AMENDED AND RESTATED AMENDMENT NO. 3 TO CREDIT AGREEMENT

AMENDED AND RESTATED AMENDMENT NO. 3 TO CREDIT AGREEMENT

and

AMENDMENT NO. 2 TO SECURITY AGREEMENT

 

AMENDED AND RESTATED AMENDMENT NO. 3 to the Credit Agreement (as defined below) and AMENDMENT NO. 2 to the Security Agreement (as defined below), dated as of June 15, 2017 (this “Amendment”), among ▇▇▇▇ ▇▇▇▇▇▇ Holdings Corp., a Delaware corporation (the “Borrower”), certain subsidiaries of the Borrower as guarantors (the “Guarantors”), the lenders party hereto (collectively, the “Lenders”) and MSDC JC Investments, LLC, as agent for the Lenders (in such capacity, the “Agent”).

W I T N E S S E T H:

WHEREAS, the Borrower, the Agent and the Lenders are party to that certain Credit Agreement, dated as of March 31, 2015 (as amended by Amendment No. 1 to Credit Agreement, dated as of December 23, 2015, as amended by Amendment No. 2 to Credit Agreement and Amendment No. 1 to Security Agreement, dated as of October 28, 2016, and as further amended from time to time, the “Credit Agreement”);

WHEREAS, the Borrower, certain subsidiaries of the Borrower and the Agent are party to that certain Security Agreement, dated as of April 2, 2015 (as amended by Amendment No. 2 to Credit Agreement and Amendment No. 1 to Security Agreement, dated as of October 28, 2016, and as further amended from time to time, the “Security Agreement”)

WHEREAS, the Borrower, the Agent, certain Lenders and the Guarantors are party to that certain Amendment No. 3 to Credit Agreement and Amendment No. 2 to Security Agreement, dated as of April 3, 2017 (the “Original Amendment No. 3”);

WHEREAS, the Borrower has requested that (a) the Original Amendment No. 3 be amended and restated and (b) certain provisions of the Credit Agreement and the Security Agreement be amended pursuant to Section 14.1 of the Credit Agreement and Section 20 of the Security Agreement, in each case, in the manner and on the terms set forth herein; and

WHEREAS, the Borrower, the Agent, the Lenders and the Guarantors have agreed to amend and restate the Original Amendment No. 3 and amend certain provisions of the Credit Agreement and the Security Agreement, in each case, as provided for herein.

NOW, THEREFORE, the parties hereto hereby agree as follows:

Article I

Defined Terms

Section 1.1.Defined Terms.  Terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement, as amended hereby, unless otherwise defined herein.

Article II

Section 2.1.Amendments to the Credit Agreement.  On the Third Amendment Effective Date (as defined below), the Credit 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.

Section 2.2.Amendments to the Security Agreement.  Effective as of the Third Amendment Effective Date, the Security Agreement is hereby amended as set forth below:

(a)Section 2 of the Security Agreement is hereby amended by replacing the phrase “the following, unless, in each case, a lien on such asset has been granted to secure the Notes Obligations, the ABL Obligations or the Solus Obligations” included after the words “shall not include” in the last paragraph thereof with the following:

“the following, unless, in each case, a lien on such asset has been granted to secure the 2017 Notes Obligations, the ABL Obligations or the Solus Obligations”

(b)Section 5(f) of the Security Agreement is hereby amended:

(i)by replacing the parenthetical “(which shall not be required, unless, in each case, any such local perfection action has been taken in favor of the respective collateral agent or administrative agent for the ABL Obligations, Notes Obligations or the Solus Obligations)” in clause (iv) thereof with the following:

“(which shall not be required, unless, in each case, any such local perfection action has been taken in favor of the respective collateral agent or administrative agent for the ABL Obligations, 2017 Notes Obligations or the Solus Obligations)”; and

(ii)by replacing the text “Notes Agent” with “2017 Notes Agent” in each of the two places it appears.

Article III

Conditions to Effectiveness

Except as set forth in Article IV below, this Amendment shall become effective on the date (the “Third Amendment Effective Date”) on which each of the following conditions shall have been satisfied:

(a) (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 MSD 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 Third 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 G) and (ii) as a result of, and after giving effect to, the consummation of the Third 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;

(b)Agent shall have received each of the following:

(i)from (x) the Agent, (y) the Borrower and the Guarantors and (z) the Lenders, counterparts of this Amendment signed on behalf of such parties (which may include telecopy or other electronic transmission of a signed signature page of this Amendment);

(ii)a certificate, dated as of the Third Amendment Effective Date and signed on behalf of the Borrower by a responsible officer of the Borrower, certifying as of the Third Amendment 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 ABL Amendment, the Solus Amendment, the 2017 Notes Indenture, the ABL Interecreditor Amendment and the ABL-Notes Intercreditor Agreement on the Third Amendment 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 Third Amendment 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 Third Amendment Effective Date, in each case after giving effect to this Amendment, the transactions contemplated hereby,  the ABL Amendment, the Solus Amendment, the 2017 Notes Indenture, the ABL Intercreditor Amendment and the ABL-Notes Intercreditor Agreement on the date hereof, (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 Solus Credit Agreement, the Existing ABL Credit Agreement, the ABL-Term Loan Intercreditor Agreement and the ABL-Notes Intercreditor Agreement (in each case, if applicable, as amended on the Third Amendment 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 Third Amendment 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 Third 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);

(iii)a fully executed copy of the 2017 Notes Indenture substantially identical to the form attached hereto as Annex B;

(iv)a fully executed copy of the ABL-Notes Intercreditor Agreement substantially identical to the form attached hereto as Annex C;

(v)a fully executed copy of an amendment to the ABL-Term Loan Intercreditor Agreement, substantially identical to the form attached hereto as Annex H (the “ABL Intercreditor Amendment”);

(vi)a fully executed copy of the Vehicle Collateral Agency Agreement substantially identical to the form attached hereto as Annex D;

(vii)true and complete copies of (x) an amendment to the Existing ABL Credit Agreement (the “ABL Amendment”) substantially identical to the form attached hereto as Annex E and (y) an amendment to the Solus Credit Agreement (the “Solus Amendment”) substantially identical to the form attached hereto as Annex F, and, in each case, certified by a responsible officer of the Borrower as being true, correct, complete and in full force and effect;

(viii)true and complete 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, certified by a responsible officer of the Borrower as being true, correct, complete and in full force and effect, which 2017 Notes Documents shall be consistent in all respects with the Offering Memorandum;

(ix)evidence that the liens securing the Note Obligations have been released (or shall be released substantially concurrently with occurrence of the Third Amendment Effective Date) and the Notes 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);

(x)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”);

(xi)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 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;

(xii)all fees and expenses due and payable to the Agent or the Lenders on the Third Amendment Effective Date; and

(xiii)fully executed copies 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 Notes party thereto prior to the consummation of the Third Amendment Effective Date Transactions  (together the “Restructuring Support Agreement”) substantially identical to the forms attached hereto as Annex I, certified by a responsible officer of the Borrower as being true, correct, complete and in full force and effect;

(c)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 Third Amendment Effective Date shall

have been paid to the Lenders; provided, however, that if the Third Amendment 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 Third Amendment Effective Date shall have been paid to the Lenders;

(d)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;

(e)each of the documents referenced in Section 3(b) of this Amendment 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 Agent and the Required Lenders, adverse to the Agent or the Lenders; provided that, with respect to the documents referenced in clause (b)(iii) 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 B shall be deemed adverse to the Lenders; 

(f)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));

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

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

The undersigned Lenders hereby, subject to the occurrence of the Third Amendment Effective Date, and notwithstanding anything to the contrary in the Credit Agreement or each of the other Loan Documents, (i) authorize Agent to enter into the ABL-Notes Intercreditor Agreement in the form attached hereto as Annex C on the Third Amendment Effective Date, (ii) consent to the ABL Amendment in the form attached hereto as Annex E and (iii) consent to the Solus Amendment in the form attached hereto as Annex F. For the avoidance of doubt, in the event the Third Amendment Effective Date does not occur for any reason, each of the consents referenced in this Article III shall be of no force or effect.

Article IV

Waivers.

(a)Agent and each Lender hereby waives the 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 Third 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 Third 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 Credit Agreement (the "Insolvency Premium"), which shall become due and

payable.  On the effective date of a Plan that consummates the Third Amendment Effective Date Transactions on substantially the same terms and conditions as described in the Offering Memorandum, the Agent 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 Article IV shall be effective immediately upon execution of this Amendment by the parties hereto notwithstanding anything to the contrary contained herein, including, without limitation, Article III 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 the this Article IV.       

Article  V

Restructuring Through Chapter 11 Insolvency Proceeding

Agent and each Lender hereby agrees that should the Borrower and Guarantors decide to consummate the Third 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, that 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 Article III 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. 

Article VI

Representation and Warranties.

The Borrower and each Guarantor hereby represents and warrants to the Agent and the Lenders, as of the Third Amendment Effective Date, that

(a) the representations and warranties set forth in the other Loan Documents, in the case of the Third Amendment Effective Date, after giving effect to this Amendment, the ABL Amendment, the Solus Amendment, the 2017 Notes Indenture, the ABL Intercreditor Amendment and the ABL-Notes Intercreditor Agreement 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 such 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);

(b) no Default or Event of Default exists and is continuing on the Third Amendment Effective Date, after giving effect to this Amendment, the transactions contemplated hereby, the ABL Amendment, the Solus Amendment and the ABL-Notes Intercreditor Agreement on such date;

(c)(i) it has the requisite corporate or limited liability company 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, (ii) the execution, delivery and performance by the Borrower and Guarantors of this Amendment has been duly approved by all necessary corporate or limited liability company 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, 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, (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, result in a breach of, or constitute (with due notice or lapse of time or both) a default under the Existing ABL Credit Agreement, any Intercreditor Agreement, or the 2017 Notes Indenture, in each case after giving effect to this Amendment, the ABL Amendment, the Solus Amendment, the 2017 Notes Indenture, the ABL Interecreditor Amendment and the ABL-Notes Intercreditor Agreement on such date,  (D) 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, after giving effect to this Amendment, the ABL Amendment, the Solus Amendment, the 2017 Notes Indenture and the ABL-Notes Intercreditor Agreement on such date, or (E) 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 (other than any of the agreements described in subclause (C) above, for consents or approvals, the failure to obtain could not individually or in the aggregate reasonably be expected to cause a Material Adverse Change);

(d)this Amendment (i) has been duly executed and delivered by the Borrower and each Guarantor and (ii) is the legal, valid and binding obligation of the Borrower and each Guarantor, enforceable against the Borrower and each 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

(e)the Loan Parties, taken as whole, after giving effect to this Amendment, the incurrence of the obligations under the 2017 Notes Indenture and the 2017 Notes and the consummation of the transactions contemplated hereby and thereby, are Solvent.

Article VII

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.

Article VIII

Lender’s 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 Solus Agent or any lender under the Solus Loan Document  (each a “Solus Lender Party”), to agree to any request for a waiver, amendment, consent or other similar arrangement under any ABL Loan Document or Solus Loan Document, as applicable, with respect to the Third Amendment Effective Date Transactions (each a “Request”), the Lenders shall be entitled to receive fees or other consideration in an equivalent amount, expressed as a percentage of the loans or commitments held by such ABL Lender Party or Solus Lender Party, 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 greater of (a) 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, expressed as a percentage of the loans or commitments held by the Lenders and (b) the highest amount of the fees payable to any ABL Lender Party or Solus Lender Party, expressed as a percentage of the loans or commitments held by such ABL Lender Party or Solus Lender Party.

Article IX

Miscellaneous

Section 9.1.Acknowledgment.  The Borrower and each Guarantor hereby acknowledges and reaffirms (a) all of its obligations and duties under the Loan Documents, and (b) that the Agent, for the ratable benefit of the Lender Group, has, and shall continue to have after the effectiveness of this Amendment, 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 the 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 Credit Agreement).

Section 9.2.Effect of Amendment.  Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of Agent or any Lender under the Loan Documents, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Loan Documents, all of which are ratified and affirmed in all respects and shall continue in full force and effect except that, on and after the Third Amendment Effective Date, each reference to the Credit Agreement in the Loan Documents shall mean and be a reference to the Credit Agreement as amended by this Amendment.  Nothing herein shall be deemed to entitle any Borrower to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Loan Documents in similar or different circumstances.  This

Amendment is a Loan Document executed pursuant to the Credit Agreement and shall be construed, administered and applied in accordance with the terms and provisions thereof.

Section 9.3.Costs and Expenses.  The Borrower shall pay to the Agent all of the Agent’s reasonable and documented out-of-pocket costs and expenses (including, without limitation, the reasonable and documented fees and expenses of its 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 Third 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 Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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.

Section 9.4.Limited Effect.  In the event of a conflict between the terms and provisions of this Amendment and the terms and provisions of the Credit Agreement, the terms and provisions of this Amendment shall govern.  In all other respects, the Credit Agreement, as amended and supplemented hereby, shall remain in full force and effect.

Section 9.5.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 Article III hereof.  This Amendment is a Loan Document and is subject to all the terms and conditions, and entitled to all the 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.

Section 9.6.Choice of Law and Venue; Jury Trial Waiver; Judicial Reference.  Section 12 of the Credit Agreement IS incorporated herein by reference MUTATIS MUTANDIS.

Section 9.7.Reaffirmation of Guaranties.  Each of the undersigned Guarantors and Grantors hereby reaffirms and agrees that (a) the Guaranty, the Security Agreement and the Loan Documents to which it is a party shall remain in full force and effect (including, without limitation, any security interests granted therein) after this Amendment is consummated as if consummated contemporaneously therewith, (b) nothing in the Loan Documents to which it is a party obligates the Agent or the Lenders to notify such Guarantor or Grantor 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 or Grantor is a party; and (c) no requirement to so notify such Guarantor or Grantor or to seek such Guarantor’s or Grantor’s reaffirmation in the future shall be implied by this Section 9.7.

Section 9.8.Headings.  The headings and numbers set forth in this Amendment are for convenience only and shall not limit or otherwise affect the meaning hereof.

Section 9.9.Termination. This Agreement shall terminate if the Third Amendment Effective Date has not occurred on or before September 5, 2017 (or such later date as may be agreed to by the Required Lenders in writing (which may be through email)).

Section 9.10.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 Amendment No. 3 in its entirety. This Amendment constitutes an amendment and restatement of the Original Amendment No. 3 and is not, and is not intended by the parties to be, a novation of the Original Amendment No. 3.

 

[Remainder of this page intentionally left blank]

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered by their respective duly authorized officers as of the date first above written.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Annex A

Amendments

See attached.

 

 

CONFORMED THROUGH AMENDMENT NO. 2 TO CREDIT AGREEMENT DATED AS OF OCTOBER 28, 2016.  THIS DOCUMENT IS BEING PROVIDED SOLELY FOR EASE OF REVIEW AND CONVENIENCE.  KING & SPALDING LLP MAKES NO REPRESENTATION OR WARRANTY AS TO THE ACCURACY OF THIS DOCUMENT; PARTIES SHOULD RELY SOLELY ON THEIR REVIEW OF THE ACTUAL CREDIT AGREEMENT, AS AMENDED.Annex A to Amendment No.3 to Credit Agreement

 

 

 

 

 

 

 

 

CREDIT AGREEMENT

 

 

by and among

 

▇▇▇▇ ▇▇▇▇▇▇ HOLDINGS CORP.,

as Borrower,

 

 

THE LENDERS THAT ARE SIGNATORIES HERETO

as the Lenders,

and

MSDC JC INVESTMENTS, LLC

as Agent

 

 

Dated as of March 31, 2015

 

 

 

 

 

 

 

TABLE OF CONTENTS

 

 

 

 

CREDIT AGREEMENT

THIS CREDIT AGREEMENT (this “Agreement”), is entered into as of March 31, 2015, 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), MSDC JC INVESTMENTS, LLC (“MSDC”), as agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, “Agent”), ▇▇▇▇ ▇▇▇▇▇▇ HOLDINGS CORP., a Delaware corporation (“Borrower”).  

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; provided,  however, that if Borrower notifies Agent that Borrower requests an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the date hereof 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 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 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.

LOANS AND TERMS OF PAYMENT.

Term Loans

.

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 each Lender party to this Agreement on the Closing Date, upon the funding of the Loans, as compensation for the funding of such Lender’s Loans, 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]

.

Borrowing Procedures and Settlements

.

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) one Business Day prior to 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.

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 one of its offices in New York 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. 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

.

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 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 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, subject to a Settlement delay as provided in Section 2.3(e).

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, if the conflict relates to the provisions of Section 2.3(g) and this Section 2.4, then the provisions of Section 2.3(g) shall control and govern, and if otherwise, 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 and, in any event, not later than 5:00 p.m., New York City time, on April 2, 2015.

Prepayments.

Optional Prepayments. Borrower may voluntarily prepay the Loans at any time in whole or in part; provided that such prepayment shall be accompanied by accrued and unpaid interest thereon and (i) in the case of any prepayments made with the proceeds of an IPO the Adjusted Applicable Premium and (A) on or prior to the first anniversary of the Closing Date, a prepayment premium of 5.00% of the aggregate principal amount of the Loans so prepaid, (B) after the first anniversary of the Closing Date and on or prior to the 18-month anniversary of the Closing Date, a prepayment premium of 2.5% and (C) after the 18-month anniversary of the Closing Date, without premium or penalty and (ii) 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 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). 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, the 2017 Notes Indenture (in effect on the date hereofThird Amendment Effective Date) and the Existing ABL Credit Agreement (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. 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, 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 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, (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 Stock 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 $5,000,000, 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.

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.

Prepayments on Acceleration. Any payments made due to an acceleration of the Obligations pursuant to Section 9 herein (regardless of whether actually made prior to the Maturity Date) shall be accompanied by accrued and unpaid interest and the Applicable Premium.

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. If the Prepayment Date is on or after the interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, shall be paid to the applicable Lender.

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

.

Interest Rates. Except as provided in Section 2.6(c), all outstanding Obligations shall bear interest at a rate per annum equal to the LIBOR Rate plus 7.00%.

[Reserved].

Default Rate. Upon the occurrence and during the continuation of an Event of Default, all outstanding Obligations shall bear interest on the Daily Balance thereof at a per annum rate equal to the greater of (i) the rate for 10-year U.S. treasury notes from time to time above the per annum rate otherwise

applicable pursuant to Section 2.6(a) and (ii) three percentage points above the per annum rate otherwise applicable pursuant to Section 2.6(a).

Payment of Fees. All fees payable hereunder or under any of the other Loan Documents, and all costs, expenses, and Lender Group Expenses payable hereunder or under any of the other Loan Documents shall be due and payable, in arrears, on the first day of each month at any time that Obligations are outstanding.

Computation. All interest and fees chargeable under the Loan Documents shall be computed on the basis of a 360 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]

.  

[Reserved]

.  

[Reserved]

.  

[Reserved]

.

Interest Payment Dates; LIBOR. 

(a)

(a)Interest Payment Dates. Interest on the Loans shall be payable on the earliest of (i) the last day of the Interest Period applicable thereto, (ii) the date on which all or any portion of the Obligations are accelerated pursuant to the terms hereof, or (iii) the date on which this Agreement is terminated pursuant to the terms hereof.

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 last day of an Interest Period applicable thereto (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.

[Reserved].

Special Provisions Applicable to LIBOR Rate.

The LIBOR Rate may be adjusted by Agent with respect to any Lender on a prospective basis to take into account any additional or increased costs to such Lender of maintaining or obtaining any eurodollar deposits or increased costs, in each case, due to changes in applicable law occurring subsequent to the commencement of the then applicable Interest Period, including any Changes in Law (including any changes in tax laws (except changes of general applicability in corporate income tax laws)) and changes in the reserve requirements imposed by the Board of Governors, which additional or increased costs would increase the cost of funding or maintaining loans bearing interest at the LIBOR Rate; provided,  however, notwithstanding anything to the contrary set forth herein, Borrower shall not be required to make any payments pursuant to this Section 2.12(d)(i) until the LIBOR Rate as adjusted pursuant hereto is in excess of 3.00% per annum. In any such event, the affected Lender shall give Borrower and Agent notice of such a determination and adjustment and Agent promptly shall transmit the notice to each other Lender and, upon its receipt of the notice from the affected Lender, Borrower may, by notice to such affected Lender (A) require such Lender to furnish to Borrower a statement

setting forth the basis for adjusting such LIBOR Rate and the method for determining the amount of such adjustment, or (B) repay the LIBOR Rate Loans of such Lender with respect to which such adjustment is made (together with any amounts due under Section 2.12(b)). Borrower shall not be required to compensate any Lender pursuant to this Section for additional or increased costs incurred more than 180 days prior to the date that the such Lender notifies Borrower of such changes in applicable law or in the reserve requirements giving rise to such additional or increased costs and of such Lender’s intention to claim compensation therefor; provided further that if such claim arises by reason of changes in applicable law or in the reserve requirements that are retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

In the event that any change in market conditions or any Change in Law shall at any time after the date hereof, in the reasonable opinion of any Lender, make it unlawful or impractical for such Lender to fund or maintain Loans at the LIBOR Rate or to continue such funding or maintaining, or to determine or charge interest rates at the LIBOR Rate, such Lender shall give notice of such changed circumstances to Agent and Borrower and Agent promptly shall transmit the notice to each other Lender and until such Lender determines that it would no longer be unlawful or impractical to continue such funding or maintaining at the LIBOR Rate, the reference to the “LIBOR Rate plus 7.00%” in Section 2.6(a) shall be replaced with the “Prime Rate plus 6.00%”.

No Requirement of Matched Funding. Anything to the contrary contained herein notwithstanding, neither Agent, nor any Lender, nor any of their Participants, is required actually to acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interest accrues at the LIBOR Rate.

Capital Requirements

.

If, after the date hereof, any Lender determines that (i) any Change in Law regarding capital or reserve requirements for banks or bank holding companies, or (ii) compliance by such Lender, or their respective parent bank holding companies, with any guideline, request or directive of any Governmental Authority regarding capital adequacy (whether or not having the force of law), has the effect of reducing the return on such Lender’s or such holding companies’ capital as a consequence of such Lender’s commitments hereunder to a level below that which such Lender or such holding companies could have achieved but for such Change in Law or compliance (taking into consideration such Lender’s or such holding

companies’ then existing policies with respect to capital adequacy and assuming the full utilization of such entity’s capital) by any amount deemed by such Lender to be material, then such Lender may notify Borrower and Agent thereof. Following receipt of such notice, Borrower agrees to pay such Lender on demand the amount of such reduction of return of capital as and when such reduction is determined, payable within 30 days after presentation by such Lender of a statement in the amount and setting forth in reasonable detail such Lender’s calculation thereof and the assumptions upon which such calculation was based (which statement shall be deemed true and correct absent manifest error). In determining such amount, such Lender may use any reasonable averaging and attribution methods. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that Borrower shall not be required to compensate a Lender pursuant to this Section for any reductions in return incurred more than 180 days prior to the date that such Lender notifies Borrower of such Change in Law giving rise to such reductions and of such Lender’s intention to claim compensation therefor; provided further that if such claim arises by reason of the Change in Law that is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

[Reserved].

Notwithstanding anything herein to the contrary, the protection of Sections 2.12(d) and 2.13 shall be available to each Lender (as applicable) regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation, judicial ruling, judgment, guideline, treaty or other change or condition which shall have occurred or been imposed, so long as it shall be customary for issuing banks or lenders affected thereby to comply therewith.

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 of Borrower or its Subsidiaries 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.

Maturity

. This Agreement shall continue in full force and effect for a term ending on October 18, 2018 (the “Maturity Date”).

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 have been paid in full, Agent will, at Borrower’s sole expense, 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 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), as of the date hereof and 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 Stock of Borrower and each of its Subsidiaries, by class, and, as of the date hereof and 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), (i) there are no subscriptions, options, warrants, or calls relating to any shares of any such Person’s capital Stock, 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 Stock or any security convertible into or exchangeable for any of its capital Stock. All of the outstanding capital Stock 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 to Agent 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 has not caused its Lien to be 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 6.11, 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 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), (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 date hereof and as of the Closing Date, the name of (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 date hereof and 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 date hereof and 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 date hereof and 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 date hereof and 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 date hereof and 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 Agent 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, 2013, 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

.

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

. 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 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 trademarks, trade names, copyrights, patents, and licenses as to which Borrower or one of its Subsidiaries is the owner or is an exclusive licensee.

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, 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 date hereof and 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 formas, 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, 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 permitted by Section 6.7(b)), 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 and ABL Loan Documents

. As of the Closing Date, Borrower has delivered to Agent true and correct copies of any material Notes Documents and material ABL Loan Documents. No Event of Default (as defined in each of the Notes Indenture and the ABL Credit Agreement and after giving effect to any grace period) has occurred and is continuing. The Notes Documents and the ABL 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. The execution, delivery and performance of the Notes Documents and the ABL 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 consents or approvals that have been obtained and that are still in full force and effect.

Guarantors

. (a) Each Subsidiary of Borrower (other than a Section 956 Subsidiary and any Subsidiary of such Section 956 Subsidiary), (b) each Subsidiary that is a guarantor or a co-borrower under the ABL Loan Documents and (c) each Subsidiary that is a guarantor under the 2017 Notes 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 Third 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 2017 Notes Indenture, (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 the Credit Facility Loan Documents and the Notes Documents (as each such term is defined in the ABL-Notes Intercreditor Agreement) and (ii) by the Credit Facility Loan Documents and the Notes Documents (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). 

[Reserved]

.  

[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, Borrower shall and shall cause each of its Subsidiaries to comply with each of the following:

Financial Statements, Reports, Certificates

. Deliver to Agent, with copies to each Lender, 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. Borrower shall also (a) keep a reporting system that shows all additions, sales, claims, returns, and allowances with respect to its and its Subsidiaries’ sales, and (b) maintain its billing systems/practices substantially as in effect as of the date hereof and shall only make material modifications thereto with notice to, and with the consent of, Agent.

Collateral Reporting

. Provide Agent (and if so requested by Agent, with copies for each Lender) 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 or useful in the proper conduct of its business in good working order and condition, ordinary wear, tear, casualty and condemnation and Permitted Dispositions 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 Agent 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 Agent 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 Agent (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 Agent). 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 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 shall 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. If Borrower fails to maintain such

insurance, 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 Default or 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 each of its duly authorized representatives or agents 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 or post bonds or other financial assurances sufficient to satisfy the obligations or liability evidenced by such Environmental Liens,

Comply, in all material respects, with Environmental Laws 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 has been filed against any of the real or personal property of Borrower or its Subsidiaries, (ii) commencement of any Environmental Action or written notice that an Environmental Action will be filed against Borrower or its Subsidiaries, and (iii) written notice of a violation, citation, or other administrative order from a Governmental Authority.

[Reserved]

.

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 or, the Solus Loan Documents or 2017 Notes Documents and (ii) within 20 Business Days of such formation or acquisition (or such later date as permitted by Agent in its 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 Agent (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 no Guaranty or any such joinder or other security documents shall be required to be provided to Agent with respect to any Section 956 Subsidiary (or any Subsidiary of such Section 956 Subsidiary), (b) no later than the earlier of (i) substantially contemporaneously with such Subsidiary becoming a co-borrower or guarantor under the ABL Loan Documents or, the Solus Loan Documents or 2017 Notes Documents 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 Agent; provided that only 65% of the total outstanding voting Stock of any Section 956 Subsidiary (and none of the Stock of any Subsidiary of such 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 or, the Solus Loan Documents or 2017 Notes Documents 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 all other documentation, including one or more opinions of counsel (other than opinions of foreign counsel) reasonably satisfactory to Agent, 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 (i) the foregoing shall not apply to any Loan Party that is a Section 956 Subsidiary (or a Subsidiary of such Section 956 Subsidiary) and (ii) notwithstanding the foregoing, the Loan Parties’ sole obligation in the case of any leasehold interests of any of them shall be, upon Agent’s reasonable request, to use commercially reasonable efforts to deliver a Collateral Access Agreement with respect to any premises material to the business taken as a whole. 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 guarantiedguaranteed by the Guarantors and are secured by substantially all of the assets of Borrower and its Subsidiaries and all of the outstanding capital Stock of

Borrower’s Subsidiaries (subject to exceptions and limitations contained in the Loan Documents).

Lender Meetings

. Within 120 days after the close of each fiscal year of Borrower, at the request of Agent or of the Required Lenders and upon reasonable prior notice, hold a meeting (at a mutually agreeable location and time or, at the option of Agent, 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 ABL Agent, the Solus Agent or 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 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

:

Notice of ERISA Matters. Upon Agent’s request, 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 which 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.

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 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, 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.

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”, (i) no Indebtedness shall be Incurred under any ABL Credit Agreement or the Solus Credit Agreement except pursuant to and in compliance with clause (a) or clause (b)(ii), respectively, of the definition of “Permitted Indebtedness” and (ii) no Solus Obligations shall be considered to be ABL Obligations and the Solus Credit Agreement shall not be considered an ABL Credit Agreement.

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 Stock in the forms of additional shares of Stock 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 Stock for purposes of this Section 6.1.

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.

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, enter into, 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, enter into, 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 2017 Notes Obligations, the Solus Obligations or any Refinancing Indebtedness in respect thereof except pursuant to clause (a) of the definition of the “Permitted Collateral Liens”.

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

.

Enter into any merger, consolidation, reorganization, or recapitalization, or reclassify its Stock 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 permitted under clause (f) of the definition of “Permitted Investments”, Borrower and any Loan Party may form a Subsidiary to consummate such acquisition and such Subsidiary may be merged into the acquired Person with the acquired Person being the surviving entity,

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 assets (including any interest in any Stock) 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 (other than any such Subsidiary the Stock of which (or any portion thereof) is subject to a Lien in favor of Agent) so long as all of the 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 as permitted pursuant to clauses (a) or (b) above or in connection with the transactions permitted pursuant to Section 6.4.

Disposal of Assets

. Other than Permitted Dispositions or transactions expressly permitted by Sections 6.3 or 6.11, convey, sell, lease, license, assign, transfer, or otherwise dispose of (or, unless the effectiveness of such agreement is conditioned upon consent thereto by the Required Lenders or the payment in full of the Obligations, enter into an agreement to convey, sell, lease, license, assign, transfer, or otherwise dispose of) any assets of Borrower or its Subsidiaries.

Change Name

. Change its or any of its Subsidiaries’ name, organizational identification number, state of organization, or organizational identity; provided,  however, that Borrower or its Subsidiaries may change its name upon at least 10 days prior written notice to Agent of such change.

Nature of Business

. Make any change in the nature of its or their business as described in Schedule 6.6 or acquire any properties or assets that are not reasonably related to the conduct of such business activities; provided,  however, that the foregoing shall not prevent Borrower and its Subsidiaries from engaging in any business that is reasonably related or ancillary to its or their 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,

optionally prepay, redeem, defease, purchase, or otherwise acquire any Indebtedness of Borrower and its Subsidiaries (other than the Solus Obligations), other than (A) the Obligations in accordance with this Agreement, (B) Refinancing Indebtedness in respect of the Note Obligations and/or the 2017 Note Obligations (including the defeasance thereof), (C) offers to purchase the 2017 Notes in connection with asset sales to the extent required pursuant to SectionSections 4.10 and 3.9 of the 2017 Notes Indenture, (D) the Transactions, (E) prepayments of Permitted Preferred Stock with proceeds of Permitted Preferred Stock so long as the prepayments are substantially contemporaneous with the accompanying sale, (F) the ABL Obligations, (G) offers to purchase the 2017 Notes in connection with a change of control pursuant to Section 4.14 of the 2017 Notes Indenture, so long as an Offer to Prepay due to a Change of Control has first been made to the Lenders and (A) the Lenders have rejected such Offer to Prepay or (B) each of the Lenders that have accepted such Offer have been prepaid, (H) 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 with, among other consideration, the proceeds of the 2017 Notes substantially concurrently with the issuance thereof, and (I) the purchase, redemption, defeasance, repurchase, exchange, retirement or cancellation of any of the Notes Obligations and the 2017 Notes Obligations with the cash proceeds of an equity issuance of Qualified Capital Interests of the Borrower or its direct or indirect parent entities or capital contribution to Holdings or the Borrower in each case occurring within 120 days prior to such purchase, redemption, defeasance, repurchase, exchange, retirement or cancellation, so long as no Event of Default shall exist at the time or immediately following such purchase, redemption, defeasance, repurchase, exchange, retirement or cancellation; or

make any payment on account of Indebtedness that has been contractually subordinated in right of payment to the Obligations (other than the Solus 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

any agreement, instrument, document, indenture, or other writing evidencing or concerning Permitted Indebtedness other than (A) the Obligations in accordance with this Agreement, (B) Indebtedness permitted under clauses (f),  (g),  (h) and (j) of the definition of Permitted Indebtedness, (C) the 2017 Notes Obligations to the

extent any such amendment, modification, or change is not prohibited by the terms of the ABL-Notes Intercreditor Agreement, and (D) the ABL Obligations or the Solus Obligations solely to the extent any such amendment, modification or change is not prohibited by the terms of the ABL-Term Loan Intercreditor Agreement,

any Material Contract except to the extent that such amendment, modification, or change could not, individually or in the aggregate, reasonably be expected to be materially adverse to the interests of the Lenders, 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, or

Notwithstanding anything to the contrary in this Agreement, optionally prepay, redeem, defease, purchase, or otherwise acquire any of the Solus Obligations, other than payments made with the cash proceeds of an equity issuance of Qualified Capital Interests of the Borrower or its direct or indirect parent entities or capital contribution to Holdings or the Borrower in each case occurring within 120 days prior to such payments, so long as no Event of Default shall exist at the time or immediately following such prepayment.

[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 spouses, ex-spouses, trusts or estates of any of the foregoing) on account of redemptions, purchase, retirement or other acquisition for value of Stock 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 since June 18, 2013 does not exceed $2,000,000 in the aggregate or $500,000 in any 12 month period and (2) any such redemptions, purchases, retirement, other acquisitions for value, or payments since June 18, 2013 in excess of $500,000 in the aggregate shall only be made if (x) if the Existing ABL Credit Agreement is in effect (and is an asset based loan containing “Availability” criteria) immediately after such Restricted Junior Payment, Borrower and Guarantors shall have Excess Availability (as defined in the Existing ABL Credit Agreement as in

effect on the date hereof) of at least $7,500,000 immediately thereafter and (y) if immediately after such Restricted Junior Payment, the Existing ABL Credit Agreement is no longer in effect and/or is not an asset based loan or otherwise does not have any “Availability” criteria, Borrower and Guarantors shall have a Minimum Liquidity of at least $7,500,000 immediately thereafter; 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 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 Stock of Borrower held by such Persons; provided that such Indebtedness was incurred by such Persons solely to acquire Stock 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 Permitted Preferred Stock) up to the available Builder Basket Amount,

Borrower’s Subsidiaries may make distributions to Borrower for the sole purpose of allowing Borrower to, and Borrower shall use the proceeds thereof solely to make payments, to the extent that such payments are required in the ordinary course of business and relate directly to Borrower and its Subsidiaries, or to services provided for or on behalf of Borrower and its Subsidiaries, in each case that are required to be paid in cash, when due of (i) corporate franchise fees and taxes actually owed by Borrower, (ii) legal and accounting and other professional fees and expenses actually incurred by Borrower, (iii) costs incurred to comply with Borrower’s 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 Solus Loan Documents, or the Loan Documents, (iv) other customary corporate overhead expenses and other operations conducted by Borrower, in each case, in the ordinary course of business, and (v) purchase consideration with respect to an Acquisition permitted under this Agreement;,

so long as Borrower is permitted to make the payments permitted by this Section 6.9, Borrower’s Subsidiaries may make dividends or distributions to Borrower for the purpose of permitting Borrower to make such payments and Borrower agrees to use the proceeds of such dividends or distributions solely for such purpose;,

the payment of any dividend or other distribution on, or the consummation of any irrevocable redemption of, Stock in Borrower or any Subsidiary 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;6.9,

the retirement of any Stock of Borrower by conversion into, or by or in exchange for, Stock (other than Prohibited Preferred Stock), or out of net cash proceeds of the issuance or the sale (other than to a Subsidiary of Borrower) of Stock (other than Prohibited Preferred Stock) of Borrower occurring within 60 days prior to such retirement, or the making of other Restricted Junior Payments out of the net cash proceeds of the sale (other than to a Subsidiary of Borrower) of Stock (other than Prohibited Preferred Stock) of Borrower occurring within 60 days prior to such Restricted Junior Payment;,

repurchase of Stock of Borrower deemed to occur upon the exercise of stock options, warrants or other convertible or exchangeable securities to the extent such Stock represents a portion of the exercise price of those stock options, warrants or other convertible or exchangeable securities or repurchase of such Stock 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 Stock of Borrower or a Subsidiary thereof, and

Borrower may make cash distributions to Holdings solely with the proceeds of the Loans (as defined in the Solus Credit Agreement as in effect on the Second Amendment Effective Date) for the sole purpose of, within 120 days of the Second Amendment Effective Date, purchasing, repurchasing, retiring or canceling the PIK Notes and paying related fees and expenses, so long as no Event of Default shall exist at the time or immediately following such cash distribution, 

(b)Borrower may make cash distributions to Holdings solely with the proceeds of the 2017 Notes for the sole purpose of, substantially simultaneously with the effectiveness of the 2017 Notes Indenture and the issuance of the 2017 Notes, purchasing, repurchasing, exchanging, retiring or canceling the PIK Notes and paying related fees and expenses, and

(c)Borrower may make distributions to Holdings, within 30 days after the Third Amendment Effective Date in the aggregate amount not to exceed $3,000,000 for the sole purpose of repurchasing or redeeming

warrants to purchase Stock of Holdings (or Stock issued upon the exercise of warrants).

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 the PIK Notes, or to pay any fees or interest in cash with respect thereto, other than pursuant to clauseclauses (j) or (k) above.

Accounting Methods

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

.

6.11 6.11 Investments; Controlled Investments

.

Directly or indirectly, make or acquire any Investment, except for (i) Permitted Investments and (ii) so long as no Event of Default shall exist at the time or immediately following such Investment, cash Investments by the Borrower in Holdings with the proceeds of the Loans (as defined in the Solus Credit Agreement as in effect on the Second Amendment Effective Date) solely for the purpose of, within 120 days of the Second Amendment Effective Date, purchasing, repurchasing, retiring or canceling the PIK Notes and to pay related fees and expenses and (iii) so long as no Event of Default shall exist at the time or immediately following such purchase, purchases by the Borrower of the PIK Notes, solely with the proceeds of the Loans (as defined in the Solus Credit Agreement as in effect on the Second Amendment Effective Date), within 120 days of the Second Amendment Effective Date, and to pay related fees and expenses.

Other than (i) an aggregate amount of not more than $250,000 at any one time, in the case of Borrower and the other Loan Parties, (ii) Excluded Deposit Accounts, (iii) amounts on deposit securing any Liens permitted under clauses (e), (p), (s), (t) and (u) of the definition of Permitted Liens, and (iv) controlled disbursement accounts that do not maintain cash balances, zero balance accounts and local terminal accounts which do 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, in each case, of the Loan Parties, unless Borrower or the applicable Loan Party and the applicable bank or securities intermediary have entered into Control Agreements with Agent governing such Permitted Investments in order to perfect (and further establish) Agent’s Liens in such Permitted Investments. Except as otherwise provided in this Section 6.11(b), neither Borrower nor the other Loan Parties shall establish or maintain any Deposit Account or Securities Account unless Agent shall have received a Control Agreement in respect of such Deposit Account or Securities Account.

Notwithstanding the foregoing or anything else herein to the contrary, in no event shall PIK Notes, Notes or Additionalthe 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 clauseclauses (l) or (n) of the definition of “Permitted Investments”, Section 6.7(a)(i), Section 6.9 (j) or (k), Section 6.11(a)(ii) and/or Section 6.11(a)(iii).

Transactions with Affiliates

. Directly or indirectly enter into 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, so long as such transactions (i) are fully disclosed to Agent prior to the consummation thereof, if they involve one or more payments by Borrower or such Subsidiary in excess of $500,000 for any single transaction or series of related transactions, and (ii) 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,

so long as it has been approved by Borrower’s or such Subsidiary’s Board of Directors (or comparable governing body) in accordance with applicable law, any indemnity provided for the benefit of directors (or comparable managers), officers, employees and agents of Borrower or such Subsidiary,

so long as it has been approved by Borrower’s or such Subsidiary’s Board of Directors (or comparable governing body) in accordance with applicable law, the payment (and any agreement, plan or arrangement relating thereto) of reasonable compensation (including bonuses), 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 solely between Loan Parties,

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’s board of directors (or comparable governing body) in accordance with applicable law 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 and has been approved by the applicable Borrower or Subsidiary’s board of directors (or comparable governing body),

transactions permitted by Section 6.3,  Section 6.9,  Section 6.11, or Section 6.14 or any transactions permitted pursuant to clauses (p) and/or (q) of the definition of “Permitted Indebtedness”,

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, and

the 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 general corporate purposes; 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.

Limitation on Issuance of Stock

. Issue or sell or enter into any agreement or arrangement for the issuance and sale of any of its Stock, except that (a) Borrower may issue or sell its common stock or Permitted Preferred Stock and (b) any Subsidiary of Borrower may issue common Stock or Preferred Stock so long as such common Stock or Preferred Stock (other than any minority interests of any Foreign Subsidiary of Borrower as required by law) is issued to, and remains held by, a Loan Party.

[Reserved]

.

[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 and (a) after the Payment in Full of WFCF Priority Debt (as defined in the ABL-Term Loan Intercreditor Agreement), the Loan Parties have used commercially reasonable efforts to provide Agent with an acknowledgment from the third party that it is holding or will hold the Inventory or Equipment for Agent’s benefit (it being understood and agreed that if such an acknowledgement is provided to the ABL Agent, the Solus Agent or the 2017 Notes Agent, an acknowledgment in substantially the same form shall be substantially contemporaneously delivered to Agent) or (b) subject to Intercreditor Agreements, Agent is in possession of the warehouse receipt, where negotiable, covering such Inventory or Equipment.

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 liability to any Loan Party of any ERISA Affiliate in excess of $3,000,000 in the aggregate for the term of this Agreement: (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, fees, or charges due the Lender Group, 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 3 Business Days or (ii) all or any portion of the principal of the Obligations or (b) the Loans, interest or Applicable 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 covenant or other agreement contained in any of (i) Sections 5.1,  5.2,  5.3 (solely if any Loan Party is not in good standing in its jurisdiction of organization), 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), 5.11,  5.13,  5.15 or 5.17 of this Agreement, (ii) Sections 6.1 through 6.16 of this Agreement, or (iii) Section 6 of the Security Agreement;

fails to perform or observe any covenant or other agreement contained in any of Sections 5.3 (other than if any Loan Party is not in good standing in its jurisdiction of organization), 5.4,  5.5,  5.8, and 5.12 of this Agreement and such failure continues for a period of 10 days after the earlier of

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

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 $5,000,000, 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 30 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;

Involuntary Bankruptcy, etc

. If an Insolvency Proceeding is commenced against Borrower or any of its Subsidiaries and any of the following events occur: (a) Borrower or such 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 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, or (e) an order for relief shall have been issued or entered therein;

Restraint of Business

. If Borrower or any of its Subsidiaries is enjoined, restrained, or in any way prevented by court order from continuing to conduct all or any material part of the business affairs of the Loan Parties, taken as a whole;

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 amount of $5,000,000 or more (other than Indebtedness under the Existing ABL Credit Agreement), 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) an event of default (after giving effect to any grace period therefor) in or an involuntary early termination of one or more Hedge Agreements to which a Loan Party or any of its Subsidiaries is a party; (d) an Event of Default as defined in the Existing ABL Credit 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 on the 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 that results in acceleration of the Indebtedness thereunder or continues for more than 20 days after the earlier of notice of such default from the Existing ABL Agent or Borrower having knowledge of such default); and (g) an Event of Default as defined in the Existing ABL Credit Agreement (other than as described in clauses (d), (e) or (f) above); provided that, solely with respect to this clause (g), if such Event of Default is waived or cured in accordance with the provisions of the Existing ABL Credit Agreement, the applicable Event of Default under this Section 8.7(g) 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 under 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, statement, or Record made herein or in any other Loan Document or delivered in writing to Agent or any Lender in connection with 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) 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 under the Guaranty is limited or terminated by operation of law or by such Guarantor (other than in accordance with the terms 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, except to the extent of Permitted Collateral Liens which are permitted to be prior pursuant to the terms of any applicable Loan Document, first priority Lien on the Collateral covered thereby, except (a) as a result of a disposition of the applicable Collateral in a transaction permitted under this Agreement, (b) with respect to Collateral the aggregate value of which, for all such Collateral, does not exceed at any time, $250,000, or (c) as the result of an action or failure to act on the part of Agent; or

Loan Documents

. The validity or enforceability of any 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 that such Loan Party or its Subsidiaries has any liability or obligation purported to be created under any Loan Document.

ERISA

. Excluding the matters disclosed on Schedule 4.31, (a) the institution by the PBGC, a Loan Party, or any ERISA Affiliate of steps to terminate a Plan or to organize, withdraw from or terminate from a Multiemployer Plan or (b) a contribution failure occurs with respect to any Plan sufficient to give rise to a lien under Section 303(k) of ERISA; or (c) the assets of a Loan Party or any ERISA Affiliate are encumbered as a result of security provided to a Plan pursuant to Section 412 of the IRC or Section 306 of ERISA in connection with a request for a minimum funding waiver or extension of the amortization period, or pursuant to Section 401(a)(29) of the IRC or Section 307 of ERISA as a result of a Pension Plan amendment; or (d) a Loan Party or an ERISA Affiliate fails to pay a PBGC

premium with respect to a Pension Plan subject to Title IV of ERISA when due and it remains unpaid for more than 30 days thereafter; or (e) the occurrence of a Prohibited Transaction or Reportable Event with respect to a Plan; or (f) a Loan Party or any of its ERISA Affiliates creates or permits the creation of any accumulated funding deficiency, whether or not waived; provided,  however, that the events listed in clauses (a) through (f) shall not constitute an Event of Default unless, individually or in the aggregate, the occurrence thereof could reasonably be expected to result in a Material Adverse Change.

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.

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 the Applicable 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 Applicable 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 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.