, nor, except as permitted under Section 9.04(i), the Borrower or any of its Affiliates.

“Engagement Letter” shall mean the Engagement Letter, dated as of January 9, 2014, among the Borrower and UBS Securities LLC, as the same shall have been amended, modified and/or otherwise supplemented from time to time.

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“Environmental Laws” shall mean all applicable current and future Federal, state and local laws (including common law), regulations, rules, ordinances, codes, and any legally binding decrees, judgments, directives and orders (including consent orders), in each case, relating to protection of the environment or natural resources, human health and safety as it relates to environmental protection, the presence, Release of, or exposure to, Hazardous Materials, or the generation, manufacture, processing, distribution, use, treatment, storage, transport, recycling or handling of, or the arrangement for such activities with respect to, Hazardous Materials.

“Environmental Liability” shall mean all liabilities, obligations, damages, losses, claims, actions, suits, judgments, orders, fines, penalties, fees, expenses and costs (including administrative oversight costs, natural resource damages and remediation costs), whether contingent or otherwise, arising out of or relating to (a) non-compliance with any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release of any Hazardous Materials or (e) any contract, agreement or other written consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Equity Interests” shall mean shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity interests in any Person, and any option, warrant or other right entitling the holder thereof to purchase or otherwise acquire any such equity interest.

“Equity Issuance” shall mean any issuance or sale by the Borrower or any Restricted Subsidiary of any Equity Interests of the Borrower or any such Restricted Subsidiary, as applicable, except in each case for (a) any such issuance or sale by a Restricted Subsidiary to the Borrower, any Loan Party or another Restricted Subsidiary, (b) any issuance of directors’ qualifying shares and (c) sales or issuances of Equity Interests of the Borrower to directors, management, consultants or any other employee of the Borrower or any Restricted Subsidiary under any employee stock option or stock purchase plan or employee benefit plan or similar plan in existence from time to time.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time.

“ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code, or solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

“ERISA Event” shall mean (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder, with respect to a Plan, in each case as in effect on the date hereof (other than an event for which the 30-day notice period is waived), (b) the failure by any Plan to satisfy the minimum funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, whether or not waived, (c) the filing pursuant to Section 412 of the Code or Section 302 of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, (d) the incurrence by the Borrower or

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any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan or the withdrawal or partial withdrawal of the Borrower or any of its ERISA Affiliates from any Plan or Multiemployer Plan, (e) a determination that any Plan is, or is expected to be, in “at-risk” status (within the meaning of Section 303 of ERISA or Section 430 of the Code), the receipt by the Borrower or any of its ERISA Affiliates from the PBGC or a plan administrator of any notice relating to the intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan, (f) the adoption of any amendment to a Plan that would require the provision of security pursuant to Section 436(f) of the Code, (g) the receipt by the Borrower or any of its ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan from the Borrower or any of its ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA or (h) the occurrence of a “prohibited transaction” with respect to which the Borrower or any of the Restricted Subsidiaries is a “disqualified person” (within the meaning of Section 4975 of the Code) or with respect to which the Borrower or any such Restricted Subsidiary could otherwise be liable.

“Eurodollar Borrowing” shall mean a Borrowing comprised of Eurodollar Loans.

“Eurodollar Loan” shall mean a Borrowing comprised of any Term Loan bearing interest at a rate determined by reference to the Adjusted LIBO Rate in accordance with the provisions of Article II.

“Event of Default” shall have the meaning assigned to such term in Section 7.01.

“Excess Cash Flow” shall mean, for any period, an amount (if positive) equal to:

(a)                                 the sum, without duplication, of the following (exclusive of any amounts attributable to Foreign Subsidiaries, including intercompany transactions therewith (other than amounts attributable to ordinary course sales of products by the Borrower to any Foreign Subsidiary))

(i)                                     Consolidated Net Income for such period,

(ii)                                  an amount equal to the amount of all non-cash charges to the extent deducted in arriving at such Consolidated Net Income and cash receipts to the extent excluded in arriving at such Consolidated Net Income,

(iii)                               an amount equal to the aggregate net non-cash loss on Asset Sales by Borrower and the Domestic Restricted Subsidiaries during such period (other than Asset Sales in the ordinary course of business or Asset Sales consisting of the sale, transfer, or other disposition of Equity Interests in Foreign Subsidiaries) to the extent deducted in arriving at such Consolidated Net Income;

minus (b) the sum, without duplication, of the following (exclusive of any amounts attributable to Foreign Subsidiaries, including intercompany transactions therewith (other than amounts attributable to ordinary course sales of products by the Borrower to any Foreign Subsidiary))

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(i)                                     an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income and cash charges to the extent excluded in arriving at such Consolidated Net Income,

(ii)                                  the amount of Capital Expenditures or acquisitions of Intellectual Property permitted hereunder accrued or made in cash during such period by the Borrower and the Domestic Restricted Subsidiaries, except to the extent that such Capital Expenditures or acquisitions were financed with Indebtedness (other than Indebtedness incurred under any Commitments now or hereafter existing or the ABL Facility) after the Closing Date,

(iii)                               the aggregate amount of all principal payments of Funded Debt of the Borrower and the Domestic Restricted Subsidiaries (including (A) the principal component of payments in respect of Capital Lease Obligations and (B) the amount of any mandatory prepayment of Term Loans pursuant to Section 2.10(b) or (d) to the extent required due to an Asset Sale or Casualty Event that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase but excluding (x) all other prepayments of Term Loans made during such period and (y) all prepayments under the ABL Facility except in the case of clause (y) to the extent there is an equivalent permanent reduction in commitments thereunder) made during such period, except to the extent such payments were financed with Indebtedness (other than Indebtedness incurred under any Commitments now or hereafter existing) after the Closing Date,

(iv)                              an amount equal to the aggregate net non-cash gain on Asset Sales or realization, profits or return on Investments by the Borrower and the Domestic Restricted Subsidiaries during such period (other than Asset Sales in the ordinary course of business and Asset Sales consisting of the sale, transfer, or other disposition of Equity Interests in Foreign Subsidiaries) to the extent included in arriving at such Consolidated Net Income,

(v)                                 the aggregate amount of cash consideration paid by the Borrower and the Domestic Restricted Subsidiaries (on a consolidated basis) in connection with Investments (including acquisitions) made during such period constituting Permitted Acquisitions and other Investments made pursuant to Sections 6.03 or 6.04, except to the extent that such Investments were financed with Indebtedness (other than Indebtedness incurred under any Commitments now or hereafter existing) after the Closing Date,

(vi)                              the aggregate amount of expenditures actually made by the Borrower and its Domestic Restricted Subsidiaries in cash during such period (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period and are not deducted in calculating Consolidated Net Income,

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

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(viii)                        the amount of taxes (including penalties and interest) paid in cash in such period to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period,

(ix)                              to the extent not deducted in arriving at Consolidated Net Income, the aggregate amount actually paid by the Borrower during such fiscal year on account of pension expense in respect of defined benefit plans, and

(x)                                 without duplication of amounts deducted pursuant to this definition in calculating Excess Cash Flow in respect of a prior period, at the option of the Borrower so long as no Default or Event of Default has occurred and is then continuing, the aggregate consideration required to be paid in Cash by the Borrower and its Domestic Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period relating to Capital Expenditures or Investments (including acquisitions) made during or following such period constituting Permitted Acquisitions and other Investments permitted by Section 6.03 or 6.04 (other than Investments in (x) Cash and Cash Equivalents and (y) equity or Indebtedness of the Borrower or any of its Domestic Restricted Subsidiaries) to be consummated or made during the period of four consecutive fiscal quarters of the Borrower following the end of such period (except, in each case, to the extent financed with Indebtedness (other than Indebtedness incurred under any Commitments now or hereafter existing) after the Closing Date); provided that (A) to the extent the aggregate amount actually utilized to make such expenditures during such subsequent period of four consecutive Fiscal Quarters is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such subsequent period and (B) any such expenditures made in such subsequent period of four consecutive Fiscal Quarters shall not be subtracted from the calculation of Excess Cash Flow at the end of such subsequent period.

(c)                                  plus decrease or minus increase (as the case may be) in the Working Capital of the Borrower during such fiscal year. For purposes of this definition, “Working Capital” means current assets minus current liabilities, in each case, for such fiscal year.

“Excess Cash Flow Period” shall mean (i) the period taken as one accounting period from the Closing Date and ending on December 31, 2014 and (ii) each fiscal year of Borrower thereafter.

“Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income or net profits (or imposed in lieu of net income taxes) by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, or in any other jurisdiction in which the Administrative Agent or such Lender is engaged in business (other than any business arising solely from the Administrative Agent or Lender having executed, delivered, become a party to, performed its obligations or its rights under, received payments under, received or perfected a security interest under, engaged in any other transaction related to or enforced any Loan

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Document, or sold or assigned an interest in any Term Loan or Loan Document), (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (a) above, (c) in the case of a Lender (other than an assignee pursuant to a request by the Borrower under Section 2.16(b)), any U.S. federal withholding tax that is imposed on amounts payable to such Lender at the time such Lender becomes a party to this Agreement (or designates a new lending office), except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 2.15(a), (d) Taxes attributable to such Lender’s or Administrative Agent’s failure to comply with Sections 2.15(e), (f) or (h) and (e) any Taxes imposed under FATCA.

“Existing 2018 Notes” shall mean the Borrower’s outstanding 9.875% senior secured notes due 2018.

“Existing 2018 Notes Indenture” shall mean the indenture, dated as of December 21, 2009, among the Borrower and U.S. Bank National Association, entered into with respect to the Existing 2018 Notes and pursuant to which same were issued.

“Existing Extended Term Loan Tranche” shall have the meaning provided in Section 2.19(a).

“Existing Incremental Term Loan Tranche” shall have the meaning provided in Section 2.19(a).

“Existing Initial Term Loan Tranche” shall have the meaning provided in Section 2.19(a).

“Existing Refinancing Term Loan Tranche” shall have the meaning provided in Section 2.19(a).

“Existing Term Loan Tranche” shall mean, at any time, any Existing Initial Term Loan Tranche, Existing Extended Term Loan Tranche, Existing Incremental Term Loan Tranche or Existing Refinancing Term Loan Tranche.

“Extended Existing Term Loan Commitments” shall mean one or more commitments hereunder to convert Extended Term Loans under an Existing Extended Term Loan Tranche of a given Extension Series pursuant to an Extension Amendment.

“Extended Existing Term Loans” shall have the meaning provided in Section 2.19(a).

“Extended Incremental Term Loan Commitments” shall mean one or more commitments hereunder to convert Incremental Term Loans under an Existing Incremental Term Loan Tranche to Extended Incremental Term Loans of a given Extension Series pursuant to an Extension Amendment.

“Extended Incremental Term Loans” shall have the meaning provided in Section 2.19(a).

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“Extended Initial Term Loan Commitments” shall mean one or more commitments hereunder to convert Initial Term Loans under an Existing Initial Term Loan Tranche to Extended Initial Term Loans of a given Extension Series pursuant to an Extension Amendment.

“Extended Initial Term Loans” shall have the meaning provided in Section 2.19(a).

“Extended Refinancing Term Loans” shall have the meaning provided in Section 2.19(a).

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

“Extended Term Loan Commitments” shall mean, collectively, the Extended Initial Term Loan Commitments, the Extended Incremental Term Loan Commitments, the Extended Existing Term Loan Commitments or the Extended Refinancing Term Loan Commitments, as the context may require.

“Extended Term Loan Maturity Date” shall mean, with respect to any Tranche of Extended Term Loans, the final maturity date thereof specified in the applicable Extension Amendment.

“Extended Term Loans” shall mean, collectively, the Extended Existing Term Loans, Extended Initial Term Loans, the Extended Incremental Term Loans or the Extended Refinancing Term Loans, as the context may require.

“Extending Term Loan Lender” shall have the meaning provided in Section 2.19(c).

“Extension” shall mean any establishment of Extended Term Loan Commitments and Extended Term Loans pursuant to Section 2.19 and the applicable Extension Amendment.

“Extension Amendment” has the meaning provided in Section 2.19(d).

“Extension Election” has the meaning provided in Section 2.19(c).

“Extension Request” has the meaning provided in Section 2.19(a).

“Extension Series” has the meaning provided in Section 2.19(a).

“fair market value” shall mean a valuation as to the consideration that could be obtained on an open market with third party counterparties, as determined by the Borrower in good faith.

“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental agreements implementing the foregoing (including any legislation, rules or practices adopted pursuant to such intergovernmental agreements).

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“FDA” shall have the meaning assigned to such term in Section 3.20(a)

“Federal Funds Effective Rate” shall mean, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System of the United States arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day for such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.

“Fees” shall mean, the amounts payable pursuant to, or referred to in, Section 2.05.

“Financial Officer” of any Person shall mean the chief financial officer, principal accounting officer, vice president of finance, treasurer or controller of such Person.

“First Lien Net Debt” shall mean, at any time, the amount equal to Total Net Debt secured by a Lien on the Collateral (or any portion thereof) (excluding (x) any such Total Net Debt that is expressly subordinated in right of payment to the Obligations pursuant to a written agreement reasonably acceptable to the Administrative Agent and (y) any such Total Net Debt that is secured by a Lien on the Collateral that is junior to the Liens securing the Obligations pursuant to a written agreement reasonably acceptable to the Administrative Agent).

“First Lien Net Leverage Ratio” shall mean, on any date, the ratio of First Lien Net Debt on such date to Consolidated EBITDA for the most recently ended Test Period.

“Fixed Asset Agent Priority Collateral” shall have the meaning assigned to such term in the ABL Intercreditor Agreement.

“Foreign Lender” shall mean any Lender that is not a “United States person” as defined under Section 7701(a)(30) of the Code.

“Foreign Subsidiary” shall mean a Subsidiary that is organized under the laws of a jurisdiction other than the United States of America or any state thereof or the District of Columbia.

“Funded Debt” shall mean all Indebtedness of the Borrower and its Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of the Borrower or any Restricted Subsidiary, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including all amounts of Funded Debt required to be paid or prepaid within one year from the date of its creation and, in the case of the Borrower and its Restricted Subsidiaries, Indebtedness in respect of the Term Loans.

“GAAP” shall mean, subject to the provisions set out in ▇▇▇▇▇▇▇ ▇.▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ generally accepted accounting principles applied on a consistent basis.

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“Governmental Authority” shall mean any Federal, state, local or foreign court or governmental agency, authority, instrumentality, regulatory body, board or commission (including, without limitation, the FDA and the USDA).

“Guarantee” of or by any Person shall mean any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Indebtedness or other obligation, (b) to purchase or lease property, assets, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment of such Indebtedness or other obligation, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation or (e) to otherwise assure or hold harmless the owner of such Indebtedness or other obligation against loss in respect thereof; provided, however, that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business.  The amount of any obligation under a Guarantee of a guarantor shall be deemed to be the lower of (A) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made and (B) the maximum amount for which such guarantor may be liable pursuant to the terms of the instrument embodying such Guarantee, unless such primary obligation and the maximum amount for which such guarantor may be liable are not stated or determinable, in which case the amount of such obligation shall be such guarantor’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.

“Guarantee and Collateral Agreement” shall mean the Guarantee and Collateral Agreement, substantially in the form of Exhibit D, among the Borrower and the Guarantors party thereto and the Collateral Agent for the benefit of the Secured Parties.

“Guarantors” shall mean each Restricted Subsidiary listed on Schedule 1.01(a), the Additional Guarantors and each other Restricted Subsidiary that is or becomes a party to the Guarantee and Collateral Agreement or otherwise provides a guarantee in respect of the Obligations.

“Hazardous Materials” shall mean (a) any petroleum products or byproducts and (b) any chemical, material, substance or waste defined or characterized as toxic, hazardous, a pollutant, or a contaminant or words of similar meaning that is prohibited, limited or regulated by or pursuant to any Environmental Law or requiring removal, remediation or reporting under any Environmental Law.

“Hedging Agreement” shall mean any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement.

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“Icahn Group” shall mean, from time to time, (1) ▇▇▇▇ ▇▇▇▇▇ and his siblings, his and their respective spouses and descendants (including stepchildren and adopted children) and the spouses of such descendants (including stepchildren and adopted children) (collectively, the “Family Group”); (2) any trust, estate, partnership, corporation, company, limited liability company or unincorporated association or organization (each an “Entity” and collectively “Entities”) Controlled by one or more members of the Family Group; (3) any Entity over which one or more members of the Family Group, directly or indirectly, have rights that, either legally or in practical effect, enable them to make or veto significant management decisions with respect to such Entity, whether pursuant to the constituent documents of such Entity, by contract, through representation on a board of directors or other governing body of such Entity, through a management position with such Entity or in any other manner (such rights hereinafter referred to as “Veto Power”); (4) the estate of any member of the Family Group; (5) any trust created (in whole or in part) by any one or more members of the Family Group; (6) any individual or Entity who receives an interest in any estate or trust listed in clauses (4) or (5), to the extent of such interest; (7) any trust or estate, substantially all the beneficiaries of which (other than charitable organizations or foundations) consist of one or more members of the Family Group; (8) any organization described in Section 501(c) of the Code, over which any one or more members of the Family Group and the trusts and estates listed in clauses (4), (5) and (7) have direct or indirect Veto Power, or to which they are substantial contributors (as such term is defined in Section 507 of the Code); (9) any organization described in Section 501(c) of the Code of which a member of the Family Group is an officer, director or trustee; or (10) any Entity, directly or indirectly (a) owned or Controlled by or (b) a majority of the economic interests in which are owned by, or are for or accrue to the benefit of, in either case, any Person or Persons identified in clauses (1) through (9) above.

For the purposes of this definition of Icahn Group, and for the avoidance of doubt, in addition to any other Person or Persons that may be considered to possess Control, (x) a partnership shall be considered Controlled by a general partner or managing general partner thereof, (y) a limited liability company shall be considered Controlled by a managing member of such limited liability company and (z) a trust or estate shall be considered Controlled by any trustee, executor, personal representative, administrator or any other Person or Persons having authority over the control, management or disposition of the income and assets therefrom.

“Immaterial Subsidiary” shall mean, at any date of determination, each Subsidiary of the Borrower that has been designated by the Borrower in writing to the Administrative Agent as an “Immaterial Subsidiary” for purposes of this Agreement (and not redesignated as a Material Subsidiary as provided below); provided that, (a) for purposes of this Agreement, at no time shall (i) the fair market value or the book value (whichever is greater) of the total assets of any Immaterial Subsidiary at the last day of the most recent Test Period be equal to or exceed $2,000,000 or (ii) the revenues of any Immaterial Subsidiary be equal to exceed $1,000,000 during the last twelve months preceding the Closing Date and, thereafter, during the twelve months preceding the Borrower’s most recent fiscal quarter and (b) the Borrower shall not designate any new Immaterial Subsidiary if such designation would not comply with the provisions set forth in clause (a) above; provided, further that, the Borrower may designate and re-designate a Subsidiary as an Immaterial Subsidiary at any time, subject to the terms set forth in this definition. As of the Closing Date, the Borrower hereby certifies that WSC Corp., a Delaware corporation and Viskase Films, Inc., a Delaware corporation each satisfy the

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requirements of this definition and are hereby designated by the Borrower as Immaterial Subsidiaries.

“Increase Effective Date” shall have the meaning assigned to such term in Section 2.18(a).

“Increase Joinder” shall have the meaning assigned to such term in Section 2.18(c).

“Incremental Term Loan Borrowing Date” shall mean, with respect to each Tranche of Incremental Term Loans, each date on which Incremental Term Loans of such Tranche are incurred pursuant to Section 2.18, which date shall be the date such Incremental Term Loans are to be made.

“Incremental Term Loan Commitment” shall mean, for each Lender, any commitment to make Incremental Term Loans provided by such Lender pursuant to Section 2.18 on a given Incremental Term Loan Borrowing Date, in such amount as agreed to by such Lender in the Increase Joinder delivered pursuant to Section 2.18, as the same may be terminated pursuant to Section 2.07.

“Incremental Term Loan Maturity Date” shall mean, for any Tranche of Incremental Term Loans, the final maturity date set forth for such Tranche of Incremental Term Loans in the Increase Joinder relating thereto; provided that the initial final maturity date for all Incremental Term Loans of a given Tranche shall be the same date.

“Incremental Term Loans” shall have the meaning assigned to such term in Section 2.18(a).

“Indebtedness” of any Person shall mean, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind (other than customer deposits in the ordinary course of business), (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid (excluding trade accounts payable and accrued obligations due within one year from the date of incurrence), (d) all obligations of such Person under conditional sale or other title retention agreements relating to property or assets purchased by such Person, (e) all obligations of such Person issued or assumed as the deferred purchase price of property or services (excluding trade accounts payable and accrued obligations incurred in the ordinary course of business), (f) all obligations of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed (notwithstanding that the rights and remedies of the seller or lender under such agreement in an event of default may be limited to repossession or sale of such property, in which case the lesser of the amount of such obligation and the fair market value of such property shall constitute “Indebtedness”), (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations and Synthetic Lease Obligations of such Person, (i) all obligations of such Person as an account party in respect of letters of credit and bankers’ acceptances, (j) all obligations of such Person to purchase, redeem, retire, defease or otherwise acquire for value any Equity Interest; (k) all obligations of such Person in respect of any

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exchange traded or over the counter derivative transaction, including, without limitation, any interest rate Hedging Agreement, whether entered into for hedging or speculative purposes; and (l) all obligations of such Person in respect of Disqualified Capital Stock.  The Indebtedness of any Person shall include the Indebtedness of any partnership in which such Person is a general partner.  The Indebtedness of any person shall be deemed not to include such Person’s deferred tax obligations.  For purposes of calculating Indebtedness hereunder at any time, the amount of Indebtedness of the type referred to in clause (k) above of any Person shall be equal to the payment due thereunder (giving effect to any netting agreements), if any, by such Person if such Indebtedness were terminated on such date.

“Indemnified Taxes” shall mean Taxes other than Excluded Taxes.

“Indemnitee” shall have the meaning assigned to such term in Section 9.05(b).

“Initial Term Loan Commitment” shall mean with respect to each Lender, the commitment of such Lender to make Initial Term Loans hereunder as set forth on Schedule 2.01, or in any Assignment and Assumption pursuant to which such Lender assumed its Initial Term Loan Commitment, as applicable, as the same may be reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.  The aggregate amount of the Lenders’ Initial Term Loan Commitments for Initial Term Loans on the Closing Date is $275,000,000.

“Initial Term Loan Maturity Date” shall mean the seventh anniversary of the Closing Date, which date is January 30, 2021.

“Initial Term Loans” shall mean the Term Loans made on the Closing Date pursuant to Section 2.01(a).

“Intellectual Property” shall have the meaning assigned to such term in the Guarantee and Collateral Agreement.

“Intercompany Note” shall mean a promissory note substantially in the form of Exhibit H.

“Intercreditor Agreements” shall mean the ABL Intercreditor Agreement, any Second Lien Intercreditor Agreement and any Pari Passu Intercreditor Agreement.

“Interest Election Request” shall mean a request by Borrower to convert or continue a Term Loan in accordance with Section 2.08(b), substantially in the form of Exhibit I.

“Interest Payment Date” shall mean (a) with respect to any ABR Loan, the last Business Day of each March, June, September and December to occur during any period in which such Term Loan is outstanding and (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to such Term Loan and, in the case of a Eurodollar Loan with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date had successive Interest Periods of three months’ duration been applicable to such Term Loan.

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“Interest Period” shall mean, with respect to any Eurodollar Loan, the period commencing on the date of the Borrowing of such Term Loan and ending on the numerically corresponding day in the calendar month that is one, two, three or six months (or, if consented to by all applicable Lenders, twelve months) thereafter, as Borrower may elect; provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, and (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period.  For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing; provided, further, however, that no Interest Period with respect to any portion of any Term Loan shall extend beyond the applicable Maturity Date.

“Investment” means any direct or indirect acquisition of, or investment by the Borrower or any Restricted Subsidiary in any other Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.  The amount of any Investment consisting of a Guarantee shall be deemed to be zero, unless and until demand for payment is made under such Guarantee.

“Investment Account” shall mean each of the Deposit Accounts and Securities Accounts that are required to be subject to a Control Agreement pursuant to the terms of the Guarantee and Collateral Agreement.

“IP Rights” shall have the meaning assigned to such term in Section 3.26.

“IP Security Agreement” shall mean that certain Intellectual Property Security Agreement, dated as of the date hereof, by and among the Borrower and the Administrative Agent.

“Latest Maturity Date” shall mean, at any time, the latest Maturity Date applicable to any Term Loan hereunder at such time, including the latest maturity date of any Incremental Term Loan, Refinancing Term Loan or Extended Term Loan, in each case as extended in accordance with this Agreement from time to time.

“Lenders” shall mean (a) the Persons listed on Schedule 2.01 (other than any such Person that has ceased to be a party hereto pursuant to an Assignment and Assumption), and (b) any Person that has become a party hereto pursuant to Sections 2.16(b), 2.18, 2.20 or an Assignment and Assumption.

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“LIBO Rate” shall mean, with respect to any Eurodollar Loan for any Interest Period (or for any ABR Borrowing as to which clause (c) of the definition of Alternate Base Rate is applicable), the rate per annum determined by the Administrative Agent at approximately 11:00 a.m., London time, on the date that is two (2) Business Days prior to the commencement of such Interest Period by reference to the rate for deposits in Dollars for a period equal to the applicable Interest Period by reference to the British Bankers’ Association Interest Settlement Rates for deposits in Dollars (as set forth by any service selected by the Administrative Agent that has been nominated by the British Bankers’ Association as an authorized information vendor for the purpose of displaying such rates (or, to the extent the British Bankers’ Association no longer displays such rates, the applicable successor body)); provided that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “LIBO Rate” shall be the interest rate per annum determined by the Administrative Agent to be the average of the rates per annum at which deposits in Dollars are offered for such relevant Interest Period to major banks in the London interbank market in London, England by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two Business Days prior to the beginning of such Interest Period.  Notwithstanding the foregoing, for purposes of clause (c) of the definition of Alternate Base Rate, the rates referred to above shall be the rates as of 11:00 a.m., London time, on the date of determination (rather than the second London Business Day preceding the date of determination).

“Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest in or on such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

“Loan Documents” shall mean this Agreement, the Security Documents, the Agent’s Fee Letter, the Notes, if any, executed and delivered pursuant to Section 2.04(c), the ABL Intercreditor Agreement, any Pari Passu Intercreditor Agreement, any Second Lien Intercreditor Agreement and any other document or certificate executed by the Borrower or any of its Subsidiaries for the benefit of any Agent, any Lender or any other Secured Party in connection with this Agreement or any other Loan Document.  For the avoidance of doubt, Hedging Agreements do not constitute Loan Documents.

“Loan Parties” shall mean the Borrower and the Guarantors.

“London Business Day” shall mean any day on which banks are generally open for dealings in dollar deposits in the London interbank market.

“Majority Lenders” shall mean, with respect to any Tranche, the Lenders which would constitute the Required Lenders under this Agreement if all outstanding Obligations of the other Tranches under this Agreement were repaid in full and all Commitments with respect thereto were terminated.

“Margin Stock” shall have the meaning assigned to such term in Regulation U.

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“Material Adverse Effect” shall mean (a) a material adverse effect on the business, assets, operations, condition (financial or otherwise) or operating results of the Borrower and the Restricted Subsidiaries, taken as a whole, (b) a material impairment of the ability of the Borrower or any other Loan Party to perform any of its material obligations under any Loan Document to which it is a party, (c) a material impairment of the validity or enforceability of any of the Loan Documents or the rights and remedies of or benefits available to the Secured Parties or the Agents under any Loan Document, or (d) a material adverse effect on the validity, perfection or priority of the Liens granted pursuant to any of the Loan Documents. For the avoidance of doubt, the Administrative Agent and Lenders acknowledge and agree that the Brazil Settlement has not resulted in a Material Adverse Effect.

“Material Indebtedness” shall mean any Indebtedness (other than the Term Loans), or obligations in respect of one or more Hedging Agreements, whenever incurred or arising, of any one or more of the Borrower or any Restricted Subsidiary in an aggregate principal amount exceeding $10,000,000; provided that the ABL Facility shall not constitute “Material Indebtedness.”  For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or any Restricted Subsidiary in respect of any Hedging Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Restricted Subsidiary would be required to pay if such Hedging Agreement were terminated at such time.

“Material Subsidiary” shall mean any Subsidiary other than an Immaterial Subsidiary.

“Maturity Date” shall mean (a) with respect to any Initial Term Loans that have not been extended pursuant to Section 2.19, the Initial Term Loan Maturity Date, (b) with respect to any Incremental Term Loans that have not been extended pursuant to Section 2.19, the Incremental Term Loan Maturity Date applicable thereto, (c) with respect to any Refinancing Loans that have not been extended pursuant to Section 2.19, a date prior to the Maturity Date applicable to the Term Loans being refinanced  and (d) with respect to any Tranche of Extended Term Loans or Extended Term Loan Commitments, the Extended Term Loan Maturity Date applicable thereto.

“MNPI” shall have the meaning assigned to such term in Section 9.01(d).

“Moody’s” shall mean ▇▇▇▇▇’▇ Investors Service, Inc., or any successor thereto.

“Mortgaged Properties” shall mean, as of the date hereof, the owned real properties and leasehold and subleasehold interests of the Loan Parties, together with all improvements thereon, specified on Schedule 1.01(b), to the extent to which such properties and interests are encumbered by a Mortgage, and thereafter, shall include each other parcel of real property and leasehold and subleasehold interest of the Loan Parties, together with all improvements thereto, with respect to which a mortgage is granted from time to time pursuant to the Guarantee and Collateral Agreement.

“Mortgages” shall mean, as of the date hereof, the mortgages, deeds of trust, leasehold mortgages, assignments of leases and rents, modifications and other security documents delivered pursuant to Section 4.01, with respect to the Mortgaged Properties (or as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time) and,

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thereafter, shall include all other mortgages, deeds of trust, leasehold mortgages, assignments of leases and rents, modifications and other security documents from time to time delivered pursuant to Section 5.12 or the Guarantee and Collateral Agreement, each substantially in the form of Exhibit E with such changes as shall be advisable under the law of the jurisdiction in which such Mortgage is to be recorded and as are reasonably satisfactory to the Administrative Agent.

“Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

“Net Cash Proceeds” shall mean (a) with respect to any Asset Sale or any Casualty Event, the cash proceeds actually received by the Borrower or any of its Restricted Subsidiaries (including cash proceeds subsequently received (as and when received) in respect of non-cash consideration initially received and valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market value at the time of such Asset Sale in the case of other non-cash proceeds), net of (i) selling expenses (including broker’s fees or commissions, accountants’ fees, investment banking fees, consulting fees, reasonable and documented legal fees and any other customary reasonable and documented fees and out-of-pocket expenses actually incurred in connection therewith, transfer and similar taxes), (ii) amounts provided as a reserve, in accordance with GAAP, against any liabilities, for any taxes, or under any indemnification obligation or purchase price adjustment associated with such Asset Sale (provided that, to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds), (iii) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness for borrowed money, Capital Lease Obligations or Synthetic Lease Obligations which are secured by the assets sold in such Asset Sale sold and which are required to be repaid with such proceeds (other than any such Indebtedness assumed by the purchaser of such assets) and (iv) any amounts received by the Borrower or any of its Restricted Subsidiaries which would not at the applicable time of determination be permitted to be distributed to its immediate parent, the Borrower or the Administrative Agent by operation of the terms of such receiving party’s charter or any agreement, instrument, judgment, decree, statute, rule or governmental regulation applicable to such receiving party, and (b) with respect to any issuance or incurrence of Indebtedness for borrowed money or any Equity Issuance, the cash proceeds thereof actually received by the Borrower or such Restricted Subsidiary, net of all attorneys’ fees, consulting fees, investment banking fees, taxes and other customary fees, underwriting discounts, commissions, costs and other expenses incurred in connection therewith.

“Note” shall have the meaning assigned to such term in Section 2.04(c).

“Obligations” shall mean the Term Loans and all other amounts and obligations owing by any Loan Party to the Administrative Agent, any Lender, or any Indemnitee, of every type and description (whether by reason of an extension of credit, loan, guaranty, indemnification or otherwise), present or future, arising under this Agreement or any other Loan Document, whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, now existing or hereafter arising and however acquired and whether or not evidenced by any note, guaranty or other instrument or for the payment of money, including all cash management and other fees, principal, interest (including interest which, but for the filing of

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a petition in bankruptcy with respect to any Loan Party would have accrued on any Obligation, whether or not a claim is allowed against any Loan Party for such interest in the related bankruptcy proceeding), charges, expenses, attorneys’ fees and disbursements and other sums chargeable to any Loan Party under this Agreement or any other Loan Document.

“OFAC” shall have the meaning assigned to such term in Section 3.22(a).

“Other Taxes” shall mean any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies and all liabilities with respect thereto arising from any payment made under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document, except any such Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.16(b)).

“Pari Passu Collateral” shall have the meaning assigned to such term in the ABL Intercreditor Agreement.

“Pari Passu Intercreditor Agreement” shall mean an intercreditor agreement substantially in the form of Exhibit K hereto or such other form as is reasonably acceptable to the Administrative Agent.

“Participant” shall have the meaning assigned to such term in Section 9.04(d).

“Participant Register” shall have the meaning assigned to such term in Section 9.04(d).

“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA, or any successor thereto.

“Perfection Certificate” shall mean the Perfection Certificate substantially in the form of Exhibit B to the Guarantee and Collateral Agreement and delivered in accordance with Section 4.01(k)(i).

“Permit” shall have the meaning assigned to such term in Section 3.20(b).

“Permitted Acquisition” means an acquisition of assets or a majority of the Voting Stock of any Person where (i) the acquired Person is in a Permitted Business and, to the extent required pursuant to Section 5.12, will become a Guarantor or the assets so acquired are to be acquired by the Borrower or a Restricted Subsidiary and are to be used in a Permitted Business, (ii) no Default or Event of Default then exists or would result therefrom, (iii) in the event such acquisition is consummated by a merger, the Borrower or any Restricted Subsidiary (including any new Restricted Subsidiary) is the surviving entity, (iv) a description of the acquisition shall have been delivered to the Administrative Agent prior to the consummation of the acquisition (and the Administrative Agent shall deliver a copy to any Lender who requests a copy); (v) the Borrower shall have delivered to the Administrative Agent copies of the most recent financial statements (audited, if then available) of the acquired assets or Person, together with any other information that Administrative Agent may reasonably request (and the Administrative Agent shall deliver a copy to any Lender who requests a copy); (vi) such transactions shall be consummated in all material respects in accordance with applicable Requirements of Law; (vii)

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all actions required to be taken, if any, with respect to such acquired Person or assets under Section 5.12 shall have been taken; and (viii) at least five Business Days prior to the proposed date of consummation of the transaction, the Borrower shall have delivered to the Agents and the Lenders a certificate from a Financial Officer certifying that such transaction will, upon consummation, comply with this definition.

“Permitted Business” shall mean the business currently conducted by the Borrower and its Subsidiaries, businesses substantially similar to the business currently conducted by the Borrower and its Subsidiaries, or any business or activity that is related, ancillary or complementary thereto or an extension, development or expansion thereof.

“Permitted Holders” shall mean the Icahn Group and any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing are members from time to time.

“Permitted Second Lien Debt” shall mean (a) Indebtedness issued or incurred by the Borrower or any Guarantor secured by the Collateral (or any portion thereof) on a junior priority basis to the Liens securing the Obligations and (b) Indebtedness issued or incurred by the Borrower, any Guarantor or any Foreign Subsidiary (i) secured by foreign property or assets that do not also secure the Obligations and (ii) not secured by any of the Collateral on a basis senior to or pari passu with the Liens securing the Obligations, and, in each case (if any Collateral secures such Indebtedness), the holders of which (or their representative) shall be party to the Second Lien Intercreditor Agreement with the Administrative Agent (and the Lenders direct and authorize the Agents to enter into any such Intercreditor Agreement on their behalf), in each case (other than with respect to any such Indebtedness of Foreign Subsidiaries permitted solely pursuant to clause (b)(i) above), (A) the terms of which (1) do not provide for any amortization, scheduled repayment, mandatory redemption or sinking fund obligation prior to the date that is six months after the Latest Maturity Date, other than customary offers to repurchase upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default and (B) provide for covenants and events of default customary for Indebtedness of a similar nature as such Permitted Second Lien Debt but in any event the terms and conditions thereof, excluding pricing, fees, rate floors and premiums are, taken as a whole, no more restrictive in any material respect than the terms set forth in this Agreement and (ii) in respect of which no Subsidiary of the Borrower that is not an obligor under the Loan Documents is an obligor (other than, with respect to clause (b) above, Foreign Subsidiaries); provided that immediately prior to and after giving effect to any incurrence of Permitted Second Lien Debt and the application of proceeds therefrom, no Default or Event of Default shall have occurred and be continuing or would result therefrom.

“Permitted Pari Passu Debt” shall mean any Indebtedness issued or incurred by the Borrower or any Guarantor secured by the Collateral on a pari passu basis to the Liens securing the Obligations and is not secured by any property or assets of Borrower or any Restricted Subsidiary other than the Collateral and the holders of which (or their representative) and Administrative Agent are party to the applicable Intercreditor Agreements (and the Lenders direct and authorize the Agents to enter into any such Intercreditor Agreement on their behalf), (i) the terms of which (1) do not provide for a scheduled maturity date prior to the Latest Maturity Date, (2) excluding pricing, fees, rate floors and premiums are, taken as a whole, no

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more restrictive in any material respect than the terms set forth in this Agreement and (3) other than in the case of a revolving credit facility, does not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of any outstanding Term Loans (without giving effect to any prepayments of originally scheduled amortization of such outstanding Term Loans) and (ii) except as expressly provided in Section 6.01(p), in respect of which no Subsidiary of the Borrower that is not an obligor or guarantor under the Loan Documents is an obligor or guarantor; provided that immediately prior to and after giving effect to any incurrence of Permitted Pari Passu Debt and the application of proceeds therefrom, no Default or Event of Default shall have occurred and be continuing or would result therefrom.

“Permitted Unsecured Debt” shall mean (a) unsecured subordinated Indebtedness issued or incurred by the Borrower, any Guarantor or any Foreign Subsidiary and (b) unsecured senior Indebtedness issued by the Borrower, any Guarantor or any Foreign Subsidiary, in each case (other than with respect to any such Indebtedness of Foreign Subsidiaries), (i) the terms of which (A) do not provide for any amortization, scheduled repayment, mandatory redemption or sinking fund obligation prior to the date that is six months after the Latest Maturity Date, other than customary offers to repurchase upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default, (B) provide for covenants and events of default customary for Indebtedness of a similar nature as such Permitted Unsecured Debt but in any event the terms and conditions thereof, excluding pricing, fees, rate floors and premiums are, taken as a whole, no more restrictive in any material respect than the terms set forth in this Agreement and (C) in the case of subordinated Indebtedness, provide for subordination of payments in respect of such Indebtedness to the Obligations and guarantees thereof under the Loan Documents customary for subordinated high yield securities or on terms reasonably acceptable to the Administrative Agent and (ii) in respect of which no Subsidiary of the Borrower that is not an obligor or guarantor under the Loan Documents is an obligor or guarantor (other than Foreign Subsidiaries); provided that immediately prior to and after giving effect to any incurrence of Permitted Unsecured Debt and the application of proceeds therefrom, no Default or Event of Default shall have occurred and be continuing or would result therefrom.  Notwithstanding the foregoing, Disqualified Capital Stock shall not constitute Permitted Unsecured Debt.

“Permitted Tax Distributions” shall mean any dividend, payment or distribution to the Borrower, any Subsidiary or the parent of a consolidated, combined or unitary group of which the Borrower is a member for income tax purposes to pay Taxes due and payable solely in respect of income of the Borrower or any Subsidiary; provided that, for each taxable period, the amount of such payments made by the Borrower and its Subsidiaries to a parent of a group of which the Borrower is a member in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and its Subsidiaries that are members of such group would have been required to pay as a stand-alone consolidated, combined or similar income tax group; provided, further, that the Permitted Tax Distributions hereunder with respect to any Taxes that are attributable to the activities or income of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar income Taxes.

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“Person” shall mean any natural person, corporation, business trust, joint venture, association, company, limited liability company, partnership, Governmental Authority or other entity.

“Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“Platform” shall have the meaning assigned to such term in Section 9.01(c).

“Prepayment Date” shall have the meaning assigned to such term in Section 2.10(j).

“Prime Rate” shall mean the rate of interest equal to the corporate base rate of interest established by the Administrative Agent at its principal office in New York City as its “prime rate,” with the understanding that the “prime rate” is one of the Administrative Agent’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for certain loans.  Each change in the Prime Rate shall be effective on the date such change is effect.

“Principal Office” shall mean the Administrative Agent’s “Principal Office” as set forth on Appendix A, or such other office as the Administrative Agent may from time to time designate in writing to the Borrower and each applicable Lender.

“Private Side Communications” shall have the meaning assigned to such term in Section 9.01(d).

“Private ▇▇▇▇▇▇” shall have the meaning assigned to such term in Section 9.01(d).

“Pro Forma Basis” shall mean, for purposes of calculating compliance with any test or covenant hereunder with respect to any relevant transaction or series of related transactions, immediately after giving effect to such transaction or series of related transactions on a pro forma basis as if occurring during the relevant period or thereafter and on or prior to the date of determination with such transaction(s), and all other subject applicable transactions (including debt incurrences, acquisitions of substantially all of the assets of, or any business line, unit or division of, any Person or any facility, or of a majority of the outstanding Capital Stock of any Person, dispositions of all or substantially all of the assets or stock of a subsidiary (or any business unit, line of business or division of the Borrower or any Restricted Subsidiary and the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary) occurring during the relevant period or thereafter and on or prior to the date of determination shall be deemed to have occurred as of the first day of the applicable period of measurement in such test or covenant, and with supporting detail provided by the Borrower to the Administrative Agent as to any pro forma adjustments; provided, that the foregoing pro forma adjustments may only be applied to the calculation of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries to the extent such adjustments are consistent with the definition of Consolidated EBITDA and such supporting detail demonstrates such pro forma adjustments are factually supportable and expected to have a continuing impact, in each case determined on a basis consistent with Article 11 of Regulation S-X of the Securities

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Act of 1933, as interpreted by the Securities and Exchange Commission, and with respect to any additional pro forma expense and cost reductions or synergies, as set forth in a certificate of a Financial Officer itemizing any additional pro forma expense and cost reductions or synergies, net of the cost of implementation of any related measures (such net amount to be calculated independently of severance and other restructuring charges that are added back in the definition of Consolidated EBITDA), calculated in good faith, each of which such items must have been realized or be reasonably anticipated to be realizable within 12 months of the initial closing of such transaction or series of transactions; provided further, that any increase in Consolidated EBITDA of the Borrower and its Restricted Subsidiaries as a result of such pro forma expense and costs reductions or synergies, net of the cost of implementation of any related measures (and other than as a result of an actual reduction in expenses and/or costs or an actual increase in revenues) (such net amount to be calculated independently of severance and other restructuring charges that are added back in the definition of Consolidated EBITDA) shall not exceed 15% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for such period (giving pro forma effect to all such relevant transactions occurring during such period).

“Pro Rata Share” shall mean:

(i)                                     with respect to all payments, computations and other matters relating to the  Commitment of any Lender (if applicable, with respect to a specific Tranche), the percentage obtained by dividing (a) the  Commitment of that Lender (if applicable, with respect to a specific Tranche) by (b) the aggregate  Commitments of all Lenders (if applicable, with respect to a specific Tranche); and

(ii)                                  with respect to all payments, computations and other matters relating to the Term Loan of any Lender (if applicable, with respect to a specific Tranche), the percentage obtained by dividing (a) the outstanding principal amount of the Term Loans of that Lender (if applicable, with respect to a specific Tranche) by (b) the aggregate outstanding principal amount of the Term Loans of all Lenders (if applicable, with respect to a specific Tranche).

For all other purposes with respect to each Lender, “Pro Rata Share” shall mean the percentage obtained by dividing (A) an amount equal to the Term Exposure of that Lender, by (B) an amount equal to the sum of the Term Exposure of all Lenders.

“Prospective Acquisition” shall have the meaning assigned to such term in the definition of Acquisition Indebtedness.

“Public ▇▇▇▇▇▇” shall have the meaning assigned to such term in Section 9.01(d).

“Qualified Capital Stock” of any person shall mean any Equity Interests of such person that are not Disqualified Capital Stock.

“Real Property” shall have the meaning assigned to such term in the Guarantee and Collateral Agreement.

“Refinancing” shall mean the repayment of all of the outstanding indebtedness (and termination of all commitments) under the Existing 2018 Notes as provided in Section 4.01(a).

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“Refinancing Effective Date” shall have the meaning specified in Section 2.20(a).

“Refinancing Debt Holder” shall have the meaning provided in Section 2.20(b).

“Refinancing Debt” shall have the meaning provided in Section 2.20(a).

“Refinancing Debt Agreement” shall mean any loan agreement or indenture entered into with respect to the Refinancing Debt and pursuant to which same shall be made or issued.

“Refinancing Term Loan Amendment” shall have the meaning specified in Section 2.20(c).

“Refinancing Term Loan Commitments” shall mean one or more commitments hereunder to convert Initial Term Loans, Incremental Term Loans, Extended Term Loans or other Refinancing Term Loans or Refinancing Debt under an Existing Initial Term Loan Tranche, Existing Incremental Term Loan Tranche, Existing Extended Term Loan Tranche or Existing Refinancing Term Loan Tranche or existing series of Refinancing Debt into (x) a new Tranche of Refinancing Term Loans or (y) Refinancing Term Loans under an existing Tranche of Refinancing Term Loans.

“Refinancing Term Loan Lender” shall have the meaning specified in Section 2.20(b).

“Refinancing Term Loan Series” shall have the meaning specified in Section 2.20(b).

“Refinancing Term Loans” shall have the meaning specified in Section 2.20(a).

“Register” shall have the meaning assigned to such term in Section 9.04(c).

“Regulation D” shall mean Regulation D of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

“Regulation T” shall mean Regulation T of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

“Regulation U” shall mean Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

“Regulation X” shall mean Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

“Related Fund” shall mean, with respect to any Lender that is an investment fund, any other investment fund that invests in commercial loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

“Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates and the respective directors, trustees, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

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“Release” shall mean any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the environment or within or upon any building, structure, facility or fixture.

“Repricing Transaction” shall mean the repayment, refinancing, replacement or conversion of all or a portion of the Initial Term Loans with proceeds from the incurrence by any Loan Party of any new or replacement tranche of debt financing having an Effective Yield that is less than the Effective Yield of the Initial Term Loans, including without limitation, as may be effected through any amendment to this Agreement that directly or indirectly reduces the Effective Yield of the Initial Term Loans.

“Required Lenders” shall mean, subject to Section 9.04(i) at any time, Lenders having Term Exposure representing more than 50% of the sum of all outstanding principal of Term Loans of Lenders (as originally in effect or pursuant to Section 2.18) at such time; provided that the Term Exposure of any Defaulting Lender shall be disregarded in the determination of the Required Lenders.

“Requirements of Law” shall mean, collectively, any and all applicable requirements of any Governmental Authority having jurisdiction over the applicable Person or property, including any and all laws, judgments, orders, executive orders, decrees, ordinances, rules, regulations, statutes or case law.

“Responsible Officer” of any Person shall mean any executive officer or Financial Officer of such Person and any other officer or similar official thereof responsible for the administration of the obligations of such Person in respect of this Agreement.

“Restricted Payment” shall mean any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the Borrower or any Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests in the Borrower or any Restricted Subsidiary.

“Restricted Subsidiaries” shall mean (i) each Subsidiary of the Borrower that is not an Unrestricted Subsidiary on the Closing Date and (ii) any other Subsidiary acquired or formed by the Borrower or any of its Restricted Subsidiaries, directly or indirectly, that is not an Unrestricted Subsidiary.

“S&P” shall mean Standard & Poor’s Ratings Service, or any successor thereto.

“Sanctioned Country” shall mean a country subject to a sanctions program identified on the list maintained by OFAC and available at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇-▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇▇, or as otherwise published from time to time.

“Sanctioned Person” shall mean (a) a Person named on the list of “Specially Designated Nationals and Blocked Persons” maintained by OFAC available at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇-▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇/▇▇▇-▇▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇.▇▇▇▇, or as otherwise published from time to time, or (b) (i) an agency of the government of a Sanctioned Country, (ii)

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an organization controlled by a Sanctioned Country, or (iii) a person resident in a Sanctioned Country, to the extent subject to a sanctions program administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control.

“Second Lien Intercreditor Agreement” shall mean an intercreditor agreement substantially in the form of Exhibit J hereto or such other form as is reasonably acceptable to the Administrative Agent.

“Secured Obligations” shall mean (a) the Obligations, (b) the due and punctual payment and performance of all obligations of Borrower and the other Loan Parties under each Hedging Agreement entered into with any counterparty that is a Secured Party at the time such Hedging Agreement was entered into and (c) the due and punctual payment and performance of all obligations of Borrower and the other Loan Parties (including overdrafts and related liabilities) under each Treasury Services Agreement entered into with any counterparty that is a Secured Party at the time such Treasury Services Agreement was entered into.

“Secured Parties” shall mean from time to time the Lenders, the Administrative Agent, the Collateral Agent, any other holder of any Secured Obligations (including each co-agent, sub-agent and attorney-in-fact appointed by the Agents from time to time), including each counterparty to a Hedging Agreement or Treasury Services Agreement if at the date of entering into such Hedging Agreement or Treasury Services Agreement such Person was an Agent or a Lender or an Affiliate of an Agent or a Lender and such Person executes and delivers to the Administrative Agent a letter agreement in form and substance acceptable to the Administrative Agent pursuant to which such Person (i) appoints the Collateral Agent as its agent under the applicable Loan Documents and (ii) agrees to be bound by the provisions of Sections 2.14, 8.03, 9.05 and 9.17 and of the Intercreditor Agreements as if it were a Lender and shall also include, without limitation, all former Agents, Lenders, counterparties to Hedging Agreements and Treasury Management Agreements (including each co-agent, sub-agent and attorney-in-fact appointed by the Agents from time to time) to the extent that any Secured Obligations owing to such Persons were incurred while such Persons were an Agent, Lender, or counterparty and such Secured Obligations have not been paid in full.

“Securities Account” shall have the meaning given to such term in the UCC.

“Security Documents” shall mean the Guarantee and Collateral Agreement, the IP Security Agreement, the Control Agreements, the Intercompany Note, the Mortgages and each of the other security agreements, mortgages and other instruments and documents, or supplements thereto, executed and delivered pursuant to any of the foregoing or pursuant to Section 4.01(f), Section 5.12 or Section 5.15 as may be applicable.

“Solvent” shall mean, with respect to any Person on any date of determination, considered on a consolidated basis with other applicable Persons, that on such date, (a) the fair value of the properties of such Person will exceed its debts and liabilities, subordinated, contingent or otherwise; (b) the present fair saleable value of the property of such Person will be greater than the amount that will be required to pay the probable liability of its debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (c) such Person does not intend to, or believe that it will, incur debts and

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liabilities, beyond its ability to pay them, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; (d) such Person will not have unreasonably small capital with which to conduct its business in which it is engaged as such business is now conducted or is proposed to be conducted and (e) such Person is “solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances.  For purposes of this definition, the amount of contingent liabilities at any time will be computed as the amount that, in light of all facts and circumstances existing at such time, represents the amount that can be reasonably expected to become an actual or matured liability, without duplication.

“Statutory Reserves” shall mean, for any Interest Period with respect to any Eurodollar Loan (or for any ABR Loan as to which clause (c) of the definition of Alternate Base Rate is applicable), the average maximum rate at which reserves (including any marginal, supplemental or emergency reserves) are required to be maintained during such Interest Period (or during a one-month period for any ABR Loan as to which clause (c) of the definition of Alternate Base Rate is applicable) under Regulation D by member banks of the United States Federal Reserve System in New York City with deposits exceeding one billion dollars against “Eurocurrency liabilities” (as such term is used in Regulation D).  Eurodollar Loans shall be deemed to constitute Eurocurrency liabilities and to be subject to such reserve requirements without benefit of or credit for proration, exceptions or offsets which may be available from time to time to any Lender under Regulation D.

“Subordinated Indebtedness” shall mean Indebtedness of the Borrower or any Guarantor, that is by its terms subordinated in right of payment to the obligations of the Borrower or such Guarantor, as applicable, under this Agreement or the Guarantee and Collateral Agreement, as applicable.

“subsidiary” shall mean, with respect to any Person (herein referred to as the “parent”), any corporation, partnership, limited liability company, association or other business entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, owned, Controlled or held.

“Subsidiary” shall mean any subsidiary of the Borrower.

“Synthetic Lease” shall mean, as to any Person, any lease (including leases that may be terminated by the lessee at any time) of any property (whether real, personal or mixed) (a) that is accounted for as an operating lease under GAAP and (b) in respect of which the lessee retains or obtains ownership of the property so leased for U.S. federal income tax purposes, other than any such lease under which such Person is the lessor.

“Synthetic Lease Obligations” shall mean, as to any Person, an amount equal to the capitalized amount of the remaining lease payments under any Synthetic Lease that would appear on a balance sheet of such Person in accordance with GAAP if such obligations were accounted for as Capital Lease Obligations.

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

“Term Exposure” shall mean, with respect to any Lender, as of any date of determination, the sum of (a) the outstanding principal amount of the Term Loans of such Lender plus (b) such Lender’s Commitment (exclusive of any portion thereof that has been terminated by funding or otherwise).

“Term Loan Facility” shall mean the  Commitments and the Term Loans made thereunder.

“Term Loan Repayment Date” shall mean, with respect to any Term Loan of any Tranche of Term Loan, the last Business Day of each March, June, September and December commencing on March 31, 2014, until the applicable Maturity Date for such Tranche, and on the Maturity Date for such Tranche.

“Term Loans” shall mean the Initial Term Loans, each Incremental Term Loan contemplated by Section 2.18, each Refinancing Term Loan and each Extended Term Loan of a given Extension Series.

“Test Period” at any time shall mean the period of four consecutive fiscal quarters then last ended for which financial statements are required to be (or, if earlier, have been) delivered pursuant to Section 5.04(a) or (b).

“Total Assets” shall mean, as of any date, the total assets of the Borrower and its Restricted Subsidiaries as of the most recent fiscal quarter end for which financial statements have been delivered pursuant to Section 5.04(a) or (b), minus total goodwill and other intangible assets of the Borrower and its Restricted Subsidiaries reflected on such financial statements, all calculated on a consolidated basis in accordance with GAAP.

“Total Debt” shall mean, at any time, the Indebtedness of the Borrower and the Restricted Subsidiaries at such time, on a consolidated basis (excluding accrued interest on Indebtedness, Indebtedness of the type described in clause (i) of the definition of such term and Indebtedness permitted by Section 6.01(c), (e) (except to the extent of termination, unwind or similar payments owed upon the termination of the respective Hedging Agreements) or (f)).

“Total Net Debt” shall mean, at any time, the amount equal to (a) Total Debt, minus (b) the lesser of Unrestricted Cash and $50,000,000.

“Total Net Leverage Ratio” shall mean, on any date, the ratio of Total Net Debt on such date to Consolidated EBITDA for the most recently ended Test Period.

“Tranche” shall mean the respective facilities and commitments utilized in making Initial Term Loans or Incremental Term Loans made pursuant to one or more tranches designated pursuant to the respective Increase Joinder in accordance with the relevant requirements specified in Section 2.18 (collectively, the “Initial Tranches” and, each, an “Initial Tranche”),

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and after giving effect to any Extension pursuant to Section 2.19, shall include any group of Extended Term Loans pursuant to Extended Term Loan Commitments, extended, directly or indirectly, from the same Initial Tranche (or extended or refinanced Initial Tranche) and having the same Maturity Date, interest rate and fees and after giving effect to any Refinancing Term Loan Amendment pursuant to Section 2.20, shall include any group of Refinancing Term Loans refinancing, directly or indirectly, the same Initial Tranche (or extended or refinanced Initial Tranche) having the same Maturity Date, interest rate and fees; provided that only in the circumstances contemplated by Section 2.20(b), Refinancing Term Loans may be made part of a then existing Tranche of Term Loans; provided further that only in the circumstances contemplated by Section 2.18(c), Incremental Term Loans may be made part of a then existing Tranche of Term Loans.

“Transactions” shall mean, collectively, the transactions contemplated by this Agreement to occur on or substantially concurrently with the Closing Date, including, without limitation, the Borrowing of Initial Term Loans by the Borrower, the making of Guarantees of the Obligations by the Guarantors (if any as of the Closing Date), the granting of the Collateral by the Loan Parties, the repayment of the Existing 2018 Notes and the payment of fees and expenses connection therewith.

“Treasury Services Agreement” shall mean any agreement relating to treasury, depositary and cash management services or automated clearinghouse transfer of funds.

“Type,” when used in reference to any Term Loan, or any Borrowing, refers to whether the rate of interest on such Term Loan, or on the Term Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.

“UCC” shall mean the Uniform Commercial Code as in effect in any applicable jurisdiction.

“Unrestricted Cash” shall mean the aggregate amount of unrestricted cash and Cash Equivalents of the Loan Parties (in each case free and clear of all Liens other than Liens securing the Secured Obligations and Indebtedness permitted to be incurred pursuant to Sections 6.01(n) and 6.01(p)) on deposit in accounts subject to Control Agreements.

“Unrestricted Subsidiary” shall mean any Subsidiary of the Borrower listed on Schedule 1.01(c), any Subsidiary of the Borrower designated as an “Unrestricted Subsidiary” pursuant to and in compliance with Section 5.14 and any Subsidiary of an Unrestricted Subsidiary, in each case unless subsequently designated as a Restricted Subsidiary pursuant to and in compliance with Section 5.14.

“USA PATRIOT Act” shall mean The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)).

“USDA” shall have the meaning assigned to such term in Section 3.20(a)

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“Voting Stock” shall mean, with respect to any Person as of any date, the Capital Stock of such Person that is at the time entitled to vote in the election of the board of directors of such Person.

“Waivable Prepayment” shall have the meaning assigned to such term in Section 2.10(j).

“Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.

“wholly owned Restricted Subsidiary” shall mean a Restricted Subsidiary of the Borrower or a Restricted Subsidiary of which securities (except for directors’ qualifying shares) or other ownership interests representing 100% of the Equity Interests are, at the time any determination is being made, owned, Controlled or held by the Borrower or one or more wholly owned Restricted Subsidiaries of the Borrower or by the Borrower and one or more wholly owned Restricted Subsidiaries.

“Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

1.02                        Terms Generally.  The definitions in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have the same meaning and effect as the word “shall”; and the words “asset” and “property” shall be construed as having the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.  All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require.  Except as otherwise expressly provided herein, (a) any reference in this Agreement to any Loan Document shall mean such document as amended, restated, supplemented or otherwise modified from time to time, (b) provisions of any statute, rule or regulation or other similar Requirement of Law shall include any successor provisions thereof, and (c) all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided, however, if at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial

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statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.  Unless otherwise specified, all references herein to times of day shall be references to New York City time (daylight or standard, as applicable).  Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document, to the extent that any Lender refinances any of its then-existing Term Loans with Incremental Term Loans incurred pursuant to Section 2.18 that are effected by means of a “cashless roll” by such Lender, such refinancing shall be deemed to comply with any requirement hereunder or any other Loan Document that such payment be made “in dollars”, “in immediately available funds”, “in cash” or any other similar requirement.

ARTICLE II.
The Credits

2.01                        Initial Term Loan Commitments.  Subject to the terms and conditions and relying upon the representations and warranties herein set forth, as of the date hereof, each Lender agrees, severally and not jointly to make an Initial Term Loan to the Borrower on the Closing Date in the principal amount not to exceed such Lender’s Initial Term Loan Commitment.

2.02                        Term Loans.

(a)                                 Each Term Loan shall be made as part of a Borrowing consisting of Term Loans made by the Lenders ratably in accordance with their applicable Commitments; provided, however, that the failure of any Lender to make any Term Loan shall not in itself relieve any other Lender of its obligation to lend hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to make any Term Loan required to be made by such other Lender).  ABR Loans comprising any Borrowing shall be in an aggregate principal amount that is (i) an integral multiple of $1.0 million and not less than $5.0 million or (ii) equal to the remaining available balance of the applicable Commitments and Eurodollar Loans comprising any Borrowing shall be in an aggregate principal amount that is (X) an integral multiple of $1.0 million and not less than $5.0 million or (Y) equal to the remaining available balance of the applicable Commitments.   All Term Loans (i) shall be denominated in Dollars and (ii) may be maintained as ABR Loans or Eurodollar Loans.  Amounts paid or prepaid in respect of Term Loans may not be reborrowed.

(b)                                 Subject to Sections 2.11 and 2.12, each Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as Borrower may request pursuant to Section 2.03.  Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Term Loan; provided that any exercise of such option shall not affect the obligation of Borrower to repay such Term Loan in accordance with the terms of this Agreement.  Borrowings of more than one Type may be outstanding at the same time; provided that Borrower shall not be entitled to request any Borrowing that, if made, would result in more than five Eurodollar Borrowings outstanding in the aggregate for all tranches of Term Loans hereunder at any one time.  For purposes of the foregoing, Borrowings having different Interest Periods, regardless of whether they commence on the same date, shall be considered separate Borrowings.

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(c)                                  Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing of any Tranche of Term Loan if the Interest Period requested with respect thereto would end after the applicable Maturity Date for such Tranche.

2.03                        Borrowing Procedure.  To request a Term Loan, the Borrower shall deliver, by hand delivery or telecopier fax or any other approved electronic transmission, a duly completed and executed Borrowing Request to the Administrative Agent (i) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of the proposed Borrowing (or such shorter period as the Administrative Agent shall agree in its sole and absolute discretion) or (ii) in the case of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of the proposed Borrowing.  Each Borrowing Request shall be irrevocable and shall be substantially in the form of Exhibit C hereto, appropriately completed to specify: (i) the aggregate principal amount of the Term Loans to be made pursuant to such Borrowing, (ii) the date of such Borrowing (which shall be a Business Day), (iii) whether the Term Loans being made pursuant to such Borrowing  are to be initially maintained as ABR Loans or Eurodollar Loans and (iv) in the case of Eurodollar Loans, the Interest Period to be initially applicable thereto.

If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing.  If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.  The Administrative Agent shall promptly give each Lender which is required to make Term Loans of the Tranche specified in the respective Borrowing Request, notice of such proposed Borrowing, of such Lender’s proportionate share thereof (determined in accordance with Section 2.14) and of the other matters required by the immediately preceding sentence to be specified in the Notice of Borrowing.  Each Lender agrees that, in computing such Lender’s portion of any Term Loans or other extensions of credit to be made hereunder, the Administrative Agent may, in its discretion, round each Lender’s pro rata share of such Term Loans or other extensions of credit to the next higher or lower whole Dollar amount.  Each Lender shall make the amount of its Term Loan available to the Administrative Agent not later than 1:00 p.m. (New York City time) on the date of the applicable Borrowing by wire transfer of same day funds in Dollars, at the Administrative Agent’s Principal Office.

Unless the Administrative Agent shall have been notified by any Lender prior to the applicable date of any Credit Extension that such Lender does not intend to make available to the Administrative Agent the amount of such Lender’s Term Loan requested on such date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such date and the Administrative Agent may, in its sole discretion, but shall not be obligated to, make available to the Borrower a corresponding amount on such date.  If such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from the date of such Credit Extension until the date such amount is paid to the Administrative Agent, at the customary rate set by the Administrative Agent for the correction of errors among banks for three (3) Business Days and thereafter at the Alternate Base Rate.  If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the

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Administrative Agent shall promptly notify the Borrower and, if the Administrative Agent made such amount available as a Term Loan to the Borrower, the Borrower shall immediately pay such corresponding amount to the Administrative Agent together with interest thereon, for each day from the date of such Credit Extension until the date such amount is paid to the Administrative Agent, at the rate payable hereunder for ABR Loans for such Tranche of Term Loans.  Nothing in this paragraph shall be deemed to relieve any Lender from its obligation to fulfill its Commitments hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any default by such Lender hereunder.  In the event any Term Loan proceeds received by the Administrative Agent in accordance with this Agreement are not delivered to the Borrower as a result of any condition precedent herein specified not having been met, the Administrative Agent shall return the amounts so received to the Lenders who delivered such Term Loan proceeds to the Administrative Agent.

2.04                        Evidence of Debt; Repayment of Term Loans.

(a)                                 The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the principal amount of each Term Loan of such Lender as provided in Section 2.09.

(b)                                 Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of the Borrower to such Lender resulting from each Term Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.  The Administrative Agent, acting solely for purposes of this Section 2.04(b) on behalf of and as agent for the Borrower, shall maintain accounts in which it will record (i) the amount of each Term Loan made hereunder, the Type and Tranche thereof and the Interest Period applicable thereto; (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder; and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.  The entries made in the accounts maintained pursuant to this paragraph shall be prima facie evidence of the existence and amounts of the obligations therein recorded; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligations of the Borrower to repay the Term Loans in accordance with their terms.  The Borrower hereby designates the Administrative Agent to serve as the Borrower’s representative and agent solely for purposes of maintaining the accounts as provided in this Section 2.04(b), and the Borrower hereby agrees that, to the extent the Administrative Agent serves in such capacity, the Administrative Agent and its officers, directors, employees, agents and affiliates shall constitute “Indemnitees.”

(c)                                  Any Lender by written notice to the Borrower (with a copy to the Administrative Agent) may request that Term Loans made by it be evidenced by a promissory note.  In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns) substantially in the form of Exhibit F (a “Note”).  Thereafter, the Term Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to the payee

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named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).

2.05                        Fees.

(a)                                 On the Closing Date, the Borrower shall pay to each Lender a fee in an amount equal to 0.25% of the amount of such Lender’s Commitments on the Closing Date, which payment obligation to the Lenders shall be satisfied by such Lender net funding the gross amount of the Term Loan to be funded by such Lender against the amount of such fee payable to such Lender.

(b)                                 In addition to any of the foregoing Fees, the Borrower agrees to pay to the Agents and the Arranger such other Fees in the amounts and at the times separately agreed upon (including in the Engagement Letter and the Agent’s Fee Letter).

(c)                                  All Fees shall be paid on the dates due, in immediately available funds, to the Administrative Agent at its Principal Office for distribution, if and as appropriate, among the Lenders, on a pro rata basis.  Once paid, none of the Fees shall be refundable under any circumstances.

2.06                        Interest on Term Loans.

(a)                                 ABR Loans.  Subject to the provisions of Section 2.06(c), the Term Loans comprising each ABR Borrowing shall bear interest at a rate per annum equal to the Alternate Base Rate plus the Applicable Margin.

(b)                                 Eurodollar Loans.  Subject to the provisions of Section 2.06(c), the Term Loans comprising each Eurodollar Borrowing shall bear interest at a rate per annum equal to the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin.  The Administrative Agent shall determine the Adjusted LIBO Rate for each Interest Period applicable to the respective Eurodollar Loans and shall promptly notify the  Borrower and the Lenders thereof.  Each such determination shall, absent manifest error, be final and conclusive and binding on all parties hereto.

(c)                                  Default Rate.  Notwithstanding the foregoing, if any principal of or interest on any Term Loan or any fee or other amount payable by the Borrower under any Loan Document is not paid when due, whether at stated maturity, upon acceleration or otherwise, or upon the occurrence and during the continuance of an Event of Default described in subsections (l) or (m) of Section 7.01, such overdue amount shall, to the extent permitted by applicable law, bear interest, after as well as before judgment, at a rate per annum equal to 2.00% plus the rate otherwise applicable to such Term Loan as provided in the preceding paragraphs of this Section 2.06 (the “Default Rate”).

(d)                                 Interest Payment Dates.  Accrued interest on each Term Loan shall be payable in arrears on each Interest Payment Date for such Term Loan; provided that (i) interest accrued pursuant to Section 2.06(c) shall be payable on demand, (ii) in the event of any repayment or prepayment of any Term Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion

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of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such Term Loan shall be payable on the effective date of such conversion.

(e)                                  Interest Calculation.  All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate which is calculated on the basis of the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day).  The applicable Alternate Base Rate and Adjusted LIBO Rate shall each be determined by the Administrative Agent in accordance with the provisions of this Agreement and such determination shall be conclusive absent manifest error.

2.07                        Termination of Commitments. The Initial Term Loan Commitments of each Lender shall automatically terminate upon the making of the Initial Term Loans on the Closing Date.

2.08                        Interest Elections.

(a)                                 Generally.  Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request.  Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section.  The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the applicable Term Loans comprising such Borrowing, and the Term Loans comprising each such portion shall be considered a separate Borrowing.  Notwithstanding anything to the contrary, the Borrower shall not be entitled to request any conversion or continuation that, if made, (i) would result in more than five Eurodollar Borrowings outstanding hereunder at any one time or (ii) would result in a Borrowing of less than $250,000 or in an amount other than an integral multiple of $100,000 in excess of that amount.

(b)                                 Interest Election Notice.  To make an election pursuant to this Section, the Borrower shall deliver, by hand delivery or fax or by another approved form of electronic transmission, a duly completed and executed Interest Election Request to the Administrative Agent not later than the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election.  Each Interest Election Request shall be irrevocable.  Each Interest Election Request shall specify the following information in compliance with Section 2.02:

(i)                                     the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, or if outstanding Borrowings are being combined, allocation to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);

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(ii)           the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

(iii)          whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and

(iv)          if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”.

If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.

Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

(c)           Automatic Continuation and Conversion.  If an Interest Election Request with respect to a Eurodollar Borrowing is not timely delivered prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be continued as a Eurodollar Borrowing with a one (1) month Interest Period unless there exists an Event of Default, in which case such Borrowing shall be converted to an ABR Borrowing.  Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing, the Administrative Agent or the Required Lenders may require, by notice to the Borrower, that (i) no outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.

2.09        Amortization and Repayment of Term Loans.

(a)           The Borrower shall repay to the Administrative Agent, for the benefit of the applicable Lenders, all then-outstanding Term Loans of any Tranche of Term Loans made to the Borrower on the Maturity Date for such Tranche of Term Loans.

(b)           The Borrower shall repay to the Administrative Agent, for the benefit of the Lenders, on each Term Loan Repayment Date, 0.25% of the original principal amount in respect of the Initial Term Loans made to the Borrower, as such amount may be reduced by any prepayments under Section 2.10.

2.10        Optional and Mandatory Prepayments of Term Loans.

(a)           Optional Prepayments and Commitment Reductions.  The Borrower shall have the right at any time and from time to time to prepay any Borrowing of any Tranche, in whole or in part, subject to the requirements of this Section 2.10; provided that each partial prepayment shall be in a principal amount that is an integral multiple of $1.0 million and not less than $5.0 million or, if less, the outstanding principal amount of such Borrowing.

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(b)           Asset Sales.  Not later than five Business Days following the receipt of any Net Cash Proceeds of any Asset Sale by the Borrower or any of its Restricted Subsidiaries, the Borrower shall make (or cause to be made) prepayments of Term Loans in accordance with Sections 2.10(g) and (h) in an aggregate principal amount equal to 100% of such Net Cash Proceeds; provided that:

(i)            no such prepayment shall be required under this Section 2.10(b) with respect to the disposition of property which constitutes a Casualty Event (which shall be subject to the provisions of Section 2.10(d));

(ii)           subject to Sections 2.10(b)(iii) and (iv), and so long as no Default or Event of Default shall then exist or would arise therefrom, no such prepayment shall be required under this Section 2.10(b) with respect to any Asset Sale, unless either (a) the Net Cash Proceeds of such Asset Sale individually, or of such Asset Sale together with any series of related Asset Sales, exceeds $5,000,000 or (b) the Net Cash Proceeds of Assets Sales, together with the Net Cash Proceeds of Casualty Events, during the term of this Agreement, exceeds $20,000,000;

(iii)          so long as the ABL Facility is outstanding and the ABL Intercreditor Agreement is in effect, no such prepayment shall be required with respect to the portion of such Net Cash Proceeds of any Asset Sale of Collateral other than, subject to the ABL Intercreditor Agreement, in respect of Fixed Asset Agent Priority Collateral and the portion (if any) of the Pari Passu Collateral provided for in the ABL Intercreditor Agreement; provided, that the Borrower shall, in the case of an Asset Sale in respect of ABL Lender Priority Collateral and the portion (if any) of the Pari Passu Collateral provided for in the ABL Intercreditor Agreement, to the extent required by the ABL Facility, prepay Indebtedness under the ABL Facility or, to the extent permitted by the ABL Facility, any other Indebtedness secured by Liens ranking senior to the Liens securing the Indebtedness hereunder on such ABL Lender Priority Collateral or Pari Passu Collateral or otherwise in accordance with the ABL Intercreditor Agreement; and

(iv)          so long as no Default or Event of Default shall then exist or would arise therefrom, such proceeds shall not be required to be so applied on such date to the extent that such Net Cash Proceeds are, within 12 months following the date of such Asset Sale, reinvested in replacement assets, other assets used or useful in a Permitted Business, or in Capital Expenditures, Permitted Acquisitions or Investments permitted by Section 6.03 (other than Section 6.03(b)) hereunder, or contractually committed to be so reinvested within 18 months following the date of such commitment; provided that if all or any portion of such Net Cash Proceeds is not so reinvested within such 12-month period or, with respect to any contractual commitment with respect which such Net Cash Proceeds was entered into during the period ending 18 months after the end of such initial 12-month period, such unused portion shall be applied on the last day of such period

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as a mandatory prepayment as provided in this Section 2.10(b); provided, further, that to the extent that the property subject to such Asset Sale constituted Collateral, then all property purchased with the Net Cash Proceeds thereof pursuant to this subsection shall be made subject to the Lien of the applicable Security Documents in favor of the Collateral Agent, for its benefit and for the benefit of the other Secured Parties in accordance with Section 5.12.

(c)           Debt Issuance.  Not later than three Business Days following the receipt of any Net Cash Proceeds from any issuance or incurrence of Indebtedness for borrowed money by the Borrower or any of its Restricted Subsidiaries (other than any cash proceeds from the issuance of Indebtedness for borrowed money permitted pursuant to Section 6.01) the Borrower shall, make (or cause to be made) prepayments of Term Loans in accordance with Sections 2.10(g) and (h) in an aggregate principal amount equal to 100% of such Net Cash Proceeds.

(d)           Casualty Events.  Not later than five Business Days following the receipt of any Net Cash Proceeds from a Casualty Event by the Borrower or any of its Restricted Subsidiaries, the Borrower shall make (or cause to be made) prepayments of Term Loans in accordance with Sections 2.10(g) and (h) in an aggregate principal amount equal to 100% of such Net Cash Proceeds; provided that

(i)            subject to Section 2.10(d)(ii), and so long as no Default or Event of Default shall then exist or would arise therefrom, no such prepayment shall be required under this Section 2.10(d) with respect to any Casualty Event, unless either (a) the Net Cash Proceeds of such Casualty Event individually, or of such Casualty Event together with any series of related Casualty Events, exceeds $5,000,000 or (b) the Net Cash Proceeds of Casualty Events, together with the Net Cash Proceeds of Asset Sales, during the term of this Agreement, exceeds $20,000,000; and

(ii)           so long as the ABL Facility is outstanding and the ABL Intercreditor Agreement is in effect, no such prepayment shall be required with respect to the portion of such Net Cash Proceeds of any Casualty Event relating to Collateral other than, subject to the ABL Intercreditor Agreement, in respect of Fixed Asset Agent Priority Collateral  and a portion of the Pari Passu Collateral provided for in the ABL Intercreditor Agreement; provided, that the Borrower shall, in the case of a Casualty Event in respect of ABL Lender Priority Collateral and a portion of the Pari Passu Collateral provided for in the ABL Intercreditor Agreement, to the extent required by the ABL Facility, prepay Indebtedness under the ABL Facility or, to the extent permitted by the ABL Facility, any other Indebtedness secured by Liens ranking senior to the Liens securing the Indebtedness hereunder on such ABL Lender Priority Collateral or Pari Passu Collateral or otherwise in accordance with the ABL Intercreditor Agreement; and

(iii)          so long as no Default or Event of Default shall then exist or would arise therefrom, such proceeds shall not be required to be so applied on such

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date to the extent that such Net Cash Proceeds are, within 12 months following the date of such Casualty Event, reinvested in replacement assets, other assets used or useful in a Permitted Business, or in Capital Expenditures, Permitted Acquisitions or Investments permitted by Section 6.03 (other than Section 6.03(b)) hereunder, or contractually committed to be so reinvested within 18 months following the date of such Casualty Event; provided that if all or any portion of such Net Cash Proceeds is not so reinvested within such 12-month period or, with respect to which any contractual commitment with respect to which such Net Cash Proceeds was entered into during the period ending 18 months after the end of such initial 12-month period (or such longer period as is required to complete the repair or reconstruction commenced during such 18-month period), such unused portion shall be applied on the last day of such period as a mandatory prepayment as provided in this Section 2.10(d); provided, further, that to the extent that the property subject to such Casualty Event constituted Collateral, then all property purchased with the Net Cash Proceeds thereof pursuant to this subsection shall be made subject to the Lien of the applicable Security Documents in favor of the Collateral Agent, for its benefit and for the benefit of the other Secured Parties in accordance with Section 5.12.

(e)           Excess Cash Flow.  No later than five Business Days after the date on which the financial statements with respect to each fiscal year in which the last day of an Excess Cash Flow Period occurs are or are required to be delivered pursuant to Section 5.04(a) (without giving effect to any grace period applicable thereto), the Borrower shall make prepayments of the Term Loans in accordance with Sections 2.10(g) and (h) in an aggregate amount equal to the Applicable ECF Percentage of Excess Cash Flow for the Excess Cash Flow Period then most recently ended; provided that so long as (i) no Default or Event of Default shall then exist or would arise therefrom and (ii) the First Lien Net Leverage Ratio as of the last day of such Excess Cash Flow Period is not greater than 4.25:1.00, up to 50% of such Excess Cash Flow that would have been required to be applied to prepay the Loans shall not be required to be so applied on such date to the extent that on or prior to such date, the Borrower shall have delivered an officer’s certificate of a Financial Officer to the Administrative Agent stating that the Borrower and/or its Restricted Subsidiaries reasonably intend to reinvest such amount of Excess Cash Flow (without duplication to any amounts specified for such Excess Cash Flow Period pursuant to clause (b)(x) of the definition of Excess Cash Flow), within 12 months following the last day of the most recently ended Excess Cash Flow Period, in Capital Expenditures permitted hereunder or Investments permitted to be made under Section 6.03 in Restricted Subsidiaries for purposes of the making of Capital Expenditures (which officer’s certificate shall set forth in reasonable detail the estimates of the excess cash flow intended to be reinvested).

(f)            [Reserved].

(g)           Application of Prepayments.  Any prepayments of any Tranche of Term Loans pursuant to Section 2.10(a) shall be applied to reduce scheduled repayments of such Tranche of Term Loans required under Section 2.09, first, in direct order to such scheduled repayments due the Lenders holding such Tranche of Term Loans on the next four Term Loan Repayment Dates

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occurring following such prepayment and, second, on a pro rata basis among the repayments remaining to be made to the Lenders holding such Tranche of Term Loans on each other Term Loan Repayment Date. Any prepayments of Term Loans pursuant to Section 2.10(b), (c), (d), (e) or (f) shall be applied to reduce scheduled repayments required under Section 2.09 on a pro rata basis among the repayments remaining to be made on each Term Loan Repayment Date.

(h)           Notice of Prepayment.  The Borrower shall notify the Administrative Agent by written notice of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of prepayment and (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment; provided that a notice of prepayment delivered by Borrower may state that such notice is conditioned upon the effectiveness of another credit facility, the consummation of an Asset Sale, the closing of a securities offering or other transaction, or the receipt of any insurance or other proceeds or funds in connection with a Casualty Event, in which case such notice may be revoked by Borrower (by notice to the Administrative Agent on or prior to the specified prepayment date) if such condition is not satisfied.  Each such notice shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid, in the case of a prepayment under Section 2.10(a), the Tranche of Term Loans to which the prepayment is to be applied and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment.  Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof.  Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of a Credit Extension of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment.  Each prepayment of a Borrowing shall be applied ratably to the applicable Term Loans included in the prepaid Borrowing and otherwise in accordance with this Section 2.10.  Prepayments shall be accompanied by accrued interest to the extent required by Section 2.06.

(i)            [Reserved].

(j)            Declining Lenders.  Anything contained herein to the contrary notwithstanding, in the event the Borrower is required to make any mandatory prepayment of Term Loans under Section 2.10(b), (c), (d) or (e) (each, a “Waivable Prepayment”) not less than three Business Days prior to the date (the “Prepayment Date”) on which the Borrower is required to make such Waivable Prepayment, the Borrower shall notify the Administrative Agent of the amount of such prepayment, and the Administrative Agent will promptly thereafter notify each Lender holding an outstanding Term Loan of the amount of such Lender’s Pro Rata Share of such Waivable Prepayment and such Lender’s option to refuse such prepayment.  Each such Lender may exercise such option by giving written notice to the Borrower and the Administrative Agent of its election to refuse all (but not less than all) of such Lender’s Pro Rata Share of such Waivable Payment on or before the first Business Day prior to the Prepayment Date (it being understood that any Lender which does not notify the Borrower and the Administrative Agent of its election to exercise such option on or before the first Business Day prior to the Prepayment Date shall be deemed to have elected, as of such date, not to exercise such option).  On the Prepayment Date, the Borrower shall pay to the Administrative Agent the amount of the Waivable Prepayment, which amount shall be applied in an amount equal to that portion of the Waivable Prepayment payable to those Lenders that have elected not to exercise such option, to prepay the Term Loans

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of such Lenders (which shall be applied in accordance with Section 2.10(g) and, to the extent of any excess, to the Borrower for any of the purposes permitted hereunder.

(k)           Soft Call Premium.  In the event that, on or prior to the six-month anniversary of the Closing Date, the Borrower (x) makes any prepayment of Initial Term Loans in connection with any Repricing Transaction or (y) effects any amendment of this Agreement resulting in a Repricing Transaction, the Borrower shall pay to the Administrative Agent, for the ratable account of each applicable Lender, (I) in the case of clause (x), a prepayment premium of 1.00% of the amount of the Term Loans being repaid and (II) in the case of clause (y), a payment equal to 1.00% of the aggregate amount of Initial Term Loans outstanding immediately prior to the such amendment that are the subject of such Repricing Transaction; provided, that the Borrower shall have no obligation to pay any such prepayment premium in connection with a Repricing Transaction entered into in connection with a Change of Control.

2.11        Making or Maintaining Eurodollar Loans.

(a)           Alternate Rate of Interest.  If prior to the commencement of any Interest Period for a Eurodollar Borrowing:

(i)            the Administrative Agent determines (which determination shall be final and conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or

(ii)           the Administrative Agent is advised in writing by the Required Lenders that the Adjusted LIBO Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Term Loans included in such Borrowing for such Interest Period;

then the Administrative Agent shall give written notice thereof to the Borrower and the Lenders as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.

(b)           Illegality.  If any Lender reasonably determines that any Change in Law has made it unlawful, or that any Governmental Authority has asserted after the Closing Date that it is unlawful, for such Lender or its applicable lending office to make, maintain or fund Term Loans whose interest is determined by reference to the Adjusted LIBO Rate, or to determine or charge interest rates based upon the Adjusted LIBO Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the applicable interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to make or continue Eurodollar Loans in the affected currency or currencies or to convert ABR Loans to Eurodollar Loans shall be suspended and (ii) if such notice asserts the illegality of such Lender making or maintaining ABR Loans the interest rate on which is determined by reference to the

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Adjusted LIBO Rate component of the Alternate Base Rate, the interest rate on which ABR Loans of such Lender, shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Adjusted LIBO Rate component of the Alternate Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist (which notice such Lender agrees to give promptly).  Upon receipt of such notice, (x) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable convert all of such Lender’s Eurodollar Loans to ABR Loans (the interest rate on which ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Adjusted LIBO Rate component of the Alternate Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Loans (in which case the Borrower shall not be required to make payments pursuant to Section 2.13 in connection with such payment) and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Adjusted LIBO Rate, the Administrative Agent shall during the period of such suspension compute the Alternate Base Rate applicable to such Lender without reference to the Adjusted LIBO Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Adjusted LIBO Rate.  Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.

2.12        Increased Costs; Capital Adequacy.

(a)           Increased Costs Generally. If any Change in Law shall:

(i)            impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in, by any Lender or the Administrative Agent (except any reserve requirement reflected in the Adjusted LIBO Rate);

(ii)           subject any Lender or the Administrative Agent to any tax of any kind whatsoever with respect to this Agreement or any Eurodollar Loan made by it or change the basis of taxation of payments to such Lender or the Administrative Agent in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 2.15 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender); or

(iii)          impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender or any participation therein;

and the result of any of the foregoing shall be to increase the cost to such Lender or the Administrative Agent  of making or maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Term Loan), or to reduce the amount of any sum received or receivable by such Lender or the Administrative Agent hereunder (whether of principal, interest

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or any other amount), then, upon request of such Lender or the Administrative Agent, the Borrower will pay to such Lender or the Administrative Agent, as the case may be, such additional amount or amounts as will compensate such Lender or the Administrative Agent, as the case may be, for such additional costs incurred or reduction suffered.

(b)           Capital Requirements.  If any Lender or the Administrative Agent determines (in good faith, but in its sole and absolute discretion) that any Change in Law affecting such Lender or the Administrative Agent or any applicable lending office of such Lender or the Administrative Agent or such Lender’s or the Administrative Agent’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Administrative Agent’s capital or on the capital of such Lender’s or the Administrative Agent’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Term Loans made by such Lender or the Administrative Agent to a level below that which such Lender, the Administrative Agent or such Lender’s or the Administrative Agent’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Administrative Agent’s policies and the policies of such Lender’s or the Administrative Agent’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender or the Administrative Agent, as the case may be, such additional amount or amounts as will compensate such Lender or the Administrative Agent or such Lender’s or the Administrative Agent’s holding company for any such reduction suffered.

(c)           Certificates for Reimbursement.  A certificate of a Lender or the Administrative Agent setting forth the amount or amounts necessary to compensate such Lender or the Administrative Agent or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section 2.12 and delivered to the Borrower shall be conclusive absent manifest error.  The Borrower shall pay such Lender or the Administrative Agent, as the case may be, the amount shown as due on any such certificate within 10 Business Days after receipt thereof.

(d)           Delay in Requests.  Failure or delay on the part of any Lender or the Administrative Agent to demand compensation pursuant to this Section 2.12 shall not constitute a waiver of such Lender’s or the Administrative Agent’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or the Administrative Agent pursuant to this Section for any increased costs incurred or reductions suffered more than 120 days prior to the date that such Lender or the Administrative Agent notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 120-day period referred to above shall be extended to include the period of retroactive effect thereof).

2.13        Breakage Payments.  In the event of (a) the payment or prepayment, whether optional or mandatory, of any principal of any Eurodollar Loan earlier than the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan earlier than the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Term Loan on the date specified in any notice delivered pursuant hereto or (d) the assignment of any Eurodollar Loan earlier than the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to

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Section 2.16(b), then, in any such event, the Borrower shall compensate and indemnify each Lender for the loss, cost and expense attributable to such event.  In the case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Term Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such Term Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Term Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable amount and period from other banks in the Eurodollar market.  A certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled to receive pursuant to this Section 2.13 shall be delivered to the Borrower (with a copy to the Administrative Agent) and shall be conclusive and binding absent manifest error.  The Borrower shall pay such Lender the amount shown as due on any such certificate within 5 days after receipt thereof.

2.14        Payments Generally; Pro Rata Treatment; Sharing of Setoffs.

(a)           Payments Generally.  The Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest or fees, or of amounts payable under Section 2.12, 2.13, 2.15 or 9.05, or otherwise) on or before the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff or counterclaim.  Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon.  All such payments shall be made to the Administrative Agent at its Principal Office, except that payments pursuant to Sections 2.12, 2.13, 2.15 and 9.05 shall be made directly to the persons entitled thereto and payments pursuant to other Loan Documents shall be made to the persons specified therein.  The Administrative Agent shall distribute any such payments received by it for the account of any other person to the appropriate recipient promptly following receipt thereof.  If any payment under any Loan Document shall be due on a day that is not a Business Day, unless specified otherwise, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.  All payments under each Loan Document shall be made in dollars, except as expressly specified otherwise.

(b)           Pro Rata Treatment.

(i)            Each payment by the Borrower of interest in respect of the Term Loans of a Tranche shall be applied to the amounts of such obligations then due and owing in accordance with the Pro Rata Share of such Lenders with respect to such Tranche.

(ii)           Each payment on account of principal of the Term Loans of a Tranche (other than declined proceeds pursuant to Section 2.10(h)) shall be

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allocated in accordance with the Pro Rata Share of the Lenders with respect to such Tranche.

(c)           Insufficient Funds.  If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, toward payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.  It is understood that the foregoing does not apply to any adequate protection payments under any federal, state or foreign bankruptcy, insolvency, receivership or similar proceeding, and that the Administrative Agent may, subject to any applicable federal, state or foreign bankruptcy, insolvency, receivership or similar orders, distribute any adequate protection payments it receives on behalf of the Lenders to the Lenders in its sole discretion (i.e., whether to pay the earliest accrued interest, all accrued interest on a pro rata basis or otherwise).

(d)           Sharing of Set-Off.  If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans of any Tranche or other Obligations resulting in such Lender’s receiving payment of a proportion of the aggregate amount of its Term Loans of any Tranche and accrued interest thereon or other Obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Term Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loans and other amounts owing them, provided that:

(i)            if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

(ii)           the provisions of this paragraph and paragraph (b) above shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Term Loans, other than to the Borrower or any Subsidiary thereof (as to which the provisions of this paragraph shall apply, except if made pursuant to Section 9.04(i)(y)).

Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Requirements of Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.  If under applicable bankruptcy, insolvency or any similar law any Secured Party receives a secured claim in lieu of a setoff or counterclaim to

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which this Section 2.14(d) applies, such Secured Party shall to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights to which the Secured Party is entitled under this Section 2.14(d) to share in the benefits of the recovery of such secured claim.

(e)           Borrower Default.  Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due.  In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

(f)            Lender Default.  If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.14(e) or 9.05(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

2.15        Taxes.

(a)           Any and all payments by or on account of any obligation of the Borrower or any other Loan Party hereunder or under any other Loan Document shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided that, if any such Indemnified Taxes or Other Taxes are required to be deducted from such payments, then (i) the sum payable by the Borrower or the relevant Loan Party shall be increased as necessary so that after making all required deductions (including deductions of Indemnified Taxes or Other Taxes applicable to additional sums payable under this Section) the Administrative Agent or Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower or such Loan Party shall make such deductions and (iii) the Borrower or such Loan Party shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.

(b)           In addition, the Borrower or any other Loan Party shall pay, and authorizes the Administrative Agent to pay in its name, any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

(c)           The Borrower or any other Loan Party shall indemnify the Administrative Agent and each Lender within 10 Business Days after written demand therefor, for the full amount of any Indemnified Taxes paid by the Administrative Agent, or such Lenders as the case may be, on or with respect to any payment by or on account of any obligation of the Borrower or any other Loan Party hereunder or under any other Loan Document and any Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable

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under this Section) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender, or by the Administrative Agent on behalf of itself, shall be conclusive absent manifest error; provided that if the Borrower reasonably believes that such Indemnified Taxes or Other Taxes were not correctly or legally asserted, the Administrative Agent and the Lenders will use commercially reasonable efforts to cooperate with the Borrower to obtain a refund of any such Taxes paid by the Administrative Agent or such Lenders.

(d)           As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower or any other Loan Party to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(e)           Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower, such properly completed and executed documentation reasonably requested by the Borrower certifying to such entitlement to exemption from, or a reduced rate of, withholding.  Notwithstanding anything to the contrary in the preceding sentence, the completion, execution and submission of such documentation (other than, for the avoidance of doubt, such documentation set forth in the following two sentences and under Section 2.15(g)) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.  Without limiting the generality of the foregoing, each Foreign Lender shall deliver to the Borrower and the Administrative Agent, prior to receipt of any payment hereunder subject to withholding under the Code, and from time to time upon the reasonable request of the Borrower or the Administrative Agent, (x) two duly signed, properly completed original copies of either IRS Form W-8BEN or any successor thereto (relating to such Foreign Lender and entitling it to an exemption from, or reduction of, United States withholding tax on all payments to be made to such Foreign Lender by the Loan Parties pursuant to this Agreement or any other Loan Document) or IRS Form W-8ECI or any successor thereto (relating to all payments to be made to such Foreign Lender by the Loan Parties pursuant to this Agreement or any other Loan Document), (y) two duly signed, properly completed original copies of IRS Form W-8BEN or any successor thereto and a certificate substantially in the form of Exhibit M that establishes in writing to the Borrower and the Administrative Agent that such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a 10-percent shareholder within the meaning of Section 871(h)(3)(B) of the Code or (C) a controlled foreign corporation related to the Borrower with the meaning of Section 864(d) of the Code or (z) two duly signed, properly completed original copies of either IRS Form W-8IMY or any successor thereto, together with all required attachments.  Any Lender that is a “United States person” within the meaning of section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent IRS Form W-9 or such other documentation or information prescribed by law or reasonably requested to determine whether such Lender is

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subject to backup withholding,  information reporting requirements, or other similar provisions.  Each Lender and the Administrative Agent agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.  Notwithstanding any other provision of this Section 2.15(e), a Lender shall not be required to deliver any form that such Lender or Agent is not legally able to deliver.

(f)            [Reserved].

(g)           If the Administrative Agent or any Lender determines, in its reasonable discretion, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by a Loan Party or with respect to which a Loan Party has paid additional amounts pursuant to this Section 2.15, it shall pay over such refund to that Loan Party (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 2.15 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender and without interest (other than any interest paid by the Governmental Authority with respect to such refund); provided that the Loan Parties, upon the request of the Administrative Agent or such Lender, agree to repay the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or any Lender in the event the Administrative Agent or such Lender is required to repay such refund to the Governmental Authority.  This Section 2.15(g) shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information it deems confidential) to the Loan Parties or to apply for any refund.  Notwithstanding anything to the contrary in this paragraph (g), in no event will the Administrative Agent or any Lender be required to pay any amount to a Loan Party pursuant to this paragraph (g) the payment of which would place the Administrative Agent or any Lender in a less favorable net after-Tax position than the Administrative Agent or any Lender would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid.

(h)           If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (g), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

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2.16        Mitigation Obligations; Replacement of Lenders.

(a)           Designation of a Different Lending Office.  If any Lender requests compensation under Section 2.12, determines that it can no longer make or maintain Eurodollar Loans pursuant to Section 2.11(b) or requires the Borrower to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.15, then, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Term Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.12 or 2.15 or mitigate the impact of Section 2.11(b), as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.  A certificate setting forth such costs and expenses submitted by such Lender to the Borrower shall be conclusive absent manifest error.

(b)           Replacement of Lenders.  If any Lender requests compensation under Section 2.12, determines that it can no longer make or maintain Eurodollar Loans pursuant to Section 2.11(b) or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.15, or if any Lender is a Defaulting Lender, or if the Borrower exercises its replacement rights under Section 9.08(d), then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 9.04), all of its interests, rights and obligations under this Agreement and the other Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:

(i)            the Borrower shall have paid to the Administrative Agent the processing and recordation fee specified in Section 9.04(b);

(ii)           such Lender shall have received payment of an amount equal to the outstanding principal of its Term Loans, accrued interest thereon, and accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Sections 2.13 and 9.08(d)) assuming for this purpose (in the case of a Lender being replaced pursuant to this Section 2.16(b)) that the Term Loans of such Lender were being prepaid) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);

(iii)          in the case of any such assignment resulting from a claim for compensation under Section 2.12, a determination under Section 2.11(b) or payments required to be made pursuant to Section 2.15, such assignment will result in a reduction in such compensation or payments

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thereafter or mitigate the impact of Section 2.11(b), as the case may be; and

(iv)          such assignment does not conflict with applicable Requirements of Law.

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

Each Lender agrees that, if the Borrower elects to replace such Lender in accordance with this Section 2.16(b), it shall promptly execute and deliver to the Administrative Agent an Assignment and Assumption to evidence the assignment and shall deliver to the Administrative Agent the promissory notes, if any, executed and delivered pursuant to Section 2.04(c), subject to such Assignment and Assumption; provided that the failure of any such Lender to execute an Assignment and Assumption shall not render such assignment invalid and such assignment shall be recorded in the Register.

2.17        Defaulting Lenders.

(a)           Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then, for so long as such Lender is a Defaulting Lender, any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.14(d) but excluding Section 2.16(b)) may, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated non-interest bearing account and, subject to any applicable Requirements of Law, be applied at such time or times as may be determined by the Administrative Agent first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, as the Borrower may request (so long as no Default under Sections 7.01(b), (c), (l) or (m) nor any Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no Default under Sections 7.01(b), (c), (l) or (m) nor any Event of Default has occurred and is continuing, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.01 and Section 4.02 are satisfied, such payment shall be applied solely to prepay the Loans of all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans owed to any Defaulting Lender.  Any payments,

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prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this Section 2.17(a) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

The rights and remedies against a Defaulting Lender under this Section 2.17 are in addition to other rights and remedies that the Borrower, the Administrative Agent and the non-Defaulting Lenders may have against such Defaulting Lender.  The arrangements permitted or required by this Section 2.17 shall be permitted under this Agreement, notwithstanding any limitation on Liens or the pro rata sharing provisions or otherwise.

(b) Certain Fees. No Defaulting Lender shall be entitled to receive the Fees described in Section 2.05(a) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such Fee that otherwise would have been required to have been paid to that Defaulting Lender).

(c) Defaulting Lender Cure. If the Borrower and the Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or, and take such other actions as the Administrative Agent may determine to be necessary to cause the Loans to be held pro rata by the Lenders in accordance with the Commitments under the applicable facility, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to Fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

2.18        Increase in Commitments.

(a)           Borrower Request.  The Borrower may by written notice to the Administrative Agent elect to request the establishment of one or more new Tranches of Term Loans hereunder (each, an “Incremental Term Loan” and collectively, the “Incremental Term Loans”); provided, that the aggregate amount of all Incremental Term Loans shall not exceed an amount equal to (A) $70.0 million (less the amount of any Indebtedness issued pursuant to and in accordance with Section 6.01(q)) ((for the avoidance of doubt, the incurrence of any Incremental Term Loans or Indebtedness permitted under Section 6.01(q) pursuant to this clause (A) is not conditioned on compliance with the First Lien Net Leverage Ratio test described in clause (B) below)), plus (B) an additional amount, so long as in the case of this clause (B), the First Lien Net Leverage Ratio, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Term Loans, any acquisition consummated concurrently therewith and all other events that are funded out of the proceeds of such Incremental Term Loans, does not exceed 4.00 to 1.00.  Each such notice shall specify (i) the date (each, an “Increase Effective Date”) on which the Borrower proposes that the increased or new Commitments shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent and (ii) the identity of each Eligible Assignee to whom the Borrower

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proposes any portion of such increased or new Commitments be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the increased or new Commitments may elect or decline, in its sole discretion, to provide such increased or new Commitment.

(b)           The increased or new Commitments shall become effective, as of such Increase Effective Date; provided that:

(i)            each of the conditions set forth in Section 4.02(a) through (d) shall be satisfied;

(ii)           the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent or the Lenders providing the Incremental Term Loans in connection with any such transaction (including such reaffirmation agreements, supplements and/or amendments or date down endorsements as they shall reasonably require);

(iii)          the Borrower shall have paid all Fees of the Administrative Agent and the Lenders providing the Incremental Term Loans as described in the Increase Joinder;

(iv)          each Tranche of Incremental Term Loans (and all interest, fees and other amounts payable thereon) shall rank pari passu in right of payment and pari passu with respect to security with the relevant then-existing Term Loan Facility;

(v)           the amortization schedule applicable to any Incremental Term Loans shall be determined by the Borrower and the Lenders providing such Incremental Term Loans; provided that the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the Weighted Average Life to Maturity of the existing Term Loans (without giving effect to any prepayments of originally scheduled amortization of the existing Term Loans);

(vi)          the applicable Incremental Term Loan Maturity Date shall not be earlier than the Latest Maturity Date;

(vii)         the Effective Yield for any Tranche of Incremental Term Loans shall be determined by the Borrower and the Lenders of such Incremental Term Loans; provided that, with respect to any Incremental Term Loans with an Increase Effective Date within 18 months of the Closing Date, in the event that the Effective Yield for any Incremental Term Loans are greater than the Effective Yield for any then-existing Term Loans by more than 50 basis points, then the Effective Yield for such then-existing Term Loans shall be increased to the extent necessary so that the Effective Yield for the Incremental Term Loans are equal to the Effective Yield (after giving

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effect to any increase thereto) for such then-existing Term Loans plus 50 basis points;

(viii)        all other terms of such Incremental Term Loans, if not consistent with the terms of the then-existing Term Facility, shall be as agreed between the Borrower and the Lenders providing such Incremental Term Loans;

(ix)          Notwithstanding anything to the contrary in any other provision of any Loan Document (but subject to the terms of this Section 2.18), if the proceeds of any Incremental Term Loans are intended to be applied to finance an acquisition and the Lenders providing such Incremental Term Loans so agree, the availability thereof may in the discretion of the Borrower be subject to customary “SunGard” or “certain funds” conditionality; and

(x)           any prepayment (other than any scheduled amortization payment) of Incremental Term Loans shall be made on a pro rata basis with such existing Term Loans, except that the relevant Borrower and the Lenders providing the relevant Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis).

(c)           The increased or new Commitments shall be effected by a joinder agreement (the “Increase Joinder”) executed by the Borrower, the Administrative Agent and each Lender making such increased or new Commitment, in form and substance reasonably satisfactory to each of them.  The Increase Joinder may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.18.  The Lenders hereby irrevocably authorize the Administrative Agent to enter into any such Increase Joinder.

(d)           Making of New Term Loans.  On any Increase Effective Date on which new Commitments for Incremental Term Loans are effective, subject to the satisfaction of the foregoing terms and conditions, each Lender of such new Commitment shall make a Term Loan to the Borrower in an amount equal to its new Commitment.  On the date of the making of any Incremental Term Loans that will be added to an existing Tranche of Term Loans, and notwithstanding anything to the contrary set forth in, such Incremental Term Loans shall be added to (and constitute a part of) each Borrowing of outstanding Term Loans of the same Type with the same Interest Period of the respective Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding borrowing of Term Loans, as applicable, of the same type with the same Interest Period of the respective Tranche.  To the extent the foregoing requires that Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding borrowings of Eurodollar Loans of the respective Tranche of Term Loans, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to

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outstanding Eurodollar Loans of the respective Tranche and which will end on the last day of such Interest Period).  In connection therewith, it is hereby agreed that, to the extent the Incremental Term Loans are to be so added to the then outstanding Borrowings of Term Loans of such Tranche which are maintained as Eurodollar Loans, the Lenders that have made such Incremental Term Loans shall be entitled to receive from the Borrower such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the new Incremental Term Loans of the respective Tranche during an existing Interest Period (rather than at the beginning of the respective Interest Period based upon rates then applicable thereto).  All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.

(e)           Equal and Ratable Benefit.  The Term Loans and Commitments established pursuant to this paragraph shall constitute Term Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents, except to the extent that the Lenders making Incremental Term Loans agree to subordinate any of their rights and remedies with respect to any Incremental Term Loans.  The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the UCC with the same priority after giving effect to the establishment of any such Term Loans or any such new Commitments.

2.19        Extended Term Loans.

(a)           Notwithstanding anything to the contrary in this Agreement, subject to the terms of this Section 2.19, the Borrower may at any time and from time to time when no Event of Default then exists request that all or a portion of the Initial Term Loans, any Tranche of Extended Term Loans, any Tranche of Incremental Term Loans or any Tranche of Refinancing Term Loans (each, an “Existing Initial Term Loan Tranche,” “Existing Extended Term Loan Tranche”, “Existing Incremental Term Loan Tranche,” and “Existing Refinancing Term Loan Tranche”, respectively), together with any related outstandings, be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or any portion of the principal amount (and related outstandings) of such Initial Term Loans, Extended Term Loans, Incremental Term Loans or Refinancing Term Loans (any such Term Loans which have been so converted, “Extended Initial Term Loans,” “Extended Existing Term Loans”, “Extended Incremental Term Loans,” “Extended Refinancing Term Loans”, respectively) and to provide for other terms consistent with this Section 2.19.

(b)           In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders under the applicable Existing Term Loan Tranche) (each, an “Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall (x) be identical as offered to each Lender under the relevant Existing Term Loan Tranche and (y) be identical to the Term Loans under the relevant Existing Term Loan Tranche from which such Extended Term Loans are to be converted, except that:

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(i)            all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization payments of principal of the Term Loans of such Existing Term Loan Tranche to the extent provided in the applicable Extension Amendment;

(ii)           the Effective Yield with respect to the Extended Term Loans (whether in the form of interest rate margin, upfront fees, original issue discount or otherwise) may be different than the Effective Yield for the Term Loans of such Existing Term Loan Tranche to the extent provided in the applicable Extension Amendment;

(iii)          the Extension Amendment may provide for other covenants and terms that apply solely to any period after the Latest Maturity Date that is in effect on the effective date of the applicable Extension Amendment (immediately prior to the establishment of such Extended Term Loans); and

(iv)          Extended Term Loans shall have optional and mandatory prepayment terms which provide for the application of proceeds from optional and mandatory prepayment events to be made first to prepay the Term Loans under the Existing Term Loan Tranche from which such Extended Term Loans have been converted before applying any such proceeds to prepay such Extended Term Loans; provided that no Extended Term Loans may be optionally prepaid prior to the date on which all Term Loans under the Existing Term Loan Tranche from which such Term Loans were converted are repaid in full unless such optional prepayment is applied on a pro rata basis to such Extended Term Loans and related Existing Term Loans; provided, however, that (A) in no event shall the final maturity date of any Extended Term Loans of a given Extension Series at the time of establishment thereof be earlier than the then Latest Maturity Date of any other Term Loans hereunder and (B) the Weighted Average Life to Maturity of any Extended Term Loans of a given Extension Series at the time of establishment thereof shall be no shorter than the remaining Weighted Average Life to Maturity of any other Tranche of Term Loans then outstanding (without giving effect to any prepayments of originally scheduled amortization of such outstanding Term Loans).  Any Extended Term Loans converted pursuant to any Extension Request shall be designated a series (each, an “Extension Series”) of Extended Term Loans, as applicable, for all purposes of this Agreement; provided that any Extended Term Loans converted from an Existing Extended Term Loan Tranche may, to the extent provided in the applicable Extension Amendment, be designated as an increase in any previously established Extension Series with respect to such Existing Extended Term Loan Tranche.

(c)           The Borrower shall provide the applicable Extension Request at least ten (10) Business Days prior to the date on which Lenders under the Existing Term Loan Tranche are

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requested to respond, and shall agree to such procedures, if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Section 2.19.  No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Tranche converted into Extended Term Loans pursuant to any Extension Request.  Any Lender (each, an “Extending Term Loan Lender”) wishing to have all or a portion of its Term Loans under the Existing Term Loan Tranche subject to such Extension Request converted into Extended Term Loans shall notify the Administrative Agent (each, an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans under the Existing Term Loan Tranche which it has elected to request be converted into Extended Term Loans (subject to any minimum denomination requirements imposed by the Administrative Agent).  Any Lender that does not respond to the Extension Request on or prior to the date specified therein shall be deemed to have rejected such Extension Request.  In the event that the aggregate principal amount of Term Loans under the applicable Existing Term Loan Tranche held by Lenders that have accepted the Extension Request exceeds the amount of Extended Term Loans requested pursuant to such Extension Request, the Term Loans of such accepting Lenders shall either (i) be converted to Extended Term Loans of such Existing Term Loan Tranche on a pro rata basis based on the aggregate principal amount of Term Loans of such Existing Term Loan Tranche included in such Extension Elections or (ii) to the extent such option is expressly set forth in the applicable Extension Request, be converted to Extended Term Loans upon an increase in the amount of Extended Term Loans so that such excess does not exist.

(d)           Extended Term Loans shall be established pursuant to an amendment (each, an “Extension Amendment”) to this Agreement among the Borrower, the Administrative Agent and each Extending Term Loan Lender providing an Extended Term Loan thereunder, which shall be consistent with the provisions set forth in Section 2.19(a) above (but which, notwithstanding anything in Section 9.08 herein to the contrary, shall not require the consent of any other Lender).  The Administrative Agent shall promptly notify each relevant Lender as to the effectiveness of each Extension Amendment.  After giving effect to the Extension, the Initial Term Loan Commitments so extended shall cease to be a part of the Tranche they were a part of immediately prior to the Extension.

(e)           Extensions consummated by the Borrower pursuant to this Section 2.19 shall not constitute voluntary or mandatory payments or prepayments for purposes of this Agreement.  The Administrative Agent and the Lenders hereby consent to each Extension and the other transactions contemplated by this Section 2.19 (including, for the avoidance of doubt, payment of any interest or fees in respect of any Extended Term Loans on such terms as may be set forth in the applicable Extension Request) and hereby waive the requirements of any provision of this Agreement (including, without limitation, Sections 2.10 or 2.14) or any other Loan Document that may otherwise prohibit any Extension or any other transaction contemplated by this Section 2.19, provided that such consent shall not be deemed to be an acceptance of any Extension Request.

(f)            Each of the parties hereto hereby agrees that this Agreement and the other Loan Documents may be amended pursuant to an Extension Amendment, without the consent of any other Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of any Extended Term Loans incurred pursuant thereto, (ii) modify the scheduled

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repayments set forth in Section 2.09(b) with respect to any Existing Term Loan Tranche subject to an Extension Election to reflect a reduction in the principal amount of the Term Loans thereunder in an amount equal to the aggregate principal amount of the Extended Term Loans converted pursuant to the applicable Extension (with such amount to be applied ratably to reduce scheduled repayments of such Term Loans required pursuant to Section 2.09(b)), (iii) establish new Tranches or sub-Tranches in respect of Term Loans so extended and such technical amendments as may be necessary in connection with the establishment of such new Tranches or sub-Tranches, in each case on terms consistent with this Section 2.19, and (iv) effect such other amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.19, and each Lender hereby expressly authorizes the Administrative Agent to enter into any such Extension Amendment.  In connection with any Extension, the Loan Parties shall (at their expense) amend (and the Administrative Agent is hereby directed to amend) any Mortgage that has a maturity date prior to the Latest Maturity Date so that such maturity date is extended to the Latest Maturity Date (or such later date as may be advised by local counsel to the Administrative Agent), to the extent required pursuant to applicable local law and deliver a date down endorsement to any title policy issued in connection with such Mortgage to the extent reasonably requested by the Administrative Agent.

2.20        Refinancing Facilities.

(a)           The Borrower may by written notice to the Administrative Agent elect to request the establishment of one or more additional Tranches of Term Loans under this Agreement (“Refinancing Term Loans”) or one or more series of loans or debt securities (“Refinancing Debt”), which refinance, renew, replace, defease or refund one or more Tranches of Term Loans (including any Incremental Term Loans, Extended Term Loans or other Refinancing Term Loans) under this Agreement or then existing Refinancing Debt; provided, that such Refinancing Term Loans and/or Refinancing Debt may not be in an amount greater than the aggregate principal amount of the Term Loans or Refinancing Debt being refinanced, renewed, replaced, defeased or refunded plus unpaid accrued interest and premium (if any) thereon and upfront fees, underwriting discounts, fees, commissions and expenses incurred in connection with the Refinancing Term Loans and/or Refinancing Debt; provided, further, that such aggregate principal amount may also be increased to the extent such additional amount is capable of being incurred at such time pursuant to Section 6.01 (and Section 6.02 to the extent secured) and such excess incurrence shall for all purposes hereof be an incurrence under the relevant subclauses of Section 6.01 (and Section 6.02 to the extent secured). Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrower proposes that the Refinancing Term Loans shall be made or the Refinancing Debt shall be issued, which shall be a date not less than three (3) Business Days after the date on which such notice is delivered to the Administrative Agent; provided that:

(i)            the Weighted Average Life to Maturity of such Refinancing Term Loans and/or Refinancing Debt shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans or Refinancing Debt being refinanced (without giving effect to any prepayments of originally scheduled amortization of such Term Loans or Refinancing Debt being refinanced) and the Refinancing Term Loans and/or Refinancing Debt

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shall not have a final maturity before the Maturity Date applicable to the Term Loans being refinanced;

(ii)           such Refinancing Term Loans and/or Refinancing Debt shall have pricing (including interest rates, fees and premiums), amortization, optional prepayment and redemption terms, and mandatory prepayment and redemptions upon the occurrence of an event of default or pursuant to customary change of control (in the case of notes) or asset sale prepayments or offers, in each case as to not conflict with the corresponding provisions of this Agreement, and as may be agreed to by the Borrower and the relevant Refinancing Term Loan Lenders (as defined below) and/or Refinancing Debt Holders (as defined below);

(iii)          such Refinancing Term Loans and/or Refinancing Debt shall not be guaranteed by any Person other than the Borrower or a Guarantor;

(iv)          in the case of any such Refinancing Term Loans and/or Refinancing Debt that are secured (a) such Refinancing Term Loans and/or Refinancing Debt are secured by only assets comprising Collateral (as defined in the Security Documents), and not secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral (as defined in the Security Documents);

(v)           all other terms applicable to such Refinancing Term Loans and/or Refinancing Debt  (excluding pricing and optional prepayment or redemptions terms) shall (I) be substantially identical to, or (taken as a whole) be otherwise not more favorable to the Refinancing Term Loan Lenders and/or Refinancing Debt Holders than those applicable to the Term Loans or Refinancing Debt being refinanced (except to the extent such covenants and other terms apply solely to any period after the Maturity Date of the Term Loans being refinanced) or (II) reflect current market terms and conditions when taken as a whole at the time of incurrence or issuance (as reasonably determined by the Borrower); provided, that Refinancing Term Loans and/or Refinancing Debt may rank pari passu or junior in right of payment and/or security with the remaining Term Loans, so long as the holders of any Refinancing Term Loans and/or Refinancing Debt are subject to the applicable Intercreditor Agreements (and the Lenders direct and authorize the Agents to enter into any such Intercreditor Agreement on their behalf), or are unsecured; provided, further, that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent in good faith at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement set out in the foregoing clause (v), shall be conclusive evidence that such terms and conditions satisfy such

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requirement unless the Administrative Agent provides notice to the Borrower of an objection during such five Business Day period (including a reasonable description of the basis upon which it objects).

(b)           The Borrower may approach any Lender or any other Person that would be an Eligible Assignee of Term Loans to provide all or a portion of the Refinancing Term Loans (a “Refinancing Term Loan Lender”) or any Person to provide all or a portion of the Refinancing Debt (a “Refinancing Debt Holder”); provided that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans and/or Refinancing Debt may elect or decline, in its sole discretion, to provide a Refinancing Term Loan or purchase Refinancing Debt. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a series (a “Refinancing Term Loan Series”) of Refinancing Term Loans for all purposes of this Agreement; provided that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Term Loan Amendment, be designated as an increase in any previously established Refinancing Term Loan Series of Refinancing Term Loans made to the Borrower.

(c)           The Administrative Agent and the Lenders hereby consent to the transactions contemplated by Section 2.19(a) (including, for the avoidance of doubt, the payment of interest, fees, amortization or premium in respect of the Refinancing Term Loans and Refinancing Debt on the terms specified by the Borrower) and hereby waive the requirements of this Agreement or any other Loan Document that may otherwise prohibit any transaction contemplated by Section 2.19(a).  The Refinancing Term Loans shall be established pursuant to an amendment to this Agreement among the Borrower and the Refinancing Term Loan Lenders providing such Refinancing Term Loans (a “Refinancing Term Loan Amendment”) which shall be consistent with the provisions set forth in Section 2.19(a).  The Refinancing Debt shall be established pursuant to a Refinancing Debt Agreement which shall be consistent with the provisions set forth in Section 2.19(a).  Each Refinancing Term Loan Amendment shall be binding on the Lenders, the Administrative Agent, the Loan Parties party thereto and the other parties hereto without the consent of any other Lender and the Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of Section 2.19, including in order to establish new Tranches or sub-Tranches in respect of the Refinancing Term Loans and such technical amendments as may be necessary or appropriate in connection therewith and to adjust the amortization schedule in Section 2.09(b) (insofar as such schedule relates to payments due to Lenders the Term Loans of which are refinanced with the proceeds of Refinancing Term Loans; provided that no such amendment shall reduce the pro rata share of any such payment that would have otherwise been payable to the Lenders, the Term Loans of which are not refinanced with the proceeds of Refinancing Term Loans).  The Administrative Agent shall be permitted, and each is hereby authorized, to enter into such amendments with the Borrower to effect the foregoing.

ARTICLE III.
Representations and Warranties

The Borrower represents and warrants to the Administrative Agent, the Collateral Agent and each of the Lenders, with respect to itself and each of its Restricted Subsidiaries, after giving effect to the Transactions, that:

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3.01        Organization; Powers.  The Borrower and each of the Restricted Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority to own its property and assets and to carry on its business as now conducted, (c) is qualified to do business in, and is in good standing (where such concept is relevant) in, every jurisdiction where such qualification is required, except where the failure so to qualify could not reasonably be expected to result in a Material Adverse Effect, and (d) has the power and authority to execute, deliver and perform its obligations under each of the Loan Documents and each other agreement or instrument contemplated thereby to which it is a party and, in the case of the Borrower, to borrow hereunder, in the case of each Loan Party, to grant the Liens contemplated to be granted by it under the Security Documents, and in the case of each Guarantor, to Guarantee the Obligations as contemplated by the Guarantee and Collateral Agreement.

3.02        Authorization; No Conflict.  The Loan Documents (a) have been duly authorized by all requisite corporate, limited liability company, partnership or other organizational and, if required, stockholder action and (b) will not (i) violate (A) any provision of law, statute, rule or regulation, except as would not reasonably be expected to have a Material Adverse Effect (B) the certificate or articles of incorporation or other constitutive documents or by-laws of the Borrower or any Restricted Subsidiary (other than any Immaterial Subsidiary), (C) any order of any applicable Governmental Authority except as would not reasonably be expected to have a Material Adverse Effect, (D) any material provision of any material indenture, agreement or other instrument to which the Borrower or any Restricted Subsidiary (other than any Immaterial Subsidiary or Foreign Subsidiary) is a party or by which any of them or any of their property is or may be bound or (E) any provision of any indenture, agreement or other instrument to which any Foreign Subsidiary (other than any Immaterial Subsidiary) is a party or by which any of them or any of their property is or may be bound except as would not reasonably be expected to have a Material Adverse Effect, (ii) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under, or give rise to any right to accelerate or to require the prepayment, repurchase or redemption of any material obligation under any such material indenture, agreement or other instrument that (other than with respect to the Loan Documents) could reasonably be expected to result in a Material Adverse Effect or (iii) result in the creation or imposition of any Lien upon or with respect to any material property or material assets now owned or hereafter acquired by the Borrower or any Restricted Subsidiary (other than any Immaterial Subsidiary) (other than any Lien created hereunder or under the Security Documents or as expressly permitted hereunder pursuant to Section 6.02), that (other than with respect to the Loan Documents) could reasonably be expected to result in a Material Adverse Effect.

3.03        Enforceability.  This Agreement has been duly executed and delivered by the Borrower and constitutes, and each other Loan Document when executed and delivered by each Loan Party thereto will constitute a legal, valid and binding obligation of such Loan Party enforceable against such Loan Party in accordance with its terms (subject, in each case, to bankruptcy, insolvency, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and general principles of equity).

3.04        Governmental Approvals.  Except as set forth on Schedule 3.04, no action, consent, ruling, order, license, authorization or approval of, registration or filing with, or any other action

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by any Governmental Authority is or will be required to enter into the Loan Documents, borrow funds in connection therewith, Guarantee the Obligations and grant Liens pursuant to the Security Documents except for such as have been made or obtained and are in full force and effect.

3.05        Financial Statements.

(a)           Historical Financial Statements.  The Borrower has heretofore delivered to the Lenders the consolidated or combined, as applicable, balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower as of and for the fiscal years ended December 31, 2011 and December 31, 2012 and as and for the fiscal quarter ending September 30, 2013 and, in the case of such fiscal year-end financial statements audited by and accompanied by the unqualified opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP.

Such financial statements (A) present fairly and accurately in all material respects the financial condition and results of operations and cash flows of the Borrower as of the dates and for the periods to which they relate, (B) disclose all material liabilities, direct or contingent, of the Borrower and its consolidated Subsidiaries as of the dates thereof and (C) were prepared in accordance with GAAP applied on a consistent basis, subject, in the case of unaudited financial statements, to year-end audit adjustments and the absence of footnotes.

(b)           Forecasts.  The forecasts of financial performance of the Borrower and its Subsidiaries furnished to the Lenders prior to the Closing Date, on an annual basis for the projected period from on or about the Closing Date through December 31, 2018, were prepared in good faith by the Borrower and based on assumptions believed by the Borrower at the time made to be reasonable.

3.06        No Material Adverse Change.  Since December 31, 2012, no event, change or condition has occurred that has had (and continues to have), or could reasonably be expected to have, a Material Adverse Effect.

3.07        Title to Properties; Possession Under Leases.

(a)           Except as set forth in Schedule 3.07, each of the Borrower and its Restricted Subsidiaries has good and marketable title to (including in connection therewith, valid easements), or valid leasehold interests in, all its material properties and assets (including all Mortgaged Property), except for (i) minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties and assets for their intended purposes, and (ii) as otherwise could not reasonably be expected to have a Material Adverse Effect.  All such material properties and assets are free and clear of Liens, other than Liens expressly permitted by Section 6.02.

(b)           Except as set forth in Schedule 3.07, each of the Borrower and each of its Restricted Subsidiaries (other than Immaterial Subsidiaries) is in compliance with all material obligations under all material leases (including all leases of Mortgaged Property) to which it is a party and all such leases are legal, valid, binding and in full force and effect and are enforceable against the Borrower and its Restricted Subsidiaries (other than Immaterial Subsidiaries) party thereto and, to the Borrower’s knowledge, against each other party thereto in accordance with

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their terms except failures that could not reasonably be expected to have a Material Adverse Effect.  Except as set forth in Schedule 3.07, each of the Borrower and its Restricted Subsidiaries (other than Immaterial Subsidiaries) enjoys peaceful and undisturbed possession under all such material leases.

(c)           As of the Closing Date, neither the Borrower, nor any Guarantor has received any actual notice of, nor has any actual knowledge of, any pending or contemplated condemnation proceeding affecting the Mortgaged Properties owned by it or any sale or disposition thereof in lieu of condemnation.

(d)           Except as set forth in Schedule 3.07, as of the Closing Date, neither the Borrower nor any Restricted Subsidiary (other than any Immaterial Subsidiary) is obligated under any right of first refusal, option or other contractual right to sell, assign or otherwise dispose of any Mortgaged Property or any interest therein.

3.08        Subsidiaries.  Schedule 3.08 sets forth as of the Closing Date a list of all Subsidiaries, their jurisdiction of organization and the percentage ownership interest of the Borrower therein and the ownership interests of the Guarantors.  The shares of capital stock or other ownership interests so indicated on Schedule 3.08 held in such Subsidiary are fully paid and non-assessable and are owned by the Borrower, directly or indirectly, free and clear of all Liens (other than Liens created under the Security Documents, and Liens permitted under Section 6.02).

3.09        Litigation; Compliance with Laws.

(a)           Except as set forth on Schedule 3.09, there are no actions, suits or proceedings at law or in equity or by or before any Governmental Authority now pending or, to the actual knowledge of the Borrower or the Guarantors, threatened against the Borrower, any Restricted Subsidiary or any business, property or rights of any such Person (i) that involve any Loan Document or (ii) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

(b)           None of the Borrower or any of its Domestic Subsidiaries or any of their respective material properties or assets is in violation of, nor will the continued operation of their material properties and assets as currently conducted violate, any law, rule or regulation (including any zoning, building, ordinance, code or approval or any building permits) or any restrictions of record or agreements affecting the Mortgaged Property, or is in default with respect to any judgment, writ, injunction, decree or order of any Governmental Authority, where such violation or default would reasonably be expected to result in a Material Adverse Effect.

(c)           Certificates of occupancy and permits are in effect for each Mortgaged Property as currently constructed, except where the failure to have the same could not reasonably be expected to result in a Material Adverse Effect, and true and complete copies of such certificates of occupancy as are available using commercially reasonable efforts have been delivered to the Collateral Agent as mortgagee with respect to each Mortgaged Property.

3.10        Agreements.  None of the Borrower or any of the Restricted Subsidiaries is in default in any manner under any provision of any indenture or other agreement or instrument evidencing

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Material Indebtedness or any Indebtedness under the ABL Facility, or any other material agreement or instrument to which it is a party, where such default would reasonably be expected to result in a Material Adverse Effect.

3.11        Federal Reserve Regulations.  None of the Borrower or any of the Restricted Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of buying or carrying Margin Stock.  No part of the proceeds of any Term Loan will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose that entails a violation of, or that is inconsistent with, the provisions of the Regulations of the Board, including Regulation T, Regulation U or Regulation X.  No Indebtedness being reduced or retired out of the proceeds of any Term Loans was or will be incurred for the purpose of purchasing or carrying any Margin Stock in violation of, or that is inconsistent with, the provisions of the Regulations of the Board, including Regulation T, Regulation U or Regulation X.  As of the Closing Date, after giving effect to the application of the proceeds of the Term Loans made on the Closing Date, Margin Stock will not constitute more than 25% of the value of the assets of the Loan Parties.

3.12        Investment Company Act.  None of the Borrower or any Restricted Subsidiary is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.

3.13        Tax Returns.  Each of the Borrower and its Restricted Subsidiaries has timely filed or caused to be timely filed all material Federal, state, local and (to the extent it has foreign operations) foreign tax returns required to have been filed by it and has paid or caused to be paid all material taxes then due and payable by it (whether or not shown as due on such returns but after taking into account any valid extensions), except taxes that are being contested in good faith by appropriate proceedings and for which the Borrower or such Restricted Subsidiary, as applicable, shall have set aside on its books adequate reserves with respect thereto in accordance with GAAP and such contest operates to suspend collection of the contested taxes and, in the case of a Mortgaged Property of the Borrower or any Guarantor there is no immediate actual risk of forfeiture of such property.  As of the Closing Date, the Borrower has not engaged in any “listed transaction” (within the meaning of Treasury Regulation Section 1.6011-4 of the Code).  There is no proposed tax assessment against the Borrower or its Restricted Subsidiaries that would reasonably be expected to have a Material Adverse Effect.

3.14        No Material Misstatements.  No information, report, financial statement, agreement, documentary condition precedent, exhibit or schedule furnished by or on behalf of the Borrower or its Subsidiaries to the Administrative Agent or any Lender in connection with the Transactions, in connection with the negotiation of any Loan Document or included therein or delivered pursuant thereto or the Confidential Information Memorandum contained as of the date of such statement any material misstatement of fact or omitted to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading when taken as a whole; provided that to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, the Borrower represents only that it acted in good faith and utilized reasonable assumptions (based upon accounting principles consistent with the historical audited financial statements of the Borrower) and due care in the preparation of such information, report, financial

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statement, exhibit or schedule (it being recognized that any such forecast or projection is subject to the assumptions and plans reflected therein as of the date thereof, which could differ materially from the actual plans and results, and are necessarily subjective and based on estimates, and that actual results are subject to uncertainties and contingencies which may be beyond the Borrower’s control).

3.15        Employee Benefit Plans.  As of the Closing Date, no ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events, would reasonably be expected to result in material liability of the Borrower or any of its ERISA Affiliates.  Except as disclosed in Schedule 3.15, as of the Closing Date, neither the Borrower nor any of its ERISA Affiliates has nor has within the last six (6) years sponsored, maintained, contributed to or had any obligation or liability with respect to any Plan subject to Title IV of ERISA, nor, except as disclosed in Schedule 3.15, does the Borrower nor any ERISA Affiliate have any present intention to sponsor, maintain, contribute or have any obligation or liability with respect to any Plan subject to Title IV of ERISA.

3.16        Environmental Matters.

(a)           Except as set forth in Schedule 3.16 and except with respect to any other matters that, individually or in the aggregate, would not reasonably be expected to result in the Borrower or any of the Restricted Subsidiaries (other than any Immaterial Subsidiaries) incurring Environmental Liabilities that could be reasonably expected to result in a Material Adverse Effect, each of the Borrower and its Restricted Subsidiaries (other than Immaterial Subsidiaries) is and has been in compliance with any applicable Environmental Law, which compliance includes obtaining, maintaining and complying with any permit, license or other approval required under any Environmental Law for any of their operations.

(b)           Except as set forth in Schedule 3.16 and except with respect to any other matters that, individually or in the aggregate, would not reasonably be expected to result in the Borrower or any of the Restricted Subsidiaries (other than Immaterial Subsidiaries) incurring Environmental Liabilities that could be reasonably expected to result in a Material Adverse Effect (i) none of the Borrower or any Restricted Subsidiary (other than any Immaterial Subsidiary) has contractually assumed any Environmental Liability of any Person or (ii) has received, or to the actual knowledge of the Borrower and the Guarantors, anticipates receiving, written notice of any claim, order, agreement, or investigation with respect to any Environmental Liability.

(c)           No Lien under Environmental Laws has attached to any Real Property in an amount or a manner that could be reasonably expected to result in a Material Adverse Effect.

(d)           As of the Closing Date, except as disclosed on Schedule 3.16, to the knowledge of the Borrower and the Guarantors, the consummation of the transaction contemplated under this Agreement does not require the consent of or filing by any Loan Party with any Governmental Authority under any applicable Environmental Law.

(e)           As of the Closing Date, each of the Borrower and its Domestic Subsidiaries has made available to the Administrative Agent copies of all requested existing material

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environmental reports, and audits and all documents pertaining to actual material Environmental Liability and has provided to Lender copies of all material environmental reports, including any “Phase I environmental site assessments”, relating to any Real Property, in each case to the extent such reports, reviews, audits and documents are in their possession, custody or control and are not more than five (5) years old.

3.17        Insurance.  Schedule 3.17 sets forth a true, complete and correct description of all insurance maintained by the Borrower and the Restricted Subsidiaries (other than Immaterial Subsidiaries), as of the Closing Date.  As of such date, all premiums have been duly paid to the extent due.  The Borrower and its Restricted Subsidiaries have insurance in such amounts with financially sound and reputable insurance companies and covering such risks and liabilities as are in accordance with normal industry practice and customary for companies of similar size engaged in similar businesses in similar locations.

3.18        Security Documents.

(a)           Except as set forth in Schedule 3.18, the Guarantee and Collateral Agreement, upon execution and delivery thereof by the parties thereto, will be effective to create in favor of the Collateral Agent, to the extent set forth therein, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral (as defined in the Guarantee and Collateral Agreement) and, subject to any limitations herein and therein or in the certificates or notes, as applicable, representing Pledged Collateral (as defined in the Guarantee and Collateral Agreement), the proceeds thereof, except as enforceability may be limited by applicable bankruptcy, insolvency, moratorium (or similar laws affecting the enforcement of creditors’ rights generally), by equitable principles (whether enforcement is sought by proceedings in equity or at law) and implied covenants of good faith and fair dealing and (i) when the Pledged Collateral (as defined in the Guarantee and Collateral Agreement) is delivered to the Collateral Agent, if and to the extent required by the Guarantee and Collateral Agreement, the Lien created under the Guarantee and Collateral Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Pledged Collateral to the extent that a Lien in such Pledged Collateral can be perfected by delivery, in each case  having the priority set forth in the ABL Intercreditor Agreement and prior and superior in right to any other person (except with respect to Liens expressly permitted under Section 6.02), and (ii) when financing statements in appropriate form are filed in the offices specified on Schedule 3.18(a), the Lien created under the Guarantee and Collateral Agreement will constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral to the extent that a Lien in such Collateral can be perfected by filing of financing statements (other than Intellectual Property, as defined in the Guarantee and Collateral Agreement, and other Collateral with respect to which possession or control is required for perfection), in each case having the priority set forth in the ABL Intercreditor Agreement and prior and superior in right to any other person, other than with respect to Liens expressly permitted by Section 6.02.

(b)           Except as set forth in Schedule 3.18, upon the recordation of the IP Security Agreement with the United States Patent and Trademark Office and the United States Copyright Office, together with the duly completed financing statements in appropriate form filed in the offices specified in Schedule 3.18(a), the Lien created under the IP Security Agreement shall

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constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in the Intellectual Property (as defined in the IP Security Agreement) in which a security interest may be perfected by such filing in the United States and its territories and possessions, in each case having the priority set forth in the ABL Intercreditor Agreement and prior and superior in right to any other person other than with respect to Liens expressly permitted by Section 6.02 and (it being understood that subsequent recordings in the United States Patent and Trademark Office and the United States Copyright Office may be necessary to perfect a Lien on registered trademarks and patents, trademark and patent applications and registered copyrights acquired by the Loan Parties after the date hereof).

(c)           Each of the Mortgages are effective to create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable Lien on all of the grantor’s right, title and interest in and to the Mortgaged Property thereunder and the proceeds thereof, and when the Mortgages are filed in the offices specified in Schedule 3.18(c), the Mortgages shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of such grantor in such Mortgaged Property and the proceeds thereof, having the priority set forth in the ABL Intercreditor Agreement and prior and superior in right to any other person, other than with respect to the rights of persons pursuant to Liens expressly permitted by Section 6.02.

(d)           [Reserved].

(e)           Upon execution and delivery thereof by the parties thereto, the Control Agreements, taken together with the Guarantee and Collateral Agreement, will be effective to create and perfect in favor of the Collateral Agent a legal, valid and enforceable security interest in the Investment Accounts described therein and the proceeds and products thereof.  Upon the execution of the Control Agreements and the Guarantee and Collateral Agreement, such Security Documents shall constitute perfected Liens on, and security interests in, all right, title and interest of the Loan Parties in the Investment Accounts described therein and the proceeds and products thereof, as security for the Obligations, in each case prior and superior in right to any other person, other than with respect to Liens expressly permitted by Section 6.02.

3.19        Location of Real Property and Leased Premises.

(a)           Schedule 3.19(a) lists completely and correctly as of the Closing Date all Real Property owned by the Borrower and its Domestic Restricted Subsidiaries (other than Immaterial Subsidiaries) and the addresses thereof (to the extent available).  The Borrower and its Domestic Restricted Subsidiaries (other than Immaterial Subsidiaries) own in fee all the Real Property set forth on Schedule 3.19(a).

(b)           Schedule 3.19(b) lists completely and correctly as of the Closing Date all Real Property leased by the Borrower and its Domestic Restricted Subsidiaries (other than Immaterial Subsidiaries) and the addresses thereof (to the extent available).  The Borrower and its Domestic Restricted Subsidiaries (other than Immaterial Subsidiaries) have valid leases in all the Real Property set forth on Schedule 3.19(b), except as noted thereon.

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3.20        Compliance with FDA and USDA; Permits.3.21

(a)           Except as would not reasonably be expected to have a Material Adverse Effect, the business and operations of the Borrower are, and have been during the past three (3) years, operated in compliance with all applicable laws and regulations of the U.S. Food and Drug Administration (“FDA”) and the U.S. Department of Agriculture (“USDA”).  There is no, and has not been during the past three (3) years, any actual or, to the knowledge of the Borrower, potential material action or investigation in respect of the business or operations of the Borrower by the FDA or USDA.

(b)           The Borrower holds, and is operating in compliance with, all material permits, licenses, approvals, certificates and other registrations, authorizations and exemptions of and from the FDA and USDA, as required for the conduct of its business and operations as currently conducted (each, a “Permit”), and each such Permit is in full force and effect.

(c)           The Borrower has not received, during the past three (3) years, any FDA Form 483 or other notice of inspectional observations, “warning letters,” “untitled letters,” notice of adverse findings, or other similar notices from the FDA or the USDA alleging or asserting material noncompliance with any applicable laws or regulations or any Permits.

3.21        Labor Matters As of the Closing Date, (i) there are no strikes or lockouts against the Borrower or any Guarantor pending or, to the actual knowledge of the Borrower or the Guarantors, threatened, in each case or in the aggregate, that could be reasonably expected to result in a Material Adverse Effect, (ii) the hours worked by and payments made to employees of the Borrower and its Domestic Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable Federal, state, local or foreign law dealing with such matters that would reasonably be expected to have a Material Adverse Effect, and (iii) all payments due from the Borrower or any of its Domestic Subsidiaries on account of wages and employee health and welfare insurance and other benefits that would reasonably be expected to have a Material Adverse Effect if not paid, have been paid or accrued as a liability on the books of the Borrower or such Domestic Subsidiary.

3.22        Anti-Terrorism Laws.

(a)           (i) The Borrower will not directly or indirectly use the proceeds of the Term Loans or otherwise make available such proceeds to any Person in violation of the U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and (ii) none of the Borrower, nor any Subsidiary, nor any director, officer, senior manager of the Borrower nor any Subsidiary (A) is a Sanctioned Person, (B) has more than 10% of its assets in Sanctioned Countries, (C) derives more than 10% of its operating income from investments in, or transactions with, Sanctioned Persons or Sanctioned Countries, or (D) is currently subject to any U.S. sanctions administered by OFAC; provided, however, that the scope of this representation and warranty is limited to published U.S. regulatory requirements as at the date such representation is given.  No part of the proceeds of any Credit Extension hereunder will be used directly or indirectly to fund any operations in, finance any investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Country.

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(b)           To the extent applicable, the Borrower and each Subsidiary is in compliance, in all material respects, with the (i) Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto and (ii) Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001).  No part of the proceeds of the Term Loans will be used, directly or indirectly, (i) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended or (ii) in violation of anti-money laundering laws or anti-terrorism laws.

3.23        Use of Proceeds.  The Borrower will use the proceeds of the Term Loans made on the Closing Date for application by the Borrower (and, to the extent distributed to them by the Borrower, each other Loan Party) solely (x) to repay certain existing Indebtedness, including the Refinancing, (y) to pay fees and expenses related to the Transactions and (z) for other general corporate purposes of the Borrower and its Subsidiaries.

3.24        Solvency.  On the Closing Date and on the date of each Credit Extension, both immediately before and after (i) with respect to the Closing Date, the consummation of the Transactions, including the making of the Term Loans and the application of the proceeds thereof on the Closing Date, and (ii) with respect to each other Credit Extension, the making of Term Loans and the application of the proceeds thereof on such date, the Loan Parties, taken as a whole, are and will be Solvent.

3.25        No Burdensome Restrictions.  Except as set forth in Section 3.15, neither the Borrower nor any of its Restricted Subsidiaries is a party to any agreement or instrument or subject to any corporate or other constitutional restriction that has resulted or could reasonably be expected to result in a Material Adverse Effect.  Except as set forth in Section 3.15, neither the Borrower nor any of its Restricted Subsidiaries is in default in any manner under any provision of any indenture or other agreement or instrument evidencing Indebtedness, or any other agreement or instrument to which it is a party or by which it or any of its property is or may be bound, where such default could reasonably be expected to result in a Material Adverse Effect, and no condition exists which, with the giving of notice or the lapse of time or both, would constitute such a default.  As of the Closing Date, the Borrower has delivered or otherwise made available to the Administrative Agent complete and correct copies of all such material agreements, including any amendments, supplements or modifications with respect thereto, and all such agreements are in full force and effect.

3.26        Intellectual Property.  Except as set forth in Section 3.18, the Borrower and its Restricted Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, the “IP Rights”) that are reasonably necessary for the operation of their respective businesses, without conflict with the rights of any other Person, except as would not reasonably be expected to have a Material Adverse Effect.  To the knowledge of the Borrower, no slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by the Borrower or any Restricted

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Subsidiary in the operation of their respective businesses as currently conducted infringes upon any rights held by any other Person, except as would not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any of the IP Rights is pending or, to the actual knowledge of the Borrower, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

3.27        No Default.  No Default or Event of Default has occurred and is continuing.

3.28        Senior Indebtedness.  The Obligations (including, without limitation, the Guarantee of each Guarantor under the Loan Documents) constitute senior secured Indebtedness of each of the Loan Parties (subject to the lien priorities set forth in the Intercreditor Agreement).

ARTICLE IV.
Conditions of Lending

4.01        Conditions to the Closing Date.  The obligation of each Lender to fund the Term Loans requested to be made by it on the Closing Date is subject to the prior or concurrent satisfaction of each of the following conditions:

(a)           The Existing 2018 Notes shall be concurrently validly “satisfied and discharged” in full pursuant to Section 8.02 of the Existing 2018 Notes Indenture and the Loan Parties shall have concurrently delivered to the Administrative Agent reasonably satisfactory written evidence thereof and all documents or instruments (including “pay-off” letters, notices of prepayment and any opinions, certificates or other requirements in connection therewith) necessary to terminate or unconditionally release all liens or security interests related to the Existing 2018 Notes in form and substance reasonably satisfactory to the Administrative Agent.  Immediately after giving effect to the Transactions, none of the Borrower or its Restricted Subsidiaries shall have outstanding any Indebtedness for borrowed money or preferred stock other than (i) the Term Loans and Commitments hereunder, (ii) the Indebtedness permitted by Section 6.01 and (iii) Indebtedness owed to the Borrower or any Guarantor.

(b)           The Lenders shall be satisfied that all requisite Governmental Authorities and third parties shall have approved or consented to the Transactions to the extent necessary, and there shall be no governmental or judicial action, actual or threatened, that has or would have, singly or in the aggregate, a reasonable likelihood of restraining, preventing or imposing burdensome conditions on the Transactions or the other transactions contemplated hereby.  The Lenders shall be satisfied that the Borrower, its Subsidiaries and the Transactions shall be in compliance in all material respects with all Requirements of Law, including Regulations T, Regulation U and Regulation X of the Board, and shall have received satisfactory evidence of such compliance reasonably requested by them.

(c)           The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or equivalent organizational document, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; and (ii) a certificate of the President, Chief Executive Officer, Chief Financial Officer, Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, any Vice

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President or any other executive officer (including any officer acting in an interim capacity) of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or equivalent governing document of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, members or managers of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or equivalent organizational document of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party (with such certificate in this clause (c)(ii) containing the certification of another officer of such Loan Party as to the incumbency and specimen signature of the officer executing such certificate).

(d)           The Administrative Agent shall have received a certificate, dated the Closing Date and signed by a Financial Officer of the Borrower, confirming compliance with the provisions of Sections 4.02(b), (c) and (d).

(e)           The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Date (or be reasonably satisfied that all Fees and other amounts due and payable will be paid on the Closing Date from the proceeds of the Term Loans), including to the extent invoiced, reimbursement or payment of all out-of-pocket expenses to the extent required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.

(f)            The Collateral Agent on behalf of the Secured Parties shall have a security interest on the Closing Date in the Collateral of the type and priority described in the Security Documents and Intercreditor Agreements (but subject to such Liens permitted under Section 6.02), and the Security Documents shall have been duly executed by each Loan Party that is to be a party thereto (and in the case of the Intercompany Notes, accompanied by instruments of transfer undated and endorsed in blank) and shall be in full force and effect on the Closing Date, and the Loan Parties shall deliver:

(i)            except as provided in Section 5.15, to the extent required by the Guarantee and Collateral Agreement, all certificates, agreements or instruments representing or evidencing Collateral in the form of Equity Interests, accompanied by instruments of transfer and stock powers undated and endorsed in blank;

(ii)           except as provided in Section 5.15, all other certificates, agreements, including Control Agreements, or instruments necessary to perfect the Collateral Agent’s security interest in, among other things, all chattel paper, all Instruments, all Deposit Accounts, all Securities Accounts and all investment property of each Loan Party (as each such term is defined in

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the Guarantee and Collateral Agreement and to the extent required by the Guarantee and Collateral Agreement);

(iii)          the UCC financing statements in appropriate form for filing under the UCC, filings to be filed with the United States Patent and Trademark Office and United States Copyright Office and such other documents under applicable Requirements of Law in each jurisdiction as may be necessary or appropriate or, in the opinion of the Collateral Agent, desirable to perfect the Liens created, or purported to be created, by the Security Documents;

(iv)          certified copies of UCC searches, intellectual property searches, and such other searches that the Collateral Agent deems necessary or appropriate, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized, none of which encumber the Collateral covered or intended to be covered by the Security Documents (other than Liens permitted under Section 6.02 or any other Liens acceptable to the Collateral Agent); and

(v)           evidence acceptable to the Collateral Agent of payment or arrangements for payment by the Loan Parties of all applicable recording taxes, fees, charges, costs and expenses required for the recording of the Security Documents.

(g)           The Lenders shall have received the financial statements and forecasts referred to in Section 3.05.

(h)           The Administrative Agent shall have received a solvency certificate substantially in the form of Exhibit G, dated the Closing Date and signed by the chief financial officer of the Borrower.

(i)            except as provided in Section 5.15, (i) each of the Mortgages relating to each of the Mortgaged Properties shall have been duly executed by the parties thereto and delivered to the Collateral Agent and shall be in full force and effect, (ii) title searches shall indicate that the Mortgaged Properties are not subject to any Lien other than those permitted under Section 6.02 hereto or the Collateral Agent has received evidence reasonably satisfactory to it that any such existing Lien will be released on the Closing Date, (iii) each of such Security Documents shall have been filed and recorded in the appropriate recording office in the jurisdiction in which the Mortgaged Property is located or shall have been delivered to the Administrative Agent or a nationally recognized title insurance company in a proper form for filing, recordation or registration in form and substance acceptable to the Collateral Agent as a first priority lien on such Mortgaged Property (subject only to any Lien permitted by Section 6.02) and, upon filing or recordation, as applicable, in connection therewith where filed or recorded, as applicable, the Collateral Agent shall have received evidence reasonably satisfactory to it of each such filing or recordation, (iv) the Collateral Agent shall have received such other documents, including a policy or policies of title insurance issued by a nationally recognized title insurance company in

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amounts reasonably acceptable to the Collateral Agent, together with such endorsements, coinsurance and reinsurance as may be reasonably requested by the Collateral Agent and the Lenders, insuring the Mortgages as valid first priority liens on the Mortgaged Properties, free of Liens (other than those permitted under Section 6.02), together with such surveys, affidavits, abstracts, appraisals and legal opinions required to be furnished pursuant to the terms of the Mortgages or as reasonably requested by the Collateral Agent or the Lenders and (v) with respect to each improved Mortgaged Property, a “Life-of Loan” Federal Emergency Management Agency Standard Flood Hazard Determination and, if the area in which any improvements located on any Mortgaged Property is designated a “special flood hazard area” by the Federal Emergency Management Agency (or any successor agency), evidence of flood insurance satisfying the requirements of Section 5.02(c) hereof.

(j)            On or prior to the Closing Date, the Borrower shall have delivered (by electronic transmission or otherwise) to the Administrative Agent fully executed copies of (i) this Agreement, (ii) an amendment to the ABL Facility (in form and substance reasonably satisfactory to the Administrative Agent) and (iii) the ABL Intercreditor Agreement, and each such document shall have become effective pursuant to its terms.

(k)           The Borrower shall:

(i)            deliver to the Administrative Agent a Perfection Certificate with respect to the Loan Parties duly executed by a Responsible Officer of the Borrower;

(ii)           provide a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.02 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the Collateral Agent as additional insured;

(iii)          provide to the Administrative Agent, on behalf of itself and the Lenders, a reasonably satisfactory written opinion of (i) Winston & ▇▇▇▇▇▇ LLP, counsel for the Borrower (A) addressed to the Administrative Agent and the Lenders and (B) covering certain matters relating to the Loan Documents as the Administrative Agent shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinion and (ii) each local counsel listed on Schedule 4.01(k)(iii);

(iv)          provide to the Administrative Agent each of the Loan Documents listed on Schedule 4.01(k)(iv), in each case executed by a duly authorized officer of each party thereto, in form and substance satisfactory to the Administrative Agent and in full force and effect on the Closing Date; and

(v)           deliver a Note executed by the Borrower in favor of each Lender that has requested a Note at least two Business Days in advance of the Closing Date.

(l)            The Lenders shall have received, to the extent requested, all documentation and other information required by regulatory authorities under applicable “know your customer” and

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anti-money laundering rules and regulations, including the USA PATRIOT Act at least five Business Days prior to the Closing Date.

Without limiting the generality of the provisions of Article VIII, for purposes of determining compliance with the conditions specified in this Section 4.01, by signing this Agreement, each Lender has consented to, approved or accepted or indicated its satisfaction with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

4.02        All Credit Events.  On the date of each Credit Extension (unless otherwise noted below), including, for the avoidance of doubt, the Closing Date:

(a)           The Administrative Agent shall have received a Borrowing Request as required by Section 2.03.

(b)           The representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects or, to the extent otherwise qualified by materiality, in all respects, on and as of the date of any Credit Extension with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations shall have been true and correct in all material respects or, to the extent otherwise qualified by materiality, in all respects, as of such earlier date.

(c)           At the time of and immediately after the Credit Extension, no event shall have occurred and be continuing or would result from such Credit Extension that would constitute a Default or an Event of Default.

(d)           No injunction or other restraining order shall have been issued, shall be pending or noticed with respect to any action, suit or proceeding seeking to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated by this Agreement or the making of Term Loans hereunder.

ARTICLE V.
Affirmative Covenants

From and after the Closing Date, the Borrower covenants and agrees with each Lender that, so long as the Commitments shall remain in existence and until the Obligations (other than any unasserted contingent reimbursement or indemnity obligations) shall have been paid in full in cash, unless the Required Lenders shall otherwise consent in writing, it will and will cause each of its Restricted Subsidiaries to:

5.01        Existence; Compliance with Laws; Businesses and Properties.

(a)           Do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence, except as otherwise expressly permitted under Section 6.04.

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(b)           Except where any such failure would not reasonably be expected to have a Material Adverse Effect, do or cause to be done all things necessary to obtain, preserve, renew, extend and keep in full force and effect the licenses, permits, franchises, authorizations, patents, copyrights, trademarks and trade names material to the conduct of the business of the Borrower and the Restricted Subsidiaries, taken as a whole; comply in all material respects with all applicable laws, rules, regulations and decrees and orders of any Governmental Authority, whether now in effect or hereafter enacted and all contractual obligations under any indenture, instrument or agreement pursuant to which any Material Indebtedness or Indebtedness under the ABL Facility of the Borrower or any of the Restricted Subsidiaries is outstanding; and except as permitted under Section 6.04, at all times maintain and preserve all property material to the conduct of such business and keep such property in good repair, working order and condition (ordinary wear and tear excepted) and from time to time make, or cause to be made, all needful and proper repairs, renewals, additions, improvements and replacements thereto necessary in order that the business carried on in connection therewith may be properly conducted at all times (provided that, in the event of a Casualty Event relating to no more than two separate facilities at any one time, the Loan Parties shall have a reasonable time period to repair and/or replace such facilities).

5.02        Insurance.

(a)           Keep its insurable Mortgaged Properties adequately insured at all times by financially sound and reputable insurers; maintain such other insurance, to such extent and against such risks, including fire and other risks insured against by extended coverage, as is customary with companies in the same or similar businesses operating in the same or similar locations, including public liability insurance against claims for personal injury or death or property damage occurring upon, in, about or in connection with the use of any properties owned, occupied or controlled by it; and maintain such other insurance as may be required by law.

(b)           Promptly following the Administrative Agent’s request, cause all such policies covering any Collateral and public liability (except third party, product liability and business interruption) to be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and/or additional insured endorsement, as applicable, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent, which endorsement shall provide that, from and after the Closing Date, if the insurance carrier shall have received written notice from the Administrative Agent or the Collateral Agent of the occurrence of an Event of Default, the insurance carrier shall pay all proceeds otherwise payable to the Borrower or the Loan Parties under such policies directly to the Collateral Agent; cause all such policies to provide that neither the Borrower, the Administrative Agent, the Collateral Agent nor any other party shall be a coinsurer thereunder and, to the extent customarily available at a commercially reasonable cost, to contain a “Replacement Cost Endorsement”, without any deduction for depreciation, and such other provisions as the Administrative Agent or the Collateral Agent may reasonably require from time to time to protect their interests; deliver certificates of each such policies (and if reasonably requested, certified copies of all such policies) to the Collateral Agent; cause each such policy, to the extent customarily available at a commercially reasonable cost, to provide that it shall not be canceled, modified or not renewed (i) by reason of nonpayment of premium upon not less than 10 days’ prior written notice thereof by the insurer to

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the Administrative Agent and the Collateral Agent (giving the Administrative Agent and the Collateral Agent the right to cure defaults in the payment of premiums) or (ii) for any other reason upon not less than 30 days’ prior written notice thereof by the insurer to the Administrative Agent and the Collateral Agent; deliver to the Administrative Agent and the Collateral Agent, prior to the cancellation, modification or non-renewal of any such policy of insurance, a copy of a renewal or replacement policy (or other evidence of renewal of a policy previously delivered to the Administrative Agent and the Collateral Agent) together with evidence reasonably satisfactory to the Administrative Agent and the Collateral Agent of payment of the premium therefor.

(c)           If at any time the area in which the Premises (as defined in the Mortgages) are located is designated (i) a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), obtain flood insurance in such total amount as the Administrative Agent, the Collateral Agent or the Required Lenders may from time to time reasonably require, and otherwise comply with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as it may be amended from time to time, or (ii) a “Zone 1” area, obtain earthquake insurance in such total amount as the Administrative Agent, the Collateral Agent or the Required Lenders may from time to time reasonably require.

(d)           With respect to any Mortgaged Property, carry and maintain comprehensive general liability insurance including the “broad form CGL endorsement” and coverage on an occurrence basis against claims made for personal injury (including bodily injury, death and property damage) and umbrella liability insurance against any and all claims, in no event for a combined single limit of less than $25,000,000, naming the Collateral Agent as an additional insured, on forms reasonably satisfactory to the Collateral Agent.

(e)           Notify the Administrative Agent and the Collateral Agent promptly whenever any separate insurance concurrent in form or contributing in the event of loss with that required to be maintained under this Section 5.02 is taken out by any Loan Party; and promptly deliver to the Administrative Agent and the Collateral Agent a duplicate original copy of such policy or policies.

5.03        Payment of Obligations and Taxes.  Pay its Indebtedness and other obligations promptly and in accordance with their terms and pay and discharge promptly when due all material Taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or in respect of its property, before the same shall become delinquent or in default, as well as all lawful claims for labor, materials and supplies or otherwise that, if unpaid, might give rise to a Lien upon such properties or any part thereof; provided, however, that such payment and discharge shall not be required with respect to any such Indebtedness, obligations, Tax, assessment, charge, levy or claim so long as the validity or amount thereof shall be diligently contested in good faith by appropriate proceedings and the Borrower shall have set aside on its books adequate reserves with respect thereto in accordance with GAAP and such contest operates to suspend collection of the contested obligation, tax, assessment or charge and enforcement of a Lien and, in the case of a Mortgaged Property of the Borrower or any Restricted Subsidiary, there is no immediate actual risk of forfeiture of such property.

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5.04        Financial Statements, Reports, etc.  In the case of the Borrower, furnish to the Administrative Agent, which shall promptly furnish the following information to each Lender in accordance with its customary practice:

(a)           within 90 days after the end of each fiscal year, commencing with the fiscal year in which the Closing Date occurs, its consolidated and consolidating balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries and the Guarantors as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries and the Guarantors during such year, together with comparative figures for the immediately preceding fiscal year, all audited by independent public accountants of recognized standing and accompanied by an opinion of such accountants to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Borrower, its consolidated Subsidiaries and the Guarantors, on a consolidated and consolidating basis, in accordance with GAAP consistently applied (which opinion shall not be qualified as to scope or contain any going concern or other qualification (except for any such qualification pertaining to one or more debt maturities occurring within 12 months of the date of the relevant audit opinion));

(b)           within 45 days after the end of each of the first three fiscal quarters of each fiscal year, commencing with the fiscal quarter in which the Closing Date occurs, its consolidated and consolidating balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries and the Guarantors as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries and such Guarantors during such fiscal quarter and the then elapsed portion of the fiscal year, together with comparative figures for the same periods in the immediately preceding fiscal year, all certified by one of the Financial Officers of the Borrower, as fairly presenting the financial condition and results of operations of the Borrower, its consolidated Subsidiaries and the Guarantors, on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;

(c)           concurrently with any delivery of financial statements under Section 5.04(a) or 5.04(b), a certificate of the accounting firm (in the case of Section 5.04(a)) (to the extent that the accounting firm is willing to provide such certificate in accordance with its customary business practice) or Financial Officer (in the case of Section 5.04(a) and (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred as of the last day of the period to which such financial statements relate, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) in the cases of the certificates delivered with respect to Sections 5.04(a) and 5.04(b) providing a summary by the Financial Officer (but not the accounting firm) of the pro forma adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such financial statements and (iii) in the cases of certificates delivered with respect to Section 5.04(a) (commencing with financial statements delivered for the fiscal year ended December 31, 2015) setting forth computations by the Financial Officer (but not the accounting firm) in reasonable detail satisfactory to the Administrative Agent of Excess Cash Flow for the relevant Excess Cash Flow Period;

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(d)           to the extent applicable, promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be (provided that the Borrower shall not be required to deliver separately such material to the Administrative Agent or any Lender, so long as the Administrative Agent and Lenders have access to such publicly available materials);

(e)           promptly after the receipt thereof by the Borrower, the Guarantors or any of their respective Subsidiaries, a copy of any final “management letter” received by any such Person from its certified public accountants relating to any deficiency or weakness in accounting practices or in reported results of the Borrower, any Subsidiary or any Guarantor and the management’s response thereto to the extent such accountants are willing to provide such letters;

(f)            within 60 days after the beginning of each fiscal year, a budget for the Borrower in reasonable detail on a quarterly basis for such fiscal year as customarily prepared by management of the Borrower for its internal use similar in scope with the financial statements provided pursuant to Section 5.04(a), prepared in summary form, in each case, with appropriate presentation and discussion of the principal assumptions upon which such budgets are based, accompanied by the statement of a Financial Officer of the Borrower to the effect that the budget of the Borrower is a reasonable estimate for the periods covered thereby and, promptly when available, any significant revisions of such budget, balance sheet and related statements of income, stockholders’ equity and cash flows;

(g)           promptly after the request by the Administrative Agent on its own behalf or on behalf of any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;

(h)           in the event that the Borrower or any of its ERISA Affiliates intend to establish, sponsor, maintain or contribute or have any obligation or liability with respect to any Plan subject to Title IV of ERISA, the Borrower shall promptly, and in any event within 10 Business Days prior to establishing, maintaining or contributing, as applicable, to such Plan, inform the Administrative Agent of such intention.  Neither the Borrower nor any of its ERISA Affiliates shall establish, sponsor, maintain or contribute to any Plan that would result in any obligation or liability that would result in, or could reasonably be expected to result in, a Material Adverse Effect;

(i)            promptly following any request by the Administrative Agent on its own behalf or on behalf of a Lender, copies of (i) any documents described in Section 101(k)(l) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Plan or Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates have not requested such documents or notices from the administrator or sponsor of the applicable Plan or Multiemployer Plan, the Borrower or its ERISA Affiliates shall promptly make a request for such documents or notices from the such

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administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;

(j)            if, as a result of any change in accounting principles and policies from those used in the preparation of the consolidated financial statements of the Borrower for the fiscal year ended on December 31, 2012, the consolidated financial statements of the Borrower delivered pursuant to Section 5.04(a) or 5.04(b) will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such Sections had no such change in accounting principles and policies been made, then, together with the first delivery of such financial statements after such change, one or more statements of reconciliation with respect to such financial statements that would have otherwise been delivered; and

(k)           promptly, from time to time, after reasonable notice is given, such other information regarding the operations, business affairs and financial condition of the Borrower, any Subsidiary or any Guarantor, or compliance with the terms of any Loan Document, as the Administrative Agent may reasonably request.

5.05        Litigation and Other Notices.  Furnish to the Administrative Agent prompt written notice after obtaining knowledge thereof of the following:

(a)           any Event of Default or Default, specifying the nature and extent thereof and the corrective action (if any) taken or proposed to be taken with respect thereto;

(b)           the filing or commencement of any action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority, (i) against the Borrower or any of its Restricted Subsidiaries that could reasonably be expected to result in a Material Adverse Effect or (ii) challenging the validity, enforceability or priority of any Loan Document;

(c)           the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in liability of the Borrower or the Restricted Subsidiaries in an aggregate amount exceeding $5,000,000;

(d)           the occurrence of a Casualty Event or a series of Casualty Events with a value of at least $5,000,000 or any other event or series of events which could reasonably be expected to adversely affect the value of the Collateral by at least $5,000,000; and

(e)           any other development that has resulted in, or would reasonably be expected to result in, a Material Adverse Effect.

5.06        Information Regarding Collateral.

(a)           Furnish to the Administrative Agent prompt written notice of any change (i) in any Loan Party’s corporate name, (ii) in the jurisdiction of organization or formation of any Loan Party, (iii) in any Loan Party’s identity or corporate structure or (iv) in any Loan Party’s Federal Taxpayer Identification Number.  The Borrower agrees not to effect or permit any change referred to in the preceding sentence unless, prior to or substantially concurrently therewith, all filings have been made under the Uniform Commercial Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid,

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legal and perfected security interest in all the Collateral secured by it under any Security Document.

(b)           In the case of the Borrower, each year, at the time of delivery of the annual financial statements with respect to the preceding fiscal year pursuant to Section 5.04(a), deliver to the Administrative Agent upon its reasonable request a certificate of a Financial Officer setting forth the information required pursuant to Schedules I and VI of the Guarantee and Collateral Agreement or confirming that there has been no change in such information since the date of the Perfection Certificate delivered pursuant to Section 4.01(k)(i) or the date of the most recent certificate delivered pursuant to this Section 5.06.

5.07        Maintaining Records; Access to Properties and Inspections; Annual Meetings.  Keep proper books and records and accounts in which full, true and correct entries in conformity with GAAP and all Requirements of Law are made of all dealings and transactions in relation to its business and activities.  The Borrower will, and will cause each of its Restricted Subsidiaries to, permit any representatives designated by the Administrative Agent on its own behalf or on behalf of any Lender to visit and inspect the financial records and the properties of such Person during normal business hours and upon reasonable prior notice and as often as reasonably requested (but in no event more than once annually unless a Default or Event of Default shall have occurred and be continuing) and to make extracts from and copies of such financial records, and permit any such representatives designated by the Administrative Agent (on behalf of itself or any Lender) to discuss the affairs, finances and condition of such Person with the officers thereof and independent accountants therefor; provided, however, that when a Default or Event of Default exists the Administrative Agent on its own behalf or on behalf of any Lender (or any of their respective representatives) may do any of the foregoing at the expense of the Borrower.  Within 150 days after the end of each fiscal year of the Borrower, at the request of the Administrative Agent or Required Lenders, hold a conference call (at a mutually agreeable time the costs of call to be paid by the Borrower) with all Lenders who choose to attend such meeting, at which meeting shall be reviewed the financial results of the previous fiscal year and the financial condition of the Borrower and its Subsidiaries and the budgets presented for the current fiscal year of the Borrower and its Subsidiaries.

5.08        Use of Proceeds.  Use the proceeds of the Term Loans only for the purposes set forth in Section 3.23.

5.09        Employee Benefits.  (a) Comply in all material respects with the applicable provisions of ERISA and the Code, solely as it relates to Plans, and (b) furnish to the Administrative Agent as soon as possible after, and in any event within ten days after any Responsible Officer of the Borrower or any ERISA Affiliate knows or has reason to know that, any ERISA Event has occurred that, alone or together with any other ERISA Event could reasonably be expected to result in liability of the Borrower or any ERISA Affiliate in an aggregate amount exceeding $5,000,000, a statement of a Financial Officer of the Borrower setting forth details as to such ERISA Event and the action, if any, that the Borrower proposes to take with respect thereto.

5.10        Compliance with Environmental Laws.  Comply, and require all lessees and other Persons occupying its properties to comply, in all material respects with all Environmental Laws applicable to its operations and Real Property; obtain and renew all material environmental

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permits necessary for its operations and properties; and conduct any required remedial action to the extent required by and in material compliance with Environmental Laws; provided, however, that none of the Borrower nor any Restricted Subsidiary (other than any Immaterial Subsidiary) shall be required to undertake any such remedial action to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being maintained with respect to such circumstances in accordance with GAAP.

5.11        Environmental Reporting.  (a) The Borrower, shall give the Administrative Agent prompt notice (containing reasonable detail) upon obtaining knowledge of any matter that would reasonably be expected to result in the Borrower or any Restricted Subsidiary (other than any Immaterial Subsidiary) incurring Environmental Liabilities in excess of $1,000,000 in the aggregate, and (b) if (i) notice is provided to the Administrative Agent under Section 5.11(a), or (ii) a breach of Section 5.10 shall have occurred and be continuing for more than 30 days without the Borrower or any Domestic Subsidiary commencing activities reasonably likely to cure such breach, at the written request of the Required Lenders through the Administrative Agent, provide to the Lenders within 45 days after such notice or request, at the expense of the Loan Parties, an environmental site assessment report regarding the matters which are the subject of such notice or request prepared by an environmental consulting firm reasonably acceptable to the Administrative Agent.

5.12        Further Assurances.  Take the following actions, in each case subject to clause (f) of this Section 5.12:

(a)           The Borrower shall execute any and all further documents, agreements and instruments, and take all further action (including filing UCC and other financing statements, mortgages and deeds of trust) that may be required under applicable law, or that the Required Lenders, the Administrative Agent or the Collateral Agent may reasonably request, in order to effectuate the transactions contemplated by the Loan Documents and in order to grant, preserve, protect and perfect the validity and priority of the security interests created or intended to be created by the Security Documents.  In addition, from time to time, the Borrower will, at its cost and expense, promptly secure the Obligations by pledging or creating, or causing to be pledged or created, perfected security interests with respect to such of its assets and properties as the Administrative Agent or the Required Lenders shall reasonably designate (it being understood that it is the intent of the parties that the Obligations shall be secured by substantially all the assets of the Borrower and the Guarantors (including real and other properties acquired or any properties leased by the Borrower or any Guarantor subsequent to the Closing Date consisting of manufacturing facilities or otherwise with a fair market value in excess of $2,500,000 (with respect to properties leased by the Borrower or any Guarantor, after taking into account the rental payments and the term of such lease))), subject to such exceptions as are contained or may hereafter be contained in the Security Documents from time to time.  Such security interests and Liens will be created under the Security Documents and other security agreements, mortgages, deeds of trust and other instruments and documents in form and substance reasonably satisfactory to the Collateral Agent, and the Borrower shall deliver or cause to be delivered to the Lenders all such instruments and documents (including, without limitation, legal opinions, title insurance policies, lien searches and such other certificates, affidavits and documents as are consistent with those delivered in connection with the Collateral on the Closing Date) as the Collateral Agent shall reasonably request to evidence compliance with this Section.  The

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Borrower and the Guarantors agree to provide such evidence as the Collateral Agent shall reasonably request as to the perfection and priority status of each such security interest and Lien.  In furtherance of the foregoing, the Borrower will give prompt notice to the Administrative Agent of the acquisition or lease by it or any other Loan Party, of any manufacturing facilities and any real property (or any interest in real property) having a value in excess of $2,500,000 (with respect to properties leased by the Borrower or any Guarantor, after taking into account the rental payments and the term of such lease).  Notwithstanding anything herein or in any Loan Agreement to the contrary, in no event shall any Loan Party be required to pledge more than 65% of the voting stock of any Foreign Subsidiary owned by such Loan Party (and, for the avoidance of doubt, no foreign Subsidiary shall be required to pledge any of its assets and no Foreign Subsidiary shall be a Guarantor under any Loan Documents), except to the extent expressly required pursuant to Section 6.01(n) or Section 6.01(p).

(b)           Upon the acquisition or formation by any of the Loan Parties of any Domestic Subsidiary, or the designation of an Unrestricted Subsidiary as a Restricted Subsidiary, in each case, that is a wholly owned Restricted Subsidiary and a Material Subsidiary, the Borrower shall cause the Person so acquired or formed (each an “Additional Guarantor”), as the case may be, to become a Guarantor of the Obligations.  Such Additional Guarantor shall become a Loan Party by executing the Guarantee and Collateral Agreement and each applicable Security Document in favor of the Collateral Agent.  In addition, (i) such Additional Guarantor shall execute and deliver such agreements and documents as the Administrative Agent, Collateral Agent or the Required Lenders may reasonably request (including, without limitation, the agreements and documents referred to in Section 4.01(i) with respect to any Real Property) to grant a perfected Lien in respect of substantially all of its real and personal property in favor of the Collateral Agent and the Lenders (other than Real Property with a fair market value of less than $2,500,000), subject to such exceptions as are contained or may hereafter be contained in the Security Documents from time to time, and (ii) the Loan Parties owning Equity Interests in such Additional Guarantor shall pledge all such Equity Interests in such Additional Guarantor. Notwithstanding any exclusions set forth above, no Subsidiary may guarantee the ABL Facility that does not also guarantee the Obligations pursuant to the Guarantee and Collateral Agreement.

(c)           Promptly following the Administrative Agent’s reasonable request, the Borrower shall execute, or shall cause its relevant  Restricted Subsidiaries to execute any and all further related documents and take all further related action that may be required under applicable law, or that the Required Lenders, the Administrative Agent or the Collateral Agent may request in their sole discretion, in order to effectuate the transactions contemplated by the Loan Documents and in order to grant, preserve, protect and perfect the validity and priority of the security interests created or intended to be created by the Security Documents.

(d)           Promptly following the Administrative Agent’s reasonable request, execute Mortgages and any and all further related certificates, affidavits and documents and take all further related action that may be required under applicable law, or that the Required Lenders, the Administrative Agent or the Collateral Agent may request in their sole discretion, in order to effectuate the transactions contemplated by the Loan Documents and in order to grant, preserve, protect and perfect the validity and priority of the security interests created or intended to be created by the Security Documents.

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(e)           If the Administrative Agent, the Collateral Agent or the Required Lenders determine that they are required by a Requirement of Law to have appraisals prepared in respect of the Real Property of any Loan Party constituting Collateral, Borrower shall provide to the Administrative Agent appraisals that satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA and are otherwise in form and substance satisfactory to the Administrative Agent and the Collateral Agent.

(f)            The Borrower shall, and shall cause the other Loan Parties to, take all actions and deliver all instruments and documents required under this Section 5.12 (including the granting and perfecting of Liens and security interests as described above) to be undertaken promptly following the acquisition of any assets described above, provided, that such actions and deliveries shall occur on or before the later of (A) the applicable date(s) pursuant to clauses (a)-(e) of this Section 5.12 and (B) (x) with respect to Real Property, within 30 Business Days after the date of acquisition of such Real Property, and (y) with respect to personal property (including any Equity Interests), within 5 Business Days after the date of the acquisition of such personal property acquisition.

(g)           Each of the Borrower and each Guarantor that is a lessee of, or becomes a lessee of, real property on or in which it will maintain, store, hold or locate all or any of its assets that constitute Fixed Asset Agent Priority Collateral or Pari Passu Collateral and have an aggregate fair market value of at least $500,000 is, and will be, required to use commercially reasonable efforts (which shall not require the expenditure of cash under any relevant lease that was in effect on the Closing Date or if such Guarantor was not a Guarantor on the Closing Date, the date such Guarantor became a Guarantor) to deliver to the Collateral Agent a landlord waiver, substantially in the form of Exhibit N, executed by the lessor of such real property; provided that with respect to any lease entered into after the Closing Date by the Borrower or any Guarantor or any lease, the lessee of which becomes a Guarantor after the Closing Date, shall have 60 days from the date of such lease or the date of becoming a Guarantor to satisfy such requirement and shall be relieved of such obligation with respect to any landlord waiver to the extent such lessor has refused to deliver such a waiver following such Person’s use of such commercially reasonable efforts.  Each of the Borrower and each Guarantor that provides any of its assets that constitute Fixed Asset Agent Priority Collateral or Pari Passu Collateral and have an aggregate fair market value of at least $500,000 to a bailee, consignee or warehouseman (other than a third party processor in the ordinary course of business) agrees to be bound by the terms of the immediately preceding sentence, mutatis mutandis; provided, that (i) the terms “landlord”, “lessee” and “lease” shall be replaced, respectively, with the terms “bailee”, “consignee” or “warehouseman”, as applicable, “▇▇▇▇▇▇”, “consignor” or “borrower”, as applicable, and the “applicable agreement” and (ii) the condition that the lessee maintain, store, hold or locate all or any of its assets that constitute Fixed Asset Agent Priority Collateral or Pari Passu Collateral and have an aggregate fair market value of at least $500,000 shall instead be replaced with the condition that the fair market value of the assets subject to the applicable bailment or consignment have a fair market value of at least $500,000.  In addition, each of the Borrower and each Guarantor shall, to the extent it delivers a landlord, bailee, consignee or warehouseman waiver to the administrative agent for the benefit of the lenders under the ABL Facility and has not already delivered such a waiver under this Section 5.12(g), concurrently with such delivery, deliver a comparable waiver from the applicable landlord, bailee, consignee or warehouseman to the Collateral Agent. Notwithstanding anything to the contrary in the foregoing, neither the Borrower nor any

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Guarantor will be obligated to deliver a landlord, bailee, consignee or warehouseman waiver to the Collateral Agent to the extent otherwise required under this Section 5.12(g) if (a) the Borrower or any such Guarantor, as the case may be, was subject to a covenant substantially similar to the one contained in this Section 5.12(g) to any creditor within the prior five years, (b) the Borrower or such Guarantor, as the case may be, had used its commercially reasonable efforts to obtain such a waiver from any such landlord, bailee, consignee or warehouseman, as applicable, and (c) such landlord, bailee, consignee or warehouseman, as the case may be, refused to deliver such waiver.

5.13        Maintenance of Ratings.  Use commercially reasonable efforts to cause the Term Loans and the Borrower’s corporate credit to continue to be rated by Standard & Poor’s Ratings Group and ▇▇▇▇▇’▇ Investors Service Inc. (but not to maintain a specific rating).

5.14        Designation of Subsidiaries.   The Borrower may designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing, (ii) no Subsidiary may be designated as an Unrestricted Subsidiary if the Borrower or any remaining Restricted Subsidiary is directly or indirectly responsible (including by virtue of a Guarantee) for any Indebtedness of or has any obligation to provide credit support or to maintain or preserve such Subsidiary’s financial condition or to cause such Subsidiary to achieve any specified levels of operating results, (iii) no Subsidiary may be designated as an Unrestricted Subsidiary or continue as an Unrestricted Subsidiary if it is a “restricted subsidiary” for the purposes of any other Indebtedness of the Borrower and (iv) if a Restricted Subsidiary that was a Subsidiary of the Borrower as of the Closing Date is being designated as an Unrestricted Subsidiary hereunder, the fair market value of the equity in such Subsidiary as of such date of designation measured as of the date of such Subsidiary’s designation as an Unrestricted Subsidiary, shall not exceed $2,500,000.  The designation of any Subsidiary as an Unrestricted Subsidiary after the date hereof shall constitute an Investment by the Borrower and its Restricted Subsidiaries, as applicable, therein at the date of designation in an amount equal to the fair market value of the equity in such Subsidiary and such designation shall only be permitted to the extent permitted under Section 6.03.  The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (X) the incurrence at the time of designation of any Investment, Indebtedness and/or Liens of such Subsidiary existing at such time and (Y) a return on any Investment by the Borrower or any Restricted Subsidiary in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the fair market value at the date of such designation of Borrower’s and its Restricted Subsidiaries’ (as applicable) Investment in such Subsidiary.  All such designations must be evidenced by a certificate of a Financial Officer delivered to the Administrative Agent certifying compliance with the foregoing provisions of this Section 5.14.

5.15        Post-Closing Collateral Matters.  Execute and deliver the documents and complete the tasks set forth on Schedule 5.15, in each case within the time limits specified on such schedule, or such later date(s) as the Administrative Agent may agree in its discretion.

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ARTICLE VI.
Negative Covenants

From and after the Closing Date, the Borrower covenants and agrees with each Lender that, so long as the Commitments shall remain in existence and until the Obligations (other than any unasserted contingent reimbursement or indemnity obligations) have been paid in full in cash, unless the Required Lenders shall otherwise consent in writing, it will not, and will not cause or permit any of its Restricted Subsidiaries:

6.01        Indebtedness.  Incur, create, assume or permit to exist any Indebtedness, except:

(a)           Indebtedness of the Borrower and its Restricted Subsidiaries existing on the Closing Date and set forth in Schedule 6.01 and any Indebtedness evidencing a refinancing, refunding, renewal or extension of such Indebtedness; provided that (A) any such refinancing Indebtedness is in an aggregate principal amount not greater than the aggregate principal amount of the Indebtedness being renewed or refinanced, plus the amount of any premiums required to be paid thereon and reasonable fees and expenses associated therewith, (B) such refinancing Indebtedness either (i) has a later or equal final maturity and longer or equal Weighted Average Life to Maturity than the Indebtedness being renewed or refinanced (without giving effect to any prepayments of originally scheduled amortization of such Indebtedness being renewed or refinanced) or (ii) has a final maturity that is more than 91 days after the Latest Maturity Date hereunder and (C) the covenants, events of default, Liens, subordination and other provisions (other than interest rates) thereof (including any guarantees thereof) shall be, in the aggregate, no less favorable to the Lenders in any material respect than those contained in the Indebtedness being renewed or refinanced;

(b)           (i) Indebtedness created hereunder and under the other Loan Documents and (ii) Indebtedness incurred pursuant to the ABL Facility (including the guarantees of the Borrower’s obligations thereunder by the Guarantors hereunder) in an amount not to exceed the Maximum RCF Debt Amount (as defined in the ABL Intercreditor Agreement), subject to the limitations set forth in the ABL Intercreditor Agreement;

(c)           intercompany Indebtedness of the Borrower and the Restricted Subsidiaries to the extent permitted by Sections 6.03(c) or (o);

(d)           Indebtedness under performance bonds or with respect to workers’ compensation claims, property casualty or liability insurance, take-or-pay obligations in supply arrangements, self-insurance obligations, performance, bid and surety bonds and completion guaranties in each case incurred in the ordinary course of business;

(e)           Indebtedness incurred by the Borrower or the Restricted Subsidiaries with respect to Hedging Agreements in the ordinary course of business and not for speculative purposes; provided that if such Indebtedness relates to interest rates, (i) such Indebtedness relates to payment obligations on Indebtedness otherwise permitted to be incurred by the Loan Documents and (ii) the notional principal amount of such Indebtedness at the time incurred does not exceed the principal amount of the Indebtedness to which such Indebtedness relates;

(f)            (i) Indebtedness incurred by the Borrower or the Restricted Subsidiaries in respect of netting services, overdraft protections and otherwise in connection with deposit accounts, in

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each case, other than Indebtedness for borrowed money and (ii) Indebtedness arising from the honoring of a check or draft drawn against insufficient funds;

(g)           guarantees and any other contingent obligations of the Borrower and the Restricted Subsidiaries in respect of Indebtedness otherwise permitted hereunder (both before or after any liability associated therewith becomes fixed), subject to any limitations set forth in the other subsections of this Section 6.01 or in any defined terms contained herein;

(h)           Indebtedness (including reimbursement obligations) which may be deemed to exist pursuant to letters of credit issued in (I) connection with any Indebtedness pursuant to clauses (d) or (i) hereunder (but subject in any case to the monetary limitations set forth in such clauses) or (II) accordance with a letter of credit and reimbursement facilities to be entered into by the Borrower in an aggregate principal and/or face amount not to exceed $15,000,000 at any one time outstanding; provided, that the covenants, events of default and other provisions (other than interest rates) thereof (including any guarantees thereof) shall be, in the aggregate, no more restrictive than those contained under the Loan Documents (other than in respect of any collateral thereof);

(i)            Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries arising from agreements providing for indemnification, holdbacks, working capital or other purchase price adjustments, earn-outs, non-compete agreements, deferred compensation or similar obligations in connection with transactions not prohibited hereunder;

(j)            Indebtedness with respect to Capital Lease Obligations and Synthetic Lease Obligations in an aggregate amount, together with all Indebtedness incurred pursuant to clause (l) of this Section 6.01, not to exceed at any one time outstanding the greater of (x) $15,000,000 or (y) 3.0% of the Total Assets of the Borrower and its Restricted Subsidiaries, taken as a whole;

(k)           Indebtedness owed to any Person providing property, casualty, business interruption or liability insurance to the Borrower or any Restricted Subsidiary, so long as such Indebtedness shall not be in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the annual period in which such Indebtedness is incurred and such Indebtedness shall be outstanding only during such year;

(l)            Purchase money Indebtedness in an aggregate amount, together with all Indebtedness incurred pursuant to clause (j) of this Section 6.01, not to exceed at any one time outstanding the greater of (x) $15,000,000 or (y) 3.0% of the Total Assets of the Borrower and its Restricted Subsidiaries, taken as a whole;

(m)          [Reserved];

(n)           Indebtedness consisting of Permitted Unsecured Debt or Permitted Second Lien Debt; provided that (x) after giving effect thereto and the application of proceeds therefrom the Total Net Leverage Ratio would not exceed 5.50:1.00 calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financials statements have been delivered pursuant to Section 5.04(a) or (b), as applicable and (y) to the extent such Indebtedness incurred pursuant to this Section 6.01(n) is (A) guaranteed by any guarantors that are not Guarantors hereunder or (B) with respect to Permitted Second Lien Debt, secured by any assets

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that do not also secure the Obligations, such guarantors shall become Guarantors and such assets shall become Collateral, in each case, pursuant to the procedures set forth in Section 5.12; provided that the foregoing clause (y) shall not apply only to the extent that the providing of such guarantees or security could reasonably be expected to result in adverse tax consequences to the Borrower based on the foreign status of such guarantors or assets (and such adverse tax consequences would not apply to any guarantees or security otherwise provided to support such Permitted Unsecured Debt or Permitted Second Lien Debt, as applicable);

(o)           Indebtedness of a Person that becomes a Restricted Subsidiary after the date hereof in connection with an Investment permitted hereby or a Permitted Acquisition, and any refinancing, refunding, renewal or extension thereof to the extent such refinancing, refunding, renewal or extension would have been permitted had such Indebtedness been permitted under Section 6.01(a) hereof; provided, however, that (x) such Indebtedness existed at the time such Person became a Restricted Subsidiary and was not created in contemplation thereof, (y) with respect to any such Indebtedness that is secured by a first priority lien, the First Lien Net Leverage Ratio would not exceed 4.00:1.00 and (z) with respect to any such Indebtedness that is unsecured or secured by a junior lien, the Total Net Leverage Ratio would not exceed 5.50:1.00, in each case on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financials statements have been delivered pursuant to Section 5.04(a) or (b), as applicable, after giving effect to such incurrence and the application of proceeds therefrom;

(p)           Indebtedness consisting of Permitted Pari Passu Debt; provided that (x) after giving effect thereto and the application of proceeds therefrom the First Lien Net Leverage Ratio would not exceed 4.00:1.00 calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financials statements have been delivered pursuant to Section 5.04(a) or (b), as applicable and (y) to the extent such Indebtedness incurred pursuant to this Section 6.01(p) is (A) guaranteed by any guarantors that are not Guarantors hereunder or (B) secured by any assets that do not also secure the Obligations, such guarantors shall become Guarantors and such assets shall become Collateral, in each case, pursuant to the procedures set forth in Section 5.12; provided that the foregoing clause (y) shall not apply only to the extent that the providing of such guarantees or security could reasonably be expected to result in adverse tax consequences to the Borrower based on the foreign status of such guarantors or assets (and such adverse tax consequences would not apply to any guarantees or security otherwise provided to support such Permitted Pari Passu Debt);

(q)           notes secured on a pari passu basis with the Liens securing the Obligations, issued in lieu of (and which shall utilize availability in respect of) Incremental Term Loans otherwise permitted to be incurred under Section 2.18(a) and any refinancing, refunding, renewal or extension thereof to the extent such refinancing, refunding, renewal or extension would have been permitted had such Indebtedness been permitted under Section 6.01(a) hereof; provided, that (x) any such Indebtedness shall satisfy the applicable requirements for Incremental Term Loans set forth in Section 2.18(b)(v) and Section 2.18(b)(vi), (y) at the time of incurrence of such Indebtedness, no Default or Event of Default shall have occurred or be continuing or would result therefrom and (z) such Indebtedness must be subject to the applicable Intercreditor Agreements (and the Lenders direct and authorize the Agents to enter into any such Intercreditor Agreement on their behalf);

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(r)            other Indebtedness of the Borrower and the Restricted Subsidiaries (whether or not of a type listed in the other provisions of this Section 6.01) in an aggregate principal amount not exceeding the greater of (x) $15,000,000 or (y) 3.0% of the Total Assets of the Borrower and its Restricted Subsidiaries, taken as a whole, at any time outstanding; or

(s)            Acquisition Indebtedness.

For purposes of determining the outstanding principal amount of any particular Indebtedness  incurred pursuant to this Section 6.01, Indebtedness permitted by this Section 6.01 need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this covenant permitting such Indebtedness.

6.02        Liens.  Create, incur, assume or permit to exist any Lien on any property or assets (including Equity Interests or other securities of any Person, including the Borrower or any Restricted Subsidiary now owned or hereafter acquired by it or on any income or revenues or rights in respect of any thereof (collectively referred to in this Section 6.02 as the “Assets”)), except:

(a)           Liens on assets of the Borrower and the Restricted Subsidiaries existing on the Closing Date and set forth on Schedule 6.02 (including securing Indebtedness permitted pursuant to Section 6.01(a), including refinancings thereof permitted hereunder, so long as any asset securing such refinanced Indebtedness also secured the related existing Indebtedness), or that secures intercompany Indebtedness in which the lender is the Borrower or a Guarantor permitted under Section 6.01(c);

(b)           (i) any Lien created or otherwise permitted under the Loan Documents and (ii) any Lien securing ABL Obligations created pursuant to the ABL Loan Documents (and that are subject to the ABL Intercreditor Agreement);

(c)           Liens for taxes not yet due or which are being contested in compliance with Section 5.03;

(d)           landlord’s, banks’, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business (or imposed by law) and securing obligations that are not due and payable or which are being contested in compliance with Section 5.03;

(e)           pledges and deposits made in the ordinary course of business in compliance with workmen’s compensation, unemployment insurance and other social security laws or regulations;

(f)            pledges or deposits of cash and cash equivalents securing deductibles, self-insurance, co-payment, co-insurance, retentions or similar obligations to providers of property, casualty or liability insurance in the ordinary course of business;

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(g)                                  Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto permitted under Section 6.01 and rights which may arise under state insurance guarantee funds relating to any such insurance policy;

(h)                                 deposits to secure the performance of bids, trade contracts (other than for Indebtedness), leases (other than Capital Lease Obligations), subleases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;

(i)                                     zoning restrictions, easements, covenants, conditions, environmental and other land use laws, rules and regulations, utility agreements, reservations, encroachments, rights-of-way, restrictions on use of real property, minor imperfections of title, minor survey defects and other similar encumbrances incurred in the ordinary course of business which, in the aggregate, are not substantial in amount and do not materially detract from the value of the Assets subject thereto or interfere with the ordinary conduct of the business of the Borrower or any of its Restricted Subsidiaries;

(j)                                    Liens securing Indebtedness permitted under Sections 6.01(j) and (l); provided that (i) such Liens secure Indebtedness incurred to finance the acquisition, construction or improvement of any equipment, machinery, fixed or capital assets or Capital Lease Obligations and Synthetic Lease Obligations, (ii) such Liens are incurred, and the Indebtedness secured thereby is created, within 180 days after such acquisition (or construction), (iii) the Indebtedness secured thereby does not exceed 100% of the cost of such real property, improvements, equipment or machinery at the time of such acquisition (or completion of construction or improvement) and (iv) such security interests, unless granted as part of a group financing provided in connection with related equipment, do not apply to any property or assets of the Borrower or any Restricted Subsidiary other than the equipment, machinery, fixed or capital assets which are acquired, constructed or improved, or directly related assets, including, without limitation, accessions thereto and proceeds thereof;

(k)                                 any interest or title of a lessor or sublessor under any lease of real estate, or any licensor of Intellectual Property entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;

(l)                                     ground leases in respect of real property (and the rights of landlords thereunder) on which facilities owned or leased by the Borrower or its Restricted Subsidiaries are located;

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

(n)                                 receipt of progress payments and advances from customers in the ordinary course of business to the extent the same creates a Lien on the related inventory and proceeds thereof;

(o)                                 Liens solely on ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by the Borrower or any Restricted Subsidiary in connection with a letter of intent or purchase agreement permitted hereunder;

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(p)                                 purported Liens evidenced by precautionary Uniform Commercial Code financing statements filed in the ordinary course of business;

(q)                                 Liens securing reimbursement obligations with respect to documentary letters of credit;

(r)                                    Liens consisting of cash collateral in support of the Indebtedness under any letter of credit facility permitted under Section 6.01(h) in accordance with the terms thereof and on deposits or other accounts securing up to 105% of the face amount of any issued and outstanding letters of credit;

(s)                                   licenses of patents, trademarks and other intellectual property rights granted to or by the Borrower or the Restricted Subsidiaries in the ordinary course of business;

(t)                                    Liens arising out of consignment or similar arrangements for the sale by the Borrower or the Restricted Subsidiaries of goods through third parties in the ordinary course of business;

(u)                                 Liens arising out of judgments or awards which do not result in a Default or Event of Default;

(v)                                 Liens securing Indebtedness permitted pursuant to Section 6.01(o); provided, however, that such Liens do not extend to assets not subject to such Liens at the time of becoming a Restricted Subsidiary (other than improvements and attachments thereon, accessions thereto and proceeds thereof) and are no more favorable to the lienholders than the then-existing Lien;

(w)                               [Reserved];

(x)                                 Liens to secure Indebtedness with respect to Hedging Agreements permitted under Section 6.01(e);

(y)                                 in the case of any Unrestricted Subsidiary, any put and call arrangements or restrictions on dispositions of a Restricted Subsidiary’s Equity Interests in such Unrestricted Subsidiary set forth in the organizational documents or any related joint venture or similar agreement relating to such Unrestricted Subsidiary;

(z)                                  Liens arising in connection with transactions relating to the selling or discounting of accounts receivable in the ordinary course of business;

(aa)                          licenses, leases, or subleases granted to other Persons not materially interfering with the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;

(bb)                          Liens securing obligations of any Persons in respect of employee deferred compensation and benefit plans in connection with “rabbi trusts” or other similar arrangements;

(cc)                            Liens securing Indebtedness permitted under Sections 6.01(n), 6.01(p) and 6.01(q) and subject to (other than with respect to Indebtedness of Foreign Subsidiaries secured

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only by foreign assets not constituting Collateral) the applicable Intercreditor Agreements (and the Lenders direct and authorize the Agents to enter into any such Intercreditor Agreement on their behalf);

(dd)                          Liens upon specific items of inventory or other goods and proceeds thereof of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

(ee)                            other Liens of the Borrower and the Restricted Subsidiaries (whether or not of a type listed in any other provision of this Section 6.02) securing Indebtedness and other obligations in an aggregate principal amount not exceeding the greater of (x) $15,000,000 or (y) 3.0% of the Total Assets of the Borrower and its Restricted Subsidiaries, taken as a whole at any time outstanding; and

(ff)                              Liens on Acquisition Indebtedness Net Proceeds in favor of Acquisition Indebtedness Providers.

6.03                        Investments, Loans and Advances.  Purchase, hold or acquire any Equity Interests, evidences of indebtedness or other securities of, make or permit to exist any loans or advances to, or make or permit to exist any other Investment in, any other Person, except:

(a)                                 Investments by the Borrower and the Restricted Subsidiaries in the Equity Interests of the Borrower or any of the Guarantors;

(b)                                 Cash Equivalents;

(c)                                  Investments made (i) among or between the Borrower and the Guarantors; (ii) by the Borrower or any Guarantor to any Restricted Subsidiary that is not a Guarantor in an aggregate amount at one time outstanding not to exceed $35,000,000 (plus additional Investments permitted to be made pursuant to clause (o) below); and (iii) by any Restricted Subsidiary that is not a Guarantor to the Borrower or any of the Restricted Subsidiaries; provided that if such Investment is an intercompany loan or advance, any such loan or advance to a Loan Party shall be subordinated to such Loan Party’s Obligations hereunder and/or under the Guarantee and Collateral Agreement and evidenced by the Intercompany Note and, in the case of a loan or advance by a Loan Party, pledged by such Loan Party as Collateral pursuant to the Security Documents;

(d)                                 (i) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivables arising from the grant of trade credit in the ordinary course of business and (ii) investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors or the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in the ordinary course of business;

(e)                                  deposits, prepayments and other credits to suppliers made in the ordinary course of business;

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(f)                                   Investments in any Person that is not a Subsidiary of the Borrower, to the extent such Person becomes a Restricted Subsidiary pursuant to a Permitted Acquisition;

(g)                                  each Loan Party may make investments arising out of the receipt by such party of non-cash consideration for any Asset Sale permitted hereunder;

(h)                                 guarantees and any other contingent obligations permitted under Section 6.01(g);

(i)                                     [Reserved];

(j)                                    [Reserved];

(k)                                 advances to officers, directors and employees of the Borrower and its Subsidiaries for travel, entertainment, relocation and analogous ordinary business purposes consistent with past practice;

(l)                                     Permitted Acquisitions or other transactions permitted by Section 6.04 hereof;

(m)                             Investments of any Restricted Subsidiary on the date it becomes a Restricted Subsidiary, to the extent such Investments were not made in contemplation or in connection with its becoming a Restricted Subsidiary;

(n)                                 [Reserved];

(o)                                 other Investments; provided that (i) immediately after giving effect to such transaction on a Pro Forma Basis, the Total Net Leverage Ratio shall be less than 4.00 to 1.00 and (ii) immediately after giving effect to such transaction on a Pro Forma Basis, Cash Liquidity shall not be less than $15,000,000;

(p)                                 Investments of the Borrower and its Restricted Subsidiaries existing on the Closing Date and set forth in Schedule 6.03;

(q)                                 Investments not to exceed the Available Amount, if any, minus (without duplication of any amounts subtracted pursuant to clause (a)(iii)(X) of the definition of Available Amount) the aggregate amount of Restricted Payments made pursuant to Section 6.05(a)(v); provided that no Available Amount shall be used to make an Investment under this clause (q) at any time when there exists and is continuing a Default or Event of Default; and

(r)                                    Investments resulting from, or deemed to exist on account of, the purchase and sale among the Borrower and its Restricted Subsidiaries of cellulosic and plastic casing product and cellulosic and plastic extrusion, production and finishing equipment and parts, in each case, on fair and reasonable terms to each party that is a Loan Party as reasonably determined by each such Loan Party’s board of directors.

6.04                        Mergers, Consolidations and Acquisitions; Sales of Assets.

(a)                                 Merge into or consolidate with any other Person, sell, transfer, lease or otherwise dispose of all or substantially all of its assets or liquidate or dissolve, except that:

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(i)                                     any Restricted Subsidiary may merge with (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person, or (B) any one or more other Restricted Subsidiaries; provided that when any Loan Party is merging with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Loan Party (including a new Loan Party) or (2) if the continuing or surviving Person is not a Loan Party, the acquisition of such Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 6.03;

(ii)                                  any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and would not reasonably be expected to result in a Material Adverse Effect;

(iii)                               any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 6.03 or (C) to the extent constituting a sale, transfer, lease or other disposition to a Restricted Subsidiary that is not a Loan Party, such  sale, transfer, lease or other disposition is for fair market value and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Subsidiary that is not a Loan Party in accordance with Section 6.03;

(iv)                              the Borrower may merge, amalgamate or consolidate with any other Person; provided that (A) the Borrower shall be the continuing or surviving Person, or (B) if the Person formed by or surviving any such merger, amalgamation or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any State thereof or the District of Columbia, (2) the Successor Borrower if other than the Borrower, shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger, amalgamation or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of, and grant of any Liens as security for, the Secured Obligations shall apply to the Successor Borrower’s obligations under this Agreement, (4) each of the First Lien

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Net Leverage Ratio and the Total Net Leverage Ratio, calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financials statements have been delivered pursuant to Section 5.04(a) or (b), as applicable, do not exceed the First Lien Net Leverage Ratio and the Total Net Leverage Ratio, as applicable, calculated as of the last day of the most recently ended Test Period for which financials statements have been delivered pursuant to Section 5.04(a) or (b), as applicable, (5) such merger, amalgamation or consolidation shall be permitted by the terms of all other Material Indebtedness of any Loan Party and (6) the Borrower shall have delivered to the Administrative Agent a certificate of a Financial Officer and an opinion of counsel stating that such merger, amalgamation or consolidation complies with this Section 6.04(a)(iv); provided, further, that if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that no Default or Event of Default shall have occurred and be continuing;

(v)                                 any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 6.03; provided that if the continuing or surviving Person shall be a Restricted Subsidiary, then such Person, together with any of its Subsidiaries that will be Restricted Subsidiaries, shall have complied with the requirements of Section 5.12 and if the other party to such transaction is not a Loan Party, no Default or Event of Default exists after giving effect to such transaction; and

(vi)                              a Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation or sale, transfer, lease or other disposition of all or substantially all of its assets to effect a transaction permitted pursuant to Section 6.04(b) and, to the extent applicable, Section 2.10; provided that if the other party to such transaction is not a Loan Party, no Default or Event of Default exists after giving effect to such transaction.

(b)                                 Make any Asset Sale unless (i) such Asset Sale is for consideration at least 75% of which is cash (for which purpose, “cash” shall include (A) up to an aggregate during the term of this Agreement of $5,000,000 of Indebtedness or other liabilities that are assumed by the purchaser or retained by the obligor thereof (and for which the Borrower and its Restricted Subsidiaries shall thereafter have no liability with respect thereto) or that are otherwise cancelled, forgiven or terminated in connection with the transaction with such purchaser, (B) Indebtedness (other than the Secured Obligations), to the extent that such Indebtedness is then secured by a Lien permitted under Section 6.02 that is then either senior to or pari passu with the Lien then securing the Secured Obligations on the subject property, that are assumed by the purchaser or retained by the obligor thereof (and for which the Borrower and its Restricted Subsidiaries shall thereafter have no liability with respect thereto) or that is otherwise cancelled, forgiven or terminated in connection with the transaction with such purchaser; and (C) securities convertible to cash within 365 days after the Asset Sale); and (ii) such consideration is at least

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equal to the fair market value of the assets being sold, transferred, leased, swapped or disposed of; provided that the foregoing restrictions of clauses (i) and (ii) of this Section 6.04(b) shall not apply to: (x) transfers of condemned property as a result of the exercise of “eminent domain” or other similar policies to the respective Governmental Authority that has condemned such property, transactions in lieu of eminent domain, and other dedications of property that are required to be made to Governmental Authorities, (y) mergers effected pursuant to Section 6.04(a) or (z) dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property.

6.05                        Restricted Payments; Restrictive Agreements.

(a)                                 Declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders; (ii) the Borrower and the Restricted Subsidiaries may make Restricted Payments in the form of distributions payable solely in the common stock or other common Equity Interests of such Person; (iii) the Borrower may make Permitted Tax Distributions; (iv) the Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount not to exceed $7,500,000 (plus other Restricted Payments in an aggregate amount not to exceed $20,000,000, so long as (a) immediately after giving effect to such Restricted Payment on a Pro Forma Basis, the Total Net Leverage Ratio shall be less than 3.50 to 1.00 and (b) at the time of such Restricted Payment no Default or Event of Default shall have occurred or be continuing); (v) the Borrower may declare and pay dividends, repurchase stock or make other distributions in an aggregate amount up to the Available Amount, if any (minus (without duplication of any amounts subtracted pursuant to clause (a)(iii)(Y) of the definition of Available Amount) the aggregate amount of Investments made pursuant to Section 6.03(q)), on the date of such dividend payment or distribution that the Borrower elects to apply to this Section 6.05(a); provided that no Available Amount shall be used to make a Restricted Payment under this clause (a)(v) at any time when there exists and is continuing a Default or Event of Default; (vi) the Borrower or any Restricted Subsidiary may make any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests in any Restricted Subsidiary, to the extent permitted to be made as an Investment under Section 6.03; (vii) any Restricted Subsidiary may issue directors’ qualifying shares, and the Borrower and any Restricted Subsidiary may, if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, purchase or otherwise acquire shares of Capital Stock of the Borrower and any Restricted Subsidiary from employees, former employees, directors or former directors of the Borrower and such Restricted Subsidiary (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) approved by the Board of Directors of the Borrower under which such individuals purchase or sell or are granted the option to purchase or sell, shares of such Capital Stock; provided, however, that the aggregate amount of such repurchases and other acquisitions in any calendar year shall not exceed the sum of (x) $2,000,000 and (y) the aggregate amount of Restricted Payments permitted (but not made) pursuant to this clause (vii) in the immediately preceding calendar year; (viii) repurchases of Capital Stock deemed to occur upon exercise of stock options, warrants or other

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similar rights if such Capital Stock represents a portion of the exercise price of such options, warrants or other similar rights; (ix) if no Event of Default shall have occurred and be continuing or would exist after giving effect thereto, the acquisition of any shares of Qualified Capital Stock of the Borrower either (i) solely in exchange for other shares of Qualified Capital Stock of the Borrower or (ii) through the application of net proceeds of a sale for cash (other than to a Subsidiary of the Borrower) of shares of Qualified Capital Stock of the Borrower within 60 days after such sale; and (x) payments or distributions to dissenting stockholders of Capital Stock of the Borrower pursuant to applicable law, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with the  provisions of this Agreement applicable to mergers, consolidations and transfers of all or substantially all of the property and assets of the Borrower or any of its Restricted Subsidiaries.

(b)                                 Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets as security for the Secured Obligations, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Loan Party or to Guarantee Indebtedness of the Borrower or any other Loan Party; provided that the foregoing shall not apply to (A) restrictions and conditions imposed by law or by any Loan Document or an Indebtedness permitted under Section 6.01(a), (b) or (n), (B) customary restrictions and conditions contained in agreements relating to the sale of a subsidiary pending such sale; provided that such restrictions and conditions apply only to the subsidiary that is to be sold and such sale is permitted (or expected to be permitted) hereunder, (C) to restrictions or conditions imposed by any agreement relating to secured Indebtedness or effecting a refinancing of such Indebtedness permitted hereunder if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (D) restrictions or conditions imposed by any agreement relating to unsecured Indebtedness in favor of the Borrower or any Guarantor or effecting a refinancing of such Indebtedness permitted hereunder, (E) customary provisions in leases and other contracts restricting the assignment thereof, (F) software and other Intellectual Property licenses pursuant to which the Borrower or any Restricted Subsidiary is the licensee of the relevant software or Intellectual Property, as the case may be (in which case, any prohibition or limitation shall relate only to the assets subject of the applicable license), (G) prohibitions and limitations in effect on the date hereof and listed on Schedule 6.05, (H) customary provisions contained in joint venture agreements and other similar agreements applicable to joint ventures permitted hereby, (I) customary provisions restricting the subletting or assignment of any lease governing a leasehold interest, (J) customary restrictions and conditions contained in any agreement relating to an asset sale permitted by Section 6.04, (K) any agreement in effect at the time any Person becomes a subsidiary of the Borrower or an Guarantor, so long as such agreement was not entered into in contemplation of such Person becoming a subsidiary of the Borrower or an Guarantor and such agreement relates to such subsidiary and/or its assets only, (L) to any contractual obligations incurred in the ordinary course of business and on customary terms which limit Liens on the assets subject to the applicable contractual obligation, (M) restrictions on the transfer of assets subject to any Lien permitted under this Agreement, (N) restrictions contained in the terms of the Purchase Money Indebtedness or Capitalized Lease Obligations not incurred in violation of this Agreement; provided, that such restrictions relate only to the assets financed with such Indebtedness, (O) restrictions in other Indebtedness incurred in compliance with Section 6.01, provided that such

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restrictions, taken as a whole, are, in the good faith judgment of the Borrower’s Board of Directors, no more materially restrictive with respect to such encumbrances and restrictions than those contained in the existing agreements referenced in clauses (A) and (N) above, (P) restrictions imposed on any Foreign Subsidiary resulting from the operation of covenants contained in documentation governing Indebtedness of such Foreign Subsidiary permitted under this Agreement, (Q) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business, or (R) an agreement governing Indebtedness incurred to refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses (A) and (N) above and otherwise permitted; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are no less favorable to or more restrictive on the Borrower in any material respect as determined by the Board of Directors of the Borrower in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clauses (A) and (N) above.

6.06                        Transactions with Affiliates.  Except for transactions between or among Loan Parties, sell or transfer any property or assets to, or purchase or acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates (other than Affiliated Lenders in connection with the Loan Documents), except that (i) the Borrower or any Restricted Subsidiary may engage in any of the foregoing transactions in the ordinary course of business on terms and conditions not less favorable to the Borrower or such Restricted Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties, (ii) the Borrower or any Restricted Subsidiaries may engage in any of the foregoing transactions, whether or not in the ordinary course of business, if such transactions are on terms and conditions not less favorable to the Borrower or such Restricted Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties, and: (1) such transaction, together with any related transactions, involves consideration of less than $5,000,000; or (2) such transaction, together with any related transactions, involves consideration of at least $5,000,000 (inclusive), and has been approved by a majority of the disinterested members of the Borrower’s board of directors, (iii) the Borrower and the Restricted Subsidiaries may engage in transactions permitted by Sections 6.01(b)(ii), 6.02(b)(ii), 6.03, 6.04 and/or 6.05, (iv) the Borrower and any Restricted Subsidiary may provide indemnification rights and directors’ and officers’ liability insurance coverage to any of its or its subsidiaries’ directors and officers similar to those currently in effect or containing reasonable additional indemnification rights, (v) Affiliates may make contemporaneous purchase and/or sales of assets, Capital Stock, bonds, notes, debentures or other debt securities, bank loans, participations or similar obligations of the Borrower and its Restricted Subsidiaries, (vi) any agreement as in effect as of the Closing Date and any amendment, consent, waiver or other modification with respect thereto or replacement agreement thereto so long as any such amendment, consent, waiver or other modification with respect thereto or replacement agreement thereto is not more disadvantageous to the Lenders when taken as a whole as compared to the original agreement as in effect on the Closing Date; (vii) any merger or other transaction with an Affiliate pursuant to Section 6.04(a)(iv) solely for the purpose of reincorporating the Borrower in another jurisdiction in the United States; (viii) the Borrower and the Restricted Subsidiaries may engage in intercompany transactions among each other permitted by Sections 6.01(c) and (g) and Section 6.02(s); and (ix) the Borrower and the Subsidiaries may engage in intercompany transactions among each other permitted by Section 6.02(y).

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6.07                        Business of the Borrower and the Restricted Subsidiaries.  Neither the Borrower nor any Restricted Subsidiary shall engage at any time in any business or business activity other than a Permitted Business.

6.08                        Other Indebtedness and Agreements.

(a)                                 Permit (i) any waiver, supplement, modification, amendment, termination or release of any indenture, instrument or agreement pursuant to which any Material Indebtedness of the Borrower or any of the Restricted Subsidiaries is outstanding if the effect of such waiver, supplement, modification, amendment, termination or release would reasonably be expected to result in a Material Adverse Effect, or (ii) any material waiver, supplement, modification or amendment of (x) its certificate of incorporation, by-laws, operating, management or partnership agreement or other organizational documents, (y) an agreement set forth on Schedule 6.08(a) or (z) any lease between the Borrower or a Guarantor and an Affiliate of the Borrower or such Guarantor that has the effect of increasing the rental amounts payable thereunder, in the case of clause (y) or (z), to the extent any such waiver, supplement, modification or amendment would be adverse to the Lenders (in their capacities as Lenders) in any material respect, and in the case of clause (x), to the extent any such waiver, supplement, modification or amendment would reasonably be expected to result in a Material Adverse Effect.

(b)                                 Make (or give any notice in respect thereof) any payment or prepayment of principal on or redemption, repurchase, defeasance or acquisition for value of, or any prepayment or redemption as a result of any asset sale, change of control or similar event of, any Indebtedness outstanding under any Subordinated Indebtedness, Permitted Unsecured Debt or Permitted Second Lien Debt, except (i) any payment of principal at scheduled maturity, (ii) scheduled amortization payments of Permitted Unsecured Debt of Foreign Subsidiaries or Permitted Second Lien Debt of Foreign Subsidiaries, (iii) a refinancing permitted by Section 6.01(a), (iv) any payment to the extent made with Qualified Capital Stock of the Borrower or with the proceeds from the substantially concurrent sale of any Qualified Capital Stock of the Borrower, (v) any refinancing of Permitted Unsecured Debt or Permitted Second Lien Debt with other Permitted Unsecured Debt, Permitted Second Lien Debt, Subordinated Indebtedness or Equity Issuances (in the case of any Permitted Unsecured Debt, Permitted Second Lien Debt or Subordinated Indebtedness, only to the extent the same is permitted to be incurred in accordance with Section 6.01) or (vi) any payment required in connection with customary offers to repurchase upon an Asset Sale or a “change of control” or similar provision.  For purposes of clarification, the foregoing shall not be deemed to restrict the repayment of Acquisition Indebtedness with Acquisition Net Proceeds in the event the associated Prospective Acquisition is not consummated by the outside time required with respect thereto.

(c)                                  Amend or modify, or permit the amendment or modification of, any provision of any ABL Loan Document, other than any amendment or modification that is in accordance with the provisions of the ABL Intercreditor Agreement.

6.09                        Fiscal Year.  With respect to the Borrower, change its fiscal year-end to a date other than December 31.

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6.10        Sale and Leaseback Transaction.  Enter into any arrangement, directly or indirectly, with any Person whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property which it intends to use for substantially the same purpose or purposes as the property being sold or transferred unless (a) the sale or transfer of such property is permitted by Section 6.04 and such arrangement is consummated for fair value as determined at the time of consummation in good faith by the Borrower (which determination may take into account any retained interest or other investment of the Borrower or its Restricted Subsidiaries in connection with, and any other material economic terms of, such arrangement) and (b) any Capital Lease Obligations or Synthetic Lease Obligations or Liens arising in connection therewith are permitted by Sections 6.01 and 6.02, as the case may be.

ARTICLE VII.
Events of Default

7.01        Events of Default.

In case of the happening of any of the following events first occurring on or after the Closing Date (each, an “Event of Default”):

(a)           any representation or warranty made or deemed made by any Loan Party to any Lender, the Administrative Agent or the Collateral Agent in or in connection with any Loan Document, or any representation, warranty made or deemed to be made in any report, certificate, financial statement or other instrument required to be delivered by any Loan Document, shall prove to have been false or misleading in any material respect when so made, deemed made or furnished; provided, that after the Closing Sate, no Event of Default shall be deemed to have occurred under this clause (a) with respect to any default under the ABL Facility that causes the representation and warranty in Section 3.10 to be false or misleading in any material respect until the expiration of the standstill period provided for in Section 7.01(g) with respect to such default;

(b)           default shall be made in the payment of any principal of any Term Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;

(c)           default shall be made in the payment of any interest on any Term Loan or any Fee or any other amount (other than an amount referred to in (b) above) due and payable under any Loan Document, when and as the same shall become due and payable, and such default shall continue unremedied for a period of five Business Days;

(d)           default shall be made in the due observance or performance by the Borrower or any Restricted Subsidiary of any covenant, condition or agreement contained in Section 5.01(a), 5.05(a), 5.08 or in Article VI;

(e)           default shall be made in the due observance or performance by the Borrower or any Restricted Subsidiary of any covenant, condition or agreement contained in any Loan Document (other than those specified in (b), (c) or (d) above) and such default shall continue unremedied for a period of 30 days (or 10 days if such default occurs under Sections 5.12(a) or (d)) after notice thereof from the Administrative Agent or any Lender to the Borrower;

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(f)            the Borrower or any Restricted Subsidiary (i) shall fail to pay any principal or interest due in respect of any Material Indebtedness, when and as the same shall become due and payable or (ii) default in the observance or performance of any other agreement or condition relating to any Material Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or beneficiary of such Material Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of notice if required, such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that (x) clause (ii) of this clause (f) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness and (y) this clause (f) shall not apply to Material Indebtedness in respect of purchase money or vendor financing if such failure is a result of a good faith dispute with the holders of such Indebtedness and such failure is remedied or waived by the holders of such Indebtedness;

(g)           the Borrower or any Restricted Subsidiary (i) shall fail to pay any principal or interest due in respect of the ABL Facility, when and as the same shall become due and payable or (ii) default in the observance or performance of any other agreement or condition relating to the ABL Facility or contained in any ABL Loan Document, or any other event shall occur or condition exist, the effect of which default or other event or condition is to permit the lender under the ABL Facility, or if the ABL Facility has more than one lender, the applicable agent or requisite lenders under the ABL Facility to cause, with the giving of notice if required, the Indebtedness under the ABL Facility to become due prior to its scheduled maturity; provided, that this clause (g) shall not apply to the ABL Facility unless and until the earliest to occur of: (x) a period of 30 days has elapsed since the occurrence of the default or event of default under the ABL Facility (but only if such default, other event or condition has not been waived or cured) or (y) the acceleration of the Indebtedness under the ABL Facility or the termination of any commitment thereunder or (z) the exercise of any remedies by the lender under the ABL Facility, or if the ABL Facility has more than one lender, the applicable agent or requisite lenders under the ABL Facility (provided that the following shall not constitute an exercise of remedies: (1) cash sweeps that are permitted pursuant to the terms of any ABL Loan Document relating to dominion over bank accounts, (2) the establishment of borrowing base reserves, collateral ineligibles, or other conditions for advances, (3) the changing of advance rates or advance sublimits, (4) the imposition of a default rate or late fee and (5) the cessation of lending pursuant to the provisions of any ABL Loan Document, including upon the occurrence of a default on the existence of an overadvance, in each case, so long as the commitments under any ABL Loan Document have not been terminated or suspended);

(h)           one or more unstayed judgments shall be rendered against the Borrower, any Restricted Subsidiary or any combination thereof for a liability (not partially or fully covered by insurance or effective indemnity) and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of the Borrower or any Restricted Subsidiary to enforce any such judgment and such judgment either (i) is for the payment of money in an aggregate amount in excess of $10,000,000 (to the extent not adequately covered by insurance (less any deductible) in respect of which a solvent, unaffiliated and

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reputable insurance company has not denied coverage in writing) or (ii) is for injunctive relief and would reasonably be expected to result in a Material Adverse Effect;

(i)            any Guarantee under the Guarantee and Collateral Agreement for any reason shall cease to be in full force and effect (other than in accordance with its terms), or any Guarantor shall deny in writing that it has any further liability under the Guarantee and Collateral Agreement (other than as a result of the discharge of such Guarantor in accordance with the terms of the Loan Documents);

(j)            at any time (i) the Guarantee and Collateral Agreement with respect to any Guarantor for any reason, other than the satisfaction in full of all Obligations, shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared to be null and void or any Guarantor shall repudiate its obligations thereunder, (ii) this Agreement, any Security Document or any other Loan Document ceases to be in full force and effect (other than by reason of the satisfaction in full of the Obligations in accordance with the terms hereof) or shall be declared null and void, or the Collateral Agent shall not have or shall cease to have a valid and perfected Lien in any Collateral purported to be covered by the Security Documents with the priority required by the Security Document and any applicable Intercreditor Agreement, or (iii) any Loan Party shall contest the validity or enforceability of any Loan Document, or the Liens and claim priorities provided for in the Loan Documents, in writing or deny in writing that it has any further liability, including with respect to future advances by Lenders, under any Loan Document;

(k)           [Reserved];

(l)            an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Borrower, any Material Subsidiary that is a Restricted Subsidiary, or of a substantial part of the property or assets of the Borrower, any Material Subsidiary that is a Restricted Subsidiary, under the Bankruptcy Code, or any other Federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower, any Material Subsidiary that is a Restricted Subsidiary or for a substantial part of the property or assets of the Borrower, any Material Subsidiary that is a Restricted Subsidiary or (iii) the winding-up or liquidation of the Borrower, any Material Subsidiary that is a Restricted Subsidiary; and in each case such proceeding or petition shall continue uncontroverted within 30 days after commencement of the case or undismissed, unbonded or undischarged for 60 days after commencement of the case or an order or decree approving or ordering any of the foregoing shall be entered;

(m)          the Borrower, any Material Subsidiary that is a Restricted Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking relief under the Bankruptcy Code, or any other Federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a reasonably timely and appropriate manner, any proceeding or the filing of any petition described in subsection (l) of this Section 7.01, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower, any Material Subsidiary that is a Restricted Subsidiary, (iv) file an answer admitting the material allegations of a petition filed against it in

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any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) generally become unable, admit in writing its inability or fail generally to pay its debts as they become due, or (vii) take any action for the purpose of effecting any of the foregoing;

(n)           [Reserved];

(o)           the provisions of the ABL Intercreditor Agreement or any Pari Passu Intercreditor Agreement or Second Lien Intercreditor Agreement shall, in whole or in part, following such ABL Intercreditor Agreement, Pari Passu Intercreditor Agreement or Second Lien Intercreditor Agreement being entered into, terminate, cease to be effective or cease to be legally valid, binding and enforceable against the Persons party thereto, except in accordance with its terms;

(p)           a Change of Control shall occur; or

(q)           there shall occur one or more ERISA Events, which individually or in the aggregate results in or would reasonably be expected to result in the PBGC, a Multiemployer Plan or any other Plan either (i) asserting a direct claim against the Borrower and/or any Restricted Subsidiary imposing liability on the Borrower and/or any Restricted Subsidiary, or (ii) seeking to impose a direct lien against the Borrower and/or any Restricted Subsidiary securing such liability of the Borrower and/or any Restricted Subsidiary or the liability of any of their respective ERISA Affiliates in respect of such ERISA Event(s), in each case for clauses (i) and (ii) in an aggregate amount which would reasonably be expected to result in a Material Adverse Effect;

then, and in every such event (other than an event with respect to the Borrower described in subsections (l) or (m) above of this Section 7.01), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take either or both of the following actions, at the same or different times:  (i) terminate the Commitments and (ii) declare the Term Loans and all other Obligations then outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Term Loans so declared to be due and payable, together with accrued interest thereon and any unpaid accrued Fees, applicable payment or prepayment premium and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, shall become forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding; and in any event with respect to the Borrower described in subsection (l) or (m) of this Section 7.01, the principal of the Term Loans then outstanding, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, shall automatically become due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding.

7.02        Application of Proceeds.  Subject to the terms of the Intercreditor Agreements, the proceeds received by any Agent pursuant to the exercise of its remedies, or otherwise received after acceleration of the Term Loans, shall be applied, in full or in part, together with any other

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sums then held by any Agent pursuant to this Agreement, in the order set forth in Section 5.02 of the Guarantee and Collateral Agreement.

ARTICLE VIII.
The Administrative Agent and the Collateral Agent

8.01        Appointment of Agents.  Each of the Lenders hereby irrevocably designates and appoints UBS AG, Stamford Branch as the Administrative Agent and the Collateral Agent hereunder and under the other Loan Documents.  Each Lender authorizes each Agent to take such actions on its behalf and to exercise such powers, rights and remedies as are delegated to such Agents by the terms hereof or thereof, together with such actions and powers, rights and remedies as are reasonably incidental thereto including, without limitation, taking any action as a contractual representative of the Lenders.  Each Agent shall have only those duties and responsibilities that are expressly specified herein and in the other Loan Documents.  Other than Sections 8.06 and 8.11(b), the provisions of this Article are solely for the benefit of the Administrative Agent, the Collateral Agent, the Arranger and the Lenders, and neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions.  In performing its functions and duties hereunder, each Agent shall act solely as a representative and on behalf of the Lenders and the other Secured Parties and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for the Borrower or any Subsidiary.  Each of the Agents, without consent of any party hereto, may assign any or all of its rights hereunder to any of its Affiliates.

8.02        Rights as a Lender.  Each person serving as an Agent or Arranger hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent or Arranger and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include each person serving as an Agent or Arranger hereunder in its individual capacity.  Such person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such person were not an Agent or Arranger hereunder and without any duty to account therefor to the Lenders.

8.03        Exculpatory Provisions.

No Agent shall have any duties or obligations except those expressly set forth herein and in the other Loan Documents.  Without limiting the generality of the foregoing, no Agent or Arranger:

(i)            shall be subject to any fiduciary or other implied duties in respect of any Secured Party by reason of this Agreement or any other Loan Document, regardless of whether a Default or Event of Default has occurred and is continuing;

(ii)           shall have any duty to take any discretionary action or exercise any discretionary powers, and shall be entitled to refrain from exercising any discretion or authority vested in it under this Agreement or any other Loan Document unless and until such Agent has received instructions from the

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Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents) and, upon receipt thereof, such Agent or Arranger shall be entitled to act, refrain from acting or exercise such power or discretion in accordance with such instruction; provided that such Agent or Arranger shall not be required to take any action that, in its judgment or the judgment of its counsel, may expose such Agent or Arranger to liability or that is contrary to any Loan Document or applicable Requirements of Law; and

(iii)          shall, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the person serving as such Agent or Arranger or any of its Affiliates in any capacity.

No Agent or Arranger shall be liable for any action taken or not taken by it under or in connection with any Loan Document (x) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as such Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 9.08) or (y) in the absence of its own gross negligence or willful misconduct.  No Agent or Arranger shall be deemed to have knowledge of any Default or Event of Default unless and until written notice describing such Default or Event of Default is given to such Agent or Arranger by the Borrower or a Lender.  In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice thereof to the Lenders.  The Agents shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders; provided that, unless and until any Agent shall have received such directions, such Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders (as determined by such Agent in its sole discretion).

No Agent or Arranger shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or in any Loan Document or the existence or possible existence of any Default or Event of Default, referring to this Agreement and stating that such notice is a “notice of default”, (iv) the execution, validity, enforceability, effectiveness, genuineness, sufficiency or collectability of this Agreement, any other Loan Document or any other agreement, instrument or document, (v) the financial condition or business affairs of any Loan Party or any other Person liable for the payment of the Obligations or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to such Agent or Arranger.  Without limiting the generality of the foregoing, the use of the term “agent” in this Agreement with reference to the Administrative Agent or the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law.  Instead, such term is used merely as a matter of market

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custom and is intended to create or reflect only an administrative relationship between independent contracting parties.

Each party to this Agreement acknowledges and agrees that the Administrative Agent may use an outside service provider for the tracking of all UCC financing statements required to be filed pursuant to the Loan Documents and notification to the Administrative Agent, of, among other things, the upcoming lapse or expiration thereof, and that any such service provider will be deemed to be acting at the request and on behalf of the Borrower and the other Loan Parties.  No Agent shall be liable for any action taken or not taken by any such service provider.

8.04        Reliance by Agent.

Each Agent shall be entitled to rely upon, and shall be fully protected and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person.  Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon.  In determining compliance with any condition hereunder to the making of a Term Loan, that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Term Loan.  Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall be entitled to rely upon the advice of any such counsel, accountants or experts and shall not be liable for any action taken or not taken by it in accordance with such advice.

8.05        Delegation of Duties.

Each Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through, or delegate any and all such rights and powers to, any one or more co-agents, sub agents or attorneys-in-fact appointed by such Agent.  Each Agent and any such co-agent, sub agent or attorney-in-fact may perform any and all of its duties and exercise its rights, remedies and powers by or through their respective Related Parties.  The benefits of all provisions of this Article VIII and Section 9.05 shall apply to any such co-agent, sub agent or attorney-in-fact and to the Related Parties of each Agent and any such co-agent, sub agent or attorney-in-fact as if such Person were an Agent hereunder, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent; provided that each Agent shall exercise reasonable care in selecting any co-agent, sub-agent or attorney-in-fact.

8.06        Resignation of Agent.

Each Agent may at any time give notice of its resignation to the Lenders and the Borrower, which resignation shall be effective upon the earlier of (x) the appointment of a replacement Agent in accordance with this Section 8.06 and (y) 30 days after the giving of such notice.  Upon receipt of any such notice of resignation, the Required Lenders shall have the right,

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in consultation with the Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States, in each case, with the consent of the Borrower (such consent not to be unreasonably withheld or delayed; it being agreed that any then-existing Lender shall be deemed acceptable and that the Borrower shall have no consent right upon and during the continuance of an Event of Default).  If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders appoint a successor Agent meeting the qualifications set forth above provided that if the Agent shall notify the Borrower and the Lenders that no qualifying person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Collateral Agent on behalf of the Lenders under any of the Loan Documents, the retiring Collateral Agent shall continue to hold such collateral security as nominee until such time as a successor Collateral Agent is appointed) and (2) except for any indemnity payments owing to the retiring Agent, all payments, communications and determinations provided to be made by, to or through an Agent shall instead be made by or to each Lender directly, until such time as the Required Lenders appoint a successor Agent as provided for above in this paragraph.  Upon the acceptance of a successor’s appointment as Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Agent, and the retiring Agent shall be discharged from all of its duties and obligations as an Agent hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this paragraph).  The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.  After any retiring Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article VIII and Section 9.05 shall continue in effect for the benefit of such retiring Agent, its co-agents, sub agents, attorney-in-facts and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Agent was acting as Agent.

8.07        Non-Reliance on Agent and Other Lenders.

Each Lender acknowledges that it has, independently and without reliance upon any Agent, Arranger or any other Lender or counsel to any Agent or Arranger or any of their respective officers, directors, employees, agents or counsel, and based on such documents and information as it has deemed appropriate, made its own credit and legal analysis and decision to enter into this Agreement and perform the transactions contemplated hereby.  Each Lender further represents and warrants that it has had the opportunity to review the Confidential Information Memorandum and each other document made available to it on the Platform in connection with this Agreement and has acknowledged and accepted the terms and conditions applicable to the recipients thereof.  Each Lender also acknowledges that it will, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.  No Agent or Arranger shall have any responsibility with respect to the accuracy of or the completeness of any information provided to the Lenders and, except as expressly provided in this Agreement, no

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Agent shall have any duty or responsibility, either initially or on a continuing basis, to provide any Lender or the holder of any Note with any credit or other information with respect thereto, whether coming into its possession before the making of the Term Loans or at any time or times thereafter.  Each of the Lenders acknowledges that the Arranger’s and Administrative Agent’s legal counsel in connection with the transactions contemplated by this Agreement is only acting as counsel to the Arranger and the Administrative Agent and is not acting as counsel to any Lender.

8.08        Withholding Tax.

To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax.  If the forms or other documentation required by Section 2.15 are not delivered to the Administrative Agent, then the Administrative Agent may withhold from any interest payment to any Lender not providing such forms or other documentation, an amount equal to the applicable withholding tax.  Without limiting the provisions of Section 2.15(a) or (c), each Lender shall, and does hereby, indemnify the Administrative Agent, and shall make payable in respect thereof within 30 days after demand therefor, against any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the Internal Revenue Service or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered or not property executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding tax ineffective).  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this Section.  The agreements in this Section shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.

8.09        No Other Duties, Etc.

Anything herein to the contrary notwithstanding, the Arranger listed on the cover page hereof shall not have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in their capacity, as applicable, as the Administrative Agent, the Collateral Agent or a Lender hereunder.

8.10        Enforcement.

(a)           Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained

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exclusively by, the Administrative Agent, or, with respect to the Security Documents, the Collateral Agent or as the Required Lenders may require or otherwise direct, for the benefit of all the Lenders or the Secured Parties; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any Lender from exercising setoff rights in accordance with, and subject to, the terms of this Agreement, or (c) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any bankruptcy or insolvency law.

(b)           In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Term Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise

(i)            to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Term Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Sections 2.05 and 9.05) allowed in such judicial proceeding; and

(ii)           to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.05 and 9.05.

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

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8.11                        Security Documents.

(a)                                 Agents under Security Documents.  Each Lender hereby further irrevocably authorizes the Administrative Agent or the Collateral Agent, as applicable, on behalf of and for the benefit of Lenders, to be the agent for and representative of the Secured Parties with respect to the Collateral, the Guarantee and Collateral Agreement, each of the other Security Documents and the Intercreditor Agreements.  Subject to Section 9.08, without further written consent or authorization from Lenders, the Administrative Agent or the Collateral Agent, as applicable, may execute any documents or instruments necessary to (i) release any Lien encumbering any item of Collateral that is the subject of a sale or other disposition of assets permitted hereby or to which Required Lenders (or such other Lenders as may be required to give such consent under Section 9.08) have otherwise consented or which constitutes Excluded Collateral (as defined in the Guarantee and Collateral Agreement) or otherwise subordinate any Lien to any Lien permitted under Section 6.02(j), or (ii) release any Guarantor in connection with the sale of such Guarantor in a transaction permitted by Section 6.04 or with respect to which Required Lenders (or such other Lenders as may be required to give such consent under Section 9.08) have otherwise consented.  Additionally, the Lenders irrevocably authorize the Administrative Agent or the Collateral Agent to release any Lien on any property granted to or held by the Collateral Agent on their behalf under any Loan Document and to release any Guarantor from its obligations upon payment in full of all Obligations.

(b)                                 Right to Realize on Collateral and Enforce Security Documents.  Anything contained in any of the Loan Documents to the contrary notwithstanding, the Borrower, the Administrative Agent, the Collateral Agent and each Lender hereby agree that (i) no Lender or other Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Security Document, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent, on behalf of Lenders in accordance with the terms hereof and all powers, rights and remedies under the Security Documents may be exercised solely by the Collateral Agent, and (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, and subject to applicable law, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by the Collateral Agent at such sale.  No holder of any Secured Obligations related to Hedging Agreements or Treasury Services Agreements in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement or the other Loan Documents.

(c)                                  No obligations to Lenders. The Collateral Agent shall have no obligation whatsoever to the Lenders or to any other Person to assure that the Collateral exists or is owned by any Loan Party or is cared for, protected or insured or that the Liens granted to the Collateral Agent herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise or to continue

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exercising at all or in any manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 8.11 or in any of the Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to the Lenders, except for its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).

ARTICLE IX.
Miscellaneous

9.01                        Notices.

(a)                                 Generally.  Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in paragraph (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by fax as follows:

(i)                                     if to any Loan Party, to the Borrower at:

Viskase Companies, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇▇ ▇▇▇

▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇

Attn:  President and Chief Executive Officer

Fax No.  (▇▇▇) ▇▇▇-▇▇▇▇

With copies to:

Viskase Companies, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇▇ ▇▇▇

▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇

Attn:  General Counsel

Fax No.  (▇▇▇) ▇▇▇-▇▇▇▇

Winston & ▇▇▇▇▇▇ LLP

▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇

▇▇▇▇▇▇▇, ▇▇  ▇▇▇▇▇-▇▇▇▇

Attn:  M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇

Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇

(ii)                                  if to the Administrative Agent or Collateral Agent, to it at:

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UBS AG, Stamford Branch
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Banking Products Services Agency
Telephone: (▇▇▇) ▇▇▇ ▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Email:  ▇▇-▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇

(iii)                               if to a Lender, to it at its address (or fax number) set forth in its Administrative Questionnaire.

Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by fax shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient).  Notices delivered through electronic communications to the extent provided in paragraph (b) below, shall be effective as provided in said paragraph (b).  Any party hereto may change its address or fax number for notices and other communications hereunder by written notice to the Borrower and the Agents.

(b)                                 Electronic Communications.  Notices and other communications to the Lenders hereunder may (subject to the provisions of this Section 9.01) be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication.  The Administrative Agent, the Collateral Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it (including pursuant to the provisions of this Section 9.01); provided that approval of such procedures may be limited to particular notices or communications.  Each Loan Party hereby agrees that it will provide to the Administrative Agent all information, documents and other materials that it is obligated to furnish to the Administrative Agent or the Lenders pursuant to this Agreement and any other Loan Document, including all notices, requests, financial statements, financial and other reports, certificates and other information materials (the “Communications”), by transmitting them in an electronic medium in a format reasonably acceptable to the Administrative Agent at such e-mail address(es) provided to the Borrower from time to time or in such other form as the Administrative Agent shall require.  In addition, each Loan Party agrees to continue to provide the Communications to the Administrative Agent in the manner specified in this Agreement or any other Loan Document or in such other form as the Administrative Agent shall require.

Nothing in this Section 9.01 shall prejudice the right of the Agents, any Lender or any Loan Party to give any notice or other communication pursuant to this Agreement or any other Loan Document in any other manner specified in this Agreement or any other Loan Document or as any such Agent shall require.

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Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.

To the extent consented to by the Administrative Agent in writing from time to time, the Administrative Agent agrees that receipt of the Communications (other than any such Communication that (i) relates to a request for a new, or a conversion of an existing, Borrowing or other extension of credit (including any election of an interest rate or interest period relating thereto), (ii) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (iii) provides notice of any Default or Event of Default under this Agreement or any other Loan Document, (iv) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any Borrowing) by the Administrative Agent at its e-mail address(es) set forth above shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents.

(c)                                  Platform.  Each Loan Party further agrees that any Agent or any Arranger may make the Communications available to the Lenders by posting the Communications on SyndTrak Online, IntraLinks or a substantially similar secure electronic transmission system (the “Platform”).  The Platform is provided “as is” and “as available.”  The Agents, the Arranger and their Related Parties (the “Agent Parties”) do not warrant the accuracy or completeness of the Communications, or the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications.  No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by any Agent in connection with the Communications or the Platform.  In no event shall any Agent Party have any liability to the Loan Parties, any Lender or any other Person for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or such Agent’s transmission of communications through the Internet, except to the extent the liability of such person is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from such Agent Party’s gross negligence or willful misconduct.

(d)                                 Public/Private.  Each Loan Party hereby authorizes the Administrative Agent to distribute (i) to Private ▇▇▇▇▇▇ all Communications, including any Communication that the Borrower identifies in writing is to be distributed to Private ▇▇▇▇▇▇ only (“Private Side Communications”), and (ii) to Public ▇▇▇▇▇▇ all Communications other than any Private Side Communication.  The Borrower represents and warrants that no Communication (other than Private Side Communications) contains any MNPI.  The Borrower agrees to designate as Private Side Communications only those Communications or portions thereof that it reasonably believes in good faith constitute MNPI, and agrees to use all commercially reasonable efforts not to

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designate any Communications provided under Section 5.04(a), (b), (c) and (d) as Private Side Communications.  “Private ▇▇▇▇▇▇” shall mean Lenders’ employees and representatives who have declared that they are authorized to receive MNPI.  “Public ▇▇▇▇▇▇” shall mean Lenders’ employees and representatives who have not declared that they are authorized to receive MNPI; it being understood that Public ▇▇▇▇▇▇ may be engaged in investment and other market-related activities with respect to the Borrower’s or its affiliates’ securities or loans.  “MNPI” shall mean material non-public information (within the meaning of United States federal securities laws) with respect to the Borrower, its affiliates and any of their respective securities.

Each Lender acknowledges that United States federal and state securities laws prohibit any person from purchasing or selling securities on the basis of material, non-public information concerning the issuer of such securities or, subject to certain limited exceptions, from communicating such information to any other person.  Each Lender confirms that it has developed procedures designed to ensure compliance with these securities laws.

Each Lender acknowledges that circumstances may arise that require it to refer to Communications that may contain MNPI.  Accordingly, each Lender agrees that it will use commercially reasonable efforts to designate at least one individual to receive Private Side Communications on its behalf in compliance with its procedures and applicable law and identify such designee (including such designee’s contact information) on such Lender’s Administrative Questionnaire.  Each Lender agrees to notify the Administrative Agent in writing from time to time of such Lender’s designee’s e-mail address to which notice of the availability of Private Side Communications may be sent by electronic transmission.

Each Lender that elects not to be given access to Private Side Communications does so voluntarily and, by such election, (i) acknowledges and agrees that the Agents and other Lenders may have access to Private Side Communications that such electing Lender does not have and (ii) takes sole responsibility for the consequences of, and waives any and all claims based on or arising out of, not having access to Private Side Communications.

Nothing in this Section 9.01(d) or otherwise shall modify or limit any Agent’s or any Lender’s obligations under Section 9.18 with regard to Information and the maintenance of the confidentiality of or other treatment of Information.

(e)                                  Change of Address, Etc. Each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, facsimile number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.

(f)                                   Reliance by Agents and Lenders. The Agents, the Arranger and the Lenders shall be entitled to rely and act upon any notices (including telephonic notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify the Agents, the Arranger, the Lenders and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower.  All telephonic notices

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to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.

9.02                        Survival of Agreement.  All covenants, agreements, representations and warranties made by any Loan Party in this Agreement, in any other Loan Document and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Term Loans, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Agents, or any Lender may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Term Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid.  The provisions of Sections 2.12, 2.14, 2.15 and Article IX (other than Section 9.18, to the extent expressly provided therein) shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Term Loans, the expiration or termination of the Commitments, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document or the termination of this Agreement or any provision hereof.

9.03                        Binding Effect.  This Agreement shall become effective to the extent set forth herein when it shall have been executed by the Borrower, the Lenders as of the Closing Date, the Administrative Agent and the Collateral Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto.

9.04                        Successors and Assigns.

(a)                                 Successors and Assigns Generally.  The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent, the Collateral Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee (other than an Affiliated Lender) in accordance with the provisions of paragraph (b), or with respect to an Affiliated Lender in accordance with the provisions of paragraph (i), of this Section 9.04, (ii) by way of participation in accordance with the provisions of paragraph (d) of this Section 9.04 or (iii) by way of pledge or assignment of a security interest subject to the restrictions of paragraph (f) of this Section (and any other attempted assignment or transfer by a Lender shall be null and void).  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in paragraph (d) of this Section and, to the extent expressly contemplated hereby, the other Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.

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(b)                                 Assignments by Lenders.

(i)                                     Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Term Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) of:

(A)                               the Borrower; provided that no consent of the Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender, a Related Fund or, if an Event of Default has occurred and is continuing; provided, further, that the Borrower shall be deemed to have consented to any assignment unless it shall object thereto by written notice to the Administrative Agent within ten Business Days after having received written notice thereof;

(B)                               the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of all or any portion of a Term Loan to a Lender, an Affiliate of a Lender or a Related Fund; and

(ii)                                  Assignments shall be subject to the following additional conditions:

(A)                               except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Term Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or a Related Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Term Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Term Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Effective Date” is specified in the Assignment and Assumption, as of the Effective Date) shall not be less than $1.0 million and shall be in integral multiples of $1.0 million in excess thereof, unless each of the Administrative Agent and, so long as no Default or Event of Default has occurred and is continuing, the Borrower otherwise consent (each such consent not to be unreasonably withheld or delayed);

(B)                               each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Term Loan or the Commitment assigned, except that this clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate tranches or facilities on a non-pro rata basis;

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(C)                               the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption via an electronic settlement system acceptable to the Administrative Agent (or, if agreed to by the Administrative Agent, manually), together with a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent), and the Eligible Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; and

(D)                               in connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Term Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent) to pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon). Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Requirements of Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section 9.04, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 2.12, 2.13, 2.15 and 9.05 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.  Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender.  Any

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assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 9.04(d).

(c)                                  Register.  The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Term Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for inspection by the Borrower, the Collateral Agent and any Lender (with respect to its own interest only), at any reasonable time and from time to time upon reasonable prior notice.

(d)                                 Participations.  Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any person (other than a natural person, a Disqualified Institution or the Borrower or any of its Affiliates) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Term Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.  For the avoidance of doubt, each Lender shall be responsible severally for its obligations under this Section 9.05(d) without regard to the existence of any participation.

Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce the Loan Documents and to approve any amendment, modification or waiver of any  provision of the Loan Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in clause (i), (ii), (iii), (vi) or (vii) of the first proviso to Section 9.08(b) that affects such Participant.  Subject to paragraph (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.15 (subject to the requirements of those Sections) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section.  To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.06 as though it were a Lender; provided such Participant agrees to be subject to Section 2.14 as though it were a Lender.

Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Term Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s

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interest in any Term Loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Term Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or to establish that no Participant is a Disqualified Institution.  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.

(e)                                  Limitations on Participant Rights.  A Participant shall not be entitled to receive any greater payment under Sections 2.12, 2.13 and 2.15 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless (i) the sale of the participation to such Participant is made with the Borrower’s prior written consent (not to be unreasonably withheld or delayed) or (ii) to the extent such entitlement to receive a greater payment results from a Change in Law after the Participant acquired the applicable participation.

(f)                                   Certain Pledges.  Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto, and no such pledge or assignment shall be made to a Disqualified Institution.  In the case of any Lender that is a fund that invests in bank loans, such Lender may, without the consent of the Borrower or the Administrative Agent, collaterally assign or pledge all or any portion of its rights under this Agreement, including the Term Loans and Notes or any other instrument evidencing its rights as a Lender under this Agreement, to any holder of, trustee for, or any other representative of holders of, obligations owed or securities issued, by such fund, as security for such obligations or securities.

(g)                                  Electronic Execution of Assignments.  The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Requirement of Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

(h)                                 [Reserved].

(i)                                     Affiliated Lenders.  Notwithstanding anything to the contrary contained herein, (x) any Lender may, at any time, assign all or a portion of its rights and obligations under this Agreement in respect of its Term Loans to an Affiliated Lender and (y) the Borrower may, from time to time, purchase or prepay Term Loans, in each case, through buy-back or auction procedures open to all applicable Lenders on a pro rata basis in accordance with customary procedures to be agreed between the Borrower and the Administrative Agent (or other applicable agent managing such auction); provided that:

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(i)            only in the case of clause (y) above, no Default or Event of Default then exists or would result therefrom;

(ii)           any Term Loans acquired pursuant to this Section 9.04(i) by the Borrower shall be retired and cancelled promptly upon the acquisition thereof;

(iii)          for purposes of calculating the Required Lenders, the aggregate principal amount of Term Loans held at any one time by Affiliated Lenders may not exceed 20% of the aggregate principal amount of all Term Loans outstanding at such time under this Agreement;

(iv)          the aggregate principal amount of Term Loans (including Incremental Term Loans) held by all Affiliated Lenders will not exceed 30% of the aggregate principal amount of the Term Loans (including any Incremental Term Loans) outstanding at such time; provided that each of the parties hereto agrees and acknowledges that the Administrative Agent shall not be liable for any losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements of any kind or nature whatsoever incurred or suffered by any Person in connection with any compliance or non-compliance with this clause (i)(v) or any purported assignment exceeding such limitation;

(v)           with respect to any Term Loans acquired or prepaid by the Borrower pursuant to this Section 9.04(i), immediately after giving effect to such purchase or other acquisition of a Term Loan, Cash Liquidity shall not be less than $10,000,000; and

(vi)          by its purchase or other acquisition of a Term Loan, each Affiliated Lender shall be deemed to have acknowledged and agreed that it has no right whatsoever (in such Person’s capacity as a Lender) so long as such Person is an Affiliated Lender to attend or receive any notice of any meeting (live or by any electronic means) in its capacity as a Lender with the Administrative Agent or any other Lender or have access to the Platform (including, without limitation, that portion of the Platform that has been designated as for “private-side” Lenders).

Notwithstanding anything in this Agreement or any other Loan Document to the contrary, each Affiliated Lender hereby agrees that, if a proceeding under any Debtor Relief Law is commenced by or against any Loan Party at a time when such Lender is an Affiliated Lender, such Affiliated Lender irrevocably authorizes and empowers the Administrative Agent to vote on behalf of such Affiliated Lender with respect to the Term Loans held by such Affiliated Lender in the same proportion, for and against, as votes were cast on each matter by Lenders that are not Affiliated Lenders, unless the Administrative Agent instructs such Affiliated Lender to vote, in which case such Affiliated Lender shall vote with respect to the Term Loans held by it in the same proportion, for and against, as votes were cast

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on each matter by Lenders that are not Affiliated Lenders; provided that in connection with any matter that proposes to treat any Obligations held by such Affiliated Lender in a manner that is different than the proposed treatment of similar Obligations held by Lenders that are not Affiliates, (a) such Affiliated Lender shall be entitled to vote in accordance with its sole discretion (and not in accordance with the direction of the Administrative Agent) and (b) the Administrative Agent shall not be entitled to vote on behalf of such Affiliated Lender.  Each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender (solely in respect of Term Loans and participations therein and not in respect of any other claim or status that such Affiliated Lender may otherwise have), from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of (but subject to the limitations set forth in) this paragraph.

9.05        Expenses; Indemnity.

(a)           Costs and Expenses.  The Borrower shall pay (i) all reasonable documented out of pocket expenses incurred by the Administrative Agent, the Arranger, the Collateral Agent and their respective Affiliates (including the reasonable documented fees, charges and disbursements of one primary counsel and, if necessary, one local counsel in each relevant jurisdiction and, if such outside or local counsel is insufficient for specialty matters, one additional specialty counsel per jurisdiction in each case for the Administrative Agent and/or the Collateral Agent) in connection with (x) the syndication of the credit facility provided for herein (including the obtaining and maintaining of CUSIP numbers for the Term Loans), and the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents as of the Closing Date, and (y) the administration of this Agreement and the other Loan Documents or any amendment, amendment and restatement, modification or waiver of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), including in connection with post-closing searches to confirm that security filings and recordations have been properly made and including any costs and expenses of the service provider referred to in Section 8.03, (ii) all documented out of pocket expenses incurred by the Administrative Agent, the Arranger, the Collateral Agent or any Lender (including the reasonable documented fees, charges and disbursements of one primary counsel, one local counsel in each relevant jurisdiction for the Lenders as a group and, if such outside or local counsel is insufficient for specialty matters, one additional specialty counsel per jurisdiction for the Lenders as a group unless additional counsel are required due to actual or perceived conflicts of interest), in connection with the enforcement or protection of its rights, including, without limitation, such consents, approvals and rulings as set forth on Schedule 3.04, (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section 9.05, or (B) in connection with the Term Loans made hereunder and the other Obligations, including all such out of pocket expenses incurred during any workout, restructuring or negotiations in respect of such Term Loans and other Obligations and (iii) all documentary and similar taxes and

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charges in respect of the Loan Documents.

(b)           Indemnification by the Borrower.  The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof, without duplication), the Collateral Agent (and any sub-agent thereof, without duplication), each Lender, any Arranger and each Related Party of any of the foregoing persons (each such person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related documented out-of-pocket expenses (including the reasonable and documented fees, charges and disbursements of one primary counsel and, if necessary, one local counsel in each relevant jurisdiction and, if such outside or local counsel is insufficient for specialty matters, one additional specialty counsel per jurisdiction in each case for the Administrative Agent and/or the Collateral Agent) incurred by any Indemnitee or asserted against any Indemnitee by any party hereto or any third party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document, or any amendment, amendment and restatement, modification or waiver of the provisions hereof or thereof, or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Term Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or Release or threatened Release of Hazardous Materials on, at, under or from any property owned, leased or operated by any Loan Party at any time, or any claim under Environmental Laws related in any way to the Borrower or any of its Affiliates, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee.

(c)           Reimbursement by Lenders.  To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 9.05 to be paid by it to the Administrative Agent (or any sub-agent thereof), the Collateral Agent, any Arranger or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the Collateral Agent (or any sub-agent thereof) or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount (such indemnity shall be effective whether or not the related losses, claims, damages, liabilities and related expenses are incurred or asserted by any party hereto or any third party); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or the Collateral Agent (or any sub-agent thereof), in its capacity as such against any Arranger, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or the Collateral Agent (or any sub-agent thereof), in connection with such capacity.  The obligations of the Lenders under this paragraph (c) are subject to the provisions of Section 2.14.  For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its share of the aggregate amount of the outstanding Term Loans at the time.

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(d)           Waiver of Consequential Damages, Etc.  To the fullest extent permitted by applicable Requirements of Law, no party to this Agreement shall assert, and each such party hereby waives, any claim against any other party hereto or any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Term Loan or the use of the proceeds thereof except, in the case of any claim by any Indemnitee against the Borrower, to the extent such damages would otherwise be subject to indemnification pursuant to the terms of Section 9.05(b).  No Indemnitee referred to in paragraph (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through fax, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.

(e)           All amounts under this Section shall be due on written demand therefor.

(f)            The Agreements in this Section 9.05 shall survive the resignation of the Administrative Agent or the Collateral Agent, the replacement of any Lender and the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations.

9.06        Right of Setoff.  If an Event of Default shall have occurred and be continuing, each Lender and each of their respective Affiliates is hereby authorized at that time and from time to time thereafter while such Event of Default is subsisting, except to the extent prohibited by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations at any time owing by such Lender or any such Affiliate to or for the credit or the account of the Borrower against any of and all the obligations of the Borrower now or hereafter existing under this Agreement and other Loan Documents to such Lender or Affiliate, irrespective of whether or not such Lender or Affiliate shall have made any demand under this Agreement or such other Loan Document. The rights of each Lender under this Section 9.06 are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.

9.07        Applicable Law.  THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO AND THERETO, HEREUNDER AND THEREUNDER, SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF LAWS OTHER THAN THE LAWS OF THE STATE OF NEW YORK).

9.08        Waivers; Amendment. (a)                Generally.  No failure or delay by any Agent or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.  The rights and remedies of each Agent, and the Lenders hereunder and under the other Loan Documents are cumulative and

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are not exclusive of any rights or remedies that they would otherwise have.  No waiver of any provision of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by this Section 9.08, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.  Without limiting the generality of the foregoing, the making of a Term Loan shall not be construed as a waiver of any Default or Event of Default, regardless of whether any Agent, any Lender may have had notice or knowledge of such Default or Event of Default at the time.  No notice or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.

(b)           Required Consents.  Subject to 9.08(c) and (d), neither this Agreement nor any other Loan Document (other than the Agent’s Fee Letter, which may be amended, waived, supplemented or otherwise modified by the parties thereto) nor any provision hereof or thereof may be waived, amended, supplemented or modified except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower and the Administrative Agent or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent, the Collateral Agent (in the case of any Security Document) and the Loan Party or Loan Parties that are party thereto, in each case with the written consent of the Required Lenders (provided that any such waiver, amendment, supplement or modification solely affecting the Lenders of a Tranche (other than any such waiver, amendment, supplement or modification requiring the consent of each Lender, each Lender directly affected thereby, or any individual Lender) shall only require the written consent of the applicable Majority Lenders); provided that no such agreement shall be effective if the effect thereof would: