AMENDED AND RESTATED AMENDMENT NUMBER ONE TO CREDIT AGREEMENT and

Exhibit 10.5

AMENDED AND RESTATED AMENDMENT NUMBER ONE TO CREDIT AGREEMENT

and

Amendment Number One to the SECURITY AGREEMENT

This Amended and Restated Amendment Number One to Credit Agreement and Amendment Number One to Security Agreement (this “Amendment”) is entered into as of June 15, 2017, by and among the lenders identified on the signature pages hereof (such lenders, together with their respective successors and assigns, are referred to hereinafter each individually as a “Lender” and collectively as the “Lenders”), WILMINGTON TRUST, NATIONAL ASSOCIATION, as agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, “Agent”), on the one hand, and ▇▇▇▇ ▇▇▇▇▇▇ HOLDINGS CORP., a Delaware corporation (“Borrower”), and the undersigned Guarantors, on the other hand, in light of the following:

A.Agent, Lenders, and Borrower have previously entered into that certain Credit Agreement, dated as of October 28, 2016 (the “Credit Agreement” and, as amended from time to time, the “Agreement”);

B.Agent, Lenders, Borrower and the other Loan Parties party thereto have previously entered into that certain Security Agreement, dated as of October 28, 2016 (the “Security Agreement”);

C.Agent, Lenders, Borrower and the other Loan Parties have previously entered into that certain Amendment Number One to Credit Agreement and Amendment Number One to the Security Agreement, dated as of April 3, 2017 (the “Original First Amendment”);

D. Among other things, Borrower wishes to issue 13.75% senior secured notes due 2023 pursuant to an indenture to be dated as of the Effective Date (as defined below); and

E.Agent, Lenders and Borrower have agreed to (i) amend and restate the Original First Amendment and (ii) amend the Agreement and the Security Agreement, in each case, as set forth herein.

NOW, THEREFORE, in consideration of the premises herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Agent, Lenders, Borrower and the other Loan Parties hereby agree as follows:

1.DEFINITIONS.    All initially capitalized terms used in this Amendment shall have the meanings given to them in the Agreement, as amended hereby, unless specifically defined herein.

2.AMENDMENTS.

(a)On the Effective Date, the Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth on the pages attached hereto as Annex A.

(b)On the Effective Date, Schedule 5.1 to the Agreement is hereby amended by (i) deleting the reference therein to the “Notes Agent” and replacing such reference with a reference to the “2017 Notes Agent”, (ii) deleting each reference therein to the “Notes Documents” and replacing each such reference with a reference to the “2017 Notes Documents” and (iii) deleting the reference therein to the “Notes Indenture” and replacing such reference with a reference to the “2017 Notes Indenture”.

(i)On the Effective Date, Section 5(f) of the Security Agreement is hereby amended by deleting each reference to “Notes” appearing therein and replacing each such reference with a reference to the “2017 Notes”;

(ii)deleting each reference to the “Notes Agent” appearing therein and replacing each such reference with a reference to the “2017 Notes Agent”; and

(iii)deleting each reference to “Notes Obligations” appearing therein and replacing each such reference with a reference to the “2017 Notes Obligations”.

3.REPRESENTATIONS AND WARRANTIES. 

(a)Borrower hereby affirms to Agent and Lenders on the Effective Date that all of Borrower’s representations and warranties set forth in the Agreement, after giving effect to this Amendment, the MSD Credit Agreement Amendment, the ABL Credit Agreement Amendment, the 2017 Notes Indenture, the Closing Date ICA Amendment and the ABL-Notes Intercreditor Agreement, are true, complete and accurate in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such date (except to the extent that such representations and warranties relate solely to an earlier date).

(b)The Borrower and each Guarantor represents and warrants as of the date hereof that (i) it has the requisite corporate power and authority to execute and deliver this Amendment, and to perform its obligations hereunder and under the Loan Documents (as amended hereby) to which it is a party and (ii) the execution, delivery and performance by each Borrower and Guarantor of this Amendment has been duly approved by all necessary corporate action and does not (A) violate any material provision of federal, state, or local law or regulation applicable to any Loan Party or its Subsidiaries, (B) conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under any Material Contract of any Loan Party or its Subsidiaries (other than those Material Contracts referenced in (C) below) except to the extent that any such conflict, breach or default could not individually or in the aggregate reasonably be expected to have a Material Adverse Change, (C) conflict with, or result in a breach of, or constitute (with due notice, lapse of time or both) a default under the MSD Term Loan Credit Agreement, the ABL Credit Agreement, the Closing Date Intercreditor Agreement, the 2017 Notes Documents, or the ABL-Notes Intercreditor Agreement, in each case after giving effect to this Amendment, the ABL Credit Agreement Amendment, the MSD Credit Agreement Amendment, the 2017 Notes Documents, the ABL-Notes Intercreditor Agreement and the Closing Date ICA Amendment,  in effect as of the Effective Date, or (D) result in or require the imposition of any Lien of any nature whatsoever upon any assets of any Loan Party, other than Permitted Liens, after giving effect to this Amendment, the MSD Credit Agreement Amendment, the ABL Credit Agreement Amendment, the 2017 Notes Indenture, the Closing Date ICA Amendment and the ABL-Notes Intercreditor Agreement in effect as of the Effective Date.

(c)The Borrower and each Guarantor represents and warrants as of the date hereof that this Amendment (i) has been duly executed and delivered by the Borrower or such Guarantor, (ii) is the legal, valid and binding obligation of such Borrower or Guarantor, enforceable against such Borrower or Guarantor in accordance with its terms, and is in full force and effect, except to the extent that (A) the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting generally the enforcement of creditors’ rights or general principles of equity or (B) the availability of the remedies of specific performance or injunctive relief are subject to the discretion of the court before which any proceeding therefor may be brought, and (iii) does not and will not violate any material provision of the Governing Documents of any Loan Party or its Subsidiaries.

4.NO DEFAULTS.  The Borrower hereby affirms to Agent and the Lenders on the Effective Date that no Default or Event of Default has occurred and is continuing as of such date, after giving effect to this Amendment, the MSD Credit Agreement Amendment, the ABL Credit Agreement Amendment, the 2017 Notes Indenture, Closing Date ICA Amendment and the ABL-Notes Intercreditor Agreement.

5.CONSENT.   Subject to the occurrence of the Effective Date (as defined below), and notwithstanding anything to the contrary in the Agreement or each of the other Loan Documents, the Agent and each of the Lenders hereby consent to the MSD Credit Agreement Amendment and the ABL Credit Agreement Amendment, consent to, and authorize Agent to enter into, the ABL-Notes Intercreditor Agreement.  For the avoidance of doubt, in the event the Effective Date (as defined below) does not occur for any reason, each of the consents referenced in this Section 5 shall be of no force or effect.      

6.CONDITIONS PRECEDENT.  Except as set forth in Section 7 below, this Amendment shall become effective on the date (the “Effective Date”) on which the following conditions shall have been satisfied (or duly waived):

(a)receipt by Agent of an executed counterpart of this Amendment by each of the parties hereto;

(b)receipt by Agent of a fully executed copy of the ABL-Notes Intercreditor Agreement in form and substance substantially identical to the form attached hereto as Annex B;

(c)receipt by Agent of a fully executed copy of an amendment to the Closing Date Intercreditor Agreement in form and substance substantially identical to the form attached hereto as Annex C (the “Closing Date ICA Amendment”);

(d)receipt by Agent of a fully executed copy of the Vehicle Collateral Agency Agreement in form and substance substantially identical to the form attached hereto as Annex D;

(e)receipt by Agent of a fully executed copy of the 2017 Notes Indenture in form and substance substantially identical to the form attached hereto as Annex E;  

(f)receipt by Agent of an amendment to the MSD Term Loan Credit Agreement (the “MSD Credit Agreement Amendment”) in form and substance substantially identical to the form attached hereto as Annex F, certified by a responsible officer of the Borrower as being true, correct, complete and in full force and effect; 

(g)receipt by Agent of an amendment to the ABL Credit Agreement (the “ABL Credit Agreement Amendment”) in form and substance substantially identical to the form attached hereto as Annex G, certified by a responsible officer of the Borrower as being true, correct, complete and in full force and effect;

(h)receipt by Agent of fully executed copies of the material 2017 Notes Documents and the Offering Memorandum, including but not limited to any notices or certificates with respect to leverage or other financial covenants, duly certified by an officer of Borrower, which 2017 Notes Documents shall be consistent in all respects with the Offering Memorandum; 

(i)(i) substantially concurrently with the effectiveness of this Amendment, the Borrower and ▇▇▇▇ ▇▇▇▇▇▇ Enterprises, Inc. (“JCEI”) shall have consummated the “Amended Offers” or received confirmation of the “Plan”, in each case, as defined in that certain Amended and Restated Offer to Purchase and Offering Memorandum, and Disclosure Statement Soliciting Acceptances of a Prepackaged Plan of Reorganization, dated June 15, 2017 (which Plan is attached to the Offering Memorandum (as defined below)), issued by Borrower and JCEI (as the same may be amended, supplemented or otherwise modified by the Borrower and/or JCEI so long as such changes do not materially and adversely affect the Lenders; provided that any such change that, individually or in the aggregate or directly or indirectly (x) results in a projected annual savings in cash interest expense of an amount less than $3,100,000, (y) changes the treatment of the Agent, the Lenders or the “Prepetition Solus Term Loan Claims” (as such term is defined in the Plan) under the Plan or the “Amended Exchange Offers”, including without limitation, in respect of plan treatment, reinstatement of the Obligations under section 1124(2) of the Bankruptcy Code, releases, exculpations and/or discharge (or exemption from discharge) or (z)  permits Liens to secure the Notes after the First Amendment Effective Date shall, in each of the foregoing cases, be deemed to be material and adverse to the Lenders, the “Offering Memorandum”, which Offering Memorandum is attached hereto as Annex H) and (ii) as a result of, and after giving effect to, the consummation of the First Amendment Effective Date Transactions, the Borrower’s projected annual consolidated cash interest expense, determined in accordance with GAAP, shall be reduced by not less than $3,100,000;

(j)receipt by Agent of a fully executed copy of that certain Restructuring Support Agreement dated as of June 15, 2017 between the Borrower, JCEI, certain guarantors party thereto and certain

Noteholders party thereto and that certain Support Agreement dated as of June 15, 2017 between JCEI and certain holders of the PIK Toggle Notes party thereto prior to the consummation of the First Amendment Effective Date Transactions (together the “Restructuring Support Agreements”), in form and substance substantially identical to the form attached hereto as Annex I,  certified by a responsible officer of the Borrower as being true, correct, complete and in full force and effect;

(k)receipt by Agent of evidence that the liens and security interests securing the obligations under the Notes have been released (or shall be released substantially concurrently with occurrence of the Effective Date) and the Note Documents have been amended in a manner reasonably satisfactory to the Required Lenders (it is understood and agreed that an amendment substantially consistent with the terms of the Offering Memorandum shall be deemed acceptable to the Required Lenders);

(l)to the extent that cases under Chapter 11 of the Bankruptcy Code are commenced with respect to the Borrower and/or any Guarantor, an order or, as applicable, orders  approving the use of “cash collateral” (as such term is defined in section 363 of the Bankruptcy Code) and/or debtor in possession financing (which order or orders, as applicable, shall likewise approve the grant of adequate protection to the Agent and Lenders and other customary lender protections) entered by the bankruptcy court presiding over the chapter 11 cases of the Borrower and/or the Guarantors, each of which order shall be in form and substance acceptable in all respects to the Agent and Lenders and shall not have been amended, modified, vacated or subject to appeal (any such order, a “Financing Order”);

(m)to the extent that cases under Chapter 11 of the Bankruptcy Code are commenced with respect to the Borrower and/or any Guarantor, an order confirming the “Plan” (as defined in the Offering Memorandum) entered by the bankruptcy court presiding over the chapter 11 cases of the Borrower and/or the Guarantors, which order shall (A) be in form and substance (1) acceptable in all material respects to the Agent and Lenders with respect to the treatment of the Agent, the Lenders and the “Prepetition Solus Term Loan Claims” (as such term is defined in the Plan) under the Plan, including without limitation, in respect of plan treatment, reinstatement of the Obligations under section 1124(2) of the Bankruptcy Code, releases, exculpations and discharge (or exemption from discharge) and (2) otherwise reasonably acceptable to the Agent and the Lenders and (B) not have been amended, modified, vacated or subject to appeal;

(n)a certificate, dated as of the Effective Date and signed on behalf of the Borrower by a responsible officer of the Borrower, certifying as of the Effective Date (v) that the representations and warranties set forth herein and in the other Loan Documents, in each case after giving effect to this Amendment, the MSD Credit Agreement Amendment, the ABL Credit Agreement Amendment, the 2017 Notes Indenture, the Closing Date ICA Amendment and the ABL-Notes Intercreditor Agreement on the Effective Date, are true and correct in all material respects (it being understood that any representation and warranty that is qualified as to “materiality”, “Material Adverse Change” or similar language shall be true and correct in all respects after giving effect to any such qualification therein) with the same effect as though made on and as of the Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date), (w) no Default or Event of Default exists and is continuing on the Effective Date, in each case after giving effect to this Amendment, the MSD Credit Agreement Amendment, the ABL Credit Agreement Amendment, the 2017 Notes Indenture, the Closing Date ICA Amendment and the ABL-Notes Intercreditor Agreement on the Effective Date, (x) the execution, delivery and performance of the Borrower and its Subsidiaries of the 2017 Notes Documents (including the incurrence of Indebtedness and granting of Liens thereunder), is permitted by the ABL Credit Agreement, the MSD Credit Agreement, the ABL Intercreditor Agreement and the Closing Date Intercreditor Agreement (in each case, if applicable, as amended on the Effective Date), (y) that either the “Amended Offers” or the confirmation of the “Plan” (each as defined in the Offering Memorandum) has been, or will be substantially concurrently with the occurrence of the Effective Date, consummated and (z) that the Borrower’s projected annual consolidated cash interest expense, determined in accordance with GAAP, as a result of and immediately after giving effect to the First Amendment Effective Date Transactions, would be reduced by not less than $3,100,000 (which certificate shall be accompanied by reasonably detailed calculations supporting such conclusion);

 

(o)the Lenders or Agent, as applicable, shall have received payment of the Agent’s and Lenders’ reasonable and documented out-of-pocket costs and expenses (including, without limitation, the reasonable and documented fees and expenses of counsel for the Agent and each of the Lenders) incurred for the period through and including the Effective Date (to the extent invoiced on or prior to the Effective Date);

(p)to the extent not previously paid, all accrued and unpaid interest at the non-default rate payable under the Loan Documents through and including the Effective Date shall have been paid to the Lenders; provided, however, that if the Effective Date shall not have occurred by September 5, 2017, all accrued and unpaid interest at the default rate payable under the Loan Documents from June 1, 2017 through and including the Effective Date shall have been paid to the Lenders;

(q)there shall have been no termination of the use of “cash collateral” (as such term is defined in section 363 of the Bankruptcy Code) or the occurrence of any “Event of Default” or “Termination Date” under any Financing Order or debtor in possession financing facility;

(r)each of the documents referenced in clauses (a) – (m) above of this Section 7 and which is attached hereto shall be in full force and effect and shall not have been modified in any manner that is, in the reasonable judgment of the Required Lenders and the Agent, adverse to the Agent or the Lenders; provided that, with respect to the documents referenced in clause (e) above, it is understood and agreed that any change to the definition of “ABL Priority Leverage Ratio” in the 2017 Notes Indenture as compared to the definition of “ABL Priority Leverage Ratio” contained in the form of the 2017 Notes Indenture attached hereto as Annex E shall be deemed adverse to the Lenders;

(s)each of the foregoing conditions shall have been satisfied or waived by the Required Lenders, on or before September 5, 2017 (or such later date as the Required Lenders may agree to in writing (which may be through email));

(t)the Restructuring Support Agreements shall have not been terminated; and

(u)neither any Noteholder or the trustee on behalf of any Noteholder shall have exercised any remedies with respect to non-payment of the Notes.

7.Waivers.  

(a)Agent (pursuant to Section 16 of this Agreement) and each Lender hereby waives any Default or Event of Default resulting from the non-payment of interest under the Notes that was due and owing on June 1, 2017 for so long as no Noteholder, nor the trustee on behalf of any Noteholder, has exercised any remedies with respect to non-payment of the Notes; provided, that, any such Default or Event of Default shall be permanently waived upon consummation of the First Amendment Effective Date Transactions (without prejudice to, or waiver of, the accrual of interest at the default rate provided under the Loan Documents from and including June 1, 2017 if, and only if, the “Effective Date” (as defined in the Plan) of the Plan shall not have occurred by September 5, 2017) provided that the First Amendment Effective Date Transactions occur on or prior to the earlier to occur of (i) September 5, 2017 (or such later date as the Required Lenders may agree in writing (which may be through email) and (ii) the termination of either Restructuring Support Agreement.         

(b)The commencement of any Insolvency Proceeding and the resulting acceleration of the Obligations shall give rise to the immediate incurrence of the Applicable Premium under Section 2.4(d)(iii) or Section 9.1 of the Agreement (the “Insolvency Premium”), which shall become earned, due and payable. On the effective date of a Plan that consummates the First Amendment Effective Date Transactions on substantially the same terms and conditions described in the Offering Memorandum, the Agent (pursuant to Section 16 of this Amendment) and each Lender hereby agree to waive the Insolvency Premium; provided, however, that the provisions in the Credit Agreement that may give rise to an Applicable Premium on and after the effective date of the Plan shall be reinstated and survive in all respects. 

The waivers contained in this Section 7 shall be effective immediately upon execution of this Amendment by the parties hereto notwithstanding anything to the contrary contained herein, including, without limitation, Section 6 above.  Nothing in this Amendment is intended to constitute, or shall constitute, a waiver of, or forbearance with respect to, any Default or Event of Default other than the Default or Event of Default referenced in this Section 7.

8.RESTRUCTURING THROUGH CHAPTER 11 INSOLVENCY PROCEEDING. Agent and each Lender hereby agrees that should the Borrower and Guarantors decide to consummate the First Amendment Effective Date Transactions pursuant to an Insolvency Proceeding under Chapter 11 of the Bankruptcy Code, on the terms and conditions as described in in the Offering Memorandum and the Plan, then all outstanding Obligations owing by the Borrower and Guarantors under the Loan Documents immediately prior to such Insolvency Proceeding (or as may accrue during such Insolvency Proceeding, including without limitation, interest accruing under the Loan Documents at the non-default rate provided for under the Loan Documents; provided, however, if  the “Effective Date” (as defined in the Plan) of the Plan shall not have occurred by September 5, 2017, all accrued and unpaid interest under the Loan Documents from and including June 1, 2017 shall be cured and reinstated at the default rate payable under the Loan Documents) may be cured and reinstated in full and complete settlement, release, and discharge of such claims pursuant to Section 1124(2) of the Bankruptcy Code pursuant to the terms and conditions of the Loan Documents, including provisions relating to the payment of the Applicable Premium, in effect immediately prior to such Insolvency Proceeding, and after giving effect to this Amendment, subject to satisfaction of the requirements under Section 6 hereof.  Agent and each Lender agrees to execute such documents or take such actions, at the sole cost and expense of the Borrower and Guarantors, as reasonably necessary to evidence that the Obligations have been cured and reinstated, as applicable, in accordance with the terms hereof.  

9.RELEASE.  The Borrower and each Guarantor (on behalf of itself and its Affiliates) and its successors-in-title, legal representatives and assignees and, to the extent the same is claimed by right of, through or under the Borrower or any Guarantor, for its past, present and future employees, agents, representatives, officers, directors, shareholders, and trustees (each, a “Releasing Party” and collectively, the “Releasing Parties”), does hereby remise, release and discharge, and shall be deemed to have forever remised, released and discharged, the Agent and each of the Lenders, and the Agent’s and each other Lender’s respective successors-in-title, legal representatives and assignees, past, present and future officers, directors, affiliates, shareholders, trustees, agents, employees, consultants, experts, advisors, attorneys and other professionals and all other persons and entities to whom any of the foregoing would be liable if such persons or entities were found to be liable to any Releasing Party, or any of them (each a “Releasee” and collectively hereinafter the “Releasees” or the “Lender Parties”), from any and all manner of action and actions, cause and causes of action, claims, charges, demands, counterclaims, suits, reckonings, controversies, damages, judgments, expenses, executions, liens, claims of liens, claims of costs, penalties, attorneys’ fees, or any other compensation, recovery or relief on account of any liability, obligation, demand or cause of action of whatever nature, whether in law, equity or otherwise (including, without limitation, any so called “lender liability” claims, interest or other carrying costs, penalties, legal, accounting and other professional fees and expenses and incidental, consequential and punitive damages payable to third parties, or any claims arising under 11 U.S.C. §§ 541-550 or any claims for avoidance or recovery under any other federal, state or foreign law equivalent), whether known or unknown, fixed or contingent, joint and/or several, secured or unsecured, due or not due, primary or secondary, liquidated or unliquidated, contractual or tortious, direct, indirect, or derivative, asserted or unasserted, foreseen or unforeseen, suspected or unsuspected, now existing, heretofore existing or which may heretofore accrue against any of the Lender Parties solely in their capacities as such under the Loan Documents, whether held in a personal or representative capacity, and which are based on any act, fact, event or omission or other matter, cause or thing; in each case of the foregoing occurring at or from any time prior to and including the date hereof in any way, directly or indirectly arising out of, connected with or relating to the Agreement or any other Loan Document and the transactions contemplated thereby, except for the duties and obligations expressly set forth in this Amendment or the other Loan Documents (each, a “Claim” and collectively, the “Claims”).  Each Releasing Party further hereby represents that it has received the advice of legal counsel with regard to the releases contained herein, and having been so advised stipulates and agrees with respect to all Claims, that it hereby waives any and all provisions, rights, and benefits conferred by any state or federal law of the

United States, or any principle of common law, including, without limitation, the benefit of the provisions of Section 1542 of the Civil Code of California, which provides as follows:

“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

As to each and every Claim released hereunder, the Borrower and each Guarantor also waives the benefit of each other similar provision of applicable federal or state law (including without limitation the laws of the state of California), if any, pertaining to general releases after having been advised by its legal counsel with respect thereto.

The Borrower and each Guarantor acknowledges that it may hereafter discover facts different from or in addition to those now known or believed to be true with respect to such claims, demands, or causes of action and agrees that this instrument shall be and remain effective in all respects notwithstanding any such differences or additional facts.  The Borrower and each Guarantor understands, acknowledges and agrees that the release set forth above may be pleaded as a full and complete defense and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the provisions of such release. 

The Borrower and each Guarantor, for itself and on behalf of its successors, assigns, and officers, directors, employees, agents and attorneys, and any Person acting for or on behalf of, or claiming through it, hereby absolutely, unconditionally and irrevocably, covenants and agrees with and in favor of each Releasee above that it will not ▇▇▇ (at law, in equity, in any regulatory proceeding or otherwise) any Releasee on the basis of any claim released, remised and discharged by such Person pursuant to the above release.

10.COSTS AND EXPENSES.  The Borrower shall pay to Agent and the Lenders, respectively, all of Agent’s and Lenders’ reasonable and documented out-of-pocket costs and expenses (including, without limitation, the reasonable and documented fees and expenses of counsel, which counsel may include any local counsel deemed necessary, search fees, filing and recording fees, documentation fees, appraisal fees, travel expenses, and other fees) arising in connection with the preparation, execution, and delivery of this Amendment and all related documents, as well as the implementation of the First Amendment Effective Date Transactions, including without limitation, effecting such transactions pursuant to cases under Chapter 11 of the Bankruptcy Code. All such fees and expenses owed to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, a limited liability partnership, and ▇▇▇▇▇▇ & Bird LLP, a limited liability partnership, and incurred on or before the date of execution of this Amendment shall be paid promptly upon execution hereof  but, in any event, with three (3) Business Days following receipt of a reasonably detailed invoice for such costs and expenses.

11.LENDERS’ RIGHTS.  In the event that the Borrower or any Guarantor (or any of their Subsidiaries) enters into any agreement or other arrangement to pay a fee or other consideration to induce the ABL Agent or any lender under any ABL Loan Document (each an “ABL Lender Party”) or the MSD Agent or any lender under the MSD Loan Document  (each a “MSD Lender Party”), to agree to any request for a waiver, amendment, consent or other similar arrangement under any ABL Loan Document or MSD Loan Document, as applicable, with respect to the First Amendment Effective Date Transactions (each a “Request”), the Lenders shall be entitled to receive fees or other consideration equivalent to that which has been granted in connection with such Request; provided that the aggregate amount of such fees (together with the amount required to be paid to the Lenders in any fee letter in connection with this Amendment or other written arrangement between the Borrower or any Guarantor and the Lenders or the Agent) shall not exceed the highest amount of the fees payable to any ABL Lender Party or MSD Lender Party, expressed as a percentage of the loans or commitments held by such ABL Lender Party or MSD Lender Party.

12.LIMITED EFFECT.  In the event of a conflict between the terms and provisions of this Amendment and the terms and provisions of the Agreement, the terms and provisions of this Amendment shall

govern.  In all other respects, the Agreement, as amended and supplemented hereby, shall remain in full force and effect.

13.COUNTERPARTS; EFFECTIVENESS.  This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which when so executed and delivered shall be deemed to be an original.  All such counterparts, taken together, shall constitute but one and the same Amendment.  This Amendment shall become effective upon the execution of a counterpart of this Amendment by each of the parties hereto and satisfaction of each of the other conditions precedent set forth in Section 5 hereof.  This Amendment is a Loan Document and is entitled to all the terms and protections, applicable to Loan Documents generally.  Delivery of an executed counterpart of this Amendment by telefacsimile or .pdf shall be equally effective as delivery of a manually executed counterpart.

14.CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE.  Section 11 of the Agreement is incorporated herein by reference mutatis mutandis.    

15.REAFFIRMATION OF GUARANTIES, LOAN DOCUMENTS, LIENS AND SECURITY INTERESTS. 

(a)The Borrower and Guarantor hereby acknowledges and reaffirms (a) all of its obligations and duties under the Loan Documents and (b) that Agent, for the ratable benefit of the Lender Group, has and shall continue to have valid, perfected Liens in the Collateral as required under the Loan Documents (other than (i) in respect of Vehicles that are subject to a certificate of title and as to which Agent has elected not to note its Lien on the applicable certificate of title), (ii) Commercial Tort Claims and letter-of-credit rights that are not required to be perfected by the terms of the Security Agreement and (iii) any Deposit Accounts and Securities Accounts not subject to a Control Agreement as permitted by Section 6.11 of the Agreement).

(b)Each of the undersigned Guarantors hereby reaffirms and agrees that  nothing in the Loan Documents to which it is a party obligates Agent or the Lenders to notify such Guarantor of any changes in the financial accommodations made available to the Loan Parties or to seek reaffirmations of the Loan Documents to which such Guarantor is a party; and (c) no requirement to so notify such Guarantor or to seek such Guarantor’s reaffirmation in the future shall be implied by this Section 14.

16.Agent Authorization. Each of the undersigned Lenders hereby authorizes and directs the Agent to execute and deliver this Amendment and the other documents entered into in connection herewith on its behalf and, by its execution below, each of the undersigned Lenders agrees to be bound by the terms and conditions of this Amendment and such other documents. The undersigned Lenders further confirm that the actions taken by the Agent pursuant to such direction is covered by the indemnification provisions of Section 15.7 of the Agreement.

17.Amendment and Restatement.  Each of the parties hereto acknowledges and agrees that upon execution and delivery of this Amendment, this Amendment amends, restates, supersedes and replaces the Original First Amendment in its entirety. This Amendment constitutes an amendment and restatement of the Original First Amendment and is not, and is not intended by the parties to be, a novation of the Original First Amendment.

 

 

[Signatures on next page.]

 

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first set forth above.

 

 

 

 

 

 

 

 

 

 

 

 

Annex A

Section 2(a) Amendments

 

[See attached.]

 

 

Annex A

 

to Amendment No. 1 to Credit Agreement

 

 

 

 

 

 

 

 

 

CREDIT AGREEMENT

 

 

by and among

 

▇▇▇▇ ▇▇▇▇▇▇ HOLDINGS CORP.,

as Borrower,

 

THE LENDERS THAT ARE SIGNATORIES HERETO

as the Lenders,

and

 

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Agent

 

 

Dated as of October 28, 2016

 

 

 

 

 

 

 

1.TABLE OF CONTENTS

 

 

2.

3.EXHIBITS AND SCHEDULES

 

 

 

▇.▇▇▇▇▇▇ AGREEMENT

THIS CREDIT AGREEMENT (this “Agreement”), is entered into as of October 28, 2016, by and among the lenders identified on the signature pages hereof (each of such lenders, together with their respective successors and permitted assigns, are referred to hereinafter as a “Lender”, as that term is hereinafter further defined), WILMINGTON TRUST, NATIONAL ASSOCIATION, as agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, “Agent”), ▇▇▇▇ ▇▇▇▇▇▇ HOLDINGS CORP., a Delaware corporation (“Borrower”).  

5.RECITAL

In consideration of the mutual conditions and agreements set forth in this Agreement, and for good and valuable consideration, the receipt of which is hereby acknowledged, Lenders, Agent, and Borrower hereby agrees as follows:

DEFINITIONS AND CONSTRUCTION.

Definitions

. Capitalized terms used in this Agreement shall have the meanings specified therefor on Schedule 1.1.

Accounting Terms

. All accounting terms not specifically defined herein shall be construed in accordance with GAAP as in effect as of June 18, 2013; provided,  however, that if Borrower notifies Agent that Borrower requests an amendment to any provision hereof to receive the benefit of any Accounting Change that has occurred or is occurring after June 18, 2013 or in the application thereof on the operation of such provision (or if Agent notifies Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such Accounting Change or in the application thereof, then Agent and Borrower agree that they will negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such Accounting Change with the intent of having the respective positions of the Lenders and Borrower after such Accounting Change conform as nearly as possible to their respective positions as of the date of this Agreement and, until any such amendments have been agreed upon, the provisions in this Agreement shall be calculated as if no such Accounting Change had occurred. When used herein, the term “financial statements” shall include the notes and schedules thereto.

Code

. Any terms used in this Agreement that are defined in the Code shall be construed and defined as set forth in the Code unless otherwise defined herein; provided,  however, that to the extent that the Code is used to define any term herein and such term is defined differently in different Articles of the Code, the definition of such term contained in Article 9 of the Code shall govern.

Construction

. Unless the context of this Agreement or any other Loan Document clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the terms “includes” and “including” are not limiting and shall be deemed to be followed by the words “without limitation,” and the term

“or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Agreement or any other Loan Document refer to this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular provision of this Agreement or such other Loan Document, as the case may be. Section, subsection, clause, schedule, and exhibit references herein are to this Agreement unless otherwise specified. Any reference in this Agreement or in any other Loan Document to any agreement, instrument, or document shall include all alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein). The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts, and contract rights. Any reference herein or in any other Loan Document to the satisfaction, repayment, or payment in full of the Obligations shall mean (a) the payment or repayment in full in immediately available funds of (i) the principal amount of, and interest accrued and unpaid with respect to, all outstanding Loans, (ii) all Lender Group Expenses that have accrued and are unpaid regardless of whether demand has been made therefor, (iii) all fees or charges that have accrued hereunder or under any other Loan Document and are unpaid and (b) the receipt by Agent of cash collateral in order to secure any other contingent Obligations for which a claim or demand for payment has been made on or prior to such time or in respect of matters or circumstances known to Agent or a Lender at such time that are reasonably expected to result in any loss, cost, damage, or expense (including reasonable and documented and itemized attorneys’ fees and out-of-pocket legal expenses of outside counsel), such cash collateral to be in such amount as Agent reasonably determines is appropriate to secure such contingent Obligations. Any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns. Any requirement of a writing contained herein or in any other Loan Document shall be satisfied by the transmission of a Record.

Schedules and Exhibits

. All of the schedules and exhibits attached to this Agreement shall be deemed incorporated herein by reference.

Timing of Payment or Performance

.  Notwithstanding anything to the contrary in this Agreement or the other Loan Documents, when the payment of any obligation or the performance of any covenant, duty or obligation under any Loan Document is stated to be due or performance required on a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day.

LOANS AND TERMS OF PAYMENT.

Term Loans

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Subject to the terms and conditions hereof, the Lenders severally, not jointly or jointly and severally, agree to make term loans to Borrower (the “Loans”) on the Closing Date in an amount for each Lender equal to the amount of the Commitment of such Lender. Borrower agrees to pay Agent, the fees set forth in the Fee Letter.

Amounts borrowed pursuant to this Section 2.1 and repaid may not be reborrowed. The outstanding principal amount of the Loan, together with interest accrued and unpaid thereon, shall constitute Obligations and shall be due and payable on the Maturity Date or, if earlier, on the date on which they are declared due and payable pursuant to the terms of this Agreement.

[Reserved]

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Borrowing Procedures and Settlements

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Procedure for Borrowing. An Authorized Person of Borrower shall deliver to Agent a written request no later than 10:00 a.m. (New York time) on the Closing Date specifying (i) the amount of the Borrowing, (ii) the requested date of the Borrowing, which shall be a Business Day (iii) the location and number of the account to which funds are to be disbursed, and certifying the conditions precedent set forth in Section 3.1 have been satisfied (other than the ones duly waived by the Lenders).

Making of Loans. Upon receipt of the borrowing request described in Section 2.3(a), Agent shall promptly notify each Lender thereof.  Not later than 2:00 p.m., New York City time (or, if later, promptly following the satisfaction of the conditions precedent set forth in Section 3.1), on the Closing Date, Lender shall make available to Borrower an amount in immediately available funds equal to the Loan to be made by such Lender.

Notation. Agent, as a non-fiduciary agent for Borrower, shall maintain a register at its office set forth in Section 11 a copy of each assignment and assumption delivered to it and a register for the recordation of the names and addresses of the Lenders and the principal amounts showing the principal amount of the Loan owing to each Lender, and the interests therein of each Lender, from time to time (the “Register”) and the Register shall, absent manifest error, conclusively be presumed to be correct and accurate, and Borrower, Agent, and each Lender 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 anything to the contrary, any assignment of any Loan shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by Borrower, Agent and any Lender (solely with respect to its Loans), at any reasonable time and from

time to time upon reasonable prior notice to the Agent. This Section 2.3(c) shall be construed so that the Loans are at all times maintained in “registered form” within the meanings of Sections 163(f), 871(h)(2) and 881(c)(2) of the IRC and the Treasury Regulations thereunder.

Payments; Reductions of Commitments; Prepayments

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Payments by Borrower.  

Except as otherwise expressly provided herein, all payments by Borrower shall be made to Agent for the account of the Lender Group and shall be made in immediately available funds, no later than 2:00 p.m. (New York time) on the date specified herein. Any payment received by Agent later than 2:00 p.m. (New York time) shall be deemed to have been received (unless Agent, in its sole discretion, elects to credit it on the date received) on the following Business Day and any applicable interest or fee shall continue to accrue until such following Business Day.

Unless Agent receives notice from Borrower prior to the date on which any payment is due to the Lenders that Borrower will not make such payment in full as and when required, Agent may assume that Borrower has made (or will make) such payment in full to Agent on such date in immediately available funds and Agent may (but shall not be so required), in reliance upon such assumption, distribute to each Lender on such due date an amount equal to the amount then due such Lender. If and to the extent Borrower does not make such payment in full to Agent on the date when due, each Lender severally shall repay to Agent on demand such amount distributed to such Lender, together with interest thereon at the interest rate then applicable to the Loans for each day from the date such amount is distributed to such Lender until the date repaid.

Apportionment and Application.

So long as no Application Event has occurred and is continuing, all principal and interest payments received by Agent shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and all payments of fees and expenses received by Agent shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Obligation to which a particular fee or expense relates. All payments to be made hereunder by Borrower shall be remitted to Agent and all (subject to Section 2.4(b)(iv)) such payments, and all proceeds of Collateral received by Agent, shall be applied, so long as no Application Event has occurred and is continuing, to reduce the balance of the Loans outstanding and,

thereafter, to Borrower or such other Person entitled thereto under applicable law.

At any time that an Application Event has occurred and is continuing, all payments remitted to Agent and all proceeds of Collateral received by Agent shall be applied as follows:

first, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to Agent under the Loan Documents, until paid in full,

second, to pay any fees or premiums (if any) then due to Agent under the Loan Documents until paid in full,

third, ratably, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any of the Lenders under the Loan Documents, until paid in full,

fourth, ratably, to pay any fees or premiums (including any Prepayment Premium) then due to any of the Lenders under the Loan Documents until paid in full,

fifth, ratably, to pay interest accrued in respect of the Loans  until paid in full,

sixth, ratably to pay the principal of all Loans until paid in full,

seventh, to pay any other Obligations, and

eighth, to Borrower or such other Person entitled thereto under applicable law.

Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive.

In each instance, so long as no Application Event has occurred and is continuing, Section 2.4(b)(i) shall not apply to any payment made by Borrower to Agent and specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement or any other Loan Document.

For purposes of Section 2.4(b)(ii), “paid in full” of a type of Obligation means payment in cash or immediately available funds of all amounts owing on account of such type of Obligation, including interest accrued after the commencement of any Insolvency Proceeding (or which would have accrued but for the commencement of such Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, irrespective of

whether any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.

In the event of a direct conflict between the priority provisions of this Section 2.4 and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, then the terms and provisions of this Section 2.4 shall control and govern.

Reduction of Commitments. The Commitments shall automatically terminate upon the making of the Loans on the Closing Date.

Prepayments.

Optional Prepayments. Borrower may voluntarily prepay the Loans at any time in whole or in part upon two (2) Business Days prior written notice; provided that notice may be conditioned on an event and if such event does not occur no prepayment shall be required; provided further that such prepayment shall be accompanied by accrued and unpaid interest thereon and: (1) in the case of any prepayments made with the proceeds of one or more Equity Offerings made after the Closing Date but on or prior to the first anniversary of the Closing Date, a prepayment premium of 5.25% of the aggregate principal amount of the Loans so prepaid; and (2) in the case of any other prepayments pursuant to this clause (d)(i), the Applicable Premium. 

Mandatory Offers of Prepayments.  

Change of Control.  Upon the occurrence of a Change of Control, Borrower shall make an Offer to Prepay, and each Lender will have the right to require Borrower to prepay all or any part of the outstanding principal amount of the Loans owing to such Lender, together with a prepayment premium of 1.0% of the aggregate principal amount of the Loans so prepaid and any accrued and unpaid interest to but not including the Prepayment Date pursuant to an Offer to Prepay. Subject to Section 2.4(e)(ii) below, on the Prepayment Date, Borrower shall, to the extent lawful, (A) prepay the Loans (or the portion thereof) of each Lender that has accepted the Offer for Prepayment, together with the applicable prepayment premium set forth above and any accrued and unpaid interest of each Lender that has accepted the Offer for Prepayment, and (B) otherwise comply with Section 2.4(e). An Offer to Prepay shall be made no earlier

than 10 Business Days in advance of a Change of Control and no later than the date of such Change of Control and, if made before the occurrence of the Change of Control, may be conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making the Offer to Prepay.

Asset Sales.  Subject to the Intercreditor Agreements, subject to Section 3.9 and Section 4.10 of the 2017 Notes Indenture (as in effect on the date hereofFirst Amendment Effective Date), Section 2.4 and Section 2.5 of the Existing ABL Credit Agreement (as in effect on the date hereof) and Section 2.4 of the MSD Term Loan Credit Agreement (as in effect on the date hereof), and subject to each of the terms and conditions of this Section 2.4(d)(ii)(2), on the date of receipt by Borrower or any of its Subsidiaries of Net Cash Proceeds from any Asset Sale, Borrower shall make an Offer to Prepay and each Lender will have the right to require Borrower to prepay the outstanding principal amount of the Loans owing to such Lender together with any accrued and unpaid interest to but not including the Prepayment Date pursuant to an Offer to Prepay, in an amount equal to the Net Cash Proceeds received from such Asset Sale, in each case without any premium or penalty. Subject to Section 2.4(e)(ii) below, on the Prepayment Date, Borrower shall, to the extent lawful, (A) prepay the Loans (or the portion thereof), together with any accrued and unpaid interest of each Lender that has accepted the Offer for Prepayment, in each case without any premium or penalty; and (B) otherwise comply with Section 2.4(e);  provided, Borrower or any of its Subsidiaries, may, within 365 days after receipt of such Net Cash Proceeds, apply such Net Cash Proceeds to an Investment permitted under this Agreement in (a) any one or more businesses (provided that such Investment in any business is in the form of either (I) the acquisition of capital Stock and results in Borrower or any of its Subsidiaries, as the case may be, owning an amount of the capital Stock of such business such that it constitutes a Subsidiary of Borrower or (II) all or substantially all of the assets the relevant business), (b) properties, (c) capital expenditures or (d) other assets that, in each of (a), (b), (c) and (d), replace the businesses, properties and assets that are the subject of such Asset Sale or are used or useful in the Permitted Business (clauses (a), (b), (c) and (d) together, the “Additional Assets”); provided further that to the extent that the assets that were subject to the Asset Sale constituted ABL Priority Collateral (as defined in the ABL-Notes

Intercreditor Agreement), such Additional Assets shall also constitute ABL Priority Collateral (and Borrower or its Subsidiaries, as the case may be, shall promptly take such action (if any) as may be required to cause that portion of such Investment constituting ABL Priority Collateral to be added to the ABL Priority Collateral securing the Obligations). For purposes of the foregoing and determining whether assets subject to an Asset Sale constitute ABL Priority Collateral, the sale or other disposition of Capital Interests of a Person shall be treated as a sale or other disposition of assets of such Person and assets sold shall be allocated between Notes Priority Collateral and ABL Priority Collateral (as each such term is defined in the ABL-Notes Intercreditor Agreement) in accordance with Section 3.5(c) of the ABL-Notes Intercreditor Agreement, as if the allocation therein would apply to such Asset Sale.

Pursuant to the first proviso of this subclause (2), a binding commitment shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment so long as Borrower or any of its Subsidiaries enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 180 days of such commitment; provided, that if such commitment is later terminated or cancelled prior to the application of such Net Cash Proceeds, then such Net Cash Proceeds shall constitute Excess Proceeds.

Any Net Cash Proceeds from the Asset Sales covered by this subclause (2) that are not invested or applied as provided and within the time period set forth above will be deemed to constitute “Excess Proceeds” and within 15 Business Days after the aggregate amount of Excess Proceeds exceeds $10,000,000, Borrower shall make an Offer to Prepay an amount equal to the Excess Proceeds. To the extent that the aggregate amount of Loans that are accepted for prepayment pursuant to an Offer to Prepay is less than the Excess Proceeds, Borrower may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Agreement. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.  After Borrower or any of its Subsidiaries has applied the Net Cash Proceeds from any Asset Sale of any Collateral as provided in, and within the time periods required by, this clause (2), Borrower may use the balance of such Net Cash Proceeds, if any, from such Asset Sale of Collateral for any purpose not prohibited by the terms of this Agreement; provided that pending the

final application of any Net Cash Proceeds pursuant to this clause (2), the Borrower may apply such Net Cash Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Cash Proceeds in any manner not prohibited in this Agreement.

Notwithstanding anything to the contrary in the foregoing, subject to the Intercreditor Agreements, subject to Section 3.9 and Section 4.10 of the 2017 Notes Indenture (as in effect on the date hereofFirst Amendment Effective Date), Section 2.4 and Section 2.5 of the Existing ABL Credit Agreement (as in effect on the date hereof) and Section 2.4 of the MSD Term Loan Credit Agreement (as in effect on the date hereof), and subject to each of the terms and conditions of this Section 2.4(d)(ii)(2):  

(I) any such mandatory offers of prepayments under this Section 2.4(d)(ii)(2) shall not be required, and shall be deemed reduced by an equivalent amount, to the extent that a corresponding prepayment or payment (without the requirement for a corresponding commitment reduction in the case of a revolving facility) is made under any ABL Credit Agreement (or any Refinancing Indebtedness thereof as permitted under clause (l) of “Permitted Indebtedness” definition) or the MSD Term Loan Credit Agreement (or any Refinancing Indebtedness thereof as permitted under clause (l) of “Permitted Indebtedness” definition) or any other permitted Indebtedness of the Borrower or a Guarantor that is secured by a Lien on the ABL Priority Collateral that is senior to the Lien on the ABL Priority Collateral securing the Obligations;

(II) any such mandatory offers of prepayments under this Section 2.4(d)(ii)(2) shall be deemed reduced by a ratable amount of the corresponding prepayment or payment (or similar equivalent thereof) as may be required under Specified Pari Passu Ratio Debt (or any Refinancing Indebtedness thereof) or any other permitted Indebtedness of the Borrower or a Guarantor that is secured by a Lien on the ABL Priority Collateral that is pari passu with the Lien on the ABL Priority Collateral securing the Obligations,

(III) any such mandatory offers of prepayments under this Section 2.4(d)(ii)(2) in connection with the Asset Sale of any Notes Priority Collateral shall not be required, and shall be deemed reduced by an equivalent amount of the corresponding prepayment or payment (or similar equivalent

thereof) as may be required under the 2017 Notes Indenture (or any Refinancing Indebtedness thereof), the relevant indentures for the Additional Notes (or any Refinancing Indebtedness thereof) or any other any other permitted Indebtedness of the Borrower or a Guarantor that is secured by a Lien on the Notes Priority Collateral that is senior to the Lien on the Notes Priority Collateral securing the Obligations; and

(IV) any such mandatory offers of prepayments under this Section 2.4(d)(ii)(2) shall be deemed reduced by a ratable amount of the corresponding prepayment or payment (or similar equivalent thereof) as may be required under any other any other permitted Indebtedness of the Borrower or a Guarantor that is secured by a Lien on the Notes Priority Collateral that is pari passu with the Lien on the Notes Priority Collateral securing the Obligations.

Indebtedness.  On the date of the incurrence of any Indebtedness not permitted under this Agreement, Borrower shall make an Offer to Prepay and each Lender will have the right to require Borrower to prepay all or any part of the outstanding principal amount of the Loans owing to such Lender, together with the Applicable Premium and any accrued and unpaid interest to but not including the Prepayment Date pursuant to an Offer to Prepay. Subject to Section 2.4(e)(ii) below, on the Prepayment Date, Borrower shall, to the extent lawful, (A) prepay the Loans (or the portion thereof), together with the Applicable Premium and any accrued and unpaid interest of each Lender that has accepted the Offer for Prepayment, and (B) otherwise comply with Section 2.4(e). The provisions of this Section do not constitute consent to the incurrence of any Indebtedness by Borrower or any of its Subsidiaries.

Prepayment Premiums. 

Notwithstanding anything herein to the contrary, if (x) all or any portion of the Loans is paid or prepaid (or is required to be paid or prepaid) pursuant to Section 2.4(d)(i),  (d)(ii)(1) or (d)(ii)(3), (x) the Obligations are accelerated (whether by operation of law or otherwise), including as a result of the commencement of an Insolvency Proceeding or any Event of Default under Section 8.4 or 8.5, (y) there is a satisfaction, release, payment, restructuring, reorganization, replacement, reinstatement, defeasance or compromise of any of the Obligations in any Insolvency Proceeding, foreclosure

(whether by power of judicial proceeding or otherwise) or deed in lieu of foreclosure or the making of a distribution of any kind in any Insolvency Proceeding to Agent, for the account of the Lenders in full or partial satisfaction of the Obligations, or (z) there is a termination of this Agreement for any reason other than repayment in full on the fourth anniversary of the Closing Date (the occurrence of any of the events set forth in the foregoing clauses (w) through (z), a “Premium Event”), then Agent shall be paid, for the benefit of Lenders holding such Loans as an inducement for making the Loans (and not as a penalty) an amount equal to the Applicable Premium or, if such prepayment is made in accordance with Section 2.4(d)(i)(1), the prepayment premium set forth in Section 2.4(d)(i)(1), or if such prepayment is made in accordance with Section 2.4(d)(ii)(1), the prepayment premium set forth in Section 2.4(d)(ii)(1) (as applicable, the “Prepayment Premium”),  which Prepayment Premium shall be fully earned, and due and payable, on the date of such payment or prepayment, or on the date such payment or prepayment is required to be made, as applicable, and non-refundable when made.  If the Loans are accelerated for any reason under this Agreement pursuant to the terms herein, the Prepayment Premium applicable thereto shall be calculated as if the date of acceleration of such Loans was the date of prepayment of such Loans. The parties hereto further acknowledge and agree that the Prepayment Premium is not intended to act as a penalty or to punish the Loan Parties for any such repayment or prepayment.

Any prepayment or repayment, whether voluntary or involuntary, of the Loans upon the occurrence of any Premium Event shall be accompanied by all accrued interest on the principal amount prepaid or repaid, together with the Prepayment Premium, as applicable.  Without limiting the generality of the foregoing Section 2.4(d)(iii)(1), and notwithstanding anything to the contrary in this Agreement or any Loan Document, it is understood and agreed that if the Obligations are accelerated as a result of the occurrence and continuance of any Event of Default (including by operation of law or otherwise), the Prepayment Premium, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the applicable Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein. The Prepayment Premium, if any, shall also be payable in the event the Obligations (and/or this Agreement) are satisfied or released

by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other similar means.  THE LOAN PARTIES EXPRESSLY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION.  The Loan Parties expressly agree that (i) the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (ii) the Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made, (iii) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Prepayment Premium, (iv) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.4(d), (v) their agreement to pay the Prepayment Premium is a material inducement to the Lenders to make the Loans, and (vi) the Prepayment Premium represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Premium Event.

Offer to Prepay.  

In the event that Borrower shall be required to commence an Offer to Prepay pursuant to Section 2.4(d)(ii), Borrower shall follow the procedures specified below:

Unless otherwise required by applicable law, an Offer to Prepay shall specify an Expiration Date of the Offer to Prepay, which shall be, subject to any contrary requirements of applicable law, not less than 10 days or more than 30 days after the date of mailing of such Offer, and a Prepayment Date for prepayment of the Loans shall be within 60 days after the Expiration Date. On the Prepayment Date, Borrower shall prepay the aggregate principal amount of Loans required to be prepaid pursuant to Section 2.4(d) hereof (the “Offer Amount”), or if less than the Offer Amount has been accepted for prepayment, all Loans accepted for prepayment in response to the Offer to Prepay.

On the Prepayment Date, Borrower shall, to the extent lawful, prepay the Loans accepted for prepayment, together with any accrued and unpaid interest and, if applicable, any prepayment premium required (including the Applicable Premium).

Any Offer to Prepay may, at Borrower’s discretion, be subject to the satisfaction of one or more conditions precedent (including, in the case of an Offer to Prepay made under Section 2.4(d)(ii)(1) or Section 2.4(d)(ii)(3), the consummation of such Change of Control or incurrence of Indebtedness).  If prepayment is subject to satisfaction of one or more conditions precedent, such Offer to Prepay shall describe each such condition, and if applicable, shall state that, in Borrower’s discretion, the Prepayment Date may be delayed until such time as any or all such conditions shall be satisfied, or such prepayment may not occur and such Offer to Prepay may be rescinded in the event that any or all such conditions shall not have been satisfied by the stated Prepayment Date, or by the Prepayment Date as so delayed.

Promise to Pay

. Borrower promises to pay the Obligations (including principal, interest, fees, costs, and expenses) in full on the Maturity Date or, if earlier, on the date on which the Obligations become due and payable pursuant to the terms of this Agreement or any other applicable Loan Document.  Borrower shall not be required to make any prepayments on the principal of the Loans prior to the Maturity Date (or, if earlier, on the date on which the Obligations become due and payable pursuant to the terms of this Agreement) except as otherwise expressly required pursuant Section 2.4(d) and upon acceleration of the Obligations in accordance with Section 9.1.

Interest Rates: Rates, Payments, and Calculations

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Interest Rates. Except as provided in Section 2.6(c), all outstanding Loans shall bear interest at a rate per annum equal to 10.5%.  The interest on the Loans shall be due and payable quarterly in arrears on the last day of each March, June, September and December, commencing with December 31, 2016 (each date upon which interest shall be so due and payable, an “Interest Payment Date”).

[Reserved].

Default Rate. Upon the occurrence and during the continuation of an Event of Default, at the election of the Required Lenders, all outstanding Obligations shall bear interest on the Daily Balance thereof at a per annum rate equal to two percentage points above the per annum rate otherwise applicable pursuant to Section 2.6(a).

Payment of Fees. All costs, expenses, and Lender Group Expenses payable hereunder or under any of the other Loan Documents shall be due and payable promptly and in any event no later than 30 days following written demand therefor.   All fees and expenses payable under the Fee Letter shall be paid when due and payable thereunder.

Computation. All interest chargeable under the Loan Documents shall be computed on the basis of a 365 day year, in each case, for the actual number of days elapsed in the period during which the interest or fees accrue.

Intent to Limit Charges to Maximum Lawful Rate. In no event shall the interest rate or rates payable under this Agreement, plus any other amounts paid in connection herewith, exceed the highest rate permissible under any law that a court of competent jurisdiction shall, in a final determination, deem applicable. Borrower and the Lender Group, in executing and delivering this Agreement, intend legally to agree upon the rate or rates of interest and manner of payment stated within it; provided,  however, that, anything contained herein to the contrary notwithstanding, if said rate or rates of interest or manner of payment exceeds the maximum allowable under applicable law, then, ipso facto, as of the date of this Agreement, Borrower is and shall be liable only for the payment of such maximum as allowed by law, and payment received from Borrower in excess of such legal maximum, whenever received, shall be applied to reduce the principal balance of the Obligations to the extent of such excess.

Crediting Payments

. The receipt of any payment item by Agent shall not be considered a payment on account unless such payment item is a wire transfer of immediately available federal funds made to an account designated by Agent from time to time (such account, “Agent’s Account”) or unless and until such payment item is honored when presented for payment. Should any payment item not be honored when presented for payment, then Borrower shall be deemed not to have made such payment and interest shall be calculated accordingly. Anything to the contrary contained herein notwithstanding, any payment item shall be deemed received by Agent only if it is received into Agent’s Account on a Business Day on or before 2:00 p.m. (New York time). If any payment item is received into Agent’s Account on a non-Business Day or after 2:00 p.m. (New York time) on a Business Day (unless Agent, in its sole discretion, elects to credit it on the date received), it shall be deemed to have been received by Agent as of the opening of business on the immediately following Business Day.

[Reserved]

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[Reserved]

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[Reserved]

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[Reserved]

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Interest Payment Dates

.  Interest on the Loans shall be payable on (x) the earliest of (i) the applicable Interest Payment Date, (ii) the date on which all or any portion of the Obligations are accelerated pursuant to the terms hereof, or (iii) the Maturity Date and (y) the date of any prepayment made pursuant to Sections 2.4(d)(i) and (ii).

Funding Losses. 

Borrower shall indemnify, defend, and hold Agent and the Lenders harmless against any loss, cost, or expense actually incurred by Agent or any Lender as a result of the payment of any principal of any Loan other than on the applicable Interest Payment Date (including as a result of an Event of Default) (such losses, costs, or expenses, “Funding Losses”). A certificate of Agent or a Lender delivered to Borrower setting forth in reasonable detail any amount or amounts that Agent or such Lender is entitled to receive pursuant to this Section 2.12 shall be conclusive absent manifest error. Borrower shall pay such amount to Agent or the Lender, as applicable, within 30 days of the date of its receipt of such certificate.

Warrants. 

For U.S. federal income and applicable state and local tax purposes, the Loan, together with the Warrants, shall be treated as an investment unit.  The Borrower and the Lenders shall use commercially reasonable efforts to agree for income tax purposes upon the fair market value of the Warrants acquired by the Lenders; provided, however, that the Borrower and the Lenders agree that such value shall not exceed $20 per Warrant; provided further, however, if the Borrower and Lenders are not able to agree on the fair market value of the Warrants, the Lenders shall not be bound by the Borrower’s determination of such fair market value and may take a different position pursuant to Treasury Regulations Section 1.1273-2(h)(2).  Each of the Borrower and the Lenders agree (i) to treat the Loan as a debt instrument, and not as a “contingent payment debt instrument,” for U.S. federal and applicable state and local income tax purposes, and (ii) to the extent the Loan is considered to have been issued with original issue discount (including as a result of any significant modification of the Loan that results in any original issue discount), that Borrower will provide any information reasonably requested from time to time by any Lender regarding the original issue discount (if any) associated with the Loan for U.S. federal income tax purposes.  To the extent the Borrower and the Lenders agree on the fair market value of the Warrants, each of Borrower and the Lenders agree to file tax returns consistent with such valuation. Notwithstanding the foregoing, for all purposes (except for the purpose of this Section 2.14), each Lender shall be treated as having loaned the full amount of its pro rata portion of the principal amount of the Loan.

CONDITIONS; TERM OF AGREEMENT.

Conditions Precedent to the Extension of Credit

. The obligation of each Lender to make its extension of credit provided for hereunder is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent, prior to or substantially concurrently with the making of such extension of credit on the Closing Date:

The conditions precedent set forth on Schedule 3.1;

the representations and warranties made by Borrower or the other Loan Parties contained in this Agreement and in the other Loan Documents shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the date hereof, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date, in which case, such representations and warranties shall be true and correct in all material respects on such earlier date (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof)); and

no Default or Event of Default shall have occurred and be continuing on the date of such extension of credit, nor shall either result from the making thereof.

For purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

Maturity

. This Agreement shall continue in full force and effect for a term ending on the earliest occurring of the following (such earliest date, the “Maturity Date”):

the four-year anniversary of the Closing Date,

the date that is 90 days prior to the then stated maturity date of the Notes after giving effect to any permitted renewals, replacements, exchanges, refinancings or extensions thereto (as stated in a notice by the Borrower to the Agent); provided that, notwithstanding the foregoing, the Maturity Date shall not be deemed to occur as a result of this clause (b) if and when there is such renewal, replacement, exchange or extension to a date that is more than 90 days after the date in Section 3.2(a), and the aggregate outstanding principal amount under the Notes that are not so renewed, replaced, exchanged or extended is less than $20,000,000, or

the date that is 90 days prior to the then stated maturity date of the PIK Toggle Notes after giving effect to any permitted renewals, replacements, exchanges, refinancings or extensions thereto (as stated in a notice by the Borrower to the Agent); provided that, notwithstanding the foregoing, the Maturity Date shall not be deemed to occur as a result of this clause (c) if and when there is such renewal, replacement, exchange or extension to a date that is more than 90 days after the date in Section 3.2(a), and the aggregate outstanding principal amount under the PIK Toggle Notes that are not so renewed, replaced, exchanged or extended is less than $20,000,000.

Effect of Maturity

. On the Maturity Date, all of the Obligations immediately shall become due and payable without notice or demand and Borrower shall be required to repay all of the Obligations in full. No termination of the obligations of the Lender Group (other than payment in full of the Obligations) shall relieve or discharge any Loan Party of its duties, obligations, or covenants hereunder or under any other Loan Document and Agent’s Liens in the Collateral shall continue to secure the Obligations and shall remain in effect until all Obligations have been paid in full. When all of the Obligations (other than any contingent and unasserted reimbursement or indemnity obligations) have been paid in full, Agent will, at Borrower’s sole expense, to the extent requested by the Borrower, deliver all possessory Collateral and execute and deliver any termination statements, lien releases, discharges of security interests, and other similar discharge or release documents (and, if applicable, in recordable form) as are reasonably necessary to release, as of record, Agent’s Liens and all notices of security interests and liens previously filed by or on behalf of Agent.

REPRESENTATIONS AND WARRANTIES.

In order to induce the Lender Group to enter into this Agreement, Borrower makes the following representations and warranties to the Lender Group which shall be true, correct, and complete, in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), in each case as of the Closing Date (except to the extent that such representations and warranties relate solely to an earlier date, in which case, such representations and warranties shall be true and correct in all material respects on such earlier date (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof)) and such representations and warranties shall survive the execution and delivery of this Agreement:

Due Organization and Qualification; Subsidiaries

.

Borrower and each Loan Party (i) is duly organized and existing and in good standing under the laws of the jurisdiction of its organization, (ii) is qualified to do business in any state where the failure to be so qualified could reasonably be expected to result in a Material Adverse Change, and (iii) has all requisite organizational power and authority to own and operate its properties, to carry on its business as now conducted, to enter into the Loan Documents to which it is a party and to carry out the transactions contemplated thereby.

Set forth on Schedule 4.1(b) is a complete and accurate description of the authorized Capital Interests of Borrower and each of its Subsidiaries, by class, and, as of the Closing Date, a description of the number of shares of each such class that are issued and outstanding and, in the case of Subsidiaries of Borrower, the number and the percentage of the outstanding shares of each such class owned directly or indirectly by Borrower. Other than as described on Schedule 4.1(b), as of the Closing Date, (i) there are

no subscriptions, options, warrants, or calls relating to any shares of any such Person’s Capital Interests, including any right of conversion or exchange under any outstanding security or other instrument and (ii) neither Borrower nor any of its Subsidiaries is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its Capital Interests or any security convertible into or exchangeable for any of its Capital Interests. All of the outstanding Capital Interests of each such Subsidiary of Borrower has been validly issued and, to the extent applicable, is fully paid and non-assessable.

Due Authorization; No Conflict

.

As to each Loan Party, the execution, delivery, and performance by such Loan Party of the Loan Documents to which it is a party, and the borrowing of the Loans hereunder, have been duly authorized by all necessary action on the part of such Loan Party.

As to each Loan Party, the execution, delivery, and performance by such Loan Party of the Loan Documents to which it is a party, and the borrowing of the Loans hereunder, do not and will not (i) violate any material provision of federal, state, or local law or regulation applicable to any Loan Party or its Subsidiaries, the Governing Documents of any Loan Party or its Subsidiaries, or any order, judgment, or decree of any court or other Governmental Authority binding on any Loan Party or its Subsidiaries, (ii) conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under any Material Contract of any Loan Party or its Subsidiaries except to the extent that any such conflict, breach or default could not individually or in the aggregate reasonably be expected to have a Material Adverse Change, (iii) result in or require the creation or imposition of any Lien of any nature whatsoever upon any assets of any Loan Party, other than Permitted Collateral Liens or Permitted Liens, or (iv) require any approval of any Loan Party’s interestholders or any approval or consent of any Person under any Material Contract of any Loan Party, other than consents or approvals that have been obtained and that are still in force and effect and except, in the case of Material Contracts, for consents or approvals, the failure to obtain could not individually or in the aggregate reasonably be expected to cause a Material Adverse Change.

Governmental Consents

. The execution, delivery, and performance by each Loan Party of the Loan Documents to which such Loan Party is a party and the consummation of the transactions contemplated by the Loan Documents do not and will not require any registration with, consent, or approval of, or notice to, or other action with or by, any Governmental Authority, other than registrations, consents, approvals, notices, or other actions that have been obtained and that are still in force and effect and except for filings and recordings with respect to the Collateral to be made, or otherwise delivered in accordance with the Loan Documents for filing or

recordation, as of the Closing Date or as of such later date as is permitted or contemplated pursuant to the Loan Documents.

Binding Obligations; Perfected Liens

.

Each Loan Document has been duly executed and delivered by each Loan Party that is a party thereto and is the legally valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its respective terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally.

Subject to the completion of the actions set forth on Schedule 5.17, Agent’s Liens are validly created, perfected (other than (i) in respect of Vehicles that are subject to a certificate of title and as to which Agent’s Lien has not been noted on the applicable certificate of title, (ii) money, (iii) letter-of-credit rights (other than supporting obligations), (iv) commercial tort claims (other than those that, by the terms hereunder, are required to be perfected), and (v) any Deposit Accounts and Securities Accounts not subject to a Control Agreement as permitted by Section 5.12, and subject only to the filing of financing statements and the recordation of the Mortgages, in each case, in the appropriate filing offices), and, subject to the Intercreditor Agreements, first priority Liens, subject only to Permitted Liens which are non-consensual (including by operation of law) Permitted Liens, permitted purchase money Liens, or the interests of lessors under Capital Leases, and Liens described under clauses (a) (but only to the extent any such Lien listed on Schedule P-3 is senior to Agent’s Lien on the date hereof), (e), (k), (p), (s), (t) and (u) of the definition of Permitted Liens and clauses (a) and (c) of the definition of Permitted Collateral Liens (but, in the case of clause (c), only to the extent any such Lien is senior to Agent’s Lien on the date hereof).

Title to Assets; No Encumbrances

. Subject to Permitted Collateral Liens and Permitted Liens, Borrower and each of its Subsidiaries has (a) good, marketable and legal title to (in the case of fee interests in Real Property), (b) valid leasehold interests in (in the case of leasehold interests in real or personal property), and (c) good and marketable title to (in the case of all other personal property), all of their respective assets reflected in their most recent financial statements delivered pursuant to Schedule 3.1, in each case except for assets disposed of since the date of such financial statements to the extent permitted hereby (or assets disposed of in the ordinary course of business, and not with respect to any of the transactions contemplated hereby, prior to the date hereof). All of such assets are free and clear of Liens except for Permitted Collateral Liens and Permitted Liens.

Jurisdiction of Organization; Location of Chief Executive Office; Organizational Identification Number; Commercial Tort Claims

.

As of the Closing Date, the name (within the meaning of Section 9-503 of the Code) and jurisdiction of organization of Borrower and each of its Subsidiaries is set forth on Schedule 4.6(a).

As of the Closing Date, the chief executive office of Borrower and each of its Subsidiaries is located at the address indicated on Schedule 4.6(b).

As of the Closing Date, Borrower’s and each of its Subsidiaries’ tax identification numbers and organizational identification numbers, if any, are identified on Schedule 4.6(c).

As of the Closing Date, neither Borrower nor any of its Subsidiaries holds any commercial tort claims that exceed $500,000 in amount, except as set forth on Schedule 4.6(d).

Litigation

.

Except as set forth on Schedule 4.7(a), there are no actions, suits, or proceedings pending or, to the knowledge of Borrower, after due inquiry, threatened in writing against Borrower or any of its Subsidiaries that either individually or in the aggregate could reasonably be expected to result in a Material Adverse Change.

Schedule 4.7(b) sets forth a complete and accurate description, with respect to each of the actions, suits, or proceedings with asserted liabilities in excess of, or that could reasonably be expected to result in liabilities in excess of, $1,000,000 that, as of the Closing Date, is pending or, to the knowledge of Borrower, after due inquiry, threatened in writing against Borrower or any of its Subsidiaries, of, as of the Closing Date, (i) the parties to such actions, suits, or proceedings, (ii) the nature of the dispute that is the subject of such actions, suits, or proceedings, (iii) the procedural status with respect to such actions, suits, or proceedings, and (iv) whether any liability of Borrower and its Subsidiaries in connection with such actions, suits, or proceedings is covered by insurance.

Compliance with Laws

. Neither Borrower nor any of its Subsidiaries (a) is in violation of any applicable laws, rules, regulations, executive orders, or codes (including Environmental Laws) that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change, or (b) is subject to or in default with respect to any final judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change.

No Material Adverse Change

. All historical financial statements relating to Borrower and its Subsidiaries that have been delivered by Borrower to the Lenders have been prepared in accordance with GAAP (except, in the case of unaudited financial

statements, for the lack of footnotes and being subject to year-end audit adjustments) and present fairly in all material respects, Borrower’s and its Subsidiaries’ respective financial condition (consolidated to the extent specified in such financial statements) as of the date thereof and results of operations for the period then ended. Since December 31, 2015, no event, circumstance, or change has occurred that has or could reasonably be expected to result in a Material Adverse Change with respect to Borrower and its Subsidiaries, taken as a whole.

Fraudulent Transfer

.

As of the Closing Date, the Loan Parties, taken as a whole (after giving effect to the issuance and incurrence of Loans hereunder and the consummation of the Transactions contemplated hereby), are Solvent.

No transfer of property is being made by any Loan Party and no obligation is being incurred by any Loan Party in connection with the transactions contemplated by this Agreement or the other Loan Documents with the intent to hinder, delay, or defraud either present or future creditors of such Loan Party.

Employee Benefits

. As of the Closing Date, except as set forth on Schedule 4.11, neither Borrower nor any of its Subsidiaries, nor any of their ERISA Affiliates maintains or contributes to any Benefit Plan.

Environmental Condition

. (a) To Borrower’s knowledge, neither Borrower’s nor any of its Subsidiaries’ Properties has ever been used by Borrower, its Subsidiaries, or by previous owners or operators in the disposal of, or to produce, store, handle, treat, release, or transport, any Hazardous Materials, where such disposal, production, storage, handling, treatment, release or transport was in violation, in any material respect, of any applicable Environmental Law, (b) to Borrower’s knowledge, after due inquiry, neither Borrower’s nor any of its Subsidiaries’ Properties has ever been designated or identified in any manner pursuant to any Environmental Law as a Hazardous Materials disposal site, (c) neither Borrower nor any of its Subsidiaries has received notice that a Lien arising under any Environmental Law has attached to any revenues or to any Real Property owned or operated by a Loan Party or its Subsidiaries, and (d) neither Borrower nor any of its Subsidiaries nor any of their respective facilities or operations is subject to any outstanding written order, consent decree, or settlement agreement with any Person relating to any Environmental Law or Environmental Liability that, in each case of the foregoing subclauses (a) – (d) of this Section 4.12, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change.

Intellectual Property

. Borrower and each of its Subsidiaries own, or hold licenses in, all trademarks, trade names, copyrights, patents, and licenses that are necessary and material to the conduct of its business as currently conducted, and attached hereto as Schedule 4.13 is a true, correct, and complete listing of all material registered trademarks, trade names, copyrights, patents, and licenses as to which Borrower or

one of its Subsidiaries is the owner or is an exclusive licensee as of the Closing Date.

Leases

. Borrower and each of its Subsidiaries enjoy peaceful and undisturbed possession under any lease material to their business and to which they are parties or under which they are operating, and, subject to Permitted Protests, as of the Closing Date, all of such material leases are valid and subsisting and no material default by Borrower or the applicable Subsidiaries exists under any of them.

Deposit Accounts and Securities Accounts

. Set forth on Schedule 4.15 is a listing, as of the Closing Date, of all of Borrower’s and its Subsidiaries’ Deposit Accounts and Securities Accounts, including, with respect to each bank or securities intermediary (a) the name and address of such Person, and (b) the account numbers of the Deposit Accounts or Securities Accounts maintained with such Person.

Complete Disclosure

. All factual information (other than forward-looking information, forward-looking pro forma, and projections and information of a general economic nature and general information about Borrower’s industry), taken as a whole, furnished by or on behalf of a Loan Party or its Subsidiaries in writing to Agent or any Lender (including all information contained in the Schedules hereto or in the other Loan Documents) for purposes of or in connection with this Agreement or the other Loan Documents, was, true and accurate, in all material respects, on the date as of which such information is dated or certified and not incomplete by omitting to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided.

Material Contracts

. Set forth on Schedule 4.17 is a reasonably detailed description of the Material Contracts of each Loan Party and its Subsidiaries as of the date hereof and as of the Closing Date. Except for matters which, either individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Change, as of the Closing Date, each Material Contract (other than those that have expired at the end of their normal terms) (a) is in full force and effect and is binding upon and enforceable against Borrower or the applicable Subsidiary and, to Borrower’s knowledge, after due inquiry, each other Person that is a party thereto in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws related to or limiting creditors’ rights generally, (b) has not been otherwise amended or modified (other than amendments or modifications set forth on Schedule 4.17), and (c) is not in default due to the action or inaction of Borrower or the applicable Subsidiary.

Patriot Act

. To the extent applicable, each Loan Party is in compliance, in all material respects, with the (a) 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 (b) Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA

Patriot Act of 2001) (the “Patriot Act”). No part of the proceeds of the loans made hereunder will be used by any Loan Party or any of their Affiliates, directly or indirectly, 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.

Indebtedness

. Set forth on Schedule 4.19 is a true and complete list of all Indebtedness in excess of $250,000 for any particular Indebtedness and $500,000 in the aggregate for all Indebtedness of each Loan Party and each of its Subsidiaries outstanding immediately prior to the date hereof that is to remain outstanding immediately after giving effect to the closing hereunder on the Closing Date and such Schedule accurately sets forth the aggregate principal amount of such Indebtedness as of the date hereof and as of the Closing Date.

Payment of Taxes

. Except as otherwise permitted under Section 5.5, all U.S. federal and other material tax returns and reports of each Loan Party and its Subsidiaries required to be filed by any of them have been timely filed, and all material Taxes shown on such tax returns to be due and payable and all assessments, fees and other governmental charges upon a Loan Party and its Subsidiaries and upon their respective assets, income, businesses and franchises that are due and payable have been paid when due and payable. Each Loan Party and each of its Subsidiaries have made adequate provision in accordance with GAAP for all Taxes not yet due and payable. Borrower has no knowledge of any proposed Tax assessment against a Loan Party or any of its Subsidiaries that is not being actively contested by such Loan Party or such Subsidiary diligently, in good faith, and by appropriate proceedings; provided such reserves or other appropriate provisions, if any, as shall be required in conformity with GAAP shall have been made or provided therefor.

Margin Stock

. Neither Borrower nor any of its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No part of the proceeds of the loans made to Borrower will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or for any purpose that violates the provisions of Regulation T, U or X of the Board of Governors of the United States Federal Reserve.

Governmental Regulation

. Neither Borrower nor any of its Subsidiaries is subject to regulation under the Federal Power Act or the Investment Company Act of 1940 or under any other federal or state statute or regulation which may limit its ability to incur Indebtedness or which may otherwise render all or any portion of the Obligations unenforceable. Neither Borrower nor any of its Subsidiaries is a “registered investment company” or a company “controlled” by a “registered investment company” or a “principal underwriter” of a “registered investment company” as such terms are defined in the Investment Company Act of 1940.

OFAC

. Neither Borrower nor any of its Subsidiaries is in violation of any of the country or list based economic and trade sanctions administered and enforced by OFAC. Neither Borrower nor any of its Subsidiaries (a) is a Sanctioned Person or a Sanctioned Entity, (b) has its assets located in Sanctioned Entities, or (c) derives revenues from investments in, or transactions with Sanctioned Persons or Sanctioned Entities. No proceeds of any loan made hereunder will be used to fund any operations in, finance any investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Entity.

Employee and Labor Matters

. There is (i) no unfair labor practice complaint pending or, to the knowledge of Borrower, threatened against Borrower or its Subsidiaries before any Governmental Authority and no grievance or arbitration proceeding pending or threatened against Borrower or its Subsidiaries which arises out of or under any collective bargaining agreement and that could reasonably be expected to result in a material liability, (ii) no strike, labor dispute, slowdown, stoppage or similar action or grievance pending or threatened in writing against Borrower or its Subsidiaries that could reasonably be expected to result in a material liability, or (iii) to the knowledge of Borrower, after due inquiry, no union representation question existing with respect to the employees of Borrower or its Subsidiaries and no union organizing activity taking place with respect to any of the employees of Borrower or its Subsidiaries, in each case, to the extent such events could reasonably be expected to result in a material liability. Except as set forth on Schedule 4.24, neither Borrower, nor any of its Subsidiaries has incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act or similar state law, which remains unpaid or unsatisfied. The hours worked and payments made to employees of Borrower or its Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable legal requirements, except to the extent such violations could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change. All material payments due from Borrower or any of its Subsidiaries on account of wages and employee health and welfare insurance and other benefits have been paid or accrued as a liability on the books of Borrower or such Subsidiary, except where the failure to do so could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change.

[Reserved]

.

Notes Documents, MSD Term Loan Documents and ABL Loan Documents

. As of the Closing Date, Borrower has delivered to Agent and the Lenders true and correct copies of any material Notes Documents, material ABL Loan Documents, and material MSD Term Loan Documents.  As of the Closing Date, no Default or Event of Default (as defined in each of the Notes Indenture, the ABL Credit Agreement and the MSD Term Loan Credit Agreement) has occurred and is continuing. The Notes Documents, the ABL Loan Documents and the MSD Term Loan Documents are in full force and effect as of the Closing Date and have not been terminated, rescinded or withdrawn as of such date.

Guarantors

. (a) Each Subsidiary of Borrower (other than any Excluded Subsidiary), (b) each Subsidiary that is a guarantor or a co-borrower under the ABL Loan Documents, (c) each Subsidiary that is a guarantor under the 2017 Notes Documents and (d) each Subsidiary that is a guarantor under the MSD Term Loan Documents, is a Guarantor under the Loan Documents.

Obligations Constitute ABL Obligations

.  Upon execution and delivery by Agent of the ABL Joinder Agreement to the ABL-Notes Intercreditor AgreementAs of the First Amendment Effective Date, (a) this Agreement shall constitute an “Additional ABL Credit Agreement” under and as defined in the ABL-Notes Intercreditor Agreement, (b) Agent is a “Bank Collateral Agent” under and as defined in the ABL-Notes Intercreditor Agreement, (c) the Loan Documents shall constitute “Credit Facility Loan Documents” under and as defined in the ABL-Notes Intercreditor Agreement and (d) the Obligations shall constitute “Credit Facility Obligations” under and as defined in the ABL-Notes Intercreditor Agreement. This Agreement, the other Loan Documents and the Obligations incurred hereunder and thereunder are permitted (i) to be incurred by each ABL Credit Agreement (as amended, supplemented or modified through the date hereof), and the 2017 Indenture and the Notes (as each such term is defined in the ABL-Notes Intercreditor Agreement) and (ii) by the each ABL Credit Agreement (as amended, supplemented or modified through the date hereof) and the 2017 Indenture and the Notes (as each such term is defined in the ABL-Notes Intercreditor Agreement) to be subject to the provisions of the ABL-Notes Intercreditor Agreement as Credit Facility Obligations (as such term is defined in the ABL-Notes Intercreditor Agreement) and the ABL Credit Agreement (as such term is defined in the ABL-Notes Intercreditor Agreement). 

NJ and MO Subsidiary

. As of the Closing Date, each of Auto Export Shipping, Inc. and Pacific Motor Trucking Company is not a Significant Subsidiary.

[Reserved]

.

ERISA

. Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the IRC and other federal or state law. Each Plan which is intended to qualify under Section 401(a) of the IRC has received a favorable opinion or determination letter from the IRS and to the best knowledge of Borrower, nothing has occurred which would cause the loss of such qualification. Except as set forth on Schedule 4.31, Borrower and each ERISA Affiliate has made all required contributions to any Plan subject to Section 412 of the IRC, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the IRC has been made with respect to any Plan.

AFFIRMATIVE COVENANTS.

Borrower covenants and agrees that, until payment in full of the Obligations (other than any unasserted contingent reimbursement and indemnification obligations), Borrower shall and shall cause each of its Subsidiaries to comply with each of the following, as applicable:

Financial Statements, Reports, Certificates

. Deliver to Agent each of the financial statements, reports, and other items set forth on Schedule 5.1 no later than the times specified therein. In addition, Borrower agrees that no Subsidiary of Borrower will have a fiscal year different from that of Borrower. In addition, Borrower agrees to maintain a system of accounting that enables Borrower to produce financial statements in accordance with GAAP in all material respects.

Collateral Reporting

. Provide Agent with each of the reports set forth on Schedule 5.2 at the times specified therein. In addition, Borrower agrees to use commercially reasonable efforts in cooperation with Agent to facilitate and implement a system of electronic collateral reporting in order to provide electronic reporting of each of the items set forth on such Schedule.

Existence

. Except as otherwise permitted under Section 6.3 or Section 6.4, at all times maintain and preserve in full force and effect its existence and good standing in its jurisdiction of organization and, except as could not reasonably be expected to result in a Material Adverse Change, good standing with respect to all other jurisdictions in which it is qualified to do business and any rights, franchises, licenses, permits, licenses, accreditations, authorizations, or other approvals material to its business.

Maintenance of Properties

. Maintain and preserve all of its assets that are necessary in the proper conduct of its business in good working order and condition, ordinary wear, tear, casualty and condemnation and Asset Sales and other dispositions that do not constitute Asset Sales excepted and except where the failure to do so would not reasonably be expected to have a Material Adverse Change.

Taxes

. Cause all Taxes imposed, levied, or assessed against any Loan Party or its Subsidiaries, or any of their respective assets or in respect of any of its income, businesses, or franchises to be paid in full, before delinquency or before the expiration of any extension period, except (i) to the extent that the validity of such assessment or tax shall be the subject of a Permitted Protest and so long as, in the case of a Tax that has or may become a Lien against any of the Collateral, such contest proceedings conclusively operate to stay the sale of any portion of the Collateral to satisfy such Tax or (ii) with respect to such Taxes that do not exceed $500,000 in the aggregate at any one time. Borrower will and will cause each of its Subsidiaries to make timely payment or deposit of all Tax payments and withholding taxes required of it and them by applicable laws (subject to clauses (i) and (ii) of the preceding sentence), including those laws concerning F.I.C.A., F.U.T.A., state disability, and local, state, and federal income taxes, and will, upon reasonable request, furnish Agent with proof reasonably satisfactory to the Required Lenders indicating that Borrower and its Subsidiaries have made such payments or deposits.

Insurance

. At Borrower’s expense, maintain insurance respecting each of the Loan Parties’ and their Subsidiaries’ assets wherever located, covering loss or damage by fire, theft, explosion, and all other hazards and risks as ordinarily are insured

against by other Persons engaged in the same or similar businesses. All such policies of insurance shall be with responsible and reputable insurance companies reasonably acceptable to the Required Lenders and in such amounts as is carried generally in accordance with sound business practice by companies in similar businesses similarly situated and located and in any event in amount, adequacy and scope reasonably satisfactory to the Required Lenders (it being agreed that the amount, adequacy and scope of the policies of insurance of Borrower in effect as of the date hereof are acceptable to the Required Lenders). All property insurance policies covering the Collateral are to be made payable to Agent for the benefit of Agent and the Lenders, as their interests may appear, in case of loss, pursuant to a standard loss payable endorsement with a standard noncontributory “lender” or “secured party” clause and are to contain such other provisions as Agent may reasonably require to fully protect the Lenders’ interest in the Collateral and to any payments to be made under such policies. All certificates of property and general liability insurance of the Loan Parties are to be delivered to Agent, with the loss payable (but only in respect of Collateral) and additional insured endorsements in favor of Agent and Borrower shall use commercially reasonable efforts to cause such endorsement to provide for not less than 30 days (10 days in the case of non-payment) prior written notice to Agent of the exercise of any right of cancellation.  In the event that such endorsements do not include such 30 days (10 days in the case of non-payment) prior written notice, Borrower shall promptly notify Agent in the event that it receives any notice of cancellation to any Loan Parties’ property or liability insurance. If Borrower fails to maintain such insurance, subject to the Intercreditor Agreements, after reasonable consultation with Borrower, Agent may arrange for such insurance, but at Borrower’s expense and without any responsibility on Agent’s part for obtaining the insurance, the solvency of the insurance companies, the adequacy of the coverage, or the collection of claims. Borrower shall give Agent prompt notice of any loss exceeding $1,000,000 covered by its casualty or business interruption insurance. Upon the occurrence and during the continuance of an Event of Default, subject to the Intercreditor Agreements, Agent shall have the first right to file claims under any property and general liability insurance policies in respect of the Collateral, to receive, receipt and give acquittance for any payments that may be payable thereunder, and to execute any and all endorsements, receipts, releases, assignments, reassignments or other documents that may be necessary to effect the collection, compromise or settlement of any claims under any such insurance policies. Notwithstanding anything in this Section 5.6, the Loan Parties and their Subsidiaries shall be permitted to self-insure on a basis consistent with commercially reasonable business practices. The parties hereby acknowledge that the Loan Parties’ self-insurance practices in effect on the date hereof are commercially reasonable business practices as of the date of this Agreement.

Inspection

. Permit Agent and each of its duly authorized representatives or agents to visit any of its properties and inspect any of its assets or books and records, to conduct appraisals and valuations, to examine and make copies of its books and records, and to discuss its affairs, finances, and accounts with, and to be advised as to the same by, its officers and employees at such reasonable times and intervals as Agent

may designate and, so long as no Event of Default exists, with reasonable prior notice to Borrower. Notwithstanding the foregoing, so long as no Event of Default has occurred and is continuing, Borrower shall only be required to reimburse the fees and expenses of Agent and duly authorized representatives or agents of Required Lenders for two such visits, inspections and examinations per fiscal year plus any additional visits in connection with Lender meetings pursuant to Section 5.13.

Compliance with Laws

. Comply with the requirements of all applicable laws, rules, regulations, and orders of any Governmental Authority, other than laws, rules, regulations, and orders the non-compliance with which, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Change.

Environmental

.

Keep any property either owned or operated by Borrower or any of its Subsidiaries free of any Environmental Liens (other than Permitted Liens) or post bonds or other financial assurances sufficient to satisfy the obligations or liability evidenced by such Environmental Liens,

Comply with Environmental Laws to the extent the non compliance could reasonably be expected to have a Material Adverse Change and provide to Agent documentation of such compliance which Agent reasonably requests,

Promptly notify Agent of any release of which Borrower has knowledge of a Hazardous Material in any Reportable Quantity (as defined under applicable Environmental Law) from or onto property owned or operated by Borrower or any of its Subsidiaries and take any Remedial Actions required to ▇▇▇▇▇ said release or otherwise to come into compliance, in all material respects, with applicable Environmental Law, and

Promptly, but in any event within 5 Business Days of its receipt thereof, provide Agent with written notice of any of the following: (i) notice that an Environmental Lien that could reasonably be expected to have a Material Adverse Change has been filed against any of the real or personal property of Borrower or any other Loan Party, (ii) commencement of any Environmental Action or written notice that an Environmental Action will be filed against Borrower or any other Loan Party that could reasonably be expected to have a Material Adverse Change, and (iii) written notice of a violation, citation, or other administrative order from a Governmental Authority that could reasonably be expected to have a Material Adverse Change.

NJ and MO Local Counsel Opinion

.  To the extent Auto Export Shipping, Inc. or Pacific Motor Trucking Company becomes a Significant Subsidiary based on the quarterly or annual financial statements delivered pursuant to Section 5.1 (or any Form 10Q or Form 10K is filed in lieu thereof), as soon as practicable but in any event within 60 days after the delivery of the quarterly or annual financial statements delivered pursuant to Section 5.1, the Borrower shall cause to be delivered a New Jersey or Missouri local counsel opinions, as applicable, that cover customary corporate opinions, substantially similar to the ones delivered to the MSD Agent on April 2, 2015.

Formation of Subsidiaries

. At the time that any Loan Party forms any Subsidiary or acquires any Subsidiary after the Closing Date, such Loan Party shall (a) no later than the earlier of (i) substantially contemporaneously with such Subsidiary becoming a co-borrower or guarantor under the ABL Loan Documents, the MSD Term Loan Documents, 2017 Notes Documents or the documents evidencing any Refinancing Indebtedness with respect to any of the foregoing and (ii) within 20 Business Days of such formation or acquisition (or such later date as permitted by the Required Lenders in their sole discretion) cause any such new Subsidiary to provide to Agent a joinder to the Guaranty substantially in the form of Exhibit A to the Guaranty (a “Guarantor Joinder Agreement”) and a joinder to the Security Agreement substantially in the form of Annex 1 to the Security Agreement (a “Security Agreement Joinder”), together with such other security documents (including mortgages with respect to any Real Property (other than Excluded Real Property) owned in fee of such new Subsidiary to the extent required by the Loan Documents), as well as appropriate financing statements (and with respect to all property subject to a mortgage, fixture filings), all in form and substance reasonably satisfactory to the Required Lenders (including being sufficient to grant Agent a first priority Lien (subject to the Intercreditor Agreements and to Permitted Collateral Liens and Permitted Liens) in and to the assets of such newly formed or acquired Subsidiary); provided that notwithstanding anything to the contrary herein or in the other Loan Documents, no Guaranty or any such joinder or other security documents shall be required to be provided to Agent with respect to any Excluded Subsidiary unless any of such is delivered under the ABL Loan Documents, the MSD Term Loan Documents, the 2017 Note Documents or any Refinancing Indebtedness with respect to any of the foregoing, (b) no later than the earlier of (i) substantially contemporaneously with such Subsidiary becoming a co-borrower or guarantor under the ABL Loan Documents, the MSD Term Loan Documents, the 2017 Notes Documents or documents evidencing Refinancing Indebtedness with respect to the foregoing and (ii) within 20 Business Days of such formation or acquisition (or such later date as permitted by Agent in its sole discretion) provide to Agent a pledge agreement (or an addendum to the Security Agreement) and, subject to the terms of the Intercreditor Agreements, appropriate certificates and powers or financing statements, pledging all of the direct or beneficial ownership interest in such new Subsidiary reasonably satisfactory to the Required Lenders; provided that only 65% of the total outstanding voting Capital Interests and 100% of the total outstanding non-voting Capital Interests of any Section 956 Subsidiary shall be required to be pledged (it being understood that such pledge shall not be required to be documented by a non-United States law governed pledge agreement, and (c) no later than the earlier of (i) substantially contemporaneously with such Subsidiary becoming a co-borrower or guarantor under the ABL Loan Documents, the MSD Term Loan Documents, the 2017 Notes Documents or documents evidencing Refinancing Indebtedness with respect to the foregoing and (ii) within 20 Business Days of such formation or acquisition (or such later date as permitted by the Required Lenders) provide to Agent all other documentation, including to the extent the Required Lenders shall so request, one or more opinions of counsel (other than opinions of foreign counsel) reasonably satisfactory to the Required

Lenders, which in its opinion is appropriate with respect to the execution and delivery of the applicable documentation referred to above (including policies of title insurance or other documentation with respect to all Real Property owned in fee and subject to a Mortgage). Any document, agreement, or instrument executed or issued pursuant to this Section 5.11 shall be a Loan Document.

Further Assurances

. At any time upon the reasonable request of Agent, execute or deliver to Agent any and all financing statements, fixture filings, security agreements, pledges, assignments, endorsements of certificates of title, mortgages, deeds of trust, opinions of counsel, and all other documents (the “Additional Documents”) that Agent may reasonably request in form and substance reasonably satisfactory to Agent to the extent required under the Loan Documents, to create, perfect, and continue perfected or to better perfect Agent’s Liens in all of the assets of the Loan Parties (whether now owned or hereafter arising or acquired, tangible or intangible, real or personal) to the extent required under the Loan Documents, to create and perfect Liens in favor of Agent in any Real Property of Borrower or its Subsidiaries that is not Excluded Real Property, and in order to fully consummate all of the transactions contemplated hereby and under the other Loan Documents; provided that the foregoing shall not apply to any Loan Party that is a Section 956 Subsidiary (or a Subsidiary of such Section 956 Subsidiary) or any other Excluded Subsidiary unless a similar obligation is included under the ABL Loan Documents, the MSD Term Loan Documents, the Note Documents or any documents evidencing Refinancing Indebtedness with respect to any of the foregoing. To the maximum extent permitted by applicable law, if Borrower refuses or fails to execute or deliver any reasonably requested Additional Documents required to be delivered under this Section 5.12 within a reasonable period of time following the request to do so, Borrower hereby authorizes Agent to execute any such Additional Documents in any Loan Party’s name, as applicable, and authorizes Agent to file such executed Additional Documents in any appropriate filing office.  In furtherance and not in limitation of the foregoing, each Loan Party shall take such actions as Agent may reasonably request from time to time to ensure that the Obligations are guarantied by the Guarantors and are secured by substantially all of the assets of Borrower and the Guarantors and all of the outstanding Capital Interests of Borrower’s Subsidiaries (subject to exceptions and limitations contained in the Loan Documents).  Notwithstanding anything to the contrary in this Agreement or the other Loan Documents, the Borrower and the other Loan Parties shall not be required

Notwithstanding anything to the contrary in this Agreement or the other Loan Documents, it is understood and agreed that:

(1)Prior to the Discharge of Notes Obligations (as such term is defined in the ABL-Notes Intercreditor Agreement) any requirement of the Loan Documents to deliver Notes Priority Collateral (as such term is defined in the ABL-Notes Intercreditor Agreement) to Agent shall be satisfied by delivery of such Notes Priority Collateral to the Notes Collateral Agent (as such term is defined in the ABL-Notes Intercreditor Agreement);

(2)Subject to clause (1) above, prior to the Payment in Full of WFCF Priority Debt (as such term is defined in the Closing Date Intercreditor Agreement), any requirement of the Loan Documents to deliver any Pledged Interests or Pledged Notes or any other possessory Collateral to Agent shall be satisfied by delivery of such Pledged Interests or Pledged Notes or possessory Collateral to the ABL Agent; following the Payment in Full of the WFCF Priority Debt (as such term is defined in the Closing Date Intercreditor Agreement) but prior to the Payment in Full of MSD Priority Debt (as such term is defined in the Closing Date Intercreditor Agreement), any requirement of the Loan Documents to deliver any Pledged Interests or Pledged Notes or possessory Collateral to Agent shall be satisfied by delivery of such Pledged Interests or Pledged Notes or possessory Collateral to the MSD Agent;

(3)The Loan Parties shall not be required to obtain landlord waivers, estoppels or collateral access letters, other than to the extent required pursuant to Section 5.15;

(4)prior to the Payment in Full of WFCF Priority Debt (as such term is defined in the Closing Date Intercreditor Agreement) and the Payment in Full of MSD Priority Debt (as such term is defined in the Closing Date Intercreditor Agreement), the Loan Parties shall not be required to obtain any control agreement with any securities or commodities intermediary or bank with respect to any of its Deposit Accounts, Securities Accounts, financial assets or commodities or any of its investment property.  Following the Payment in Full of WFCF Priority Debt (as such term is defined in the Closing Date Intercreditor Agreement) and the Payment in Full of MSD Priority Debt (as such term is defined in the Closing Date Intercreditor Agreement), to the extent Required Lenders shall have so requested in writing, Borrower or the applicable Loan Party shall, within 90 days following receipt of such request (or such longer period as Required Lenders may agree), enter into Control Agreements with the applicable bank or securities intermediary with respect to its applicable Deposit Account or Securities Account, in each case other than (i) Excluded Deposit Accounts, (ii) amounts on deposit securing any Liens permitted under clauses (e), (s), (t) and (u) of the definition of Permitted Liens, (iii) Deposit Accounts or Securities Accounts, the aggregate amount of balance of which is not more than $250,000 at any one time, in the case of Borrower and the other Loan Parties and (iv) any controlled disbursement account that does not maintain cash balances, zero balance account and local terminal account that does not receive deposits, make, acquire, or permit to exist Permitted Investments consisting of cash, Cash Equivalents, or amounts credited to Deposit Accounts or Securities Accounts;

(5)The Loan Parties shall not be required to take any action under the laws of any jurisdiction other than the U.S. to create or perfect a security interest in such assets, including any intellectual property registered in any jurisdiction other than the U.S. (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any jurisdiction other than the U.S.), unless the Loan Parties shall have taken any such action in favor of the ABL Agent, the MSD Agent or the Notes Agent;

(6)For the purpose of perfecting Liens in the Vehicles, including, without limitation, as to any motor vehicle certificates of title, prior to the Payment in Full of WFCF Priority Debt (as such term is defined in the Closing Date Intercreditor Agreement) and the Payment in

Full of MSD Priority Debt (as such term is defined in the Closing Date Intercreditor Agreement), the Loan Parties shall not be required to have Agent specified or noted as a lienholder on the certificates of title or retitle any certificates of title so long as those certificates of title of the Loan Parties have notated on them the Vehicle Collateral Agent as the lienholder as required by the Vehicle Collateral Agency Agreement.

Lender Meetings

. Within 120 days after the close of each fiscal year of Borrower, at the request of the Required Lenders (or the Agent on their behalf) and upon reasonable prior notice, hold a meeting (at a mutually agreeable location and time and can be conducted by conference call) 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 Borrower and its Subsidiaries and the projections presented for the current fiscal year of Borrower and its Subsidiaries.

[Reserved]

.

Location of Inventory and Equipment

. To the extent any Loan Party delivers a Collateral Access Agreement to the 2017 Notes Agent with respect to any premises, Borrower shall, and shall cause such Loan Party to, use commercially reasonable efforts to substantially contemporaneously deliver a substantially similar Collateral Access Agreement with respect to such premises to Agent. Notwithstanding the foregoing, after the Payment in Full of WFCF Priority Debt (as defined in the ABL-Term Loan Intercreditor Agreement) and Payment in Full of the MSD Priority Debt (as defined in the MSD-Term Loan Intercreditor Agreement and upon Agent’s reasonable request, Borrower shall, and shall cause such Loan Party to, use commercially reasonable efforts to provide Agent a Collateral Access Agreement with respect to any other location promptly upon written request of Agent.

ERISA Matters. Furnish to Agent

:

(a)Notice of ERISA Matters. Upon Borrower or its Subsidiaries learning of the occurrence of any of the following which could reasonably be expected to result in a Material Adverse Change, written notice thereof to the Agent that describes the same and the steps being taken by Borrower and its Subsidiaries with respect thereto: (i) a Prohibited Transaction in connection with any Plan (ii) the occurrence of a Reportable Event with respect to any Pension Plan subject to Title IV of ERISA, (iii) the institution of any steps by Borrower and its Subsidiaries, the PBGC or any other Person to terminate any Plan, (iv) the institution of any steps by Borrower and its Subsidiaries or any ERISA Affiliate to withdraw from any Pension Plan which could result in material liability to a Loan Party, (v) the failure to make a required contribution to any Pension Plan if such failure is sufficient to give rise to a lien under Section 303(k) of ERISA, (vi) the taking of any action with respect to a Pension Plan which could result in the requirement that a Loan Party furnish a bond or other security to the PBGC or such

Pension Plan, (vii) any material increase in the contingent liability of a Loan Party with respect to any post retirement Welfare Plan benefits, (viii) any and all claims, actions, or lawsuits (other than claims for benefits in the ordinary course) asserted or instituted, and of any threatened litigation or claims (other than claims for benefits in the ordinary course), against a Loan Party or against any ERISA Affiliate in connection with any Plan maintained, at any time, by a Loan Party or such ERISA Affiliate, or to which a Loan Party or such ERISA Affiliate has or had at any time any obligation to contribute, or/and against any such Plan itself, or against any fiduciary of or service provided to any such Plan, or (ix) the occurrence of any event with respect to any Plan which would result in Borrower or any of its Subsidiaries incurring any material liability, fine or penalty.

(b)Copies of ERISA Information. Upon Agent’s reasonable request, each of the following shall be delivered by Borrower to Agent: (i) a copy of each Plan (or, where any such plan is not in writing, complete description thereof) (and if applicable, related trust agreements or other funding instruments) and all amendments thereto, all written interpretations thereof and written descriptions thereof that have been distributed to employees or former employees of a Loan Party or any of its ERISA Affiliates; (ii) the most recent determination letter issued by the Internal Revenue Service with respect to each Pension Plan; (iii) for the three most recent plan years, Annual Reports on Form 5500 Series requires to be filed with any governmental agency for each Plan; (iv) all actuarial reports prepared for the last three plan years for each Pension Plan; (v) a listing of all Multiemployer Plans, with the aggregate amount of the most recent annual contributions required to be made by a Loan Party or any ERISA Affiliate to each such Multiemployer Plan and copies of the collective bargaining agreements requiring such contributions; (vi) to the extent any Loan Party has received or possesses such documents or information, any information that has been provided to a Loan Party or any ERISA Affiliate regarding withdrawal liability under any Multiemployer Plan and (vii) the aggregate amount of the most recent annual payments made to former employees of a Loan Party or any ERISA Affiliate under any retiree Welfare Plan.

Post-Closing Obligations

. Borrower shall, and shall cause each of its applicable Subsidiaries to, take each of the actions set forth in Schedule 5.17, no later than the time period set forth for such action in such schedule (or such later time as Agent agrees in its sole discretion). All provisions of this Agreement and the other Loan Documents (including, without limitation, all representations, warranties, covenants, Events of Default and other agreements herein and therein) shall be deemed modified to the extent necessary to reflect the fact that additional time has been provided for compliance with respect to such conditions subsequent.

NEGATIVE COVENANTS.

Borrower covenants and agrees that, until the payment in full of the Obligations (other than any unasserted contingent reimbursement and indemnification obligations), Borrower will not and will not permit any of its Subsidiaries to do any of the following:

Indebtedness

. Incur any Indebtedness (including any Acquired Indebtedness), except for the following:

Indebtedness of Borrower and any Guarantor if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, (i) the Consolidated Fixed Charge Coverage Ratio of Borrower and its Subsidiaries would be greater than 2.0:1.0 and (ii) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Indebtedness; and

Permitted Indebtedness.

(iii)For purposes of determining compliance with this Section 6.1, (x) the outstanding principal amount of any Indebtedness shall be counted only once such that (without limitation) any obligation arising under any Guarantees or obligations with respect to letters of credit supporting Indebtedness otherwise included in the determination of such particular amount shall not be included and (y) except as provided above, in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described above, including categories of Permitted Indebtedness and Section 6.1(a), Borrower, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Indebtedness and such Indebtedness need not be permitted solely by reference to one provision of this Section 6.1 but may be permitted in part by one such provision and in part by one or more other provisions of this Section 6.1. Notwithstanding anything to this Section 6.1 or in the definition of “Permitted Indebtedness”, no Indebtedness shall be Incurred under any ABL Credit Agreement or MSD Term Loan Agreement except pursuant to and in compliance with clause (a) or (n)(ii) of the definition of “Permitted Indebtedness”,. 

(iv)The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Indebtedness in the forms of additional Indebtedness or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms and changes in the amount outstanding due solely to the result of fluctuations in the exchange rates of currencies will not be deemed to be an Incurrence of Indebtedness or issuance of Capital Interests for purposes of this Section 6.1.

(v)Notwithstanding anything to the contrary herein, the maximum amount of Indebtedness that may be outstanding pursuant to this Section 6.1 will not be deemed exceeded due to the results of fluctuations in exchange rates or currency values. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Indebtedness, the U.S. dollar equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness

was Incurred.

(vi)None of Borrower and Guarantors will Incur any Indebtedness that pursuant to its terms is subordinate or junior in right of payment to any Indebtedness unless such Indebtedness is subordinated in right of payment to the Obligations to at least the same extent; provided that Indebtedness will not be considered subordinate or junior in right of payment to any other Indebtedness solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.

Liens

.  

Directly or indirectly, create, incur, assume or suffer to exist any Liens of any kind on or with respect to the Collateral except Permitted Collateral Liens; and

Subject to Section 6.2(a), directly or indirectly, create, incur, assume or suffer to exist any Liens of any kind, other than Permitted Liens, on or with respect to any of its property or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom other than the Collateral without securing the Obligations and all other amounts due under this Agreement and the Loan Documents (for so long as such Lien exists) equally and ratably with (or prior to) the obligation or liability secured by such Lien.

For purposes of determining compliance with this Section 6.2, (A) a Lien securing an item of Indebtedness need not be permitted solely by reference to one category (or portion thereof) of Permitted Liens described in the definition of “Permitted Liens” but may be permitted in part under any combination thereof and (B) in the event that a Lien securing an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories (or portions thereof) of Permitted Liens described in the definition of “Permitted Liens,” Borrower shall, in its sole discretion, divide, classify or reclassify, or later divide, classify, or reclassify, such Lien securing such item of Indebtedness (or any portion thereof) in any manner that complies (based on circumstances existing at the time of such division, classification or reclassification) with this Section 6.2. Notwithstanding anything contained in this Section 6.2 or the definitions of “Permitted Collateral Liens” or “Permitted Liens”, no Liens shall secure the ABL Obligations, the MSD Term Loan Obligations, the 2017 Notes Obligations, any Additional Notes , any Specified Pari Passu Ratio Debt , any Junior Debt or any Refinancing Indebtedness in respect thereof except pursuant to clause (a) of the definition of “Permitted Collateral Liens”.

(vii)With respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the Incurrence of such Indebtedness, such Lien shall also be permitted to secure any Increased Amount of such Indebtedness.  The “Increased Amount” of any Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortization of original issue discount, the payment of interest in the form of additional Indebtedness with the same terms or in the form of common equity of Borrower or any direct or indirect payment of Borrower, the payment of dividends on preferred stock in the form of additional shares of preferred stock of the same class, accretion of original issue discount or liquidation preference and increases in the amount of Indebtedness outstanding solely as a

result of fluctuations in the exchange rate of currencies or increases in the value of property securing Indebtedness.

Restrictions on Fundamental Changes

.

Consummate any merger, consolidation, reorganization, or recapitalization, or reclassify its Capital Interests other than mergers, consolidations and reorganizations (i) between Loan Parties (other than Borrower, unless Borrower is the surviving entity of such merger, consolidation or reorganization), (ii) between any Loan Party and any of its Subsidiaries, and (iii) between non-Loan Parties; provided that, in the case of clause (ii), such Loan Party is the surviving entity of such merger, consolidation or reorganization; provided further that in order to consummate an acquisition that constitutes a Permitted Investment, Borrower and any Loan Party may form a Subsidiary to consummate such acquisition and such Subsidiary may be merged into the acquired Person;

Liquidate, wind up, or dissolve itself (or suffer any liquidation or dissolution), except for (i) the liquidation or dissolution of non-operating Subsidiaries of Borrower with nominal assets and nominal liabilities, (ii) the liquidation or dissolution of a Loan Party (other than Borrower) or any of Borrower’s wholly-owned Subsidiaries so long as all of the remaining assets (including any interest in any Capital Interests) of such liquidating or dissolving Loan Party or Subsidiary are transferred to a Loan Party that is not liquidating or dissolving, or (iii) the liquidation or dissolution of a Subsidiary of Borrower that is not a Loan Party so long as all of the remaining assets of such liquidating or dissolving Subsidiary are transferred to a Loan Party or another non-Loan Party, in each case, that is not liquidating or dissolving; or

Suspend or cease operating a substantial portion of its or their business, except (i) as permitted pursuant to clauses (a) or (b) above, (ii) as a result of a transaction permitted pursuant to Section 6.4 or (iii) as a result of a transaction that does not constitute an Asset Sale.

Disposal of Assets

1..  The Borrower will not, and will not permit any Subsidiary to, directly or indirectly consummate an Asset Sale, unless:

 

(1)other than in the case of an Event of Loss, the Borrower or such Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets sold or otherwise disposed of;

(2)other than in the case of an Event of Loss, at least 75% of the consideration therefor received by the Borrower or such Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Additional Assets;

(3)to the extent that any consideration received by the Borrower or such Subsidiary in such Asset Sale constitute securities or other assets that constitute Collateral, such securities or other assets, including the assets of any Person that becomes a Guarantor as a result of such transaction, are following their acquisition added to the Collateral securing the Obligations in accordance with the requirements of the applicable Loan Documents and the applicable Intercreditor Agreement;

(4)no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to, such Asset Sale; and

(5) the Borrower complies with Section 2.4(d)(ii)(2).

Notwithstanding anything to the contrary herein, with respect to any sale, issuance or other disposition of Capital Interests of a Subsidiary of Borrower permitted hereby, to the extent such Capital Interests are pledged by a Loan Party under the Loan Documents, Borrower or its Subsidiaries may only sell, issue, or otherwise dispose of all (and not less than all) of the Capital Interests of such Subsidiary of Borrower.

Change Name

. Change Borrower’s or any other Loan Party’s name, organizational identification number, state of organization, or organizational identity without  giving at least 10 days prior written notice (or such shorter notice as the Required Lenders may agree to) to Agent of such change.

Nature of Business

. Engage in any business other than a Permitted Business.

Prepayments and Amendments

.

Except (x) in connection with Refinancing Indebtedness permitted by Section 6.1 or (y) for any prepayments or payments so long as the Additionalup to the available Builder Basket Amount so long as, in the case of this subclause (y), the Builder Basket Conditions are met,

prepay, redeem, defease, purchase, repurchase or otherwise acquire prior to the scheduled maturity thereof any Indebtedness of Borrower and its Subsidiaries for borrowed money of a Loan Party that is (x) unsecured, (y) contractually by its terms subordinated in right of payment to the Obligations or (z) secured on a junior lien basis to the Liens securing the Obligations (including, for the avoidance of doubt, the Notes, any Additional Notes and any Refinancing Indebtedness with respect thereto) (clauses (x), (y) and (z) above constituting “Subordinated Indebtedness”; and such prepayment, redemption, defeasance purchase, repurchase or acquisition being referred to as “Restricted Junior Debt Payments”), other than: (A) offers to purchase the 2017 Notes in connection with asset sales pursuant to Section 3.9 and Section 4.10 of the 2017 Notes Indenture, (B) offers to purchase the 2017 Notes in connection with a change of control pursuant to Section 4.14 of the 2017 Notes Indenture, (C) Restricted Junior Debt Payments with the identifiable net cash proceeds not otherwise applied received by Borrower from issuance or sale of Qualified Capital StockInterests or cash equity contributions, in each case occurring within 120 days prior to such Restricted Junior Debt Payments, (D) Restricted Junior Debt Payments by conversion into, or by or in exchange for, Qualified Capital Interests of the Borrower or any of its direct or indirect

parent entities, (E) Permitted Deleveraging Transactions, (F) upon the occurrence of a Change of Control or an Asset Sale, Restricted Junior Debt Payments pursuant to provisions substantially similar to those set forth in Section 2.4(d)(ii)(1) and Section 2.4(d)(ii)(2) (as applicable) in accordance with the terms of such Subordinated Indebtedness; provided that prior to or contemporaneously with such payment, the Borrower has made an Offer to Prepay with respect to the Loans and has repurchased all Loans validly tendered for payment and not withdrawn in connection therewith, (G) payments of regularly scheduled principal, interest and, to the extent not otherwise prohibited under applicable subordination agreement, the payment of fees in connection with the amendment of any Subordinated Indebtedness or any waiver or consent thereunder, (H) prepayment of intercompany Indebtedness to a Loan Party; prepayment of intercompany Indebtedness of a Subsidiary that is not a Loan Party to a Subsidiary that is not a Loan Party;  and in the absence of a continuing Event of Default, prepayment of intercompany Indebtedness incurred after the Closing Date of the Borrower or any Subsidiary to the Borrower or any Subsidiary, (I) other payments in an aggregate amount since June 18, 2013 not in excess of $15,000,000 (minus any amount utilized in reliance of the baskets specified under Section 6.9(k) or clause (o) of “Permitted Investments” definition), and (J(J) the purchase, redemption, defeasance, repurchase, exchange, retirement or cancellation of the Notes in accordance  with the terms substantially consistent with the terms in the Offering Memorandum), whether consummated pursuant to a Chapter 11 Bankruptcy Proceeding as described in the Offering Memorandum or pursuant to an out-of-court restructuring, with, among other consideration, the proceeds of the 2017 Notes substantially concurrently with the issuance thereof, and (K) any such other payment expressly permitted under the applicable   subordination or intercreditor agreement, or

make any payment on account of Indebtedness that has been contractually subordinated in right of payment to the Obligations if such payment is not permitted at such time under the subordination terms and conditions, or

Directly or indirectly, amend, modify, or change any of the terms or provisions of:

(A) the 2017 Notes Obligations unless such amendment, modification, or change is not prohibited by the terms of the ABL-Notes Intercreditor Agreement, (B) the ABL Obligations unless any such amendment, modification or change that is not prohibited by the terms of the Closing Date Intercreditor Agreement, (C) the MSD Term Loan Documents unless such amendment, modification or change is not prohibited by the terms of the Closing Date

Intercreditor Agreement, or (D) any Specified Pari Passu Ratio Debt or Junior Debt unless such amendment, modification or change is not prohibited by the terms of the intercreditor agreement with respect thereto; or

the Governing Documents of any Loan Party or any of its Subsidiaries if the effect thereof, either individually or in the aggregate, could reasonably be expected to be materially adverse to the interests of the Lenders.

[Reserved]

.  

Restricted Junior Payments

. Make any Restricted Junior Payment; provided,  however, that, so long as it is permitted by law:  

so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Borrower may make distributions to current or former employees, officers, or directors of Borrower or any Subsidiary (or any spouses, ex-spouses, trusts or estates of any of the foregoing) on account of redemptions, purchase, retirement or other acquisition for value of Capital Interests of Borrower or the direct or indirect parent of Borrower held by such Persons, so long as either: (A)(1) the aggregate amount of such redemptions, purchases, retirement, other acquisitions for value, or payments made by Borrower in cash since June 18, 2013 does not exceed the sum of (x) $2,500,000 in any fiscal year (provided that if less than $2,500,000 is used for such purposes in any fiscal year, any unused amounts may be carried forward for use in one or more future periods; provided, further, that the aggregate amount of repurchases made pursuant to this clause (A)(1)(x) may not exceed $5,000,000 in any fiscal year); plus (y) the cash proceeds of key man life insurance policies received by Borrower and its Subsidiaries after June 18, 2013 (it being understood that Borrower may elect to apply all or any portion of the aggregate increase contemplated by this clause (A)(1)(y) in any calendar year); or (B) otherwise the Additionalthe aggregate amount of such Restricted Junior Payments would not exceed the available Builder Basket Amount to the extent the Builder Basket Conditions are met;

Borrower may make distributions to current or former employees, officers, or directors of Borrower or any Subsidiary (or any spouses, ex-spouses, trusts or estates of any of the foregoing), solely in the form of forgiveness of Indebtedness of such Persons owing to Borrower on account of repurchases of the Capital Interests of Borrower or the direct or indirect parent of Borrower held by such Persons; provided that such Indebtedness was incurred by such Persons solely to acquire Capital Interests of Borrower or the direct or indirect parent of Borrower;

so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the AdditionalBuilder Basket Conditions are met, Borrower may make distributions or payments (including payments in respect of Redeemable Capital Interests) up to the available Builder Basket Amount;

Borrower may make distributions or other dividends to its parent entities for (i) corporate franchise taxes of such parent entities and taxes actually owed by Borrower or the

consolidated group of the Borrower and its Subsidiaries, (ii) reasonable legal, accounting and other professional fees and expenses, and other out of pocket third party transactions expenses not owing to lenders, noteholders or their agents or trustees (including, to the extent applicable, printer costs, filing fees, rating costs and appraisals), in each case in connection with an initial public offering of such parent entity, follow-on offerings, or other financing transactions that are deleveraging events for such parent entity and its Subsidiaries, in an aggregate amount not to exceed $10.0 million, (iii) costs incurred to comply with Borrower’s or its parent entities’ reporting obligations under federal or state laws or as required to comply with the ABL Loan Documents, the Notes Documents, the 2017 Notes Documents, the documentation for Additional Notes, the documentation for the PIK Toggle Notes, the MSD Term Loan Documents, the Specified Pari Passu Ratio Debt, the Junior Debt or the Loan Documents, (iv) other customary corporate overhead expenses of such parent entity in the ordinary course of business to the extent attributable to the operations and activities of the Borrower and its Subsidiaries; and (v) purchase consideration with respect to an Acquisition permitted under this Agreement; provided that in no event shall any amount be dividended or otherwise distributed pursuant to this clause (d) to make payment of any principal, interest, fees, costs, expenses or other amount owing under, or with respect to, the PIK Toggle Notes;

[RESERVED];

the payment of any dividend or other distribution on, or the consummation of any irrevocable redemption of, Capital Interests in Borrower within 60 days after declaration or setting the record date for redemption thereof, as applicable, if at such date such payment would not have been prohibited by the provisions of this Section 6.9;

the retirement of any Capital Interests of Borrower or any direct or indirect parent of Borrower by conversion into, or by or in exchange for, Qualified Capital Interests, or out of net cash proceeds of the issuance or sale (other than to a Subsidiary of Borrower) of Qualified Capital Interests of Borrower or equity contribution into the Borrower occurring within 60 days prior to such retirement, or the making of other Restricted Junior Payments out of the net cash proceeds of capital contributions or the issuance or sale (other than to a Subsidiary of Borrower) of Qualified Capital Interests of Borrower occurring within 60 days of such Restricted Junior Payment;

repurchase of Capital Interests of Borrower deemed to occur upon the exercise of stock options, warrants or other convertible or exchangeable securities to the extent such Capital Interests represents a portion of the exercise price of those stock options, warrants or other convertible or exchangeable securities or repurchase of such Capital Interests to the extent the proceeds of such repurchase are used to pay taxes incurred by the holder thereof as a result of the issuance or grant thereof;

cash payment, in lieu of issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for the Capital Interests of Borrower or a Subsidiary thereof;

the declaration and payment of dividends on the Borrower’s common stock (or the declaration and payment of dividends to any direct or indirect parent entity to fund a payment of

dividends on such entity’s common stock), following any Qualified Equity Offering after the date hereof, of up to 6% per annum of the net cash proceeds received by or contributed to the Borrower in the form of Qualified Capital Interests or cash capital contribution in or from such offering to the extent not otherwise applied or utilized in the business of Borrower and its Subsidiaries;

other Restricted Junior Payments in an aggregate amount since June 18, 2013 not in excess of $15,000,000 (minus any amount utilized in reliance of the baskets specified under Section 6.7(a)(i)(I) and clause (o) of “Permitted Investments” definition);

dividends or other distributions by Borrower to the PIK Toggle Issuer made in lieu of a Specified Intercompany Loan or a direct purchase or acquisition of PIK Toggle Notes solely for purposes of the PIK Toggle Issuer directly purchasing or acquiring PIK Toggle Notes in a Permitted Deleveraging Transaction, in any event, so long as (1) the cash proceeds from such dividend or other distribution are used by the PIK Toggle Issuer to purchase or acquire and cancel such PIK Toggle Notes upon the consummation of such purchase or acquisition and are not used for any other purpose; and (2) to the extent such cash proceeds are cash proceeds from the Loans, such cash proceeds are used by the PIK Toggle Issuer, within 120 days after the Closing Date, to purchase or acquire and cancel such PIK Toggle Notes upon the consummation of such purchase or acquisition and are not used for any other purpose; and

Borrower may make distributions to the PIK Toggle Notes Issuer, within 30 days after the First Amendment Effective Date, in the aggregate amount not to exceed $[2,500,000]3,000,000 for the sole purpose of repurchasing or redeeming warrants (or Capital Interests issued upon exercise of warrants); and

(a)the consummation of the First Amendment Effective Date Transactions.  

Notwithstanding the foregoing or anything else herein to the contrary, in no event shall any Restricted Junior Payment be made by Borrower or any of its Subsidiaries, directly or indirectly, the proceeds of which are used to prepay, redeem, defease, purchase, repurchase or otherwise acquire PIK Toggle Notes, or to pay any fees or interest in cash with respect thereto, other than pursuant to clauseclauses (l) and (n) above.

Accounting Methods

.  Modify or change its fiscal year or its method of accounting (other than as may be required to conform to GAAP).

Investments

.  Except for Permitted Investments, directly or indirectly, make or acquire any Investment.  Notwithstanding the foregoing or anything else herein to the contrary, in no event shall PIK Toggle Notes, Notes, or Additional Notes, directly or indirectly, be prepaid, redeemed, defeased, purchased, repurchased or otherwise acquired by the Borrower or any of its Subsidiaries other than pursuant to a Permitted Deleveraging Transaction (including through a dividend or other distribution pursuant to Section 6.9(l) or a Specified Intercompany Loan), Section 6.7(a)(x) or 6.7(a)(i),   or clauseclauses (l) or (n) of the definition of “Permitted Investments”.

Transactions with Affiliates

. Directly or indirectly consummate or permit to exist any transaction with any Affiliate of Borrower or any of Subsidiary of Borrower except for:

transactions (other than the payment of management, consulting, monitoring, or advisory fees) between Borrower or its Subsidiaries, on the one hand, and any Affiliate of Borrower or such Subsidiary, on the other hand (each, an “Affiliate Transaction”), so long as such transactions (i)are no less favorable, taken as a whole, to Borrower or such Subsidiary, as applicable, than would be obtained in an arm’s length transaction with a non-Affiliate, (ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5,000,000, the Borrower delivers to the Administrative Agent a resolution adopted in good faith by the Board of Directors of the Borrowing approving such Affiliate Transaction and set forth in an officers’ certificate signed by the Chief Financial Officer, the Chief Executive Officer or other senior officer of the Borrower certifying that such Affiliate Transaction complies with clause (i) above; and (iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20,000,000, the Borrower must obtain and deliver to the Administrative Agent a written opinion of a nationally recognized investment banking, accounting or appraisal firm stating that the transaction is fair to the Borrower or such Subsidiary, as the case may be, from a financial point of view;

any customary indemnity provided for the benefit of directors (or comparable managers), officers, employees and agents of Borrower or such Subsidiary;

the payment (and any agreement, plan or arrangement relating thereto) of reasonable compensation (including bonuses), costs, expenses, severance, or employee benefit arrangements (including retirement, health, option, deferred compensation and other benefit plans) to employees, officers, and directors of Borrower and its Subsidiaries in the ordinary course of business;

loans and advances to employees, directors, officers and consultants in the ordinary course of business in an aggregate principal amount not to exceed $500,000 at any time outstanding;

transactions entered into between or among the Loan Parties and/or their Subsidiaries;

any agreement or arrangement described on Schedule 6.12 and any amendment, modification, extension or replacement of such agreement or arrangement so long as such amendment, modification, extension or replacement (x) is not less favorable in any material respect to Borrower or any Subsidiary, taken as a whole, as the original agreement as in effect on the date hereof as determined in good faith by such Person  or (y) is an amendment, modification, extension or replacement of any agreement or arrangement for payments of a type described in clause (c) above made in the ordinary course of business,

transactions permitted by Section 6.3,  Section 6.7,  ▇▇▇▇▇▇▇ ▇.▇,  ▇▇▇▇▇▇ (▇),  (▇),  (▇)(▇),  (▇),  (▇), (▇), or (nq) of the definition  of “Permitted Investments”, Section 6.14 or any Permitted Intercompany Advance,

the existence of, or the performance by Borrower or any of its Subsidiaries of its obligations under the terms of, any stockholders agreement (including any registration rights agreement) to which it is a party as of the date hereof and any similar agreements which it may enter into thereafter; provided,  however, that the existence of, or the performance by Borrower or any of its Subsidiaries of obligations under, any future amendment to any such existing agreement or any similar agreement entered into after the date hereof shall only be permitted by this clause (h) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous in any material respect to the Lenders when taken as a whole as compared to the original agreement in effect on the date hereof,

any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged into Borrower or its Subsidiary; provided that such agreement was not entered into in contemplation of such acquisition or merger, or any amendment thereto so long as such amendment, extension or modification is not more disadvantageous to the Lenders in any material respect,

transactions in which the Borrower delivers to Agent a written opinion from a nationally recognized investment banking, accounting or appraisal firm to the effect that the transaction is fair, from a financial point of view, to the Borrower and any relevant Subsidiaries;

the issuance of Qualified Capital Interests of the Borrower otherwise permitted hereunder and the granting of registration and other customary rights in connection therewith; any contribution of capital to the Borrower; and

the Transactions and the payment of all fees and expenses related thereto; and the First Amendment Effective Date Transactions and the payment of all fees and expenses related thereto.

Use of Proceeds

.  Use the proceeds of any loan made hereunder for any purpose other than for working capital and general corporate purposes (including at the Borrower’s option but subject to the other terms of this Agreement, for financing the repurchase of the PIK Toggle Notes and for financing the repurchase of the Notes to the extent permitted under this Agreement); provided that, no part of the proceeds of the loans made to Borrower will be used to purchase or carry any such Margin Stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock or for any purpose that violates the provisions of Regulation T, U or X of the Board of Governors of the United States Federal Reserve.

[Reserved]

.

[Reserved]

.

1.6[Reserved].

Inventory and Equipment with Bailees

. Store the Inventory or Equipment (other than Vehicles or Equipment out for repair, and any parts to be used for such repairs of Borrower or its Subsidiaries) at any time now or hereafter with a bailee, warehouseman, or similar party, unless, if the net book value of such Collateral located at such third party location exceeds $500,000, the third party has been notified of Agent’s security interest to the extent a similar notice has been provided pursuant to the requirements under the ABL Credit Agreement and the MSD Term Loan Agreement.

ERISA

.  Except for (x) the matters described on Schedule 4.31 and (y) any other conditions, events or transactions that collectively could not reasonably be expected to result in a Material Adverse Change: (a) allow or cause or permit any ERISA Affiliate to allow any condition to exist in connection with any Pension Plan subject to Title IV of ERISA which could reasonably be expected to constitute grounds for the PBGC to institute proceedings to have such Pension Plan terminated or a trustee appointed to administer such Pension Plan; and (b) neither Borrower nor any Subsidiary shall engage in, or permit to exist or occur, or permit any ERISA Affiliate to engage in, or permit to exist or occur, any other condition, event or transaction with respect to any Pension Plan which could result in a Loan Party or any ERISA Affiliate incurring any liability, fine or penalty.

[RESERVED].

EVENTS OF DEFAULT.

Any one or more of the following events shall constitute an event of default (each, an “Event of Default”) under this Agreement:

Payments

. If any Loan Party fails to pay (a) when due and payable, or when declared due and payable, (i) all or any portion of the Obligations consisting of interest and such failure continues for a period of 5 Business Days, (ii) reimbursement of Lender Group Expenses, or other amounts (other than any portion thereof constituting principal) constituting Obligations (including any portion thereof that accrues after the commencement of an Insolvency Proceeding (or which would have accrued but for the commencement of such Insolvency Proceeding), regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), and such failure continues for a period of 10 days after the date on which written notice thereof is given to Borrower by Agent, or (iii) all or any portion of the principal of the Obligations or (b) the Loans, interest or applicable prepayment premium when and as required pursuant to an Offer to Prepay made pursuant to Section 2.4(d)(ii) or when due pursuant to Section 2.4(d)(iii);

Covenants

. If any Loan Party or any of its Subsidiaries:

fails to perform or observe any applicable covenant or other agreement contained in any of (i) Sections 5.3 (solely with respect to the existence of the Borrower), 5.6,  5.7 (solely if any Loan Party refuses to allow Agent or its representatives or agents to visit such Loan Party’s

properties, inspect its assets or books or records, examine and make copies of its books and records, or discuss such Loan Party’s affairs, finances, and accounts with officers and employees of such Loan Party), or 5.17 of this Agreement, (ii) Sections 6.1 through 6.14 of this Agreement, (iii) Section 6.18 of this Agreement, or (iv) Section 6 of the Security Agreement;

fails to perform or observe any covenant or other agreement contained in any of Sections 5.1,  5.3 (other than with respect to the existence of the Borrower), 5.4,  5.5, and 5.8 of this Agreement and such failure continues for a period of 10 days after the earlier of

(i)the date on which such failure shall first become known to any senior officer of a Loan Party or

(ii)the date on which written notice thereof is given to Borrower by Agent; or

fails to perform or observe any covenant or other agreement contained in this Agreement, or in any of the other Loan Documents, in each case, other than any such covenant or agreement that is the subject of another provision of this Section 8 (in which event such other provision of this Section 8 shall govern), and such failure continues for a period of 30 days after the earlier of (i) the date on which such failure shall first become known to any senior officer of a Loan Party or (ii) the date on which written notice thereof is given to Borrower by Agent;

Judgments

. If one or more judgments, orders, or awards for the payment of money involving an aggregate amount of $10,000,000, or more (except to the extent covered (other than to the extent of customary deductibles) by insurance pursuant to which the insurer has not denied coverage) is entered or filed against Borrower or any of its Subsidiaries, or with respect to any of their respective assets, and either (a) there is a period of 60 consecutive days at any time after the entry of any such judgment, order, or award during which (1) the same is not discharged, satisfied, vacated, or bonded pending appeal, or (2) a stay of enforcement thereof is not in effect, or (b) enforcement proceedings are commenced upon such judgment, order, or award;

Voluntary Bankruptcy, etc

. If an Insolvency Proceeding is commenced by Borrower or any of its Subsidiaries that is a Significant Subsidiary;

Involuntary Bankruptcy, etc

. If an Insolvency Proceeding is commenced against Borrower or any of its Subsidiaries that is a Significant Subsidiary and any of the following events occur: (a) Borrower or such Subsidiary that is a Significant Subsidiary consents to the institution of such Insolvency Proceeding against it, (b) the petition commencing the Insolvency Proceeding is not timely controverted, (c) the petition commencing the Insolvency Proceeding is not dismissed or stayed within 60 calendar days of the date of the filing thereof, (d) an interim trustee is appointed to take possession of all or any substantial portion of the properties or assets of, or to operate all or any substantial portion of the business of, Borrower or its Subsidiary that is a Significant Subsidiary, or (e) an order for relief shall have been issued or entered therein;

[Reserved]

.

Default Under Other Agreements

. If there is (a) an Event of Default as defined in the 2017 Notes Documents; (b) a default in one or more agreements to which a Loan Party or any of its Subsidiaries is a party with one or more third Persons relative to a Loan Party’s or any of its Subsidiaries’ Indebtedness involving an aggregate principal amount of $10,000,000 or more (other than Indebtedness under the ABL Credit Agreement and the MSD Term Loan Agreement and their respective Refinancing Indebtedness incurred pursuant to clause (l) of “Permitted Indebtedness” definition, and Hedging Obligations), and such default (after giving effect to any grace period therefor) (i) occurs at the final maturity of the obligations thereunder, or (ii) results in a right by such third Person, irrespective of whether exercised, to accelerate the maturity of such Loan Party’s or its Subsidiary’s obligations thereunder; (c) the occurrence of any event of default (after giving effect any grace period therefor) with respect to any Hedge Agreement,  if the effect of such event of default after giving effect any grace period therefor) is to cause or to permit the counterparty under any such Hedge Agreement, to cause a Hedge Termination Value having an aggregate principal amount in excess of $10,000,000 to become or be declared immediately due and payable prior to its maturity; (d) an Event of Default as defined in the Existing ABL Credit Agreement or the MSD Term Loan Agreement which shall have resulted in the acceleration of the maturity of the Indebtedness thereunder; (e) a default on the payment of any principal due under the Existing ABL Credit Agreement or the MSD Term Loan Agreement, as applicable, on the stated maturity date thereof; (f) a default on the payment of any other principal payment (other than as set forth in clause (e) above) required by, or interest due under, the Existing ABL Credit Agreement or the MSD Term Loan Agreement that results in acceleration of the Indebtedness thereunder or continues for more than 30 days after the earlier of notice of such default from the Existing ABL Agent or the MSD Term Loan Agreement or a senior officer of Borrower having knowledge of such default); and (g) an “Event of Default” as defined in the Existing ABL Credit Agreement or the MSD Term Loan Agreement (other than as described in clauses (d), (e) or (f) above); provided that, notwithstanding the foregoing, solely with respect to clause (b), clause (c) and clause (g) of this Section 8.7, if such default, event of default or “Event of Default” (as applicable) is waived or cured in accordance with the applicable underlying governing agreements or provisions of the Existing ABL Credit Agreement or the MSD Term Loan Agreement, as applicable, the applicable Event of Default under this Section 8.7(b),  8.7(c) or 8.7(g), as applicable, will also be deemed automatically waived or cured, regardless of whether or not Agent or any Lender has exercised any of its remedies in connection therewith. If the Obligations have been accelerated solely as a result of an Event of Default arising based on clause (b), clause (c) or clause (g) of this Section 8.7 (which for the avoidance of doubt, shall not include an acceleration of the Obligations due to any other clause of this Section 8.7 (including, clauses (d), (e) or (f) above)) and such Event of Default is waived or cured as a result of giving effect to the proviso set forth in this Section 8.7, then the Agent and the Lenders will rescind such acceleration and deliver any documents to Borrower to evidence such rescission.

Representations, etc

. If any warranty, representation, certificate or notice made herein or in any other Loan Document or in a certificate or notice delivered pursuant to this Agreement or any other Loan Document (other than projections and other forward-looking information, forward-looking pro formas, and general industry and economic information) including, for the avoidance of doubt any certificates or notices delivered pursuant to Section 5.1 or 5.2 or Schedule 3.1, proves to be untrue in any material respect (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of the date of issuance or making or deemed making thereof;

Guaranty

. If the obligation of any Guarantor that is a Significant Subsidiary under the Guaranty is limited or terminated by operation of law or by such Guarantor (other than in accordance with the terms thereunder or of this Agreement);

Security Documents

. If the Security Agreement or any other Loan Document that purports to create a Lien, shall, for any reason, fail or cease to create a valid and perfected and, subject to Permitted Collateral Liens and Permitted Liens which are permitted to be prior pursuant to the terms of any applicable Loan Document, first priority Lien on any material portion of the Collateral covered thereby, except (a) as a result of a disposition of the applicable Collateral in a transaction permitted under this Agreement, or (b) as the result of an action or failure to act on the part of Agent; or

Loan Documents

. The validity or enforceability of any material provisions of the Loan Document shall at any time for any reason (other than solely as the result of an action or failure to act on the part of Agent) be declared to be null and void, or a proceeding shall be commenced by a Loan Party or its Subsidiaries, or by any Governmental Authority having jurisdiction over a Loan Party or its Subsidiaries, seeking to establish the invalidity or unenforceability thereof, or a Loan Party or its Subsidiaries shall deny in writing that such Loan Party or its Subsidiaries has any liability or obligation purported to be created under any Loan Document (other than as a result of repayment in full of the Obligations).

RIGHTS AND REMEDIES.

Rights and Remedies

. Upon the occurrence and during the continuation of an Event of Default, Agent may, and, at the instruction of the Required Lenders, shall (in each case under clauses (a) or (b) by written notice to Borrower), in addition to any other rights or remedies provided for hereunder or under any other Loan Document or by applicable law, do any one or more of the following:

declare the principal of, and any and all accrued and unpaid interest and fees in respect of the Loans, the Applicable Premium, and, if any, all other premiums thereon, and all other Obligations, whether evidenced by this Agreement or by any of the other Loan Documents immediately due and payable, whereupon the same shall become and be immediately due and payable and Borrower shall be obligated to repay all of such Obligations in full, together with the

Applicable Premium, without presentment, demand, protest, or further notice or other requirements of any kind, all of which are hereby expressly waived by Borrower; and

exercise all other rights and remedies available to Agent or the Lenders under the Loan Documents or applicable law.

(viii)The foregoing to the contrary notwithstanding, upon the occurrence of any Event of Default described in Section 8.4 or Section 8.5, in addition to the remedies set forth above, without any notice to Borrower or any other Person or any act by the Lender Group, any and all accrued and unpaid interest and fees in respect of, the Loans and all other Obligations and all premiums thereon, including any Prepayment Premium, whether evidenced by this Agreement or by any of the other Loan Documents, shall automatically become and be immediately due and payable and Borrower shall automatically be obligated to repay all of such Obligations in full, together with the Prepayment Premium, without presentment, demand, protest, or notice of any kind, all of which are expressly waived by Borrower. Borrower acknowledges, and the parties hereto agree, that each Lender has the right to maintain its investment in the Loans free from repayment by Borrower (except to the extent of repayment and except as herein specifically provided for) and that the provision for payment of a premium by Borrower in accordance with Section 2.4(d) hereof in the event that the Loans are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances.

Remedies Cumulative

. The rights and remedies of the Lender Group under this Agreement, the other Loan Documents, and all other agreements shall be cumulative. The Lender Group shall have all other rights and remedies not inconsistent herewith as provided under the Code, by law, or in equity. No exercise by the Lender Group of one right or remedy shall be deemed an election, and no waiver by the Lender Group of any Event of Default shall be deemed a continuing waiver. No delay by the Lender Group shall constitute a waiver, election, or acquiescence by it.

WAIVERS; INDEMNIFICATION.

Demand; Protest; etc

. Except for notice requirements expressly set forth in the Loan Documents, Borrower waives demand, protest, notice of protest, notice of default or dishonor, notice of payment and nonpayment, nonpayment at maturity, release, compromise, settlement, extension, or renewal of documents, instruments, chattel paper, and guarantees at any time held by the Lender Group on which Borrower may in any way be liable.

The Lender Group’s Liability for Collateral

. Borrower hereby agrees that: (a) so long as Agent complies with its obligations, if any, under the Code, the Lender Group shall not in any way or manner be liable or responsible for: (i) the safekeeping of the Collateral, (ii) any loss or damage thereto occurring or arising in any manner or fashion from any cause, (iii) any diminution in the value thereof, or (iv) any act or

default of any carrier, warehouseman, bailee, forwarding agency, or other Person, and (b) all risk of loss, damage, or destruction of the Collateral shall be borne by Borrower.

Indemnification

. Borrower shall pay, indemnify, defend, and hold Agent-Related Persons, the Lender-Related Persons, and each Participant (each, an “Indemnified Person”) harmless (to the fullest extent permitted by law) from and against any and all claims, demands, suits, actions, investigations, proceedings, liabilities, fines, costs, penalties, and damages, and all documented (with itemized invoice) and reasonable fees and out-of-pocket disbursements of attorneys of outside counsel, experts, or consultants and all other costs and expenses actually incurred in connection therewith or in connection with the enforcement of this indemnification (as and when they are incurred and irrespective of whether suit is brought), at any time asserted against, imposed upon, or incurred by any of them (a) in connection with or as a result of or related to the execution and delivery, (provided that Borrower shall not be liable for costs and expenses (including attorney fees) of any Lender (other than Solus Alternative Asset Management LP or any of its Affiliates) incurred in advising, structuring, drafting, reviewing or administering the Loan Documents), enforcement, performance, or administration (including any restructuring or workout with respect hereto) of this Agreement, any of the other Loan Documents, or the transactions contemplated hereby or thereby or the monitoring of Borrower’s and its Subsidiaries’ compliance with the terms of the Loan Documents (provided,  however, that the indemnification in this clause (a) shall not extend to (i) disputes solely between or among the Lenders that do not involve any acts or omissions of any Loan Party, or (ii) disputes solely between or among the Lenders and their respective Affiliates that do not involve any acts or omissions of any Loan Party; it being understood and agreed that the indemnification in this clause (a) shall extend to Agent (but not the Lenders) relative to disputes between or among the Agent on the one hand, and one or more Lenders, or one or more of their Affiliates, on the other hand, or (iii) any Taxes or any costs attributable to Taxes, which shall be governed by Section 16), (b) with respect to any actual or prospective investigation, litigation, or proceeding related to this Agreement, any other Loan Document, the making of any Loans hereunder, or the use of the proceeds of the Loans (irrespective of whether any Indemnified Person is a party thereto), or any act, omission, event, or circumstance in any manner related thereto, and (c) in connection with or arising out of any presence or release of Hazardous Materials at, on, under, to or from any Properties or any Environmental Actions, Environmental Liabilities or Remedial Actions related in any way to any such Properties (each and all of the foregoing, the “Indemnified Liabilities”). The foregoing to the contrary notwithstanding, Borrower shall not have any obligation to any Indemnified Person under this Section 10.3 with respect to any Indemnified Liability that a court of competent jurisdiction finally determines to have resulted from the gross negligence or willful misconduct of such Indemnified Person or its officers, directors, employees, attorneys, or agents. This provision shall survive the termination of this Agreement, the repayment in full of the Obligations and, as to an Agent that has resigned or been removed, the resignation or removal of such Agent. If any Indemnified Person makes any

payment to any other Indemnified Person with respect to an Indemnified Liability as to which Borrower was required to indemnify the Indemnified Person receiving such payment, the Indemnified Person making such payment is entitled to be indemnified and reimbursed by Borrower with respect thereto. WITHOUT LIMITATION, THE FOREGOING INDEMNITY SHALL APPLY TO EACH INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED LIABILITIES WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF ANY NEGLIGENT ACT OR OMISSION OF SUCH INDEMNIFIED PERSON OR OF ANY OTHER PERSON.

NOTICES.

Unless otherwise provided in this Agreement, all notices or demands relating to this Agreement or any other Loan Document shall be in writing and (except for financial statements and other informational documents which may be sent by first-class mail, postage prepaid) shall be personally delivered or sent by registered or certified mail (postage prepaid, return receipt requested), electronic mail (at such email addresses as a party may designate in accordance herewith) or overnight courier. In the case of notices or demands to Borrower or Agent, as the case may be, they shall be sent to the respective address set forth below: